SECOND DIVISION

[G.R. No. 95902. February 4, 1992.]

PEOPLE OF THE PHILIPPINES, plaintiff-

appellee, vs. DON RODRIGUEZA, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYLLABUS

1. CRIMINAL LAW; DANGEROUS DRUGS ACT OF 1972 (RA No. 6425);

ENTRAPMENT; BUY-BUST OPERATION; REQUISITE THEREOF; NOT
COMPLIED WITH IN CASE AT BAR. — A buy-bust operation is a form of
entrapment employed by peace officers to trap and catch a malefactor
in flagrante delicto. Applied to the case at bar, the term in flagrante
delicto requires that the suspected drug dealer must be caught redhanded in the
act of selling marijuana or any prohibited drug to a person acting or posing as a
buyer. In the instant case, however, the procedure adopted by the NARCOM
agents failed to meet this qualification. Based on the very evidence of the
prosecution, after the alleged consummation of the sale of dried marijuana
leaves, CIC Taduran immediately released appellant Rodrigueza instead of
arresting and taking him into his custody. This act of CIC Taduran,
assuming arguendo that the supposed sale of marijuana did take place, is
decidedly contrary to the natural course of things and inconsistent with the
aforestated purpose of a buy-bust operation. It is rather absurd on his part to let
appellant escape without having been subjected to the sanctions imposed by
law. It is, in fact, a dereliction of duty by an agent of the law.
2. ID.; ID.; CONFISCATED MARIJUANA LEAVES AND OTHER PROHIBITED
DRUG PARAPHERNALIA CONSTITUTES THE CORPUS DELICTI OF THE
CRIME; PROOF OF THEIR EXISTENCE NECESSARY. —
In People vs. Rubio (142 SCRA 329 [1986]), this Court had the occasion to rule
that the plastic bag and the dried marijuana leaves contained therein constitutes
the corpus delicti of the crime. As such, the existence thereof must be proved
with certainty and conclusiveness. Failure to do so would be fatal to the cause of
the prosecution.
3. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF A PERSON UNDER
CUSTODIAL INVESTIGATION; WAIVER THEREOF MUST BE MADE WITH
ASSISTANCE AND IN THE PRESENCE OF COUNSEL. — The admissibility of
the sworn statement allegedly executed by appellant was squarely placed in
issue and, as correctly pointed out by the defense, said sworn statement is
inadmissible in evidence against appellant. We have once again to reiterate and
emphasize that Article III of the 1987 Constitution provides: "Sec. 12 (1). Any
person under investigation for the commission of an offense shall have the right
to be informed of his right to remain silent and to have a competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be
waived except in writing and in the presence of counsel. . . . (3) Any confession
or admission obtained in violation of this or section 17 hereof shall be
inadmissible in evidence against him." An examination of said sworn statement
shows that appellant was informed of his constitutional right to remain silent and
to be assisted by counsel during custodial examination. He was also asked if he
was waiving his right to be assisted by counsel and he answered in the
affirmative. However, while the rights of a person under custodial investigation
may be waived, such waiver must be made not only voluntarily, knowingly and
intelligently but also in the presence and with the assistance of counsel
(People vs. Olaes, 188 SCRA 91 [1990]; People vs. Hernandez, et al., 162
SCRA 422 [1988]). In the present case, the waiver made by appellant being
without the assistance of counsel, this omission alone is sufficient to invalidate
said sworn statement (People vs. Nolasco, 163 SCRA 623 [1988]).
4. ID.; ID.; SEARCH AND SEIZURE; SEARCH WARRANT REQUIRED;
EXCEPTIONS; CASE AT BAR. — As provided in the present Constitution, a
search, to be valid, must generally be authorized by a search warrant duly issued
by the proper government authority (Section 2, Article III, 1987 Constitution).
True, in some instances, this Court has allowed government authorities to
conduct searches and seizures even without a search warrant. Thus, when the
owner of the premises waives his right against such incursion; when the search
is incidental to a lawful arrest; when it is made on vessels and aircraft for
violation of customs laws; when it is made on automobiles for the purpose of
preventing violations of smuggling or immigration laws; when it involves
prohibited articles in plain view; or in cases of inspection of buildings and other
premises for the enforcement of fire, sanitary and building regulations, a search
may be validly made even without a search warrant. In the case at bar, however,
the raid conducted by the NARCOM agents in the house of
Jovencio Rodrigueza was not authorized by any search warrant. It does not
appear, either, that the situation falls under any of the aforementioned cases.
Hence, appellant's right against unreasonable search and seizure was clearly
violated. The NARCOM agents could not have justified their act by invoking the
urgency and necessity of the situation because the testimonies of the
prosecution witnesses reveal that the place had already been put under
surveillance for quite some time. Had it been their intention to conduct the raid,
then they should, because they easily could, have first secured a search warrant
during that time.
5. REMEDIAL LAW; EVIDENCE; TESTIMONY OF WITNESSES; CREDIBILITY
THEREOF AFFECTED BY MATERIAL INCONSISTENCIES. — It is accepted
that, as a rule, minor inconsistencies in the testimony of a witness will not affect
his credibility. It even enhances such credibility because it only shows that he
has not been rehearsed. However, when the inconsistencies pertain to material
and crucial points, the same detract from his overall credibility.
6. ID.; ID.; TESTIMONY OF ACCUSED; GIVEN CREDENCE. — We are
constrained to give more credibility to the testimony of appellant Rodrigueza.
While it is true that appellant's defense amounts to an alibi, and as such is the
weakest defense in a criminal prosecution, there are, nonetheless, some
evidentiary aspects pointing to the truth in his testimony. Firstly, the Joint Affidavit
of Arrest corroborates his testimony that he was not among those who were
arrested on the night of July 1, 1987. His co-accused Segovia also testified that
appellant Rodriguezawas not with them when they were apprehended by the
NARCOM agents. Secondly, the apparent motive of the NARCOM agents in
prosecuting the accused was also revealed during the trial of the case. Rebuttal
witnesses Gracita Bahillo, sister of appellant, and Hospicio Segovia, father of
Samuel Segovia, testified that Sgt. Moliñawe, who has since been reportedly
dismissed from the service, asked for P10,000.00 from each of them in exchange
for the liberty of the accused. This allegation was never refuted by the
prosecution.
7. ID.; ID.; PROOF REQUIRED IN CRIMINAL CASES; BEYOND REASONABLE
DOUBT NOT ESTABLISHED IN CASE AT BAR. — The Court has repeatedly
ruled that to sustain the conviction of the accused, the prosecution must rely on
the strength of its own evidence and not on the weakness of the defense. As
clearly shown by the evidence, the prosecution has failed to establish its cause. It
has not overcome the presumption of innocence accorded to appellant. This
being the case, appellant should not be allowed to suffer for unwarranted and
imaginary imputations against him.

DECISION

REGALADO, J : p

On appeal before us is the decision of the Regional Trial Court of Legaspi City,
Branch 10, finding accused-appellant Don Rodrigueza guilty beyond reasonable
doubt of violating Section 4, Article II of the Dangerous Drugs Act of
1972 (Republic Act No. 6425, as amended) and sentencing him to suffer the
penalty of life imprisonment and to pay a fine of P20,000.00 and costs. 1
However, the Solicitor General, deviating from his conventional stance in the
prosecution of criminal cases, recommends the acquittal of appellant for the
reasons stated in his Manifestation for Acquittal (In Lieu of Appellee's Brief) filed
with the Court. We have reviewed and analyzed the testimonial and documentary
evidence in this case and we find said recommendation to be well taken. cdrep

The information, dated July 10, 1987, charges Don Rodrigueza and his co-
accused, Samuel Segovia and Antonio Lonceras, with allegedly having in their
custody and possession 100 grams of marijuana leaves and for selling, in a buy-
bust operation, said 100 grams of dried marijuana leaves for a consideration of
P200.00. 2
During the arraignment, all the accused pleaded not guilty to the charge against
them. At the trial, the prosecution and the defense presented several witnesses
after which the court a quo rendered judgment acquitting Samuel Segovia and
Antonio Lonceras but convicting and penalizing herein appellant as hereinbefore
stated.
The following facts are culled from the decision of the trial court and the evidence
presented by the prosecution.
At around 5:00 o'clock in the afternoon of July 1, 1987, CIC Ciriaco Taduran was
in their headquarters at the Office of the Narcotics Regional Unit at Camp
Bagong Ibalon, Legaspi City, together with S/Sgt. Elpidio Moliñawe, CIC
Leonardo B. Galutan and their commanding officer, Major Crisostomo M.
Zeidem, when a confidential informer arrived and told them that there was an
ongoing illegal traffic of prohibited drugs in Tagas, Daraga, Albay. Major Zeidem
formed a team to conduct a buybust operation, which team was given P200.00 in
different denominations to buy marijuana. These bills were treated with ultraviolet
powder at the Philippine Constabulary Crime Laboratory (PCCL). Sgt. Moliñawe
gave the money to Taduran who acted as the poseur buyer. He was told to look
for a certain Don, the alleged seller of prohibited drugs. Taduran went to Tagas
alone and, while along the road, he met Samuel Segovia. He asked Segovia
where he could find Don and where he could buy marijuana. Segovia left for a
while and when he returned, he was accompanied by a man who was later on
introduced to him as Don, herein appellant. 3

After agreeing on the price of P200.00 for 100 grams of marijuana, Don halted a
passing tricycle driven by Antonio Lonceras. He boarded it and left Taduran and
Segovia. When he came back, Don gave Taduran "a certain object wrapped in a
plastic" which was later identified as marijuana, and received payment therefor.
Thereafter, Taduran returned to the headquarters and made a report regarding
his said purchase of marijuana. 4
Based on that information, Major Zeidem ordered a team to conduct an operation
to apprehend the suspects. In the evening of the same date, CIC Galutan and
S/Sgt. Moliñawe proceeded to Regidor Street, Daraga, Albay and arrested
appellant, Antonio Lonceras and Samuel Segovia. The constables were not,
however, armed with a warrant of arrest when they apprehended the three
accused. The arrestees were brought to the headquarters for investigation. 5
Thereafter, agents of the Narcotics Command (NARCOM) conducted a raid in
the house of Jovencio Rodrigueza, father of appellant. Taduran did not go with
them. During the raid, they were able to confiscate dried marijuana leaves and a
plastic syringe, among others. The search, however, was not authorized by any
search warrant. 6
The next day, July 2, 1987, Jovencio Rodrigueza was released from detention
but appellant was detained. An affidavit, allegedly taken from and executed by
him, was sworn to by him before the assistant city prosecutor. Appellant had no
counsel when his sworn statement was taken during that custodial investigation.
The arrestees were also examined by personnel of the PCCL and were found
positive for ultraviolet powder. 7
The three accused presented different versions of their alleged participations.
Samuel Segovia testified that he was in their house in the evening of July 1, 1987
listening to the radio. Later, he ate his merienda and then went out to buy
cigarettes from the store. While he was at the store, a jeep stopped behind him.
Several armed men alighted therefrom and ordered him to get inside the jeep. He
refused but he was forced to board the vehicle. He was even hit by the butt of a
gun. 8
He was thereafter brought to Camp Bagong Ibalon where he was investigated
and was repeatedly asked regarding the whereabouts of Rodrigueza. He was
manhandled by the NARCOM agents and was detained while inside the camp.
He was then made to hold a P10.00 bill treated with ultraviolet powder. When he
was taken to the PCCL and examined, he was found positive of the ultraviolet
powder. He was also made to sign some papers but he did not know what they
were all about. 9
Appellant, on the other hand, testified that on said date he was in the house of
his aunt in San Roque, Legaspi City. He stayed there overnight and did not leave
the place until the next day when his brother arrived and told him that their father
was taken by some military men the preceding night. Appellant went to Camp
Bagong Ibalon and arrived there at around 8:00 o'clock in the morning of July 2,
1987. When he arrived, he was asked if he knew anything about the marijuana
incident, to which question he answered in the negative. Like Segovia, he was
made to hold a P10.00 bill and was brought to the crime laboratory for
examination. From that time on, he was not allowed to go home and was
detained inside the camp. He was also tortured in order to make him admit his
complicity in the alleged sale of marijuana. 1 0
In the assignment of errors in his brief, appellant contends that the trial court
erred in (1) admitting in evidence the sworn statement of appellant which was
obtained in violation of his constitutional rights; (2) convicting appellant of the
crime charged despite the fact that the 100 grams of dried marijuana leaves
allegedly bought from him were not properly identified; (3) convicting appellant of
the crime charged despite the fact that the evidence for the prosecution is weak
and not convincing; and (4) finding appellant guilty beyond reasonable doubt of
selling or at least acting as broker in the sale of the 100 grams of marijuana to
CIC Taduran late in the afternoon of July 1, 1987, despite the failure of the
prosecution to prove his guilt beyond reasonable doubt. 11
We rule for the appellant and approve the recommendation for his acquittal. In
disposing of this case, however, we feel that the issues raised by appellant
should properly be discussedseriatim.
1. A buy-bust operation is a form of entrapment employed by peace officers to
trap and catch a malefactor in flagrante delicto. 12 Applied to the case at bar, the
term in flagrante delicto requires that the suspected drug dealer must be caught
redhanded in the act of selling marijuana or any prohibited drug to a person
acting or posing as a buyer.
In the instant case, however, the procedure adopted by the NARCOM agents
failed to meet this qualification. Based on the very evidence of the prosecution,
after the alleged consummation of the sale of dried marijuana leaves, CIC
Taduran immediately released appellant Rodrigueza instead of arresting and
taking him into his custody. This act of CIC Taduran, assuming arguendo that the
supposed sale of marijuana did take place, is decidedly contrary to the natural
course of things and inconsistent with the aforestated purpose of a buy-bust
operation. It is rather absurd on his part to let appellant escape without having
been subjected to the sanctions imposed by law. It is, in fact, a dereliction of duty
by an agent of the law.
2. The admissibility of the sworn statement allegedly executed by appellant was
squarely placed in issue and, as correctly pointed out by the defense, said sworn
statement is inadmissible in evidence against appellant.
We have once again to reiterate and emphasize that Article III of the 1987
Constitution provides:
"Sec. 12 (1). Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain silent
and to have a competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and
in the presence of counsel.
xxx xxx xxx
(3) Any confession or admission obtained in violation of this or section
17 hereof shall be inadmissible in evidence against him."
An examination of said sworn statement shows that appellant was informed of
his constitutional right to remain silent and to be assisted by counsel during
custodial examination. He was also asked if he was waiving his right to be
assisted by counsel and he answered in the affirmative. However, while the
rights of a person under custodial investigation may be waived, such waiver must
be made not only voluntarily, knowingly and intelligently but also in the presence
and with the assistance of counsel. 13 In the present case, the waiver made by
appellant being without the assistance of counsel, this omission alone is
sufficient to invalidate said sworn statement. 14
3. Corollary to this, we take cognizance of the error of the trial court in admitting
in evidence against appellant the articles allegedly confiscated during the raid
conducted in the house of Jovencio Rodrigueza. cdll

As provided in the present Constitution, a search, to be valid, must generally be

authorized by a search warrant duly issued by the proper government
authority. 15 True, in some instances, this Court has allowed government
authorities to conduct searches and seizures even without a search warrant.
Thus, when the owner of the premises waives his right against such
incursion; 16 when the search is incidental to a lawful arrest; 17 when it is made
on vessels and aircraft for violation of customs laws; 18 when it is made on
automobiles for the purpose of preventing violations of smuggling or immigration
laws; 19 when it involves prohibited articles in plain view; 20 or in cases of
inspection of buildings and other premises for the enforcement of fire, sanitary
and building regulations, 21 a search may be validly made even without a search
warrant.
In the case at bar, however, the raid conducted by the NARCOM agents in the
house of Jovencio Rodrigueza was not authorized by any search warrant. It does
not appear, either, that the situation falls under any of the aforementioned cases.
Hence, appellant's right against unreasonable search and seizure was clearly
violated. The NARCOM agents could not have justified their act by invoking the
urgency and necessity of the situation because the testimonies of the
prosecution witnesses reveal that the place had already been put under
surveillance for quite some time. Had it been their intention to conduct the raid,
then they should, because they easily could, have first secured a search warrant
during that time.
4. The Court further notes the confusion and ambiguity in the identification of the
confiscated marijuana leaves and other prohibited drug paraphernalia presented
as evidence against appellant.
CIC Taduran, who acted as the poseur buyer, testified that appellant sold him
100 grams of dried marijuana leaves wrapped in a plastic bag. Surprisingly, and
no plausible explanation has been advanced therefor, what were submitted to
and examined by the PCCL and thereafter utilized as evidence against the
appellant were the following items:
"One (1) red and white colored plastic bag containing the following:
Exh. 'A' — Thirty (30) grams of suspected dried marijuana fruiting tops
contained inside a transparent plastic bag.
Exh. 'B' — Fifty (50) grams of suspected dried marijuana leaves and
seeds contained inside a white colored plastic labelled 'Robertson'.
Exh. 'C' — Four (4) aluminum foils each containing suspected dried
marijuana fruiting tops having a total weight of seven grams then further
wrapped with a piece of aluminum foil.

Exh. 'D' — Five (5) small transparent plastic bags each containing
suspected dried marijuana fruiting tops having a total weight of
seventeen grams.
Exh. 'E' — One plastic syringe." 22
Evidently, these prohibited articles were among those confiscated during the so-
called follow-up raid in the house of Jovencio Rodrigueza. The unanswered
question then arises as to the identity of the marijuana leaves that became the
basis of appellant's conviction. 23 In People vs. Rubio, 24 this Court had the
occasion to rule that the plastic bag and the dried marijuana leaves contained
therein constitutes the corpus delicti of the crime. As such, the existence thereof
must be proved with certainty and conclusiveness. Failure to do so would be fatal
to the cause of the prosecution. cdphil

5. It is accepted that, as a rule, minor inconsistencies in the testimony of a

witness will not affect his credibility. It even enhances such credibility because it
only shows that he has not been rehearsed. 25 However, when the
inconsistencies pertain to material and crucial points, the same detract from his
overall credibility.
The exception, rather than the rule, applies in the case at bar. As correctly
pointed out by the Solicitor General, the testimonies of the prosecution witnesses
are tainted with serious flaws and material inconsistencies rendering the same
incredible. 26
CIC Taduran, in his testimony, said that they had already been conducting
surveillance of the place where the buy-bust operation was to take place. It
turned out, however, that he did not even know the exact place and the identity of
the person from whom he was to buy marijuana leaves. Thus:
"FISCAL TOLOSA:
Q What place in Tagas were you able to go (to)?
WITNESS.
A I am not actually familiar in (sic) that place, in Tagas, although we
occasionally passed there.
Q Now, upon your arrival in Tagas, what did you do that afternoon?
A I waited for the suspect because previously, we have already been
conducted (sic) surveylance (sic) in the vicinity.
Q Upon arrival in Tagas, were you able to see the suspect?
A By the road, sir.
Q Who was the first person did you see (sic) when you arrived at Tagas?
A The first person whom I saw is Samuel Segovia.
Q Were you able to talk with this Samuel Segovia?
A According to him, we could get some." 27

The same findings go for the testimony of witness Galutan. In his direct
examination, he declared that they arrested the three accused all at the same
time on the fateful night of July 1, 1987. But, in his cross-examination and as
corroborated by the Joint Affidavit of Arrest 28 submitted by him and Moliñawe, it
appeared that Lonceras and Segovia were arrested on different times and that
appellant Don Rodrigueza was not among those who were arrested. Instead, it
was Jovencio Rodrigueza, Don's father, who was picked up at a much later time.
With said inconsistencies in sharp focus, we are constrained to give more
credibility to the testimony of appellant Rodrigueza. While it is true that
appellant's defense amounts to an alibi, and as such is the weakest defense in a
criminal prosecution, there are, nonetheless, some evidentiary aspects pointing
to the truth in his testimony. Firstly, the Joint Affidavit of Arrest corroborates his
testimony that he was not among those who were arrested on the night of July 1,
1987. His co-accused Segovia also testified that appellant Rodrigueza was not
with them when they were apprehended by the NARCOM agents.
Secondly, the apparent motive of the NARCOM agents in prosecuting the
accused was also revealed during the trial of the case. Rebuttal witnesses
Gracita Bahillo, sister of appellant, and Hospicio Segovia, father of Samuel
Segovia, testified that Sgt. Moliñawe, who has since been reportedly dismissed
from the service, asked for P10,000.00 from each of them in exchange for the
liberty of the accused. 29 This allegation was never refuted by the prosecution.
Hence, the rule laid down by this Court that the statements of prosecution
witnesses are entitled to full faith and credit 30 has no application in the case at
bar.
Finally, the Court has repeatedly ruled that to sustain the conviction of the
accused, the prosecution must rely on the strength of its own evidence and not
on the weakness of the defense.31 As clearly shown by the evidence, the
prosecution has failed to establish its cause. It has not overcome the
presumption of innocence accorded to appellant. This being the case, appellant
should not be allowed to suffer for unwarranted and imaginary imputations
against him.
WHEREFORE, the judgment of conviction of the court below is hereby
REVERSED and SET ASIDE and accused-appellant Don Rodrigueza is hereby
ACQUITTED of the crime charged. It is hereby ordered that he be immediately
released from custody unless he is otherwise detained for some other lawful
cause.
SO ORDERED.
Melencio-Herrera, Paras, Padilla and Nocon, JJ., concur.
||| (People v. Rodrigueza, G.R. No. 95902, [February 4, 1992], 282 PHIL 829-842)
 EN BANC

[G.R. No. 101837. February 11, 1992.]

ROLITO GO y
TAMBUNTING, petitioner, vs. THE COURT OF APPEALS; THE
HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168,
Regional Trial Court, NCJR Pasig, M.M.; and PEOPLE OF THE
PHILIPPINES, respondents.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARREST

UNDER SEC. 5, RULE 113, NOT APPLICABLE IN CASE AT BAR. —We do not
believe that the warrantless "arrest" or detention of petitioner in the instant case
falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal
Procedure which provides as follows: "Sec. 5. Arrest without warrant; when
lawful. — A peace officer or a private person may, without a warrant, arrest a
person: (a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense; (b) When an offense
has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it; and (c) When the
person to be arrested is a prisoner who has escaped from a penal establishment
or place where he is serving final judgment or temporarily confined while his case
is pending, or has escaped while being transferred from one confinement to
another. In cases falling under paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forthwith delivered to the nearest police
station or jail, and he shall be proceeded against in accordance with Rule 112,
Section 7." Petitioner's "arrest" took place six (6) days after the
shooting of Maguan. The arresting officers obviously were not present, within the
meaning of Section 5(a), at the time petitioner had allegedly shot Maguan.
Neither could the "arrest" effected six (6) days after the shooting be reasonably
regarded as effected "when [the shooting had] in fact just been committed" within
the meaning of Section 5 (b). Moreover, none ofthe "arresting" officers had any
"personal knowledge" of facts indicating that petitioner was the gunman who had
shot Maguan. The information upon which the police acted had been derived
from statements made by alleged eyewitnesses to the shooting -- one stated that
petitioner was the gunman; another was able to take down the alleged gunman's
car's plate number which turned out to be registered in petitioner's wife's name.
That information did not, however, constitute "personal knowledge." It is thus
clear to the Court that there was no lawful warrantless arrest of petitioner within
the meaning of Section 5 of Rule 113.
2. ID.; ID.; ID.; ACCUSED ENTITLED TO A PRELIMINARY INVESTIGATION
WITHOUT ANY CONDITIONS. — Petitioner was not arrested at all. When he
walked into the San Juan Police Station, accompanied by two (2) lawyers, he in
fact placed himself at the disposal of the police authorities. He did not state that
he was "surrendering" himself, in all probability to avoid the implication he was
admitting that he had slain Eldon Maguan or that he was otherwise guilty of a
crime. When the police filed a complaint for frustrated homicide with the
Prosecutor, the latter should have immediately scheduled a preliminary
investigation to determine whether there was probable cause for charging
petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the
Prosecutor proceeded under the erroneous supposition that Section 7 of Rule
112 was applicable and required petitioner to waive the provisions of Article
125 of the Revised Penal Code as a condition for carrying out a preliminary
investigation. This was substantive error, for petitioner was entitled to a
preliminary investigation and that right should have been accorded him without
any conditions. Moreover, since petitioner had not been arrested, with or without
a warrant, he was also entitled to be released forthwith subject only to his
appearing at the preliminary investigation.
3. ID.; ID.; ID.; RIGHT TO PRELIMINARY INVESTIGATION; NO WAIVER
THEREOF MADE IN CASE AT BAR. — Turning to the second issue of whether
or not petitioner had waived his right to preliminary investigation, we note that
petitioner had from the very beginning demanded that a preliminary investigation
be conducted. As earlier pointed out, on the same day that the information for
murder was filed with the Regional Trial Court, petitioner filed with the Prosecutor
an omnibus motion for immediate release and preliminary investigation. The
Solicitor General contends that that omnibus motion should have been filed with
the trial court and not with the Prosecutor, and that petitioner should accordingly
be held to have waived his right to preliminary investigation. We do not believe
that waiver of petitioner's statutory right to preliminary investigation may be
predicated on such a slim basis. The preliminary investigation was to be
conducted by the Prosecutor, not by the Regional Trial Court. It is true that at the
time of filing of petitioner's omnibus motion, the information for murder had
already been filed with the Regional Trial Court: it is not clear from the record
whether petitioner was aware of this fact at the time his omnibus motion was
actually filed with the Prosecutor. Nonetheless, since petitioner in his omnibus
motion was asking for preliminary investigation and not for a re-investigation and
since the Prosecutor himself did file with the trial court, on the 5th day after filing
the information for murder, a motion for leave to conduct preliminary investigation
(attaching to his motion a copy of petitioner's omnibus motion), we conclude that
petitioner's omnibus motion was in effect filed with the trial court. What was
crystal clear was that petitioner did ask for a preliminary investigation on the very
day that the information was filed without such preliminary investigation, and that
the trial court was five (5) days later apprised of the desire of the petitioner for
such preliminary investigation. Finally, the trialcourt did in fact grant the
Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even on
the (mistaken) supposition apparently made by the Prosecutor that Section
7 ofRule 112 of the Revised Court was applicable, the 5-day reglementary period
in Section 7, Rule 112 must be held to have been substantially complied with.
We believe and so hold that petitioner did not waive his right to a preliminary
investigation. The rule is that the right to preliminary investigation is waived when
the accused fails to invoke it before or at the time ofentering a plea at
arraignment. In the instant case, petitioner Go had vigorously insisted on his right
to preliminary investigation before his arraignment. We do not believe that by
posting bail, petitioner had waived his right to preliminary investigation.
Petitioner Go asked for release on recognizance or on bail and for preliminary
investigation in one omnibus motion. He had thus claimed his right to preliminary
investigation before respondent Judge approved the cash bond posted by
petitioner and ordered his release on 12 July 1991. Accordingly, we cannot
reasonably imply waiver of preliminary investigation on the part of petitioner. In
fact, when the Prosecutor filed a motion in court asking for leave to conduct
preliminary investigation, he clearly if impliedly recognized that petitioner's claim
to preliminary investigation was a legitimate one.
4. ID.; ID.; ID.; ID.; A SUBSTANTIVE RIGHT AND A COMPONENT
PART OF DUE PROCESS. — While the right to a preliminary investigation is
statutory rather than constitutional in its fundament, since it has in fact been
established by statute, it is a component part of due process in criminal justice.
The right to have a preliminary investigation conducted before being bound over
to trial for a criminal offense and hence formally at risk of incarceration or some
other penalty, is not a mere formal or technical right; it is a substantive right. The
accused in a criminal trial is inevitably exposed to prolonged anxiety,
aggravation, humiliation, not to speak of expense; the right to an opportunity to
avoid a process painful to any one save, perhaps, to hardened criminals, is a
valuable right. To deny petitioner's claim to a preliminary investigation would be
to deprive him of the full measure of his right to due process.
5. ID.; ID.; FAILURE TO ACCORD PRELIMINARY INVESTIGATION DOES NOT
IMPAIR VALIDITY OF INFORMATION FILED. — Contrary to petitioner's
contention the failure to accord preliminary investigation, while constituting a
denial of the appropriate and full measure of the statutory process of criminal
justice, did not impair the validity of the information for murder nor affect the
jurisdiction of the trial court.
6. ID.; ID.; ACCUSED ENTITLED TO PRELIMINARY INVESTIGATION EVEN
THOUGH TRIAL ON THE MERITS HAS ALREADY BEGAN. — We consider that
petitioner remains entitled to a preliminary investigation although trial on the
merits has already began. Trial on the merits should be suspended or held in
abeyance and a preliminary investigation forthwith accorded to petitioner. The
constitutional point is that petitioner was not accorded what he was entitled to by
way of procedural due process. Petitioner was forced to undergo arraignment
and literally pushed to trial without preliminary investigation, with extraordinary
haste, to the applause from the audience that filled the courtroom. If he submitted
to arraignment and trial, petitioner did so "kicking and screaming," in a
manner of speaking. During the proceedings held before the trial court on 23
August 1991, the date set for arraignment of petitioner, and just before
arraignment, counsel made very clear petitioner's vigorous protest and objection
to the arraignment precisely because of the denial of preliminary investigation.
7. ID.; ID.; ACCUSED ENTITLED TO BE RELEASED ON BAIL AS A
MATTER OF RIGHT. — In respect of the matter of bail, petitioner remains
entitled to be released on bail as a matter ofright. Should the evidence
already of record concerning petitioner's guilt be, in the reasonable belief of the
Prosecutor, strong, the Prosecutor may move in the trial court for
cancellationof petitioner's bail. It would then be up to the trial court, after a careful
and objective assessment of the evidence on record, to grant or deny the motion
for cancellation of bail. It must also be recalled that the Prosecutor had actually
agreed that petitioner was entitled to bail. This was equivalent to an
acknowledgment on the part of the Prosecutor that the evidence ofguilt then in
his hands was not strong. Accordingly, we consider that the 17 July 1991
order of respondent Judge recalling his own order granting bail and requiring
petitioner to surrender himself within forty-eight (48) hours from notice, was
plainly arbitrary considering that no evidence at all — and certainly
no new or additional evidence — had been submitted to respondent Judge that
could have justified the recall of his order issued just five (5) days before.

8. ID.; ID.; RELIANCE ON THE CASE OF UMIL v. RAMOS, MISPLACED;

OFFENSE COMMITTED NOT CONSIDERED A "CONTINUING CRIME." — The
reliance of both petitioner and the Solicitor General upon Umil v. Ramos (G.R.
No. 81567, promulgated 3 October 1991) is, in the circumstances of this case,
misplaced. In Umil v. Ramos, by an eight-to-six vote, the Courtsustained the
legality of the warrantless arrests of petitioners made from one (1) to fourteen
(14) days after the actual commission of the offenses, upon the ground that such
offenses constituted "continuing crimes." Those offenses were subversion,
membership in an outlawed organization like the New Peoples Army, etc. In the
instant case, the offense for which petitioner was arrested was murder, an
offense which was obviously commenced and completed at one definite location
in time and space. No one had pretended that the fatal shootingof Maguan was a
"continuing crime."
9. CONSTITUTIONAL LAW; STATE SHOULD REAFFIRM ITS OBLIGATION TO
RESPECT THE RIGHTS AND LIBERTIES OF ITS CONSTITUENTS; TO
ACCORD AN ACCUSED HIS RIGHT TO A PRELIMINARY INVESTIGATION
AND TO BAIL IN CASE AT BAR, NOT AN IDLE CEREMONY. — To reach any
other conclusion here, that is, to hold that petitioner's rights to a preliminary
investigation and to bail were effectively obliterated by evidence subsequently
admitted into the record would be to legitimize the deprivation of due process and
to permit the Government to benefit from its own wrong or culpable omission and
effectively to dilute important rights of accused persons well-nigh to the vanishing
point. It may be that to require the State to accord petitioner his rights to a
preliminary investigation and to bail at this point, could turn out ultimately to be
largely a ceremonial exercise. But the Court is not compelled to speculate. And,
in any case, it would not be idle ceremony; rather it would be a celebration by the
State of the rights and liberties of its own people and a re-affirmation of its
obligation and determination to respect those rights and liberties.
CRUZ, J., concurring:
1. REMEDIAL LAW; CRIMINAL PROCEDURE; STATUTORY
RIGHTS OF ACCUSED TO PROCEDURAL DUE PROCESS VITIATED IN
CASE AT BAR. — Petitioner had from the start demanded a preliminary
investigation and that his counsel has reluctantly participated in the trial only
because the court threatened to replace him with a counsel de oficio if he did not.
Under these circumstances, I am convinced that there was no waiver. The
petitioner was virtually compelled to go to trial. Such compulsion and the
unjustified denial of a clear statutory right of the petitioner vitiated the
proceedings as violative of procedural due process.
GUTIERREZ, JR., J., concurring:
1. JUDICIAL ETHICS; COURTS; IMPORTANCE OF FOLLOWING THE RULES
EMPHASIZED. — The need for a trial court to follow the Rules and to be fair,
impartial, and persistent in getting the true facts of a case is present in all cases
but it is particularly important if the accused is indigent; more so, if he is
one of those unfortunates who seem to spend more time behind bars than
outside. Unlike the accused in this case who enjoys the assistance of competent
counsel, a poor defendant convicted by wide and unfavorable media coverage
may be presumed guilty before trial and be unable to defend himself properly.
Hence, the importance of the court always following the Rules.
GRIÑO-AQUINO, J., dissenting:
1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY
INVESTIGATION, NO LONGER NEEDED; RETURN OF CASE TO THE
PROSECUTOR, SUPEREROGATORY. — I do not believe that there is still need
to conduct a preliminary investigation the sole purpose of which would be to
ascertain if there is sufficient ground to believe that a crime was committed
(which the petitioner does not dispute) and that he (the petitioner) is probably
guilty thereof (which the prosecutor, by filing the information against him,
presumably believed to be so). In the present stage of the presentation of the
prosecution's evidence, to return the case to the Prosecutor to conduct a
preliminary investigation under Rule 112 of the 1985 Rules on Criminal
Procedure would be supererogatory.
2. ID.; ID.; RIGHT TO PRELIMINARY INVESTIGATION, NOT A
CONSTITUTIONAL RIGHT. — It should be remembered that as important as is
the right of the accused to a preliminary investigation, it is not a constitutional
right. Its absence is not a ground to quash the information
(Doromal vs. Sandiganbayan, 177 SCRA 354). It does not affect the court's
jurisdiction, nor impair the validity of the information (Rodis vs. Sandiganbayan,
166 SCRA 618), nor constitute an infringement of the right of the accused to
confront witnesses (Bustos vs. Lucero, 81 Phil. 640).
3. ID.; ID.; HEARING OF APPLICATION FOR BAIL; SHOULD NOT BE
SUSPENDED AND SHOULD NOT BE SUBORDINATED TO THE
PRELIMINARY INVESTIGATION OF THE CHARGE. — Thecourt's
hearing of the application for bail should not be subordinated to the preliminary
investigation of the charge. The hearing should not be suspended, but should be
allowed to proceed for it will accomplish a double purpose. The parties will have
an opportunity to show not only: (a) whether or not there is probable cause to
believe that the petitioner killed Eldon Maguan, but more importantly (b) whether
or not the evidence of his guilt is strong. The judge's determination that the
evidence of his guilt is strong would naturally foreclose the need for a preliminary
investigation to ascertain the probability of his guilt. The bail hearing may not be
suspended because upon the filing of an application for bail by one accused of a
capital offense, "the judge is under a legal obligation to receive evidence with the
view of determining whether evidence of guilt is so strong as to warrant
denial of bond."
4. ID.; ID.; ABOLITION OF DEATH PENALTY DID NOT MAKE THE RIGHT TO
BAIL ABSOLUTE; ACCUSED MAY NOT BE RELEASED PENDING
HEARING OF PETITION FOR BAIL. — The abolitionof the death penalty did not
make the right to bail absolute, for persons charged with offenses punishable
by reclusion perpetua, when evidence of guilt is strong, are not bailable (Sec. 3,
Art. III, 1987 Constitution). In People vs. Dacudao, 170 SCRA 489, we called
down the trial court for having granted the motion for bail in a murder case
without any hearing and without giving the prosecution an opportunity to
comment or file objections thereto. Similarly, this Court held in People vs.
Bocar, 27 SCRA 512: ". . . due process also demands that in the matterof bail the
prosecution should be afforded full opportunity to present proof of the guilt of the
accused. Thus, if it were true that the prosecution in this case was
deprived of the right to present its evidence against the bail petition, or that the
order granting such petition was issued upon incomplete evidence, then the
issuance of the order would really constitute abuse ofdiscretion that would call for
the remedy of certiorari." The petitioner may not be released pending the
hearing of his petition for bail for it would be incongruous to grant bail to one who
is not in the custody of the law (Feliciano vs. Pasicolan, 2 SCRA 888).
5. ID.; ID.; TERM "ARREST," CONSTRUED. — Arrest is the taking of a person
into custody in order that he may be bound to answer for the commission of an
offense (Sec. 1, Rule 113, Rules of Court). An arrest is made by an actual
restraint of the person to be arrested, or by his submission to the custody of the
person making the arrest (Sec. 2, Rule 113, Rules of Court). When Go walked
into the San Juan Police Station on July 8, 1991, and placed himself at the
disposal of the police authorities who clamped him in jail after he was identified
by an eyewitness as the person who shot Maguan, he was actually and
effectively arrested. His filing of a petition to be released on bail was a
waiver of any irregularity attending his arrest and estops him from questioning its
validity (Callanta vs. Villanueva, 77 SCRA 377; Bagcal vs. Villaraza, 120 SCRA
525).

DECISION

FELICIANO, J : p

According to the findings of the San Juan Police in their Investigation

Report, 1 on 2 July 1991, Eldon Maguan was driving his car along Wilson St.,
San Juan, Metro Manila, heading towards P. Guevarra St. Petitioner entered
Wilson St., where it is a one-way street and started travelling in the opposite or
"wrong" direction. At the corner of Wilson and J. Abad Santos Sts., petitioner's
and Maguan's cars nearly bumped each other. Petitioner alighted from his car,
walked over and shot Maguan inside his car. Petitioner then boarded his car and
left the scene. A security guard at a nearby restaurant was able to take down
petitioner's car plate number. The police arrived shortly thereafter at the
scene of the shooting and there retrieved an empty shell and one round of live
ammunition for a 9mm caliber pistol. Verification at the Land Transportation
Office showed that the car was registered to one Elsa Ang Go.
The following day, the police returned to the scene of the shooting to find out
where the suspect had come from; they were informed that petitioner had dined
at Cravings Bake Shop shortly before the shooting. The police obtained a
facsimile or impression of the credit card used by petitioner from the
cashier of the bake shop. The security guard of the bake shop was shown a
picture of petitioner and he positively identified him as the same person who had
shot Maguan. Having established that the assailant was probably the petitioner,
the police launched a manhunt for petitioner.
On 8 July 1991, petitioner presented himself before the San Juan Police Station
to verify news reports that he was being hunted by the police; he was
accompanied by two (2) lawyers. The police forthwith detained him. An
eyewitness to the shooting, who was at the police station at that time, positively
identified petitioner as the gunman. That same day, the police promptly filed a
complaint for frustrated homicide 2 against petitioner with the Office of the
Provincial Prosecutor of Rizal. First Assistant Provincial Prosecutor Dennis Villa
Ignacio ("Prosecutor") informed petitioner, in the Presence of his lawyers, that he
could avail himself of his right to preliminary investigation but that he must first
sign a waiver of the provisions of Article 125 ofthe Revised Penal Code.
Petitioner refused to execute any such waiver.

On 9 July 1991, while the complaint was still with the Prosecutor, and before an
information could be filed in court, the victim, Eldon Maguan, died of his gunshot
wound(s). prcd

Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for

frustrated homicide, filed an information for murder 3 before the Regional
Trial Court. No bail was recommended. At the bottom of the information, the
Prosecutor certified that no preliminary investigation had been conducted
because the accused did not execute and sign a waiver ofthe
provisions of Article 125 of the Revised Penal Code.
In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with
the prosecutor an omnibus motion for immediate release and proper preliminary
investigation, 4 alleging that the warrantless arrest of petitioner was unlawful and
that no preliminary investigation had been conducted before the information was
filed. Petitioner also prayed that he be released on recognizance or on bail.
Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the
last page of the motion itself that he interposed no objection to petitioner being
granted provisional liberty on a cash bond of P100,000.00.
On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in
order to expedite action on the Prosecutor's bail recommendation. The case was
raffled to the sala ofrespondent Judge, who, on the same date, approved the
cash bond 6 posted by petitioner and ordered his release. 7 Petitioner was in fact
released that same day.
On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for
leave to conduct preliminary investigation 8 and prayed that in the meantime all
proceedings in the court be suspended. He stated that petitioner had filed before
the Office of the Provincial Prosecutor of Rizal an omnibus motion for immediate
release and preliminary investigation, which motion had been granted by
Provincial Prosecutor Mauro Castro, who also agreed to recommend cash
bail of P100,000.00. The Prosecutor attached to the motion for leave a
copy of petitioner's omnibus motion of 11 July 1991.
Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct
preliminary investigation and cancelling the arraignment set for 15 August 1991
until after the prosecution shall have concluded its preliminary investigation.
On 17 July 1991, however, respondent Judge motu proprio issued an
Order, 10 embodying the following: (1) the 12 July 1991 Order which granted bail
was recalled; petitioner was given 48 hours from receipt of the Order to surrender
himself; (2) the 16 July 1991 Order which granted leave to the prosecutor to
conduct preliminary investigation was recalled and cancelled; (3) petitioner's
omnibus motion for immediate release and preliminary investigation dated 11
July 1991 was treated as a petition for bail and set for hearing on 23 July 1991.
On 19 July 1991, petitioner filed a petition for certiorari, prohibition and
mandamus before the Supreme Court assailing the 17 July 1991 Order,
contending that the information was null and void because no preliminary
investigation had been previously conducted, in violation of his right to due
process. Petitioner also moved for suspension of all proceedings in the case
pending resolution by the Supreme Court of his petition; this motion was,
however, denied by respondent Judge. LLphil

On 23 July 1991, petitioner surrendered to the police.

By a Resolution dated 24 July 1991, this Court remanded the petition
for certiorari, prohibition and mandamus to the Court of Appeals.
On 16 August 1991, respondent Judge issued an order in open court setting the
arraignment of petitioner on 23 August 1991.
On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain
his arraignment.
On 23 August 1991, respondent judge issued a Commitment Order directing the
Provincial Warden of Rizal to admit petitioner into his custody at the Rizal
Provincial Jail. On the same date, petitioner was arraigned. In view,
however, of his refusal to enter a plea, the trial court entered for him a plea of not
guilty. The trial court then set the criminal case for continuous hearings on 19, 24
and 26 September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22
November 1991. 11
On 27 August 1991, petitioner filed a petition for habeas corpus 12 in
the Court of Appeals. He alleged that in view of public respondents' failure to join
issues in the petition for certiorariearlier filed by him, after the lapse of more than
a month, thus prolonging his detention, he was entitled to be released on habeas
corpus.
On 30 August 1991, the Court of Appeals issued the writ of habeas
corpus. 13 The petition for certiorari, prohibition and mandamus, on the one hand,
and the petition for habeas corpus, upon the other, were subsequently
consolidated in the Court of Appeals.
The Court of Appeals, on 2 September 1991, issued a resolution denying
petitioner's motion to restrain his arraignment on the ground that motion had
become moot and academic.
On 19 September 1991, trial of the criminal case commenced and the
prosecution presented its first witness.
On 23 September 1991, the Court of Appeals rendered a consolidated
decision 14 dismissing the two (2) petitions, on the following grounds:
a. Petitioner's warrantless arrest was valid because the offense for which
he was arrested and charged had been "freshly committed." His identity
had been established through investigation. At the time he showed up at
the police station, there had been an existing manhunt for him. During
the confrontation at the San Juan Police Station, one witness positively
identified petitioner as the culprit.
b. Petitioner's act of posting bail constituted waiver of any irregularity
attending his arrest. He waived his right to preliminary investigation by
not invoking it properly and seasonably under the Rules.
c. The trial court did not abuse its discretion when it issued the 17 July
1991 Order because the trial court had the inherent power to amend and
control its processes so as to make them conformable to law and justice.
d. Since there was a valid information for murder against petitioner and a
valid commitment order (issued by the trial judge after petitioner
surrendered to the authorities whereby petitioner was given to the
custody of the Provincial Warden), the petition for habeas corpus could
not be granted.
On 3 October 1991, the prosecution presented three (3) more witnesses at the
trial. Counsel for petitioner also filed a "Withdrawal of Appearance" 15 with the
trial court, with petitioner's conformity.
On 4 October 1991, the present petition for Review on Certiorari was filed. On 14
October 1991, the Court issued a Resolution directing respondent Judge to held
in abeyance the hearingof the criminal case below until further orders from
this Court.
In this Petition for Review, two (2) principal issues need to be addressed: first,
whether or not a lawful warrantless arrest had been effected by the San Juan
Police in respect of petitionerGo; and second, whether petitioner had effectively
waived his right to preliminary investigation. We consider these issues seriatim. LLphil

In respect of the first issue, the Solicitor General argues that under the
facts of the case, petitioner had been validly arrested without warrant. Since
petitioner's identity as the gunman who had shot Eldon Maguan on 2 July 1991
had been sufficiently established by police work, petitioner was validly arrested
six (6) days later at the San Juan Police Station. The Solicitor General
invokes Nazareno v. Station Commander, etc., et al., 16 one of the seven (7)
cases consolidated with In the Matter of the Petition for Habeas
Corpus of Roberto Umil, etc. v. Ramos et al., 17 where a
majority of the Court upheld a warrantless arrest as valid although effected
fourteen (14) days after the killing in connection with which Nazareno had been
arrested. Accordingly, in the view of the Solicitor General, the
provisions of Section 7, Rule 112 of the Rules of Court were applicable and
because petitioner had declined to waive the provisions ofArticle 125 of the
Revised Penal Code, the Prosecutor was legally justified in filing the information
for murder even without preliminary investigation.
On the other hand, petitioner argues that he was not lawfully arrested without
warrant because he went to the police station six (6) days after the shooting
which he had allegedly perpetrated. Thus, petitioner argues, the crime had not
been "just committed" at the time that he was arrested. Moreover, none of the
police officers who arrested him had been an eyewitness to the
shooting of Maguan and accordingly none had the "personal knowledge"
required for the lawfulness of a warrantless arrest. Since there had been no
lawful warrantless arrest, Section 7, Rule 112 of the Rules of Court which
establishes the only exception to the right to preliminary investigation, could not
apply in respect of petitioner.
The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is,
in the circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six
vote, the Court sustained the legality of the warrantless arrests of petitioners
made from one (1) to fourteen (14) days after the actual commission of the
offenses, upon the ground that such offenses constituted "continuing crimes."
Those offenses were subversion, membership in an outlawed organization like
the New Peoples Army, etc. In the instant case, the offense for which petitioner
was arrested was murder, an offense which was obviously commenced and
completed at one definite location in time and space. No one had pretended that
the fatal shooting of Maguan was a "continuing crime."
Secondly, we do not believe that the warrantless "arrest" or
detention of petitioner in the instant case falls within the terms of Section
5 of Rule 113 of the 1985 Rules on Criminal Procedure which provides as
follows:

"Sec. 5. Arrest without warrant; when lawful. — A peace officer or a

private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be created has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has escaped from
a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station
or jail, and he shall be proceeded against in accordance with Rule 112,
Section 7."
Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The
"arresting" officers obviously were not present, within the meaning of Section
5(a), at the time petitioner had allegedly shot Maguan. Neither could the
"arrest" effected six (6) days after the shooting be reasonably regarded as
effected "when [the shooting had] in fact just been committed" within the
meaning of Section 5 (b). Moreover, none of the "arresting" officers had any
"personal knowledge" of facts indicating that petitioner was the gunman who
had shot Maguan. The information upon which the police acted had been
derived from statements made by alleged eyewitnesses to the shooting —
one stated that petitioner was the gunman; another was able to take down the
alleged gunman's car's plate number which turned out to be registered in
petitioner's wife's name. That information did not, however, constitute
"personal knowledge." 18
It is thus clear to the Court that there was no lawful warrantless
arrest of petitioner within the meaning of Section 5 of Rule 113. It is clear too
that Section 7 of Rule 112, which provides:
"Sec. 7. When accused lawfully arrested without warrant. — When a
person is lawfully arrested without a warrant for an offense cognizable by
the Regional Trial Court the complaint or information may be filed by the
offended party, peace officer or fiscal without a preliminary investigation
 having been first conducted, on the basis of the affidavit of the offended
party or arresting office or person.
However, before the filing of such complaint or information, the person
arrested may ask for a preliminary investigation by a proper officer in
accordance with this Rule, but he must sign a waiver of the
provisions of Article 125 of the Revised Penal Code, as amended, with
the assistance of a lawyer and in case of non-availability of a lawyer, a
responsible person of his choice.Notwithstanding such waiver, he may
apply for bail as provided in the corresponding rule and the investigation
must be terminated within fifteen (15) days from its inception. Cdpr

If the case has been filed in court without a preliminary investigation

having been first conducted, the accused may within five (5) days from
the time he learns of the filing of the information, ask for a preliminary
investigation with the same right to adduce evidence in his favor in the
manner prescribed in this Rule." (Underscoring supplied).
is also not applicable. Indeed, petitioner was not arrested at all. When he
walked into the San Juan Police Station, accompanied by two (2) lawyers, he
in fact placed himself at the disposal of the police authorities. He did not state
that he was "surrendering" himself, in all probability to avoid the implication he
was admitting that he had slain Eldon Maguan or that he was otherwise
guilty of a crime. When the police filed a complaint for frustrated homicide with
the Prosecutor, the latter should have immediately scheduled a preliminary
investigation to determine whether there was probable cause for charging
petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier,
the Prosecutor proceeded under the erroneous supposition that Section
7 of Rule 112 was applicable and required petitioner to waive the
provisions of Article 125 of the Revised Penal Code as a condition for carrying
out a preliminary investigation. This was substantive error, for petitioner was
entitled to a preliminary investigation and that right should have been
accorded him without any conditions. Moreover, since petitioner had not been
arrested; with or without a warrant, he was also entitled to be released
forthwith subject only to his appearing at the preliminary investigation.
Turning to the second issue of whether or not petitioner had waived his right to
preliminary investigation, we note that petitioner had from the very beginning
demanded that a preliminary investigation be conducted. As earlier pointed out,
on the same day that the information for murder was filed with the Regional
Trial Court. Petitioner filed with the prosecutor an omnibus motion for immediate
release and preliminary investigation. The Solicitor General contends that
omnibus motion should have been filed with the trial court and not with the
Prosecutor, and that petitioner should accordingly be held to have waived his
right to preliminary investigation. We do not believe that waiver of petitioner's
statutory right to preliminary investigation may be predicated on such a slim
basis. The preliminary investigation was to be conducted by the Prosecutor, not
by the Regional Trial Court. It is true that at the time offiling of petitioner's
omnibus motion, the information for murder had already been filed with the
Regional Trial Court; it is not clear from the record whether petitioner was
aware of this fact at the time his omnibus motion was actually filed with the
Prosecutor. In Crespo v. Mogul, 19 this Court held:
"The preliminary investigation conducted by the fiscal for the
purpose of determining whether a prima facie case exists warranting the
prosecution of the accused is terminated upon the filing of the
information in the proper court. In turn, as above stated, the filing of said
information sets in motion the criminal action against the accused
in Court. Should the fiscal find it proper to conduct a
reinvestigation of the case, at such stage, the
permission of the Court must be secured. After such reinvestigation the
finding and recommendations of the fiscal should be submitted to
 the Court for appropriate action. While it is true that the fiscal has
the quasi judicial discretion to determine whether or not a criminal case
should be filed in court or not, once the case had already been brought
to Court whatever disposition the fiscal may feel should be proper in the
case thereafter should be addressed for the consideration of the Court.
The only qualification is that the action of the Court must not impair the
substantial rights of the accused, or the right of the People to due
process of law.
xxx xxx xxx
The rule therefore in this jurisdiction is that once a complaint or
information is filed in Court any disposition of the case [such] as its
dismissal or the conviction or acquittal of the accused rests in the sound
discretion of the Court. Although the fiscal retains the direction and
control of the prosecution of criminal cases even while the case is
already in Court he cannot impose his opinion on the trial court.
The Court is the best and sole judge on what to do with the case before
it. . . ." 20 (Citations omitted, underscoring supplied).
Nonetheless, since petitioner in his omnibus motion was asking for
preliminary investigation and not for a reinvestigation (Crespo v.
Mogul involved a re-investigation), and since the Prosecutor himself did file
with the trial court, on the 5th day after filing the information for murder, a
motion for leave to conduct preliminary investigation (attaching to his motion a
copy of petitioner's omnibus motion), we conclude that petitioner's omnibus
motion was in effect filed with the trial court. What was crystal clear was that
petitioner did ask for a preliminary investigation on the very day that the
information was filed without such preliminary investigation, and that the
trial court was five (5) days later apprised of the desire ofthe petitioner for
such preliminary investigation. Finally, the trial court did in fact grant the
Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even
on the (mistaken) supposition apparently made by the Prosecutor that Section
7 of Rule 112 of the Revised Court was applicable, the 5-day reglementary
period in Section 7, Rule 112 must be held to have been substantially
complied with. LexLib

We believe and so hold that petitioner did not waive his right to a preliminary
investigation. While that right is statutory rather than constitutional in its
fundament, since it has in fact been established by statute, it is a component
part of due process in criminal justice. 20 The right to have a preliminary
investigation conducted before being bound over to trial for a criminal offense
and hence formally at risk of incarceration or some other penalty, is not a mere
formal or technical right; it is a substantive right. The accused in a criminal trial is
inevitably exposed to prolonged anxiety, aggravation, humiliation, not to
speak of expense; the right to an opportunity to avoid a process painful to any
one save, perhaps, to hardened criminals, is a valuable right. To deny petitioner's
claim to a preliminary investigation would be to deprive him of the full
measure of his right to due process.
The question may be raised whether petitioner still retains his right to a
preliminary investigation in the instant case considering that he was already
arraigned on 23 August 1991. The rule is that the right to preliminary
investigation is waived when the accused fails to invoke it before or at the
time of entering a plea at arraignment. 21 In the instant case, petitioner Go had
vigorously insisted on his right to preliminary investigation before his
arraignment. At the time of his arraignment, petitioner was already before
the Court of Appeals on certiorari, prohibition and mandamus precisely asking for
a preliminary investigation before being forced to stand trial.
Again, in the circumstances of this case, we do not believe that by posting bail,
petitioner had waived his right to preliminary investigation. In People v.
Selfaison, 22 we did hold that appellants there had waived their right to
preliminary investigation because immediately after their arrest, they filed bail
and proceeded to trial "without previously claiming that they did not have the
benefit of a preliminary investigation." 23 In the instant case, petitioner Go asked
for release on recognizance or on bail and for preliminary investigation in one
omnibus motion. He had thus claimed his right to preliminary
investigation before respondent Judge approved the cash bond posted by
petitioner and ordered his release on 12 July 1991. Accordingly, we cannot
reasonably imply waiver of preliminary investigation on the part of petitioner. In
fact, when the Prosecutor filed a motion in court asking for leave to conduct
preliminary investigation, he clearly if impliedly recognized that petitioner's claim
to preliminary investigation was a legitimate one.
We would clarify, however, that contrary to petitioner's contention the failure to
accord preliminary investigation, while constituting a denial of the appropriate
and full measure of the statutory process of criminal justice, did not impair the
validity of the information for murder nor affect the jurisdiction of the trial court. 24
It must also be recalled that the Prosecutor had actually agreed that petitioner
was entitled to bail. This was equivalent to an acknowledgment on the part of the
prosecutor that the evidence of guilt then in his hands was not strong.
Accordingly, we consider that the 17 July 1991 order of respondent Judge
recalling his own order granting bail and requiring petitioner to surrender himself
within forty-eight (48) hours from notice, was plainly arbitrary considering that no
evidence at all — and certainly no new or additional evidence — had been
submitted to respondent Judge that could have justified the recall of his order
issued just five (5) days before. It follows that petitioner was entitled to be
released on bail as a matter ofright.
The final question which the Court must face is this: how does the fact that, in the
instant case, trial on the merits has already commenced, the Prosecutor having
already presented four (4) witnesses, impact upon, firstly, petitioner's right to a
preliminary investigation and secondly, petitioner's right to be released on bail?
Does he continue to be entitled to have a preliminary investigation conducted in
respect of the charge against him? Does petitioner remain entitled to be released
on bail?
Turning first to the matter of preliminary investigation, we consider that petitioner
remains entitled to a preliminary investigation although trial on the merits has
already began. Trial on the merits should be suspended or held in abeyance and
a preliminary investigation forthwith accorded to petitioner. 25 It is true that the
prosecutor might, in view of the evidence that he may at this time have on hand,
conclude that probable cause exists; upon the other hand, the Prosecutor
conceivably could reach the conclusion that the evidence on hand does not
warrant a finding of probable cause. In any event, the constitutional point is that
petitioner was not accorded what he was entitled to by way of procedural due
process. 26 Petitioner was forced to undergo arraignment and literally pushed to
trial without preliminary investigation, with extraordinary haste, to the applause
from the audience that filled the courtroom. If he submitted to arraignment and
trial, petitioner did so "kicking and screaming," in a manner of speaking. During
the proceedings held before the trial court on 23 August 1991, the date set for
arraignment of petitioner, and just before arraignment, counsel made very clear
petitioner's vigorous protest and objection to the arraignment precisely
because of the denial ofpreliminary investigation. 27 So energetic and
determined were petitioner's counsel's protest and objection that an obviously
angered court and prosecutor dared him to withdraw or walkout, promising to
replace him with counsel de oficio. During the trial, just before the prosecution
called its first witness, petitioner through counsel once again reiterated his
objection to going to trial without preliminary investigation; petitioner's counsel
made or record his "continuing objection." 28 Petitioner had promptly gone to the
appellate court on certiorari and prohibition to challenge the lawfulness of the
procedure he was being forced to undergo and the lawfulness of his
detention. 29 If he did not walkout on the trial, and if he cross-examined the
Prosecution's witnesses, it was because he was extremely loath to be
represented by counsel de oficio selected by the trial judge, and to run the
risk of being held to have waived also his right to use what is frequently the only
test of truth in the judicial process.
In respect of the matter of bail, we similarly believe and so hold that petitioner
remains entitled to be released on bail as a matter of right. Should the evidence
already of record concerning petitioner's guilt be, in the reasonable belief of the
Prosecutor, strong, the Prosecutor may move in the trial court for
cancellation of petitioner's bail. It would then be up to the trial court, after a
careful and objective assessment of the evidence on record, to grant or deny the
motion for cancellation of bail.
To reach any other conclusion here, that is, to hold that petitioner's rights to a
preliminary investigation and to bail were effectively obliterated by evidence
subsequently admitted into the record would be to legitimize the
deprivation of due process and to permit the Government to benefit from its own
wrong or culpable omission and effectively to dilute important rights ofaccused
persons well-nigh to the vanishing point. It may be that to require the State to
accord petitioner his rights to a preliminary investigation and to bail at this
point, could turn out ultimately to be largely a ceremonial exercise. But
the Court is not compelled to speculate. And, in any case, it would not
be idle ceremony; rather it would be a celebration by the State ofthe rights and
liberties of its own people and a re-affirmation of its obligation and determination
to respect those rights and liberties.
ACCORDINGLY, the Court Resolved to GRANT the Petition for Review on
Certiorari. The Order of the trial court dated 17 July 1991 is hereby SET ASIDE
and NULLIFIED, and the Decision ofthe Court of Appeals dated 23 September
1991 hereby REVERSED.
The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith
a preliminary investigation of the charge of murder against petitioner Go, and to
complete such preliminary investigation within a period of fifteen (15) days from
commencement thereof. The trial on the merits of the criminal case in the
Regional Trial Court shall be SUSPENDED to await the conclusion of the
preliminary investigation.
Meantime, petitioner is hereby ORDERED released forthwith upon posting of a
cash bail bond of One Hundred Thousand Pesos (P100,000.00). This release
shall be without prejudice to any lawful order that the trial court may issue, should
the Office of the Provincial Prosecutor move for cancellation of bail at the
conclusion of the preliminary investigation.
No pronouncement as to costs. This Decision is immediately executory.
SO ORDERED.
Narvasa, C.J., Bidin, Medialdea, Romero and Nocon, JJ., concur.
(Go y Tambunting v. Court of Appeals, G.R. No. 101837, [February 11, 1992],
|||

283 PHIL 24-58)

 FIRST DIVISION

[G.R. No. 89139. August 2, 1990.]

ROMEO POSADAS y ZAMORA, petitioner, vs. THE

HONORABLE COURT OF APPEALS and THE PEOPLE OF THE
PHILIPPINES, respondents.

Rudy G. Agravante for petitioner.

SYLLABUS

1. REMEDIAL LAW; REVISED RULES ON CRIMINAL PROCEDURE; ARREST

WITHOUT WARRANT; SEC. 5, RULE 113 THEREOF. — From the foregoing
provision of law it is clear that an arrest without a warrant may be effected by a
peace officer or private person, among others, when in his presence the person
to be arrested has committed, is actually committing, or is attempting to commit
an offense; or when an offense has in fact just been committed, and he has
personal knowledge of the facts indicating that the person arrested has
committed it.
2. CONSTITUTIONAL LAW; BILL OF RIGHTS; WARRANTLESS SEARCH AND
SEIZURE; NOT INCIDENTAL TO A LAWFUL ARREST IN THE CASE AT BAR.
— The Solicitor General, in justifying the warrantless search and seizure of the
buri bag then carried by the petitioner, argued that when the two policemen
approached the petitioner, he was actually committing or had just committed the
offense of illegal possession of firearms and ammunitions in the presence of the
police officers and consequently the search and seizure of the contraband was
incidental to the lawful arrest in accordance with Section 12, Rule 126 of the
1985 Rules on Criminal Procedure. We disagree. At the time the peace officers
in this case identified themselves and apprehended the petitioner as he
attempted to flee they did not know that he had committed, or was actually
committing the offense of illegal possession of firearms and ammunitions. They
just suspected that he was hiding something in the buri bag. They did now know
what its contents were. The said circumstances did not justify an arrest without a
warrant.
3. ID.; ID.; ID.; CAN BE VALIDLY EFFECTED WITHOUT BEING PRECEDED
BY AN ARREST; CASE AT BAR. — However, there are many instances where a
warrant and seizure can be effected without necessarily being preceded by an
arrest, foremost of which is the "stop and search" without a search warrant at
military or police checkpoints, the constitutionality or validity ofwhich has been
upheld by this Court in Valmonte vs. de Villa. As between a warrantless search
and seizure conducted at military or police checkpoints and the search thereat in
the case at bar, there is no question that, indeed, the latter is more reasonable
considering that unlike in the former, it was effected on the basis of a probable
cause. The probable cause is that when the petitioner acted suspiciously and
attempted to flee with the buri bag there was a probable cause that he was
concealing something illegal in the bag and it was the right and duty ofthe police
officers to inspect the same. It is too much indeed to require the police officers to
search the bag in the possession of the petitioner only after they shall have
obtained a search warrant for the purpose. Such an exercise may prove to be
useless, futile and much too late.

DECISION
GANCAYCO, J : p

The validity of a warrantless search on the person of petitioner is put into issue in
this case.
On October 16, 1986 at about 10:00 o'clock in the morning Pat. Ursicio Ungab
and Pat. Umbra Umpar, both members of the Integrated National Police
(INP) of the Davao Metrodiscom assigned with the Intelligence Task Force, were
conducting a surveillance along Magallanes Street, Davao City. While they were
within the premises of the Rizal Memorial Colleges they spotted petitioner
carrying a "buri" bag and they noticed him to be acting suspiciously.
They approached the petitioner and identified themselves as members of the
INP. Petitioner attempted to flee but his attempt to get away was thwarted by the
two notwithstanding his resistance.
They then checked the "buri" bag of the petitioner where they found one (1)
caliber .38 Smith & Wesson revolver with Serial No. 770196 1 two (2)
rounds of live ammunition for a .38 caliber gun, a smoke (tear gas) grenade a
2 3

and two (2) live ammunitions for a .22 caliber gun. They brought the petitioner to
4

the police station for further investigation. In the course ofthe same, the petitioner
was asked to show the necessary license or authority to possess firearms and
ammunitions found in his possession but he failed to do so. He was then taken to
the Davao Metrodiscom office and the prohibited articles recovered from him
were indorsed to M/Sgt. Didoy, the officer then on duty. He was prosecuted for
illegal possession of firearms and ammunitions in the Regional
Trial Court of Davao City wherein after a plea of not guilty and trial on the merits
a decision was rendered on October 8, 1987 finding petitioner guilty ofthe offense
charged as follows:
"WHEREFORE, in view of all the foregoing, this Court finds the accused
guilty beyond reasonable doubt of the offense charged.
It appearing that the accused was below eighteen (18) years old at the
time of the commission of the offense (Art. 68, par. 2), he is hereby
sentenced to an indeterminate penalty ranging from TEN (10) YEARS
and ONE (1) DAY of prision mayor to TWELVE (12) Years, FIVE (5)
months and Eleven (11) days of Reclusion Temporal, and to pay the
costs.
The firearm, ammunitions and smoke grenade are forfeited in
favor of the government and the Branch Clerk of Court is hereby directed
to turn over said items to the Chief, Davao Metrodiscom, Davao City." 5
Not satisfied therewith the petitioner interposed an appeal to
the Court of Appeals wherein in due course a decision was rendered on February
23, 1989 affirming in toto the appealed decision with costs against the
petitioner. 6
Hence, the herein petition for review, the main thrust of which is that there being
no lawful arrest or search and seizure, the items which were confiscated from the
possession of the petitioner are inadmissible in evidence against him. LexLib

The Solicitor General, in justifying the warrantless search of the buri bag then
carried by the petitioner, argues that under Section 12, Rule 126 of the
Rules of Court a person lawfully arrested may be searched for dangerous
weapons or anything used as proof of a commission of an offense without a
search warrant. It is further alleged that the arrest without a warrantof the
petitioner was lawful under the circumstances.
Section 5, Rule 113 of the 1985 Rules on Criminal Procedure provides as
follows:
 "SEC. 5. Arrest without warrant; when lawful. — A peace officer or a
private person may, without a warrant, arrest a person:
(a) When in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has escaped from
a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station
or jail, and he shall be proceeded against in accordance with Rule 112,
Section 7. (6a, 17a)"
From the foregoing provision of law it is clear that an arrest without a warrant
may be effected by a peace officer or private person, among others, when in his
presence the person to be arrested has committed, is actually committing, or is
attempting to commit an offense; or when an offense has in fact just been
committed, and he has personal knowledge of the facts indicating that the person
arrested has committed it.
The Solicitor General argues that when the two policemen approached the
petitioner, he was actually committing or had just committed the offense of illegal
possession of firearms and ammunitions in the presence of the police officers
and consequently the search and seizure of the contraband was incidental to the
lawful arrest in accordance with Section 12, Rule 126of the 1985 Rules on
Criminal Procedure. We disagree.
At the time the peace officers in this case identified themselves and apprehended
the petitioner as he attempted to flee they did not know that he had committed, or
was actually committing the offense of illegal possession of firearms and
ammunitions. They just suspected that he was hiding something in the buri bag.
They did now know what its contents were. The said circumstances did not justify
an arrest without a warrant. llcd

However, there are many instances where a warrant and seizure can be effected
without necessarily being preceded by an arrest, foremost of which is the "stop
and search" without a search warrant at military or police checkpoints, the
constitutionality or validity of which has been upheld by
this Court in Valmonte vs. de Villa, 7 as follows:
"Petitioner Valmonte's general allegation to the effect that he had been
stopped and searched without a search warrant by the military manning
the checkpoints, without more, i.e., without stating the details of the
incidents which amount to a violation of his 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.
Where, for example, the officer merely draws aside the curtain of a
vacant vehicle which is parked on the public fair grounds, or simply looks
into a vehicle or flashes a light therein, these do not constitute
unreasonable search.
The setting up of the questioned checkpoints in Valenzuela (and
probably in other areas) may be considered as a security measure to
 enable the NCRDC to pursue its mission ofestablishing effective
territorial defense and maintaining peace and order for the benefit of the
public. Checkpoints may also be regarded as measures to thwart plots to
destabilize the government in the interest of public security. In this
connection, the Court may take judicial notice of the shift to urban
centers and their suburbs of the insurgency movement, so clearly
reflected in the increased killings in cities of police and military men by
NPA "sparrow units," not to mention the abundance of unlicensed
firearms and the alarming rise in lawlessness and violence in such urban
centers, not all of which are reported in media, most likely brought about
by deteriorating economic conditions — which all sum up to what one
can rightly consider, at the very least, as abnormal times. Between the
inherent right of the state to protect its existence and promote public
welfare and an individual's right against a warrantless search which is
however reasonably conducted, the former should prevail.

True, the manning of checkpoints by the military is susceptible of abuse

by the men in uniform in the same manner that all governmental power
is susceptible of abuse. But, at the cost ofoccasional inconvenience,
discomfort and even irritation to the citizen, the checkpoints during these
abnormal times, when conducted within reasonable limits, are part of the
price we pay for an orderly society and a peaceful community.
(Emphasis supplied)."
Thus, as between a warrantless search and seizure conducted at military or
police checkpoints and the search thereat in the case at bar, there is no question
that, indeed, the latter is more reasonable considering that unlike in the former, it
was effected on the basis of a probable cause. The probable cause is that when
the petitioner acted suspiciously and attempted to flee with the buri bag there
was a probable cause that he was concealing something illegal in the bag and it
was the right and duty of the police officers to inspect the same.
It is too much indeed to require the police officers to search the bag in the
possession of the petitioner only after they shall have obtained a search warrant
for the purpose. Such an exercise may prove to be useless, futile and much too
late.
In People vs. CFI of Rizal, 8 this Court held as follows:
". . . In the ordinary cases where warrant is indispensably necessary, the
mechanics prescribed by the Constitution and reiterated in the
Rules of Court must be followed and satisfied. But We need not argue
that there are exceptions. Thus in the extraordinary events where
warrant is not necessary to effect a valid search or seizure, or when the
latter cannot be performed except without warrant, what constitutes a
reasonable or unreasonable search or seizure becomes purely a judicial
question, determinable from the uniqueness of the circumstances
involved, including the purpose of the search or seizure, the presence or
absence of probable cause, the manner in which the search and seizure
was made, the place or thing searched and the character of the articles
procured."
The Court reproduces with approval the following disquisition of the Solicitor
General: cdphil

"The assailed search and seizure may still be justified as akin to a "stop
and frisk" situation whose object is either to determine the identity of a
suspicious individual or to maintain thestatus quo momentarily while the
police officer seeks to obtain more information. This is illustrated in the
case of Terry vs. Ohio, 392 U.S. 1 (1968). In this case, two men
repeatedly walked past a store window and returned to a spot where
they apparently conferred with a third man. This aroused the
suspicion of a police officer. To the experienced officer, the
 behavior of the men indicated that they were sizing up the store for an
armed robbery. When the police officer approached the men and asked
them for their names, they mumbled a reply. Whereupon, the officer
grabbed one of them, spun him around and frisked him. Finding a
concealed weapon in one, he did the same to the other two and found
another weapon. In the prosecution for the offense of carrying a
concealed weapon, the defense of illegal search and seizure was put up.
The United States Supreme Court held that "a police officer may in
appropriate circumstances and in an appropriate manner approach a
person for the purpose of investigating possible criminal behavior even
though there is no probable cause to make an arrest." In such a
situation, it is reasonable for an officer rather than simply to shrug his
shoulder and allow a crime to occur, to stop a suspicious individual
briefly in order to determine his identity or maintain the status quo while
obtaining more information. . . .
Clearly, the search in the case at bar can be sustained under the
exceptions heretofore discussed, and hence, the constitutional
guarantee against unreasonable searches and seizures has not been
violated." 9
WHEREFORE, the petition is DENIED with costs against petitioner.
SO ORDERED.
Narvasa, Cruz, Griño-Aquino and Medialdea, JJ., concur.
(Posadas y Zamora v. Court of Appeals, G.R. No. 89139, [August 2, 1990], 266
|||

PHIL 306-313)
 FIRST DIVISION

[G.R. No. 87059. June 22, 1992.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-

appellee, vs. ROGELIO MENGOTE Y TEJAS, accused-appellant.

The Solicitor General for plaintiff-appellee.

Violeta C. Drilon counsel de oficio for accused-appellant.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST ILLEGAL

SEARCH AND SEIZURE; EVIDENCE OBTAINED IN VIOLATION THEREOF;
EFFECT; CASE AT BAR. — It is submitted in the Appellant's Brief that the
revolver should not have been admitted in evidence because of its illegal seizure,
no warrant therefor having been previously obtained. Neither could it have been
seized as an incident of a lawful arrest because the arrest of Mengote was itself
unlawful, having been also effected without a warrant. The defense also
contends that the testimony regarding the alleged robbery in Danganan's house
was irrelevant and should also have been disregarded by the trial court. There is
no question that evidence obtained as a result of an illegal search or seizure is
inadmissible in any proceeding for any purpose. That is the absolute prohibition
of Article III, Section 3(2), of the Constitution. This is the celebrated exclusionary
rule based on the justification given by Judge Learned Hand that "only in case
the prosecution which itself controls the seizing officials, knows that it cannot
profit by their wrong will the wrong be repressed."
2. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT;
WHEN LAWFUL; REQUISITES; NOT ESTABLISHED IN CASE AT BAR. — The
Solicitor General, while conceding the rule, maintains that it is not applicable in
the case at bar. His reason is that the arrest and search of Mengote and the
seizure of the revolver from him were lawful under Rule 113, Section 5, of the
Rules of Court. We have carefully examined the wording of this rule and cannot
see how we can agree with the prosecution. Par. (c) of Section 5 is obviously
inapplicable asMengote was not an escapee from a penal institution when he
was arrested. We therefore confine ourselves to determining the lawfulness of
his arrest under either Par. (a) or Par. (b) of this section. Par. (a) requires that the
person be arrested (1) after he has committed or while he is actually committing
or is at least attempting to commit an offense, (2) in the presence of the arresting
officer. These requirements have not been established in the case at bar. At the
time of the arrest in question, the accused-appellant was merely "looking from
side to side" and "holding his abdomen," according to the arresting officers
themselves. There was apparently no offense that had just been committed or
was being actually committed or at least being attempted by Mengote in their
presence. Par. (b) is no less applicable because its no less stringent
requirements have also not been satisfied. The prosecution has not shown that
at the time of Mengote's arrest an offense had in fact just been committed and
that the arresting officers had personal knowledge of facts indicating
that Mengote had committed it. All they had was hearsay information from the
telephone caller, and about a crime that had yet to be committed.

DECISION
CRUZ, J :p

Accused-appellant Rogelio Mengote was convicted of illegal possession of

firearms on the strength mainly of the stolen pistol found on his person at the
moment of his warrantless arrest. In this appeal, he pleads that the weapon was
not admissible as evidence against him because it had been illegally seized and
was therefore the fruit of the poisonous tree. The Government disagrees. It
insists that the revolver was validly received in evidence by the trial judge
because its seizure was incidental to an arrest that was doubtless lawful even if
admittedly without warrant.
The incident occurred shortly before noon of August 8, 1987, after the Western
Police District received a telephone call from an informer that there were three
suspicious-looking persons at the corner of Juan Luna and North Bay Boulevard
in Tondo, Manila. A surveillance team of plainclothesmen was forthwith
dispatched to the place. As later narrated at the trial by Patrolmen Rolando
Mercado and Alberto Juan, 1 they there saw two men "looking from side to side,"
one of whom was holding his abdomen. They approached these persons and
identified themselves as policemen, whereupon the two tried to run away but
were unable to escape because the other lawmen had surrounded them. The
suspects were then searched. One of them, who turned out to be the accused-
appellant, was found with a .38 caliber Smith and Wesson revolver with six live
bullets in the chamber. His companion, later identified as Nicanor Morellos, had a
fan knife secreted in his front right pants pocket. The weapons were taken from
them. Mengote and Morellos were then turned over to police headquarters for
investigation by the Intelligence Division. LLpr

On August 11, 1987, the following information was filed against the accused-
appellant before the Regional Trial Court of Manila:
The undersigned accuses ROGELIO MENGOTE y TEJAS of a violation
of Presidential Decree No. 1866, committed as follows:
That on or about August 8, 1987, in the City of Manila, Philippines, the
said accused did then and there wilfully, unlawfully and knowingly have
in his possession and under his custody and control a firearm, to wit:
one (1) cal. 38 "S & W" bearing
Serial No. 8720-T.
without first having secured the necessary license or permit therefor from
the proper authorities.
Besides the police officers, one other witness presented by the prosecution was
Rigoberto Danganan, who identified the subject weapon as among the articles
stolen from him during the robbery in his house in Malabon on June 13, 1987. He
pointed to Mengote as one of the robbers. He had duly reported the robbery to
the police, indicating the articles stolen from him, including the revolver. 2 For his
part, Mengote made no effort to prove that he owned the firearm or that he was
licensed to possess it and claimed instead that the weapon had been "planted"
on him at the time of his arrest. 3
The gun, together with the live bullets and its holster, were offered as Exhibits A,
B and C and admitted over the objection of the defense. As previously stated, the
weapon was the principal evidence that led to Mengote's conviction for violation
of P.D. 1866. He was sentenced to reclusion perpetua. 4
It is submitted in the Appellant's Brief that the revolver should not have been
admitted in evidence because of its illegal seizure, no warrant therefor having
been previously obtained. Neither could it have been seized as an incident of a
lawful arrest because the arrest of Mengote was itself unlawful, having been also
effected without a warrant. The defense also contends that the testimony
regarding the alleged robbery in Danganan's house was irrelevant and should
also have been disregarded by the trial court.
The following are the pertinent provision of the Bill of Rights:
Sec. 2. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or
things to be seized.
Sec. 3 (1). The privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or when public safety or
order requires otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section
shall be inadmissible for any purpose in any proceeding.
There is no question that evidence obtained as a result of an illegal search or
seizure is inadmissible in any proceeding for any purpose. That is the absolute
prohibition of Article III, Section 3(2), of the Constitution. This is the celebrated
exclusionary rule based on the justification given by Judge Learned Hand that
"only in case the prosecution, which itself controls the seizing officials, knows that
it cannot profit by their wrong will the wrong be repressed."
The Solicitor General, while conceding the rule, maintains that it is not applicable
in the case at bar. His reason is that the arrest and search of Mengote and the
seizure of the revolver from him were lawful under Rule 113, Section 5, of the
Rules of Court reading as follows:
Sec. 5. Arrest without warrant; when lawful. — A peace officer or private
person may without a warrant, arrest a person: Cdpr

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

actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has escaped from
a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station
or jail, and he shall be proceeded against in accordance with Rule 112,
Section 7.
We have carefully examined the wording of this rule and cannot see how we can
agree with the prosecution.
Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee
from a penal institution when he was arrested. We therefore confine ourselves to
determining the lawfulness of his arrest under either Par. (a) or Par. (b) of this
section.
Par. (a) requires that the person be arrested (1) after he has committed or while
he is actually committing or is at least attempting to commit an offense, (2) in the
presence of the arresting officer.
These requirements have not been established in the case at bar. At the time of
the arrest in question, the accused-appellant was merely "looking from side to
side" and "holding his abdomen," according to the arresting officers themselves.
There was apparently no offense that had just been committed or was being
actually committed or at least being attempted byMengote in their presence.
The Solicitor General submits that the actual existence of an offense was not
necessary as long as Mengote's acts "created a reasonable suspicion on the part
of the arresting officers and induced in them the belief that an offense had been
committed and that the accused-appellant had committed it." The question is,
What offense? What offense could possibly have been suggested by a person
"looking from side to side" and "holding his abdomen" and in a place not exactly
forsaken?
These are certainly not sinister acts. And the setting of the arrest made them less
so, if at all. It might have been different if Mengote had been apprehended at an
ungodly hour and in a place where he had no reason to be, like a darkened alley
at 3 o'clock in the morning. But he was arrested at 11:30 in the morning and in a
crowded street shortly after alighting from a passenger jeep with his companion.
He was not skulking in the shadows but walking in the clear light of day. There
was nothing clandestine about his being on that street at that busy hour in the
blaze of the noonday sun.
On the other hand, there could have been a number of reasons, all of them
innocent, why his eyes were darting from side to side and he was holding his
abdomen. If they excited suspicion in the minds of the arresting officers, as the
prosecution suggests, it has nevertheless not been shown what their suspicion
was all about. In fact, the policemen themselves testified that they were
dispatched to that place only because of the telephone call from the informer that
there were "suspicious-looking" persons in that vicinity who were about to commit
a robbery at North Bay Boulevard. The caller did not explain why he thought the
men looked suspicious nor did he elaborate on the impending crime. LLpr

In the recent case of People v. Malmstedt, 5 the Court sustained the warrantless
arrest of the accused because there was a bulge in his waist that excited the
suspicion of the arresting officer and, upon inspection, turned out to be a pouch
containing hashish. In People v. Claudio, 6 the accused boarded a bus and
placed the buri bag she was carrying behind the seat of the arresting officer while
she herself sat in the seat before him. His suspicion aroused, he surreptitiously
examined the bag, which he found to contain marijuana. He then and there made
the warrantless arrest and seizure that we subsequently upheld on the ground
that probable cause had been sufficiently established.
The case before us is different because there was nothing to support the
arresting officers' suspicion other than Mengote's darting eyes and his hand on
his abdomen. By no stretch of the imagination could it have been inferred from
these acts that an offense had just been committed, or was actually being
committed, or was at least being attempted in their presence.
This case is similar to People v. Aminnudin, 7 where the Court held that the
warrantless arrest of the accused was unconstitutional. This was effected while
he was coming down a vessel, to all appearances no less innocent than the other
disembarking passengers. He had not committed nor was he actually committing
or attempting to commit an offense in the presence of the arresting officers. He
was not even acting suspiciously. In short, there was no probable cause that, as
the prosecution incorrectly suggested, dispensed with the constitutional
requirement of a warrant.
Par. (b) is no less applicable because its no less stringent requirements have
also not been satisfied. The prosecution has not shown that at the time
of Mengote's arrest an offense had in fact just been committed and that the
arresting officers had personal knowledge of facts indicating that Mengote had
committed it. All they had was hearsay information from the telephone caller, and
about a crime that had yet to be committed.
The truth is that they did not know then what offense, if at all, had been
committed and neither were they aware of the participation therein of the
accused-appellant. It was only later, after Danganan had appeared at the police
headquarters, that they learned of the robbery in his house and of Mengote's
supposed involvement therein. 8 As for the illegal possession or the firearm found
on Mengote's person, the policemen discovered this only after he had been
searched and the investigation conducted later revealed that he was not its
owners nor was he licensed to possess it.
Before these events, the peace officers had no knowledge even of Mengote'
identity, let alone the fact (or suspicion) that he was unlawfully carrying a firearm
or that he was involved in the robbery of Danganan's house.
In the landmark case of People v. Burgos, 9 this Court declared:
Under Section 6(a) of Rule 113, the officer arresting a person who has
just committed, is committing, or is about to commit an offense must
have personal knowledge of the fact. The offense must also be
committed in is presence or within his view. (Sayo v. Chief of Police, 80
Phil. 859). (Emphasis supplied)
xxx xxx xxx
In arrests without a warrant under Section 6(b), however, it is not enough
that there is reasonable ground to believe that the person to be arrested
has committed a crime. A crime must in fact or actually have been
committed first. That a crime has actually been committed is an essential
precondition. It is not enough to suspect that a crime may have been
committed. The fact of the commission of the offense must be
undisputed. The test of reasonable ground applies only to the identity of
the perpetrator. (Emphasis supplied)
This doctrine was affirmed in Alih v. Castro, 10 thus:
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. (Emphasis supplied)
It would be a sad day, indeed, if any person could be summarily arrested and
searched just because he is holding his abdomen, even if it be possibly because
of a stomachache, or if a peace officer could clamp handcuffs on any person with
a shifty look on suspicion that he may have committed a criminal act or is actually
committing or attempting it. This simply cannot be done in a free society. This is
not a police state where order is exalted over liberty or, worse, personal malice
on the part of the arresting officer may be justified in the name of security.
There is no need to discuss the other issues raised by the accused-appellant as
the ruling we here make is sufficient to sustain his exoneration. Without the
evidence of the firearm taken from him at the time of his illegal arrest, the
prosecution has lost its most important exhibit and must therefore fail. The
testimonial evidence against Mengote (which is based on the said firearm) is not
sufficient to prove his guilt beyond reasonable doubt of the crime imputed to him.
We commend Atty. Violeta Calvo-Drilon for her able and spirited defense of the
accused-appellant not only in the brief but also in the reply brief, which she did
not have to file but did so just the same to stress the constitutional rights of her
client. The fact that she was acting only as a counsel de oficio with no
expectation of material reward makes her representation even more
commendable.
The Court feels that if the peace officers had been more mindful of the provisions
of the Bill of Rights, the prosecution of the accused-appellant might have
succeeded. As it happened, they allowed their over-zealousness to get the better
of them, resulting in their disregard of the requirements of a valid search and
seizure that rendered inadmissible the vital evidence they had invalidly seized.
LLpr

This should be a lesson to other peace officers. Their impulsiveness may be the
very cause of the acquittal of persons who deserve to be convicted, escaping the
clutches of the law because, ironically enough, it has not been observed by those
who are supposed to enforce it.
WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The
accused-appellant is ACQUITTED and ordered released immediately unless he
is validly detained for other offenses. No costs.
SO ORDERED.
Griño-Aquino, Medialdea and Bellosillo, JJ ., concur.
(People v. Mengote y Tejas, G.R. No. 87059, [June 22, 1992], 285 PHIL 642-
|||

651)
 EN BANC

[G.R. No. 123595. December 12, 1997.]

SAMMY MALACAT y
MANDAR, petitioner, vs. COURT OF APPEALS, and
PEOPLE OF THE PHILIPPINES, respondents.

Brillantes, Navarro, Jumamil, Arcilla, Escolin and Martinez Law Offices for
petitioner.

SYNOPSIS

In an information filed before the Regional Trial Court (RTC) of Manila, petitioner
was charged with violating Section 3 of Presidential Decree No. 1866 for
keeping, possessing and/or acquiring a hand grenade, without first securing the
necessary license and permit from the proper authorities. On arraignment,
petitioner, assisted by counsel de officio, entered a plea ofnot guilty. After trial on
the merits, the court a quo found petitioner guilty of the crime of illegal
possession of explosives under the said law and sentenced him to suffer the
penalty of not less than seventeen years, four months and one day of reclusion
temporal as minimum and not more than thirty years of reclusion perpetua, as
maximum. Petitioner filed a notice ofappeal indicating that he was appealing to
the Supreme Court. However, the record of the case was forwarded to
the Court of Appeals. In its decision, the Court of Appeals affirmed the
trial court's decision. Unable to accept conviction, petitioner filed the instant
petition alleging that the respondent court erred in affirming the findings of the
trial court that the warrantless arrest of petitioner was valid and legal.
The Supreme Court finds the petition impressed with merit. For
purposes of determining appellate jurisdiction in criminal cases, the
maximum of the penalty, and not the minimum, is taken into account. Since the
maximum of the penalty is reclusion perpetua, the appeal therefrom should have
been to the Court and not the Court of Appeals. Hence, the challenged decision
immediately fall in jurisdictional grounds. Additionally, the Court is convinced that
the prosecution failed to establish petitioner's guilt with moral certainty. First,
serious doubts surrounds the story of police office Yu that a grenade was found
in and seized from petitioner's possession. Notably, Yu did not identify
in court the grenade he allegedly seized. Second, if indeed petitioner had a
grenade with him and that two days earlier he was with the group about to
detonate an explosive at Plaza Miranda, it was then unnatural and against
common experience that petitioner simply stood in Plaza Miranda in proximity to
the police officers. Lastly, even assuming that petitioner admitted
possession of the grenade during his custodial investigation police officer
Serapio, such admission is inadmissible in evidence for it was taken in palpable
violation of Section 12(1) and (3) of Article III of the Constitution. Verily, the
search conducted on petitioner could not have been one incidental to a lawful
arrest. In view thereof, the challenged decision of the Court of Appeals is set
aside for lack of jurisdiction and on ground of reasonable doubt.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; APPEAL TO THE

SUPREME COURT; FOR PURPOSES OF DETERMINING APPELLATE
JURISDICTION OF THE SUPREME COURT IN CRIMINAL CASES, THE
MAXIMUM OF THE PENALTY IMPOSABLE BY LAW IS TAKEN INTO
ACCOUNT AND NOT THE MINIMUM. — For purposes of determining appellate
jurisdiction in criminal cases, the maximum of the penalty, and not the minimum,
is taken into account. Since the maximum of the penalty is reclusion perpetua,
the appeal therefrom should have been to SupremeCourt, and not
the Court of Appeals, pursuant to Section 9(3) of the Judiciary Reorganization
Act of 1980 (B.P. Blg. 129), in relation to Section 17 of the Judiciary Act of 1948,
Section 5(2) ofArticle VIII of the Constitution and Section 3(c) of Rule 122 of the
Rules of Court. The term life imprisonment as used in Section 9 of B.P. Blg. 129,
the Judiciary Act of 1948, and Section 3 ofRule 122 must be deemed to include
reclusion perpetua in view of Section 5(2) of Article VIII of the Constitution.
2. ID.; ID.; RIGHTS OF THE ACCUSED; PETITIONER'S
ADMISSION OF POSSESSION OF THE GRENADE DURING CUSTODIAL
INVESTIGATION, WITHOUT THE ASSISTANCE OF COUNSEL,
INADMISSIBLE IN EVIDENCE. — Even assuming that petitioner admitted
possession of the grenade during his custodial investigation by police officer
Serapio, such admission was inadmissible in evidence for it was taken in
palpable violation of Section 12(1) and (3) of Article III of the Constitution.
Serapio conducted the custodial investigation on petitioner the day following his
arrest. No lawyer was present and Serapio could not have requested a lawyer to
assist petitioner as no PAO lawyer was then available. Thus, even if petitioner
consented to the investigation and waived his rights to remain silent and to
counsel, the waiver was invalid as it was not in writing, neither was it executed in
the presence of counsel.
3. ID.; ID.; WARRANTLESS ARREST; LACK OF PERSONAL KNOWLEDGE ON
THE PART OF THE ARRESTING OFFICER OR AN OVERT PHYSICAL ACT
ON THE PART OF THE ACCUSED, INDICATING THAT THE CRIME HAD
JUST BEEN COMMITTED, OR WAS GOING TO BE COMMITTED, MAKES
THE SEARCH CONDUCTED ON THE ACCUSED NOT ONE INCIDENTAL TO
A LAWFUL ARREST; CASE AT BAR. — 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 a lawful arrest before a search can
be made — the 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. Here,
there could have been no valid in flagrante delicto or hot pursuit arrest preceding
the search in light of the lack of personal knowledge on the part of Yu, the
arresting officer, or an overt physical act, on the part of petitioner, indicating that
a crime had just been committed, was being committed or was going to be
committed. Having thus shown the invalidity of the warrantless arrest in this case,
plainly, the search conducted on petitioner could not have been one incidental to
a lawful arrest.
4. ID.; ID.; ID.; "STOP AND FRISK" AS A "LIMITED PROTECTIVE
SEARCH OF OUTER CLOTHING FOR WEAPONS"; JUSTIFICATION FOR AND
ALLOWABLE SCOPE THEREOF. — 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 officer's 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: 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.
PANGANIBAN, J., separate opinion:
1. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARRESTS
AND SEARCHES; PROBABLE CAUSE, NEEDED FOR THEIR VALIDITY. —
After reviewing previous decisions on valid warrantless arrests and searches,
the Court underscored in sum that there was need for facts providing probable
cause, such as "the distinct odor of marijuana, reports about drug transporting or
positive identification by informers, suspicious behavior, attempt to flee, [or]
failure to produce identification papers" to justify warrantless arrests and
searches. Likewise, urgency must attend such arrests and searches, as where
motor vehicles are used and there is great probability that the suspect would get
away before a warrant can be procured. Most important is that the law enforcers
must act immediately on the information received, suspicions raised or probable
cause established, and should effect the arrests and searches without any delay.
2. ID.; ID.; ID.; ID.; THE STOP-AND-FRISK CONDUCTED BY ORDINARY
POLICEMEN AGAINST THE ACCUSED ON THE BASIS THAT HIS EYES
WERE MOVING VERY FAST AND THERE IS NO INDICATION THAT HE IS
HIDING EXPLOSIVE PARAPHERNALIA, IS ILLEGAL; CASE AT BAR. — As in
Manalili, lawmen were on surveillance in response to information that a criminal
activity could be in the offing at a specified place. The stark difference, however,
is that in Manalili, the reported activity involved drug use and the lawmen
belonged to the anti-narcotics group, while in the instant case, the police on
patrol were ordinary law enforcers on the lookout for possible bombers. In the
former, the law enforcers concerned may be presumed to possess special
knowledge and skill to detect the physical features exhibited by a current drug
user. Thus, when these specially trained enforcers saw Manalili with reddish
eyes and walking in a wobbly manner characteristic of a person "high" on drugs
per their experience, and in a known hangout of drug users, there was sufficient
genuine reason to stop and frisk the suspect. It is well to emphasize that under
different circumstances such as where the policemen are not specially-trained,
and in common places where people ordinarily converge, the same features
displayed by a person will not normally justify a warrantless arrest or search on
him. The case before us presents such a situation. The policemen merely
observed that Malacat's eyes were moving very fast. They did not notice any
bulges or packets about the bodies of these men indicating that they might be
hiding explosive paraphernalia. From their outward look, nothing suggested that
they were at the time armed and dangerous. Hence, there was no justification for
a stop-and-frisk.
3. ID.; ID.; ID.; ID.; ID.; DOCTRINE LAID DOWN IN PEOPLE VS. MENGOTE,
SQUARELY APPLICABLE IN CASE AT BAR. — Bolstering the invalidity of the
arrest and search of Malacat is People vs. Mengote, another classic on the right
against unreasonable searches and seizures. Upon receiving a telephone call
shortly before noon from an informer that there were suspicious looking persons
at a certain street corner in Tondo, Manila, the Western Police District dispatched
a surveillance team to said place. There they saw two men "looking from side to
side" with one "holding his abdomen." The police approached them and identified
themselves, whereupon the two tried to flee but failed as other lawmen
surrounded them. The suspects were searched, and recovered from Mengote
was a fully loaded pistol; from his companion, a fan knife. The Court ruled that
the situation was not one calling for a lawful warrantless search and arrest. As
the Court, through Mr. Justice Isagani A. Cruz, succinctly put it: "What offense
could possibly have been suggested by a person 'looking from side to side and
'holding his abdomen' and in a place not exactly forsaken? Under our rule in
Mengote, petitioner's dubious act of moving his eyes swiftly from side to side can
in no way justify a stop-and-frisk. To convict a person on the basis only of his
queer behavior and to sentence him to practically a lifetime in prison would
simply be unfathomable. Nothing can be more wrong, unjust and inhuman.

DECISION

DAVIDE, JR., J : p

In an Information 1 filed on 30 August 1990, in Criminal Case No. 90-86748

before the Regional Trial Court (RTC) of Manila, Branch 5, petitioner
Sammy Malacat y Mandar was charged with violating Section 3 of Presidential
Decree No. 1866, 2 as follows: LLjur

That on or about August 27, 1990, in the City of Manila, Philippines, the
said accused did then and there willfully, unlawfully and knowingly keep,
possess and/or acquire a hand grenade, without first securing the
necessary license and/or permit therefor from the proper authorities.
At arraignment 3 on 9 October 1990, petitioner, assisted by counsel de officio,
entered a plea of not guilty.
At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits "A,"
"A-1," and "A-2," 4 while the prosecution admitted that the police authorities were
not armed with a search warrant nor warrant of arrest at the time they arrested
petitioner. 5
At trial on the merits, the prosecution presented the following police officers as its
witnesses: Rodolfo Yu, the arresting officer; Josefino C. Serapio, the
investigating officer; and Orlando Ramilo, who examined the grenade.
Rodolfo Yu of the Western Police District, Metropolitan Police Force of the
Integrated National Police, Police Station No. 3, Quiapo, Manila, testified that on
27 August 1990, at about 6:30 p.m., in response to bomb threats reported seven
days earlier, he was on foot patrol with three other police officers (all of them in
uniform) along Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store
at Plaza Miranda. They chanced upon two groups of Muslim-looking men, with
each group, comprised of three to four men, posted at opposite sides of the
cornerof Quezon Boulevard near the Mercury Drug Store. These men were
acting suspiciously with "[t]their eyes . . . moving very fast." 6
Yu and his companions positioned themselves at strategic points and observed
both groups for about thirty minutes. The police officers then approached one
group of men, who then fled in different directions. As the policemen gave chase,
Yu caught up with and apprehended petitioner. Upon searching petitioner, Yu
found a fragmentation grenade tucked inside petitioner's "front waist line." 7 Yu's
companion, police officer Rogelio Malibiran, apprehended Abdul Casan from
whom a .38 caliber revolver was recovered. Petitioner and Casan were then
brought to Police Station No. 3 where Yu placed an "X" mark at the bottom of the
grenade and thereafter gave it to his commander. 8
On cross-examination, Yu declared that they conducted the foot patrol due to a
report that a group of Muslims was going to explode a grenade somewhere in the
vicinity of Plaza Miranda. Yu recognized petitioner as the previous Saturday, 25
August 1990, likewise at Plaza Miranda, Yu saw petitioner and 2 others attempt
to detonate a grenade. The attempt was aborted when Yu and other policemen
chased petitioner and his companions; however, the former were unable to catch
any of the latter. Yu further admitted that petitioner and Casan were merely
standing on the corner of Quezon Boulevard when Yu saw them on 27 August
1990. Although they were not creating a commotion, since they were supposedly
acting suspiciously, Yu and his companions approached them. Yu did not issue
any receipt for the grenade he allegedly recovered from petitioner. 9
Josefino C. Serapio declared that at about 9:00 a.m. of 28 August 1990,
petitioner and a certain Abdul Casan were brought in by Sgt. Saquilla 10 for
investigation. Forthwith, Serapio conducted the inquest of the two suspects,
informing them of their rights to remain silent and to be assisted by competent
and independent counsel. Despite Serapio's advice, petitioner and Casan
manifested their willingness to answer questions even without the assistance of a
lawyer. Serapio then took petitioner's uncounselled confession (Exh. "E"), there
being no PAO lawyer available, wherein petitioner admitted possession of the
grenade. Thereafter, Serapio prepared the affidavit of arrest and booking
sheet of petitioner and Casan. Later, Serapio turned over the grenade to the
Intelligence and Special Action Division (ISAD) of the Explosive Ordinance
Disposal Unit for examination. 11
On cross-examination, Serapio admitted that he took petitioner's confession
knowing it was inadmissible in evidence. 12
Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties
included, among other things, the examination of explosive devices, testified that
on 22 March 1991, he received a request dated 19 March 1991 from Lt. Eduardo
Cabrera and PO Diosdado Diotoy for examination of a grenade. Ramilo then
affixed an orange tag on the subject grenade detailing his name, the date and
time he received the specimen. During the preliminary examination of the
grenade, he "found that [the] major components consisting of [a] high filler and
fuse assembly [were] all present," and concluded that the grenade was "[l]ive and
capable of exploding." On even date, he issued a certification stating his findings,
a copy of which he forwarded to Diotoy on 11 August 1991. 13
Petitioner was the lone defense witness. He declared that he arrived in Manila on
22 July 1990 and resided at the Muslim Center in Quiapo, Manila. At around 6:30
in the evening of 27 August 1990, he went to Plaza Miranda to catch a
breath of fresh air. Shortly after, several policemen arrived and ordered all males
to stand aside. The policemen searched petitioner and two other men, but found
nothing in their possession. However, he was arrested with two others, brought
to and detained at Precinct No. 3, where he was accused of having shot a police
officer. The officer showed the gunshot wounds he allegedly sustained and
shouted at petitioner "[i]to ang tama mo sa akin." This officer then inserted the
muzzle of his gun into petitioner's mouth and said, "[y]ou are the one who shot
me."
Petitioner denied the charges and explained that he only recently arrived in
Manila. However, several other police officers mauled him, hitting him with
benches and guns. Petitioner was once again searched, but nothing was found
on him. He saw the grenade only in court when it was presented. 14
The trial court ruled that the warrantless search and seizure of petitioner was
akin to a "stop and frisk," where a "warrant and seizure can be effected without
necessarily being preceded by an arrest" and "whose object is either to maintain
the status quo momentarily while the police officer seeks to obtain more
information." 15 Probable cause was not required as it was not certain that a
crime had been committed, however, the situation called for an investigation,
hence to require probable cause would have been "premature." 16 The RTC
emphasized that Yu and his companions were "[c]onfronted with an emergency,
in which the delay necessary to obtain a warrant, threatens the
destruction of evidence" 17 and the officers "[h]ad to act in haste," as petitioner
and his companions were acting suspiciously, considering the time, place and
"reported cases of bombing." Further, petitioner's group suddenly ran away in
different directions as they saw the arresting officers approach, thus "[i]t is
reasonable for an officer to conduct a limited search, the purpose of which is not
necessarily to discover evidence of a crime, but to allow the officer to pursue his
investigation without fear of violence." 18
The trial court then ruled that the seizure of the grenade from petitioner was
incidental to a lawful arrest, and since petitioner "[l]ater voluntarily admitted such
fact to the police investigator for the purpose of bombing the Mercury Drug
Store," concluded that sufficient evidence existed to establish petitioner's guilt
beyond reasonable doubt.
In its decision 19 dated 10 February 1994 but promulgated on 15 February 1994,
the trial court thus found petitioner guilty of the crime of illegal
possession of explosives under Section 3of P.D. No. 1866, and sentenced him to
suffer:
[T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4)
MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL, as
minimum, and not more than THIRTY (30) YEARS OF RECLUSION
PERPETUA, as maximum.
On 18 February 1994, petitioner filed a notice of appeal 20 indicating that he was
appealing to this Court. However, the record of the case was forwarded to
the Court of Appeals which docketed it as CA-G.R. CR No. 15988 and issued a
notice to file briefs. 21

In his Appellant's Brief 22 filed with the Court of Appeals, petitioner asserted that:
1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH
UPON THE PERSON OF ACCUSED-APPELLANT AND THE
SEIZURE OF THE ALLEGED HANDGRENADE FROM HIM
"WAS AN APPROPRIATE INCIDENT TO HIS ARREST."
2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE
AGAINST ACCUSED-APPELLANT THE HANDGRENADE
ALLEGEDLY SEIZED FROM HIM AS IT WAS A
PRODUCT OF AN UNREASONABLE AND ILLEGAL SEARCH.
In sum, petitioner argued that the warrantless arrest was invalid due to
absence of any of the conditions provided for in Section 5 of Rule 113 of the
Rules of Court, citing People vs.Mengote. 23 As such, the search was illegal, and
the hand grenade seized, inadmissible in evidence.
In its Brief for the Appellee, the Office of the Solicitor General agreed with the
trial court and prayed that its decision be affirmed in toto. 24
In its decision of 24 January 1996, 25 the Court of Appeals affirmed the trial court,
noting, first, that petitioner abandoned his original theory before the court a
quo that the grenade was "planted" by the police officers; and second, the factual
finding of the trial court that the grenade was seized from petitioner's possession
was not raised as an issue. Further, respondentcourt focused on the admissibility
in evidence of Exhibit "D," the hand grenade seized from petitioner. Meeting the
issue squarely, the Court of Appeals ruled that the arrest was lawful on the
ground that there was probable cause for the arrest as petitioner was "attempting
to commit an offense," thus:
We are at a loss to understand how a man, who was in possession of a
live grenade and in the company of other suspicious character[s] with
unlicensed firearm[s] lurking in Plaza Miranda at a time when political
tension ha[d] been enkindling a series of terroristic activities, [can] claim
that he was not attempting to commit an offense. We need not mention
that Plaza Miranda is historically notorious for being a favorite bomb site
especially during times of political upheaval. As the mere
possession of an unlicensed grenade is by itself an offense, Malacat's
posture is simply too preposterous to inspire belief.
In so doing, the Court of Appeals took into account petitioner's failure to rebut the
testimony of the prosecution witnesses that they received intelligence reports of a
bomb threat at Plaza Miranda; the fact that PO Yu chased petitioner two days
prior to the latter's arrest, or on 27 August 1990; and that petitioner and his
companions acted suspiciously, the "accumulation" ofwhich was more than
sufficient to convince a reasonable man that an offense was about to be
committed. Moreover, the Court of Appeals observed:
The police officers in such a volatile situation would be guilty of gross
negligence and dereliction of duty, not to mention of gross
incompetence, if they [would] first wait for Malacat to hurl the grenade,
and kill several innocent persons while maiming numerous others,
before arriving at what would then be an assured but moot conclusion
that there was indeed probable cause for an arrest. We are in agreement
with the lower court in saying that the probable cause in such a situation
should not be the kind of proof necessary to convict, but rather the
practical considerations of everyday life on which a reasonable and
prudent mind, and not legal technicians, will ordinarily act.
Finally, the Court of Appeals held that the rule laid down
in People v. Mengote, 26 which petitioner relied upon, was inapplicable in
light of "[c]rucial differences," to wit:
[In Mengote] the police officers never received any intelligence report
that someone [at] the corner of a busy street [would] be in
possession of a prohibited article. Here the police officers were
responding to a [sic] public clamor to put a check on the
series of terroristic bombings in the Metropolis, and, after receiving
intelligence reports about a bomb threat aimed at the vicinity of the
historically notorious Plaza Miranda, they conducted foot patrols for
about seven days to observe suspicious movements in the area.
Furthermore, in Mengote, the police officers [had] no personal
knowledge that the person arrested has committed, is actually
committing, or is attempting to commit an offense. Here, PO3 Yu [had]
personal knowledge of the fact that he chased Malacat in Plaza Miranda
two days before he finally succeeded in apprehending him.
Unable to accept his conviction, petitioner forthwith filed the instant petition and
assigns the following errors:
1. THE RESPONDENT COURT ERRED IN AFFIRMING THE
FINDING OF THE TRIAL COURT THAT THE WARRANTLESS
ARREST OF PETITIONER WAS VALID AND LEGAL.
 2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE
RULING IN PEOPLE VS. MENGOTE DOES NOT FIND
APPLICATION IN THE INSTANT CASE.
In support thereof, petitioner merely restates his arguments below regarding the
validity of the warrantless arrest and search, then disagrees with the
finding of the Court of Appeals that he was "attempting to commit a crime," as the
evidence for the prosecution merely disclosed that he was "standing at the
corner of Plaza Miranda and Quezon Boulevard" with his eyes "moving very fast"
and "looking at every person that come (sic) nearer (sic) to them." Finally,
petitioner points out the factual similarities between his case and
that of People v. Mengote to demonstrate that
the Court of Appeals miscomprehended the latter.
In its Comment, the Office of the Solicitor General prays that we affirm the
challenged decision.
For being impressed with merit, we resolved to give due course to the petition.
The challenged decision must immediately fall on jurisdictional grounds. To
repeat, the penalty imposed by the trial court was:
[N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND
ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not more
than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum.
The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall
unlawfully possess grenades is reclusion temporal in its maximum period
to reclusion perpetua.
For purposes of determining appellate jurisdiction in criminal cases, the
maximum of the penalty, and not the minimum, is taken into account. Since the
maximum of the penalty isreclusion perpetua, the appeal therefrom should have
been to us, and not the Court of Appeals, pursuant to Section 9(3) of the
Judiciary Reorganization Act of 1980 (B.P. Blg. 129), 27 in relation to Section
17 of the Judiciary Act of 1948, 28 Section 5(2) of Article VIII of the
Constitution 29 and Section 3(c) of Rule 122 of the Rules of Court. 30 The term
"life imprisonment" as used in Section 9 of B.P. Blg. 129, the Judiciary
Act of 1948, and Section 3 of Rule 122 must be deemed to include reclusion
perpetua in view of Section 5(2) of Article VIII of the Constitution.
Petitioner's Notice of Appeal indicated that he was appealing from the trial court's
decision to this Court, yet the trial court transmitted the record to
the Court of Appeals and the latter proceeded to resolve the appeal.
We then set aside the decision of the Court of Appeals for having been rendered
without jurisdiction, and consider the appeal as having been directly brought to
us, with the petition for review as petitioner's Brief for the Appellant, the comment
thereon by the Office of the Solicitor General as the Brief for the Appellee and the
memoranda of the parties as their Supplemental Briefs.
Deliberating on the foregoing pleadings, we find ourselves convinced that the
prosecution failed to establish petitioner's guilt with moral certainty.
First, serious doubt surrounds the story of police officer Yu that a grenade was
found in and seized from petitioner's possession. Notably, Yu did not identify,
in court, the grenade he allegedly seized. According to him, he turned it over to
his commander after putting an "X" mark at its bottom; however, the commander
was not presented to corroborate this claim. On the other hand, the grenade
presented in court and identified by police officer Ramilo referred to what the
latter received from Lt. Eduardo Cabrera and police officer Diotoy not
immediately after petitioner's arrest, but nearly seven (7) months later or on 19
March 1991; further, there was no evidence whatsoever that what Ramilo
received was the very same grenade seized from petitioner. In his testimony, Yu
never declared that the grenade passed on to Ramilo was the grenade the
former confiscated from petitioner. Yu did not, and was not made to, identify the
grenade examined by Ramilo, and the latter did not claim that the grenade he
examined was that seized from petitioner. Plainly, the law enforcement
authorities failed to safeguard and preserve the chain of evidence so crucial in
cases such as these.
Second, if indeed petitioner had a grenade with him, and that two days earlier he
was with a group about to detonate an explosive at Plaza Miranda, and Yu and
his fellow officers chased, but failed to arrest them, then considering that Yu and
his three fellow officers were in uniform and therefore easily cognizable as police
officers, it was then unnatural and against common experience that petitioner
simply stood there in proximity to the police officers. Note that Yu observed
petitioner for thirty minutes and must have been close enough to petitioner in
order to discern petitioner's eyes "moving very fast."
Finally, even assuming that petitioner admitted possession of the grenade during
his custodial investigation by police officer Serapio, such admission was
inadmissible in evidence for it was taken in palpable violation of Section 12(1)
and (3) of Article III of the Constitution, which provide as follows:
SEC. 12 (1). Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain silent
and to have competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and
in the presenceof counsel.

xxx xxx xxx

(3) Any confession or admission obtained in violation of this or Section
17 hereof shall be inadmissible in evidence against him.
Serapio conducted the custodial investigation on petitioner the day following his
arrest. No lawyer was present and Serapio could not have requested a lawyer to
assist petitioner as no PAO lawyer was then available. Thus, even if petitioner
consented to the investigation and waived his rights to remain silent and to
counsel, the waiver was invalid as it was not in writing, neither was it executed in
the presence of counsel.
Even granting ex gratia that petitioner was in possession of a grenade, the arrest
and search of petitioner were invalid, as will be discussed below.
The general rule as regards arrests, searches and seizures is that a warrant is
needed in order to validly effect the same. 31 The Constitutional prohibition
against unreasonable arrests, searches and seizures refers to those effected
without a validly issued warrant, 32 subject to certain exceptions. As regards valid
warrantless arrests, these are found in Section 5, Rule 113of the Rules of Court,
which reads, in part:
Sec. 5. Arrest, without warrant; when lawful. — A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to
be arrested has committed it; and
 (c) When the person to be arrested is a prisoner who has
escaped . . .
A warrantless arrest under the circumstances contemplated under Section 5(a)
has been denominated as one "in flagrante delicto," while that under Section 5(b)
has been described as a "hot pursuit" arrest.
Turning to valid warrantless searches, they are limited to the following: (1)
customs searches; (2) search of moving vehicles; (3) seizure of evidence in plain
view; (4) consent searches; 33 (5) a search incidental to a lawful arrest; 34 and (6)
a "stop and frisk." 35
In the instant petition, the trial court validated the warrantless search as a "stop
and frisk" with "the seizure of the grenade from the accused [as] an appropriate
incident to his arrest," hence necessitating a brief discussion on the
nature of these exceptions to the warrant requirement.
At the outset, we note that the trial court confused the concepts of a "stop-and-
frisk" and of a search incidental to a lawful arrest. These two types of warrantless
searches differ in termsof the requisite quantum of proof before they may be
validly effected and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest determines the
validity of the incidental search, the legality of the arrest is questioned in a large
majority of these cases,e.g., whether an arrest was merely used as a pretext for
conducting a search. 36 In this instance, the law requires that there first be a
lawful arrest before a search can be made — the process cannot be
reversed. 37 At bottom, assuming a valid arrest, the arresting officer may search
the person of the arrestee and the area within which the latter may reach for a
weapon or for evidence to destroy, and seize any money or property found which
was used in the commission of the crime, or the fruit of the crime, or that which
may be used as evidence, or which might furnish the arrestee with the
means of escaping or committing violence. 38
Here, there could have been no valid in flagrante delicto or hot pursuit arrest
preceding the search in light of the lack of personal knowledge on the part of Yu,
the arresting officer, or an overt physical act, on the part of petitioner, indicating
that a crime had just been committed, was being committed or was going to be
committed.
Having thus shown the invalidity of the warrantless arrest in this case, plainly, the
search conducted on petitioner could not have been one incidental to a lawful
arrest.
We now proceed to the justification for and allowable scope of a "stop-and-frisk"
as a "limited protective search of outer clothing for weapons," as laid down
in Terry; thus:
We merely hold today that where a police officer observes unusual
conduct which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot and that the persons with
whom he is dealing may be armed and presently dangerous, where in
the course of investigating this behavior he identifies himself as a
policeman and makes reasonable inquiries, and where nothing in the
initial stages of the encounter serves to dispel his reasonable fear for his
own or others' safety, he is entitled for the protection of himself and
others in the area to conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover weapons which might
be used to assault him. Such a search is a reasonable search under the
Fourth Amendment . . . 39
Other notable points of Terry are that while probable cause is not required to
conduct a "stop and frisk," 40 it nevertheless holds that mere suspicion or a hunch
will not validate a "stop and frisk." A genuine reason must exist, in light of the
police officer's experience and surrounding conditions, to warrant the belief that
the person detained has weapons concealed about him. 41 Finally, a "stop-and-
frisk" serves a two-fold interest: (1) the general interest of effective crime
prevention and detection, which underlies the recognition that a police officer
may, under appropriate circumstances and in an appropriate manner, approach a
person for purposes of investigating possible criminal behavior even without
probable cause; and (2) the more pressing interest of safety and self-
preservation which permit the police officer to take steps to assure himself that
the person with whom he deals is not armed with a deadly weapon that could
unexpectedly and fatally be used against the police officer.
Here, there are at least three (3) reasons why the "stop-and-frisk" was invalid:
First, we harbor grave doubts as to Yu's claim that petitioner was a
member of the group which attempted to bomb Plaza Miranda two days earlier.
This claim is neither supported by any police report or record nor corroborated by
any other police officer who allegedly chased that group. Aside from impairing
Yu's credibility as a witness, this likewise diminishes the probability that a
genuine reason existed so as to arrest and search petitioner. If only to further
tarnish the credibility of Yu's testimony, contrary to his claim that petitioner and
his companions had to be chased before being apprehended, the
affidavit of arrest (Exh. "A") expressly declares otherwise, i.e., upon arrival of five
(5) other police officers, petitioner and his companions were "immediately
collared."
Second, there was nothing in petitioner's behavior or conduct which could have
reasonably elicited even mere suspicion other than that his eyes were "moving
very fast" — an observation which leaves us incredulous since Yu and his
teammates were nowhere near petitioner and it was already 6:30 p.m., thus
presumably dusk. Petitioner and his companions were merely standing at the
corner and were not creating any commotion or trouble, as Yu explicitly declared
on cross-examination: cdrep

Q And what were they doing?

A They were merely standing.
Q You are sure of that?
A Yes, sir.
Q And when you saw them standing, there were nothing or they did not
create any commotion?
A None, sir.
Q Neither did you see them create commotion?
A None, sir. 42
Third, there was at all no ground, probable or otherwise, to believe that petitioner
was armed with a deadly weapon. None was visible to Yu, for as he admitted, the
alleged grenade was "discovered" "inside the front waistline" of petitioner, and
from all indications as to the distance between Yu and petitioner, any telltale
bulge, assuming that petitioner was indeed hiding a grenade, could not have
been visible to Yu. In fact, as noted by the trial court:
When the policemen approached the accused and his companions, they were
not yet aware that a handgrenade was tucked inside his waistline. They did not
see any bulging object in [sic] his person. 43
What is unequivocal then in this case are blatant violations of petitioner's rights
solemnly guaranteed in Sections 2 and 12(1) of Article III of the Constitution.
WHEREFORE, the challenged decision of the Seventeenth
Division of the Court of Appeals in CA-G.R. CR No. 15988 is SET ASIDE for
lack of jurisdiction on the part of said Court and, on ground of reasonable doubt,
the decision of 10 February 1994 of Branch 5 of the Regional
Trial Court of Manila is REVERSED and petitioner SAMMY MALACAT y
MANDAR is hereby ACQUITTED and ORDERED immediately released from
detention, unless his further detention is justified for any other lawful cause.
SO ORDERED.
Narvasa, C .J ., Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Francisco and Martinez, JJ ., concur.
(Malacat y Mandar v. Court of Appeals, G.R. No. 123595, [December 12, 1997],
|||

347 PHIL 462-492)

 FIRST DIVISION

[G.R. No. 74869. July 6, 1988.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

IDEL AMINNUDIN y AHNI, defendant-appellant.

The Solicitor General, for plaintiff-appellee.

Herminio T. Llariza counsel de-officio, for defendant-appellant.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS AGAINST

UNREASONABLE SEARCHES AND SEIZURES; WARRANTLESS ARREST
AND SEIZURE BASED ON AN INFORMER'S TIP, AT A TIME WHEN
ACCUSED WAS NOT COMMITTING A CRIME, ILLEGAL; EVIDENCE
OBTAINED, INADMISSIBLE. — Where it is not disputed that the PC officers had
no warrant when they arrestedAminnudin while he was descending the
gangplank of the M/V Wilcon 9 and seized the bag he was carrying, and that their
only justification was the tip they had earlier received from a reliable and regular
informer who reported to them that Aminnudin was arriving in Iloilo by boat with
marijuana, the search was not an incident of a lawful arrest because there was
no warrant of arrest and warrantless arrest did not come under the exceptions
allowed by the Rules of Court. Hence, the warrantless search was also illegal
and the evidence obtained was inadmissible.
2. ID.; ID.; ID.; ID.; NO URGENCY COULD BE INVOKED IN PRESENT CASE
TO DISPENSE WITH OBTENTION OF ARREST AND SEARCH WARRANT. —
The present case presented no such urgency. From the conflicting declarations
of the PC witnesses, it is clear that they had at least two days within which they
could have obtained a warrant to arrest and search Aminnudinwho was coming
to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was identified.
The date of its arrival was certain. And from the information they had received,
they could have persuaded a judge that there was probable cause, indeed, to
justify the issuance of a warrant. Yet they did nothing. No effort was made to
comply with the law. The Bill of Rights was ignored altogether because the PC
lieutenant who was the head of the arresting team, had determined on his own
authority that a "search warrant was not necessary."
3. ID.; ID.; ID.; ID.; ACCUSED IN CASE AT BAR WAS NOT COMMITTING A
CRIME WHEN HE WAS ARRESTED. — In the case at bar, the accused-
appellant was not, at the moment of his arrest, committing a crime nor was it
shown that he was about to do so or that he had just done so. What he was
doing was descending the gangplank of the M/V Wilcon 9 and there was no
outward indication that called for his arrest. To all appearances, he was like any
of the other passengers innocently disembarking from the vessel. It was only
when the informer pointed to him as the carrier of the marijuana that he suddenly
became suspect and so subject to apprehension. It was the furtive finger that
triggered his arrest. The identification by the informer was the probable cause as
determined by the officers (and not a judge) that authorized them to pounce
upon Aminnudin and immediately arrest him.
AQUINO, J., Dissenting:
CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST
UNREASONABLE SEARCHES AND SEIZURES; ARREST AT TIME OF
COMMISSION OF CRIME IS LAWFUL; SEARCH LIKEWISE LAWFUL.— I hold
that the accused was caught in flagrante, for he was carrying marijuana leaves in
his bag at the moment of his arrest. He was not "innocently disembarking from
the vessel." The unauthorized transportation of marijuana (Indian hemp), which is
a prohibited drug, is a crime. (Sec. 4, Rep. Act No. 6425). Since he was
committing a crime, his arrest could be lawfully effected without a warrant (Sec.
6-a, Rule 113, Rules of Court), and the search of his bag (which yielded the
marijuana leaves) without a search warrant was also lawful (Sec. 12, Rule 126,
Rules of Court).

DECISION

CRUZ, J :p

The accused-appellant claimed his business was selling watches but he was
nonetheless arrested, tried and found guilty of illegally transporting marijuana.
The trial court, disbelieving him, held it was high time to put him away and
sentenced him to life imprisonment plus a fine of P20,000.00. 1
Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from
the M/V Wilcon 9 at about 8:30 in the evening, in Iloilo City. The PC officers who
were in fact waiting for him simply accosted him, inspected his bag and finding
what looked liked marijuana leaves took him to their headquarters for
investigation. The two bundles of suspect articles were confiscated from him and
later taken to the NBI laboratory for examination. When they were verified as
marijuana leaves, an information for violation of the Dangerous Drugs Act was
filed against him. 2 Later, the information was amended to include Farida Ali y
Hassen, who had also been arrested with him that same evening and likewise
investigated. 3 Both were arraigned and pleaded not guilty. 4 Subsequently, the
fiscal filed a motion to dismiss the charge against Ali on the basis of a sworn
statement of the arresting officers absolving her after a "thorough
investigation." 5 The motion was granted, and trial proceeded only against the
accused-appellant, who was eventually convicted. 6
According to the prosecution, the PC officers had earlier received a tip from one
of their informers that the accused-appellant was on board a vessel bound for
Iloilo City and was carrying marijuana. 7 He was identified by name. 8 Acting on
this tip, they waited for him in the evening of June 25, 1984, and approached him
as he descended from the gangplank after the informer had pointed to
him. 9 They detained him and inspected the bag he was carrying. It was found to
contain three kilos of what were later analyzed as marijuana leaves by an NBI
forensic examiner, 10 who testified that she conducted microscopic, chemical and
chromatographic tests on them. On the basis of this finding, the corresponding
charge was then filed against Aminnudin.
In his defense, Aminnudin disclaimed the marijuana, averring that all he had in
his bag was his clothing consisting of a jacket, two shirts and two pairs of
pants. 11 He alleged that he was arbitrarily arrested and immediately handcuffed.
His bag was confiscated without a search warrant. At the PC headquarters, he
was manhandled to force him to admit he was carrying the marijuana, the
investigator hitting him with a piece of wood in the chest and arms even as he
parried the blows while he was still handcuffed. 12 He insisted he did not even
know what marijuana looked like and that his business was selling watches and
sometimes cigarettes. 13 He also argued that the marijuana he was alleged to
have been carrying was not properly identified and could have been any of
several bundles kept in the stock room of the PC headquarters. 14
The trial court was unconvinced, noting from its own examination of the accused
that he claimed to have come to Iloilo City to sell watches but carried only two
watches at the time, traveling from Jolo for that purpose and spending P107.00
for fare, not to mention his other expenses. 15 Aminnudin testified that he kept the
two watches in a secret pocket below his belt but, strangely, they were not
discovered when he was bodily searched by the arresting officers nor were they
damaged as a result of his manhandling. 1 6 He also said he sold one of the
watches for P400.00 and gave away the other, although the watches belonged
not to him but to his cousin, 17 to a friend whose full name he said did not even
know. 18 The trial court also rejected his allegations of maltreatment, observing
that he had not sufficiently proved the injuries sustained by him. 19
There is no justification to reverse these factual findings, considering that it was
the trial judge who had immediate access to the testimony of the witnesses and
had the opportunity to weigh their credibility on the stand. Nuances of tone or
voice, meaningful pauses and hesitation, flush of face and dart of eyes, which
may reveal the truth or expose the lie, are not described in the impersonal
record. But the trial judge sees all of this, discovering for himself the truant fact
amidst the falsities.
The only exception we may make in this case is the trial court's conclusion that
the accused-appellant was not really beaten up because he did not complain
about it later nor did he submit to a medical examination. That is hardly fair or
realistic. It is possible Aminnudin never had that opportunity as he was at that
time under detention by the PC authorities and in fact has never been set free
since he was arrested in 1984 and up to the present. No bail has been allowed
for his release.
There is one point that deserves closer examination, however, and it
is Aminnudin's claim that he was arrested and searched without warrant, making
the marijuana allegedly found in his possession inadmissible in evidence against
him under the Bill of Rights. The decision did not even discuss this point. For his
part, the Solicitor General dismissed this after an all-too-short argument that the
arrest of Aminnudin was valid because it came under Rule 113, Section 6(b) of
the Rules of Court on warrantless arrests. This made the search also valid as
incidental to a lawful arrest.
It is not disputed, and in fact it is admitted by the PC officers who testified for the
prosecution, that they had no warrant when they arrested Aminnudin and seized
the bag he was carrying. Their only justification was the tip they had earlier
received from a reliable and regular informer who reported to them
that Aminnudin was arriving in Iloilo by boat with marijuana. Their testimony
varies as to the time they received the tip, one saying it was two days before the
arrest, 20 another two weeks 21 and a third "weeks before June 25." 22 On this
matter, we may prefer the declaration of the chief of the arresting team, Lt.
Cipriano Querol, Jr., who testified as follow:
"Q You mentioned an intelligence report, you mean with respect to the
coming of Idel Aminnudin on June 25, 1984?
"A Yes, sir.
"Q When did you receive this intelligence report?

"A Two days before June 25, 1984 and it was supported by reliable
sources.
"Q Were you informed of the coming of the Wilcon 9 and the possible
trafficking of marijuana leaves on that date?
"A Yes, sir, two days before June 25, 1984 when we received this
information from that particular informer, prior to June 25, 1984
 we have already reports of the particular operation which was
being participated by Idel Aminnudin.
"Q You said you received an intelligence report two days before June
25, 1984 with respect to the coming of Wilcon 9?
"A Yes, sir.
"Q Did you receive any other report aside from this intelligence report?
"A Well, I have received also other reports but not pertaining to the
coming of Wilcon 9. For instance, report of illegal gambling
operation.
"COURT:
"Q Previous to that particular information which you said two days before
June 25, 1984, did you also receive any report regarding the
activities of Idel Aminnudin?
"A Previous to June 25, 1984 we received reports on the activities of
Idel Aminnudin.
"Q What were those activities?
"A Purely marijuana trafficking.
"Q From whom did you get that information?
"A It came to my hand which was written in a required sheet of
information, maybe for security reason and we cannot identify the
person.
"Q But you received it from your regular informer?
"A Yes, sir.
"ATTY. LLARIZA:
"Q Previous to June 25, 1984, you were more or less sure that
Idel Aminnudin is coming with drugs?
"A Marijuana, sir.
"Q And this information respecting Idel Aminnudin's coming to Iloilo with
marijuana was received by you many days before you received
the intelligence report in writing?
"A Not a report of the particular coming of Aminnudin but his activities.
"Q You only knew that he was coming on June 25, 1984 two days
before?
"A Yes, sir.
"Q You mean that before June 23, 1984 you did not know
that Aminnudin was coming?
"A Before June 23, 1984, I, in my capacity, did not know that he was
coming but on June 23, 1984 that was the time when I received
the information that he was coming. Regarding the reports on his
activities, we have reports that he has already consummated the
act of selling and shipping marijuana stuff.
"COURT:
"Q And as a result of that report, you put him under surveillance?
"A Yes, sir.
"Q In the intelligence report, only the name of Idel Aminnudin was
mentioned?
"A Yes, sir.
 "Q Are you sure of that?
"A On the 23rd he will be coming with the woman.
"Q So that even before you received the official report on June 23, 1984,
you had already gathered information to the effect that
Idel Aminnudin was coming to Iloilo on June 25, 1984?
"A Only on the 23rd of June.
"Q You did not try to secure a search warrant for the seizure or search of
the subject mentioned in your intelligence report?
"A No, more.
"Q Why not?
"A Because we were very very sure that our operation will yield positive
result.
"Q Is that your procedure that whenever it will yield positive result you do
not need a search warrant anymore?
"A Search warrant is not necessary." 23

That last answer is a cavalier pronouncement, especially as it comes from a

mere lieutenant of the PC. The Supreme Court cannot countenance such a
statement. This is still a government of laws and not of men.
The mandate of the Bill of Rights is clear:
"Sec. 2. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or
things to be seized."
In the case at bar, there was no warrant of arrest or search warrant issued by a
judge after personal determination by him of the existence of probable cause.
Contrary to the averments of the government, the accused-appellant was not
caught in flagrante nor was a crime about to be committed or had just been
committed to justify the warrantless arrest allowed under Rule 113 of the Rules of
Court. Even expediency could not be invoked to dispense with the obtention of
the warrant as in the case of Roldan v. Arca, 24 for example. Here it was held that
vessels and aircraft are subject to warrantless searches and seizures for violation
of the customs law because these vehicles may be quickly moved out of the
locality or jurisdiction before the warrant can be secured.
The present case presented no such urgency. From the conflicting declarations
of the PC witnesses, it is clear that they had at least two days within which they
could have obtained a warrant to arrest and search Aminnudin who was coming
to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was identified.
The date of its arrival was certain. And from the information they had received,
they could have persuaded a judge that there was probable cause, indeed, to
justify the issuance of a warrant. Yet they did nothing. No effort was made to
comply with the law. The Bill of Rights was ignored altogether because the PC
lieutenant who was the head of the arresting team, had determined on his own
authority that "search warrant was not necessary."
In the many cases where this Court has sustained the warrantless arrest of
violators of the Dangerous Drugs Act, it has always been shown that they were
caught red-handed, as result of what are popularly called "buy-bust" operations
of the narcotics agents. 25 Rule 113 was clearly applicable because at the
precise time of arrest the accused was in the act of selling the prohibited drug.
In the case at bar, the accused-appellant was not, at the moment of his arrest,
committing a crime nor was it shown that he was about to do so or that he had
just done so. What he was doing was descending the gangplank of the
M/V Wilcon 9 and there was no outward indication that called for his arrest. To all
appearances, he was like any of the other passengers innocently disembarking
from the vessel. It was only when the informer pointed to him as the carrier of the
marijuana that he suddenly became suspect and so subject to apprehension. It
was the furtive finger that triggered his arrest. The identification by the informer
was the probable cause as determined by the officers (and not a judge) that
authorized them to pounce upon Aminnudin and immediately arrest him.
Now that we have succeeded in restoring democracy in our country after
fourteen years of the despised dictatorship, when any one could be picked up at
will, detained without charges and punished without trial, we will have only
ourselves to blame if that kind of arbitrariness is allowed to return, to once more
flaunt its disdain of the Constitution and the individual liberties its Bill of Rights
guarantees.
While this is not to say that the accused-appellant is innocent, for indeed his very
own words suggest that he is lying, that fact alone does not justify a finding that
he is guilty. The constitutional presumption is that he is innocent, and he will be
so declared even if his defense is weak as long as the prosecution is not strong
enough to convict him.
Without the evidence of the marijuana allegedly seized from Aminnudin, the case
of the prosecution must fall. That evidence cannot be admitted, and should never
have been considered by the trial court for the simple fact is that the marijuana
was seized illegally. It is the fruit of the poisonous tree, to use Justice Holmes'
felicitous phrase. The search was not an incident of a lawful arrest because there
was no warrant of arrest and the warrantless arrest did not come under the
exceptions allowed by the Rules of Court. Hence, the warrantless search was
also illegal and the evidence obtained thereby was inadmissible.
The Court strongly supports the campaign of the government against drug
addiction and commends the efforts of our law-enforcement officers against
those who would inflict this malediction upon our people, especially the
susceptible youth. But as demanding as this campaign may be, it cannot be more
so than the compulsions of the Bill of Rights for the protection of the liberty of
every individual in the realm, including the basest of criminals. The Constitution
covers with the mantle of its protection the innocent and the guilty alike against
any manner of high-handedness from the authorities, however praiseworthy their
intentions.
Those who are supposed to enforce the law are not justified in disregarding the
rights of the individual in the name of order. Order is too high a price for the loss
of liberty. As Justice Holmes, again, said, "I think it a less evil that some criminal
should escape than that the government should play an ignoble part." It is simply
not allowed in the free society to violate a law to enforce another, especially if the
law violated is the Constitution itself.
We find that with the exclusion of the illegally seized marijuana as evidence
against the accused-appellant, his guilt has not been proved beyond reasonable
doubt and he must therefore be discharged on the presumption that he is
innocent.
ACCORDINGLY, the decision of the trial court is REVERSED and the accused-
appellant is ACQUITTED. It is so ordered.
Narvasa, Gancayco and Medialdea JJ. concur.
(People v. Aminnudin y Ahni, G.R. No. 74869, [July 6, 1988], 246 PHIL 424-
|||

435)
 EN BANC

[G.R. No. 91107. June 19, 1991.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-

appellee, vs. MIKAEL MALMSTEDT, * defendant-appellant.

The Solicitor General for plaintiff-appellee.

Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for defendant-
appellant.

DECISION

PADILLA, J : p

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.
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.
During the arraignment, accused entered a plea of "not guilty." For his defense,
he raised the issue of illegal search of his personal effects. He also claimed that
the hashish was planted by the NARCOM officers in his pouch bag and that the
two (2) travelling bags were not owned by him, but were merely entrusted to him
by an Australian couple whom he met in Sagada. He further claimed that the
Australian couple intended to take the same bus with him but because there
were no more seats available in said bus, they decided to take the next ride and
asked accused to take charge of the bags, and that they would meet each other
at the Dangwa Station.
Likewise, accused alleged that when the NARCOM officers demanded for his
passport and other identification papers, he handed to one of the officers his
pouch bag which was hanging on his neck containing, among others, his
passport, return ticket to Sweden and other papers. The officer in turn handed it
to his companion who brought the bag outside the bus. When said officer came
back, he charged the accused that there was hashish in the bag. He was told to
get off the bus and his picture was taken with the pouch bag placed around his
neck. The trial court did not give credence to accused's defense. LibLex

The claim of the accused that the hashish was planted by the NARCOM officers,
was belied by his failure to raise such defense at the earliest opportunity. When
accused was investigated at the Provincial Fiscal's Office, he did not inform the
Fiscal or his lawyer that the hashish was planted by the NARCOM officers in his
bag. It was only two (2) months after said investigation when he told his lawyer
about said claim, denying ownership of the two (2) travelling bags as well as
having hashish in his pouch bag.
In a decision dated 12 October 1989, the trial court found accused guilty beyond
reasonable doubt for violation of the Dangerous Drugs Act, specifically Section 4,
Art. II of RA 6425, as amended. 3 The dispositive portion of the decision reads as
follows:
"WHEREFORE, finding the guilt of the accused
Mikael Malmstedt established beyond reasonable doubt, this Court finds
him GUILTY of violation of Section 4, Article II of Republic Act 6425, as
amended, and hereby sentences him to suffer the penalty of life
imprisonment and to pay a fine of Twenty Thousand Pesos
(P20,000.00), with subsidiary imprisonment in case of insolvency and to
pay the costs.
Let the hashish subject of this case be turned over to the First Narcotics
Regional Unit at Camp Bado; Dangwa, La Trinidad, Benguet for proper
disposition under Section 20, Article IV ofRepublic Act 425, as amended.
SO ORDERED." 4
Seeking the reversal of the decision of the trial court finding him guilty of the
crime charged, accused argues that the search of his 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.
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. A lawful arrest without a warrant may be
made by a peace officer or a private person under the following circumstances. 6
"SEC. 5. Arrest without warrant; when lawful. — A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has escaped from
a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station
or jail, and he shall be proceeded against in accordance with Rule 112,
Section 7. (6a, 17a)."
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 the foregoing provisions of law, 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. LLphil

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 aprobable 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.
WHEREFORE, premises considered, the appealed judgment of conviction by the
trial court is hereby AFFIRMED. Costs against the accused-appellant.
SO ORDERED.
Melencio-Herrera, Paras, Feliciano, Bidin, Griño-Aquino, Medialdea,
Regalado and Davide, Jr., JJ., concur.
Sarmiento, J., is on leave.
||| (People v. Malmstedt, G.R. No. 91107, [June 19, 1991], 275 PHIL 447-472)
 SECOND DIVISION

[G.R. No. 197788. February 29, 2012.]

RODEL LUZ y ONG, petitioner, vs. PEOPLE OF THE

PHILIPPINES, 1 respondent.

DECISION

SERENO, J : p

This is a Petition for Review on Certiorari under Rule 45 seeking to set aside the
Court of Appeals (CA) Decision in CA-G.R. CR No. 32516 dated 18 February
2011 2 and Resolution dated 8 July 2011.
Statement of the Facts and of the Case
The facts, as found by the Regional Trial Court (RTC), which sustained the
version of the prosecution, are as follows:
PO2 Emmanuel L. Alteza, who was then assigned at the Sub-Station 1
of the Naga City Police Station as a traffic enforcer, substantially testified
that on March 10, 2003 at around 3:00 o'clock in the morning, he saw
the accused, who was coming from the direction of Panganiban Drive
and going to Diversion Road, Naga City, driving a motorcycle without a
helmet; that this prompted him to flag down the accused for violating a
municipal ordinance which requires all motorcycle drivers to wear
helmet (sic) while driving said motor vehicle; that he invited the accused
to come inside their sub-station since the place where he flagged down
the accused is almost in front of the said sub-station; that while he and
SPO1 Rayford Brillante were issuing a citation ticket for violation of
municipal ordinance, he noticed that the accused was uneasy and kept
on getting something from his jacket; that he was alerted and so, he told
the accused to take out the contents of the pocket of his jacket as the
latter may have a weapon inside it; that the accused obliged and slowly
put out the contents of the pocket of his jacket which was a nickel-like tin
or metal container about two (2) to three (3) inches in size, including two
(2) cellphones, one (1) pair of scissors and one (1) Swiss knife; that
upon seeing the said container, he asked the accused to open it; that
after the accused opened the container, he noticed a cartoon cover and
something beneath it; and that upon his instruction, the accused spilled
out the contents of the container on the table which turned out to be four
(4) plastic sachets, the two (2) of which were empty while the other two
(2) contained suspected shabu. 3
Arraigned on 2 July 2003, petitioner, assisted by counsel, entered a plea of "Not
guilty" to the charge of illegal possession of dangerous drugs. Pretrial was
terminated on 24 September 2003, after which, trial ensued.
During trial, Police Officer 3 (PO3) Emmanuel Alteza and a forensic chemist
testified for the prosecution. On the other hand, petitioner testified for himself and
raised the defense of planting of evidence and extortion.
In its 19 February 2009 Decision, 4 the RTC convicted petitioner of illegal
possession of dangerous drugs 5 committed on 10 March 2003. It found the
prosecution evidence sufficient to show that he had been lawfully arrested for a
traffic violation and then subjected to a valid search, which led to the discovery
on his person of two plastic sachets later found to containshabu. The RTC also
found his defense of frame-up and extortion to be weak, self-serving and
unsubstantiated. The dispositive portion of its Decision held:
 WHEREFORE, judgment is hereby rendered, finding accused
RODEL LUZ y ONG GUILTY beyond reasonable doubt for the crime of
violation of Section 11, Article II of Republic Act No. 9165and sentencing
him to suffer the indeterminate penalty of imprisonment ranging from
twelve (12) years and (1) day, as minimum, to thirteen (13) years, as
maximum, and to pay a fine of Three Hundred Thousand Pesos
(P300,000.00).
The subject shabu is hereby confiscated for turn over to the Philippine
Drug Enforcement Agency for its proper disposition and destruction in
accordance with law.
SO ORDERED. 6
Upon review, the CA affirmed the RTC's Decision.
On 12 September 2011, petitioner filed under Rule 45 the instant Petition for
Review on Certiorari dated 1 September 2011. In a Resolution dated 12 October
2011, this Court required respondent to file a comment on the Petition. On 4
January 2012, the latter filed its Comment dated 3 January 2012.
Petitioner raised the following grounds in support of his Petition:
(i)THE SEARCH AND SEIZURE OF THE ALLEGED SUBJECT
SHABU IS INVALID.
(ii)THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE
OF DUTY OF THE POLICE OFFICER CANNOT BE RELIED
UPON IN THIS CASE.
(iii)THE INTEGRITY AND EVIDENTIARY VALUE OF THE ALLEGED
SUBJECT SPECIMEN HAS BEEN COMPROMISED.
(iv)THE GUILT OF THE ACCUSED-PETITIONER WAS NOT PROVEN
BEYOND THE REASONABLE DOUBT (sic). 7
Petitioner claims that there was no lawful search and seizure, because there was
no lawful arrest. He claims that the finding that there was a lawful arrest was
erroneous, since he was not even issued a citation ticket or charged with
violation of the city ordinance. Even assuming there was a valid arrest, he claims
that he had never consented to the search conducted upon him.
On the other hand, finding that petitioner had been lawfully arrested, the RTC
held thus:
It is beyond dispute that the accused was flagged down and
apprehended in this case by Police Officers Alteza and Brillante for
violation of City Ordinance No. 98-012, an ordinance requiring the use of
crash helmet by motorcycle drivers and riders thereon in the City of
Naga and prescribing penalties for violation thereof. The accused
himself admitted that he was not wearing a helmet at the time when he
was flagged down by the said police officers, albeit he had a helmet in
his possession. Obviously, there is legal basis on the part of the
apprehending officers to flag down and arrest the accused because the
latter was actually committing a crime in their presence, that is, a
violation of City Ordinance No. 98-012. In other words, the accused,
being caught in flagrante delicto violating the said Ordinance, he could
therefore be lawfully stopped or arrested by the apprehending officers. . .
..8
We find the Petition to be impressed with merit, but not for the particular reasons
alleged. In criminal cases, an appeal throws the entire case wide open for review
and the reviewing tribunal can correct errors, though unassigned in the appealed
judgment, or even reverse the trial court's decision based on grounds other than
those that the parties raised as errors. 9
First, there was no valid arrest of petitioner. When he was flagged down for
committing a traffic violation, he was not, ipso facto and solely for this reason,
arrested.
Arrest is the taking of a person into custody in order that he or she may be bound
to answer for the commission of an offense. 10 It is effected by an actual restraint
of the person to be arrested or by that person's voluntary submission to the
custody of the one making the arrest. Neither the application of actual force,
manual touching of the body, or physical restraint, nor a formal declaration of
arrest, is required. It is enough that there be an intention on the part of one of the
parties to arrest the other, and that there be an intent on the part of the other to
submit, under the belief and impression that submission is necessary. 11
Under R.A. 4136, or the Land Transportation and Traffic Code, the general
procedure for dealing with a traffic violation is not the arrest of the offender, but
the confiscation of the driver's license of the latter:
SECTION 29.Confiscation of Driver's License. — Law enforcement and
peace officers of other agencies duly deputized by the Director shall, in
apprehending a driver for any violation of this Act or any regulations
issued pursuant thereto, or of local traffic rules and regulations not
contrary to any provisions of this Act, confiscate the license of the driver
concerned and issue a receipt prescribed and issued by the Bureau
therefor which shall authorize the driver to operate a motor vehicle for a
period not exceeding seventy-two hours from the time and date of issue
of said receipt. The period so fixed in the receipt shall not be extended,
and shall become invalid thereafter. Failure of the driver to settle his
case within fifteen days from the date of apprehension will be a ground
for the suspension and/or revocation of his license.
Similarly, the Philippine National Police (PNP) Operations Manual 12 provides the
following procedure for flagging down vehicles during the conduct of checkpoints:
SECTION 7.Procedure in Flagging Down or Accosting Vehicles While in
Mobile Car. — This rule is a general concept and will not apply in hot
pursuit operations. The mobile car crew shall undertake the following,
when applicable: . . .
m.If it concerns traffic violations, immediately issue a Traffic Citation
Ticket (TCT) or Traffic Violation Report (TVR). Never indulge in
prolonged, unnecessary conversation or argument with the driver
or any of the vehicle's occupants;
At the time that he was waiting for PO3 Alteza to write his citation ticket,
petitioner could not be said to have been "under arrest." There was no intention
on the part of PO3 Alteza to arrest him, deprive him of his liberty, or take him into
custody. Prior to the issuance of the ticket, the period during which petitioner was
at the police station may be characterized merely as waiting time. In fact, as
found by the trial court, PO3 Alteza himself testified that the only reason they
went to the police sub-station was that petitioner had been flagged down "almost
in front" of that place. Hence, it was only for the sake of convenience that they
were waiting there. There was no intention to take petitioner into custody.
In Berkemer v. McCarty, 13 the United States (U.S.) Supreme Court discussed at
length whether the roadside questioning of a motorist detained pursuant to a
routine traffic stop should be considered custodial interrogation. The Court held
that, such questioning does not fall under custodial interrogation, nor can it be
considered a formal arrest, by virtue of the nature of the questioning, the
expectations of the motorist and the officer, and the length of time the procedure
is conducted. It ruled as follows:
It must be acknowledged at the outset that a traffic stop significantly
curtails the "freedom of action" of the driver and the passengers, if any,
of the detained vehicle. Under the law of most States, it is a crime either
 to ignore a policeman's signal to stop one's car or, once having stopped,
to drive away without permission. . . .
However, we decline to accord talismanic power to the phrase in the
Miranda opinion emphasized by respondent. Fidelity to the doctrine
announced in Miranda requires that it be enforced strictly, but only in
those types of situations in which the concerns that powered the
decision are implicated. Thus, we must decide whether a traffic stop
exerts upon a detained person pressures that sufficiently impair his free
exercise of his privilege against self-incrimination to require that he be
warned of his constitutional rights.
Two features of an ordinary traffic stop mitigate the danger that a person
questioned will be induced "to speak where he would not otherwise do
so freely," Miranda v. Arizona, 384 U.S., at 467. First, detention of a
motorist pursuant to a traffic stop is presumptively temporary and
brief. The vast majority of roadside detentions last only a few minutes. A
motorist's expectations, when he sees a policeman's light flashing
behind him, are that he will be obliged to spend a short period of time
answering questions and waiting while the officer checks his license and
registration, that he may then be given a citation, but that in the end he
most likely will be allowed to continue on his way. In this respect,
questioning incident to an ordinary traffic stop is quite different from
stationhouse interrogation, which frequently is prolonged, and in which
the detainee often is aware that questioning will continue until he
provides his interrogators the answers they seek. See id., at 451.
Second, circumstances associated with the typical traffic stop are
not such that the motorist feels completely at the mercy of the
police. To be sure, the aura of authority surrounding an armed,
uniformed officer and the knowledge that the officer has some discretion
in deciding whether to issue a citation, in combination, exert some
pressure on the detainee to respond to questions. But other aspects of
the situation substantially offset these forces. Perhaps most importantly,
the typical traffic stop is public, at least to some degree. . . .
In both of these respects, the usual traffic stop is more analogous to
a so-called "Terry stop," see Terry v. Ohio, 392 U.S. 1 (1968), than to
a formal arrest. . . . The comparatively nonthreatening character of
detentions of this sort explains the absence of any suggestion in our
opinions that Terry stops are subject to the dictates of Miranda. The
similarly noncoercive aspect of ordinary traffic stops prompts us to hold
that persons temporarily detained pursuant to such stops are not "in
custody" for the purposes of Miranda.
xxx xxx xxx
We are confident that the state of affairs projected by respondent will not
come to pass. It is settled that the safeguards prescribed by Miranda
become applicable as soon as a suspect's freedom of action is curtailed
to a "degree associated with formal arrest." California v. Beheler, 463
U.S. 1121, 1125 (1983) (per curiam). If a motorist who has been
detained pursuant to a traffic stop thereafter is subjected to treatment
that renders him "in custody" for practical purposes, he will be entitled to
the full panoply of protections prescribed by Miranda. See Oregonv.
Mathiason, 429 U.S. 492, 495 (1977) (per curiam). (Emphasis supplied.)
The U.S. Court in Berkemer thus ruled that, since the motorist therein was only
subjected to modest questions while still at the scene of the traffic stop, he was
not at that moment placed under custody (such that he should have been
apprised of his Miranda rights), and neither can treatment of this sort be fairly
characterized as the functional equivalent of a formal arrest. Similarly, neither
can petitioner here be considered "under arrest" at the time that his traffic citation
was being made.
It also appears that, according to City Ordinance No. 98-012, which was violated
by petitioner, the failure to wear a crash helmet while riding a motorcycle is
penalized by a fine only. Under the Rules of Court,a warrant of arrest need not
be issued if the information or charge was filed for an offense penalized by a fine
only. It may be stated as a corollary that neither can a warrantless arrest be
made for such an offense.
This ruling does not imply that there can be no arrest for a traffic violation.
Certainly, when there is an intent on the part of the police officer to deprive the
motorist of liberty, or to take the latter into custody, the former may be deemed to
have arrested the motorist. In this case, however, the officer's issuance (or intent
to issue) a traffic citation ticket negates the possibility of an arrest for the same
violation.
Even if one were to work under the assumption that petitioner was deemed
"arrested" upon being flagged down for a traffic violation and while
awaiting the issuance of his ticket, then the requirements for a valid arrest
were not complied with.
This Court has held that at the time a person is arrested, it shall be the duty of
the arresting officer to inform the latter of the reason for the arrest and must show
that person the warrant of arrest, if any. Persons shall be informed of their
constitutional rights to remain silent and to counsel, and that any statement they
might make could be used against them. 14 It may also be noted that in this case,
these constitutional requirements were complied with by the police officers
only after petitioner had been arrested for illegal possession of dangerous drugs.
In Berkemer, the U.S. Court also noted that the Miranda warnings must also be
given to a person apprehended due to a traffic violation:
The purposes of the safeguards prescribed by Miranda are to ensure
that the police do not coerce or trick captive suspects into confessing, to
relieve the "inherently compelling pressures" "generated by the custodial
setting itself," "which work to undermine the individual's will to resist,"
and as much as possible to free courts from the task of scrutinizing
individual cases to try to determine, after the fact, whether particular
confessions were voluntary. Those purposes are implicated as much by
in-custody questioning of persons suspected of misdemeanors as they
are by questioning of persons suspected of felonies.
If it were true that petitioner was already deemed "arrested" when he was flagged
down for a traffic violation and while he waiting for his ticket, then there would
have been no need for him to be arrested for a second time — after the police
officers allegedly discovered the drugs — as he was already in their custody.
Second, there being no valid arrest, the warrantless search that resulted
from it was likewise illegal.
The following are the instances when a warrantless search is allowed: (i) a
warrantless search incidental to a lawful arrest; (ii) search of evidence in "plain
view;" (iii) search of a moving vehicle; (iv) consented warrantless search; (v)
customs search; (vi) a "stop and frisk" search; and (vii) exigent and emergency
circumstances. 15 None of the above-mentioned instances, especially a search
incident to a lawful arrest, are applicable to this case.
It must be noted that the evidence seized, although alleged to be inadvertently
discovered, was not in "plain view." It was actually concealed inside a metal
container inside petitioner's pocket. Clearly, the evidence was not immediately
apparent. 16
Neither was there a consented warrantless search. Consent to a search is not to
be lightly inferred, but shown by clear and convincing evidence. 17 It must be
voluntary in order to validate an otherwise illegal search; that is, the consent
must be unequivocal, specific, intelligently given and uncontaminated by any
duress or coercion. While the prosecution claims that petitioner acceded to the
instruction of PO3 Alteza, this alleged accession does not suffice to prove valid
and intelligent consent. In fact, the RTC found that petitioner was merely "told" to
take out the contents of his pocket. 18
Whether consent to the search was in fact voluntary is a question of fact to be
determined from the totality of all the circumstances. Relevant to this
determination are the following characteristics of the person giving consent and
the environment in which consent is given: (1) the age of the defendant; (2)
whether the defendant was in a public or a secluded location; (3) whether the
defendant objected to the search or passively looked on; (4) the education and
intelligence of the defendant; (5) the presence of coercive police procedures; (6)
the defendant's belief that no incriminating evidence would be found; (7) the
nature of the police questioning; (8) the environment in which the questioning
took place; and (9) the possibly vulnerable subjective state of the person
consenting. It is the State that has the burden of proving, by clear and positive
testimony, that the necessary consent was obtained, and was freely and
voluntarily given. 19 In this case, all that was alleged was that petitioner was
alone at the police station at three in the morning, accompanied by several police
officers. These circumstances weigh heavily against a finding of valid consent to
a warrantless search.
Neither does the search qualify under the "stop and frisk" rule. While the rule
normally applies when a police officer observes suspicious or unusual conduct,
which may lead him to believe that a criminal act may be afoot, the stop and frisk
is merely a limited protective search of outer clothing for weapons. 20
In Knowles v. Iowa, 21 the U.S. Supreme Court held that when a police officer
stops a person for speeding and correspondingly issues a citation instead of
arresting the latter, this procedure does not authorize the officer to conduct a full
search of the car. The Court therein held that there was no justification for a full-
blown search when the officer does not arrest the motorist. Instead, police
officers may only conduct minimal intrusions, such as ordering the motorist to
alight from the car or doing a patdown:
In Robinson, supra, we noted the two historical rationales for the "search
incident to arrest" exception: (1) the need to disarm the suspect in order
to take him into custody, and (2) the need to preserve evidence for later
use at trial. . . . But neither of these underlying rationales for the search
incident to arrest exception is sufficient to justify the search in the
present case.
We have recognized that the first rationale — officer safety — is "'both
legitimate and weighty,'" . . . The threat to officer safety from issuing a
traffic citation, however, is a good deal less than in the case of a
custodial arrest. In Robinson, we stated that a custodial arrest involves
"danger to an officer" because of "the extended exposure which follows
the taking of a suspect into custody and transporting him to the police
station." 414 U.S., at 234-235. We recognized that "[t]he danger to the
police officer flows from the fact of the arrest, and its attendant proximity,
stress, and uncertainty, and not from the grounds for arrest." Id., at 234,
n. 5. A routine traffic stop, on the other hand, is a relatively brief
encounter and "is more analogous to a so-called 'Terry stop' . . .
than to a formal arrest." Berkemer v. McCarty, 468 U.S. 420, 439
(1984). See also Cupp v. Murphy, 412 U.S. 291, 296 (1973) ("Where
there is no formal arrest . . . a person might well be less hostile to the
police and less likely to take conspicuous, immediate steps to destroy
incriminating evidence").
This is not to say that the concern for officer safety is absent in the
case of a routine traffic stop. It plainly is not. See Mimms, supra, at
 110; Wilson, supra, at 413-414. But while the concern for officer
safety in this context may justify the "minimal" additional intrusion
of ordering a driver and passengers out of the car, it does not by
itself justify the often considerably greater intrusion attending a full
fieldtype search. Even without the search authority Iowa urges, officers
have other, independent bases to search for weapons and protect
themselves from danger. For example, they may order out of a vehicle
both the driver, Mimms, supra, at 111, and any passengers,
Wilson, supra, at 414; perform a "patdown" of a driver and any
passengers upon reasonable suspicion that they may be armed and
dangerous, Terry v. Ohio, 392 U.S. 1 (1968); conduct a "Terry patdown"
of the passenger compartment of a vehicle upon reasonable suspicion
that an occupant is dangerous and may gain immediate control of a
weapon, Michigan v. Long, 463 U.S. 1032, 1049 (1983); and even
conduct a full search of the passenger compartment, including any
containers therein, pursuant to a custodial arrest, New York v. Belton,
453 U.S. 454, 460 (1981).
Nor has Iowa shown the second justification for the authority to search
incident to arrest — the need to discover and preserve evidence. Once
Knowles was stopped for speeding and issued a citation, all the
evidence necessary to prosecute that offense had been obtained. No
further evidence of excessive speed was going to be found either on the
person of the offender or in the passenger compartment of the car.
(Emphasis supplied.)
The foregoing considered, petitioner must be acquitted. While he may have failed
to object to the illegality of his arrest at the earliest opportunity, a waiver of an
illegal warrantless arrest does not, however, mean a waiver of the inadmissibility
of evidence seized during the illegal warrantless arrest. 22
The Constitution guarantees the right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and seizures. 23 Any
evidence obtained in violation of said right shall be inadmissible for any purpose
in any proceeding. While the power to search and seize may at times be
necessary to the public welfare, still it must be exercised and the law
implemented without contravening the constitutional rights of citizens, for the
enforcement of no statute is of sufficient importance to justify indifference to the
basic principles of government. 24
The subject items seized during the illegal arrest are inadmissible. 25 The drugs
are the very corpus delicti of the crime of illegal possession of dangerous drugs.
Thus, their inadmissibility precludes conviction and calls for the acquittal of the
accused. 26
WHEREFORE, the Petition is GRANTED. The 18 February 2011 Decision of the
Court of Appeals in CA-G.R. CR No. 32516 affirming the judgment of conviction
dated 19 February 2009 of the Regional Trial Court, 5th Judicial Region, Naga
City, Branch 21, in Criminal Case No. RTC 2003-0087, is
hereby REVERSEDand SET ASIDE. n Petitioner Rodel Luz y Ong is
hereby ACQUITTED.The bail bond posted for his provisional liberty
is CANCELLED and RELEASED.
SO ORDERED.
Carpio, Brion, Perez and Reyes, JJ., concur
(Luz y Ong v. People, G.R. No. 197788, [February 29, 2012], 683 PHIL 399-
|||

415)
 THIRD DIVISION

[G.R. No. 120431. April 1, 1998.]

RODOLFO ESPANO, accused-

petitioner, vs. COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.

Ceferino Padua Law Office for petitioner.

The Solicitor General for respondents.

SYNOPSIS

This is a petition for review of the decision of the court of Appeals in CA G.R. CR
No. 13976 dated January 16, 1995 which affirmed in toto the judgment of the
Regional Trial Court ofManila, Branch 1, convicting petitioner Rodolfo Espano for
violation of Article II Section 8 of Republic Act No. 6425, as amended, otherwise
known as the Dangerous Drugs Act of 1972. The records of the case reveal that
herein petitioner was caught in possession of and under his custody twelve
plastic cellophane bags weighing 5.5 grams containing crushed flowering tops,
marijuana which is a prohibited drug. In his appeal before the Supreme Court,
petitioner contends that the trial and appellate courts erred in convicting him
because (1) the pieces ofevidence seized were inadmissible; (2) the
superiority of his constitutional right to be presumed innocent over the
doctrine of presumption of regularity; (3) he was denied the constitutional
right of confrontation and to compulsory process; and (4) his conviction was
based on evidence which was irrelevant and not properly identified. CIScaA

The Supreme Court finds that there was no compelling reason to reverse the
decisions of the trial and appellate courts. In this case, the findings of the
trial court that the prosecution witnesses were more credible than those of the
defense must stand. Petitioner failed to show that Pat. Romeo Pagilagan, in
testifying against him, was motivated by reasons other than his duty to curb drug
abuse and had any intent to falsely impute to him such a serious crime as
possession of prohibited drugs. In the absence of such ill motive, the
presumption of regularity in the performance of his official duty must prevail.
Furthermore, the defense of alibi set up by petitioner deserved scant
consideration. He simply contended that he was in his house sleeping at the
time of the incident. Lastly, the two cellophane bags of marijuana seized were
admissible in evidence because he was caught in flagranti as a result of a buy-
bust operation conducted by police officers. However, as for the other ten
cellophane bags of marijuana found at petitioner's residence, the same are
inadmissible in evidence considering that the said bags were seized at
petitioner's house after his arrest, hence, do not fall under the exceptions
provided under Article III, Section 2 of the 1987 Constitution. In view thereof, the
instant petition is denied and the challenged decision is affirmed with modification
as to the penalty.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES;

FINDINGS OF TRIAL COURTS ON THE CREDIBILITY OF WITNESSES
DESERVE A HIGH DEGREE OF RESPECT; CASE AT BAR. — It is a well-
settled doctrine that findings of trial courts on the credibility of witness deserve a
high degree of respect. Having observed the deportment of witnesses during the
trial, the trial judge is in a better position to determine the issue of credibility and,
thus, his findings will not be disturbed during appeal in the absence of any clear
and showing that he had overlooked, misunderstood or misapplied some facts or
circumstances of weight and substance which could have altered the
conviction of the appellants. In this case, the findings of the trial courtthat the
prosecution witnesses were more credible that those of the defense must stand.
Petitioner failed to show that Pat. Pagilagan, in testifying against him, was
motivated by reasons other than his duty to curb drug abuse and had any intent
to falsely impute to him such a serious crime as possession of prohibited drugs.
In the absence of such ill motive, the presumption of regularity in the
performance of his official duty must prevail.
2. ID.; ID.; ID.; CLAIM OF FRAME-UP, LIKE ALIBI, IS A DEFENSE THAT HAS
BEEN INVARIABLY VIEWED BY THE COURT WITH DISFAVOR; CASE AT
BAR. — The defense set up by petitioner does not deserve any consideration.
He simply contended that he was in his house sleeping at the time of the
incident. This court has consistently held that alibi is the weakest of all defenses;
and for it to prosper, the accused has the burden of proving that he was not at
the scene of the crime at the time of its commission and that it was physically
impossible for him to be there. Moreover, the "claim of 'frame-up,' like alibi, is a
defense that has been invariably viewed by the Court with disfavor for it can just
as easily be concocted but difficult to prove, and is a common and standard
line of defense in most prosecutions arising from violations of the Dangerous
Drugs Act." No clear and convincing evidence was presented by petitioner to
prove his defense of alibi.
3. ID.; CRIMINAL PROCEDURE; WARRANTLESS ARREST; THE MARIJUANA
SEIZED FROM PETITIONER'S HOUSE AFTER HIS ARREST IS
INADMISSIBLE IN EVIDENCE; CASE AT BAR. — 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 of 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 petitioner's
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 ofpetitioner.HTScEI

4. CRIMINAL LAW; REPUBLIC ACT NO. 6425 AS AMENDED BY REPUBLIC

ACT 7659; IF THE QUANTITY OF MARIJUANA INVOLVED IS LESS THAN 750
GRAMS, THE IMPOSABLE PENALTY RANGES FROM PRISION
CORRECTIONAL TO RECLUSION TEMPORAL; CASE AT BAR. —
This Court finds petitioner Rodolfo Espano guilty beyond reasonable
doubt of violating Article II, Section 8, in relation to Section 2 (e-L)(I) of Republic
Act No. 6425, as amended. Under the said provision, the penalty imposed is six
years and one day to twelve years and a fine ranging from six thousand to twelve
thousand pesos. With the passage of Republic Act No. 7659, which took effect
on December 31, 1993, the imposable penalty shall now depend on the
quantityof drugs recovered. Under the provisions of Republic Act No. 7659,
Section 20, and as interpreted in People v. Simon (234 SCRA 555 [1994])
and People v. Lara, (236 SCRA 291 [1994]) if the quantity of marijuana involved
is less than 750 grams, the imposable penalty ranges from prision
correccional to reclusion temporal. Taking into consideration that petitioner is not
a habitual delinquent, the amendatory provision is favorable to him and the
quantity of marijuana involved is less than 750 grams, the penalty imposed
under Republic Act No. 7659 should be applied.
5. ID.; ID.; PROPER PENALTY THEREOF; CASE AT BAR. — There being no
mitigating nor aggravating circumstances, the imposable penalty shall be prision
correccional in its medium period. Applying the Indeterminate Sentence Law, the
maximum penalty shall be taken from the medium period of prision
correccional, which is two (2) years, four (4) months and one (1) day to four (4)
years and two (2) months, while the minimum shall be taken from the penalty
next lower in degree, which is one (1) month and one (1) day to six (6)
months of arresto mayor. cSDHEC

DECISION

ROMERO, J : p

This is a petition for review of the decision of the Court of Appeals in CA-G.R. CR
No. 13976 dated January 16, 1995, 1 which affirmed in toto the judgment of the
Regional Trial Court ofManila, Branch 1, convicting petitioner Rodolfo Espano for
violation of Article II, Section 8 of Republic Act No. 6425, as amended, otherwise
known as the Dangerous Drugs Act. aisadc

Petitioner was charged under the following information:

"That on or about July 14, 1991, in the City of Manila, Philippines the
said accused, not being authorized by law to possess or use any
prohibited drug, did then and there wilfully, unlawfully and knowingly
have in his possession and under his custody and control twelve (12)
plastic cellophane (bags) containing crushed flowering tops, marijuana
weighing 5.5 grams which is prohibited drug.
Contrary to law." 2
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 Aquilino, 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 3 and the trial court issued his
order of release on July 29, 1991. 4

Annabelle Alip, forensic chemist of the WPD Criminal Investigation Laboratory

Section, testified that the articles sent to her by Pat. Wilfredo Aquino regarding
the apprehension of a certain Rodolfo Espano for examination tested positive for
marijuana, with total weight of 5.5 grams.
By way of defense, petitioner that on said evening, he was sleeping in 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 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 petitioner's 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:
"WHEREFORE there being proof beyond reasonable doubt,
the court finds the accused Rodolfo Espano y Valeria guilty of the
crime of violation of Section 8, Article II, in relation to Section 2 (e-L)
(I) of Republic Act No. 6425 as amended by Batas Pambansa Blg. 179,
and pursuant to law hereby sentences him to suffer imprisonment of six
(6) years and one (1) day to twelve (12) years and to pay a
fine of P6,000.00 with subsidiary imprisonment in case of default plus
costs.
The marijuana is declared fortified in favor of government and shall be
turned over to the Dangerous Drugs Board without delay.
SO ORDERED." 5
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.
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.
First, it is a well settled doctrine that findings of trial courts on the
credibility of witnesses deserve a high degree of respect. Having observed the
deportment of witnesses during the trial, the trial judge is in a better position to
determine the issue of credibility and, thus, his findings will not be disturbed
during appeal in the absence of any clear showing that he had overlooked,
misunderstood or misapplied some facts or circumstances of weight and
substance which could have altered the conviction of the appellants. 6
In this case, the findings of the trial court that the prosecution witnesses were
more credible than those of the defense must stand. Petitioner failed to show that
Pat. Pagilagan, in testifying against him, was motivated by reasons other than his
duty to curb drug abuse and had any intent to falsely impute to him such a
serious crime as possession of prohibited drugs. In the absence of such ill
motive, the presumption of regularity of his official duty must prevail.
In People v. Velasco, 7 this Court reiterated the
doctrine of presumption of regularity in the performance of official duty which
provides:
 ". . . Appellant failed to establish that Pat. Godoy and the other
members of the buy-bust team are policemen engaged in mulcting or
other unscrupulous activities who where motivated either by the desire to
extort money or exact personal vengeance, or by sheer whim and
caprice, when they entrapped her. And in the absence of proof of any
intent on the part of the police authorities to falsely impute such a
serious crime against appellant, as in this case, the
presumption of regularity in the performance of official duty, . . ., must
prevail over the self-serving and uncorroborated claim of appellant that
she had been framed." 8
Furthermore, the defense set up by petitioner does not deserve any
consideration. He simply contended that he was in his house sleeping at the
time of the incident. This Court has consistently held that alibi is the
weakest of all defenses; and for it to prosper, the accused has the
burden of proving that he was not at the scene of the crime of its commission and
that it was physically impossible for him to be there. Moreover, the "claim of a
'frame-up', like alibi, is a defense that has been invariably viewed by
the Court with disfavor for it can just as easily be concocted but difficult to prove,
and is a common and standard line of defense in most prosecutions arising from
violations of the Dangerous Drugs Act." 9 No clear and convincing evidence was
presented by petitioner to prove his defense of alibi.
Second, petitioner contends that the prosecution's failure to present the alleged
informant in court cast a reasonable doubt which warrants his acquittal. This is
again without merit, since failure of the prosecution to produce the informant
in court is of no moment especially when he is not even the best witness to
establish the fact that a buy-bust operation had indeed been conducted. In this
case, Pat. Pagilagan, one of the policemen who apprehended petitioner, testified
on the actual incident of July 14, 1991, and identified him as the one they caught
in possession of prohibited drugs. Thus,
"We find that the prosecution had satisfactorily proved its case against
appellants. There is no compelling reason for us to overturn the
finding of the trial court that the testimony of Sgt. Gamboa, the lone
witness for the prosecution, was straightforward, spontaneous and
convincing. The testimony of a sole witness, if credible and positive and
satisfies the court beyond reasonable doubt, is sufficient to convict." 10
Thus on the basis of Pat. Pagilagan's testimony, the prosecution was able to
prove that petitioner indeed committed the crime charged; consequently, the
finding of conviction was proper.
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;
xxx xxx xxx."
Petitioner's 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 petitioner's residence,
however, the same 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 purposes shall be inviolable, and no search warrant
or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or
things to be seized."
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. 11 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 petitioner's house after
his arrest at Pandacan and Zamora Streets do not fall under the said exceptions.
In the case of People v. Lua, 12 this Court held:
"As regards the brick of marijuana found inside the appellant's house,
the trial court correctly ignored it apparently in view of its inadmissibility.
While initially the arrest as well as the body search was lawful, the
warrantless search made inside the appellant's house became unlawful
since the police operatives were not armed with a search warrant. Such
search cannot fall under "search made incidental to a lawful arrest," the
same being limited to body search and to that point within reach or
control of the person arrested, or that which may furnish him with the
means of committing violence or of escaping. In the case at bar,
appellant was admittedly outside his house when he was arrested.
Hence, it can hardly be said that the inner portion of his house was
within his reach or control."
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 ofpetitioner.
In sum, this Court finds petitioner Rodolfo Espano guilty beyond reasonable
doubt of violating Article II, Section 8, in relation to Section 2 (e-L) (I) of Republic
Act No. 6425, as amended. Under the said provision, the penalty imposed is six
years and one day to twelve years and a fine ranging from six thousand to twelve
thousands pesos. With the passage of Republic Act No. 7659, with took effect on
December 31, 1993, the imposable penalty shall now depend on the
quantity of drugs recovered. Under the provisions of Republic Act No. 7659,
Section 20, and as interpreted in People v. Simon 13 and People v. Lara, 14 if the
quantity of marijuana involved is less than 750 grams, the imposable penalty
ranges from prision correccional toreclusion temporal. Taking into consideration
that petitioner is not a habitual delinquent, the amendatory provision is favorable
to him and the quantity of marijuana involved is less than 750 grams, the penalty
imposed under Republic Act No. 7659 should be applied. There being no
mitigating nor aggravating circumstances, the imposable penalty shall be prision
correccional in its medium period. Applying the Indeterminate Sentence Law, the
maximum penalty shall be taken from the medium period of prision correccional,
which is two (2) years, four (4) months and one (1) day to four (4) years and two
(2) months, while the minimum shall be taken from the penalty next lower in
degree, which is one (1) month and one (1) day six (6) months of arresto mayor.
WHEREFORE, the instant petition is hereby DENIED. The
decision of the Court of Appeals in C.A.-G.R. CR No. 13976 dated January 16,
1995 is AFFIRMED with the MODIFICATION that petitioner Rodolfo Espano is
sentenced to suffer an indeterminate penalty of TWO (2) months and ONE (1)
day of arresto mayor, as minimum of TWO (2) years, FOUR (4) months and ONE
(1) day of prision correccional, as minimum.
SO ORDERED.
Narvasa, C .J ., Kapunan and Purisima, JJ ., concur
(Espano v. Court of Appeals, G.R. No. 120431, [April 1, 1998], 351 PHIL 798-
|||

809)
 SECOND DIVISION

[G.R. No. 163858. June 28, 2005.]

UNITED LABORATORIES, INC., petitioner, vs. ERNESTO ISIP

and/or SHALIMAR PHILIPPINES and/or OCCUPANTS,
Shalimar Building, No. 1571, Aragon Street, Sta. Cruz,
Manila, respondents.

DECISION

CALLEJO, SR., J : p

Rolando H. Besarra, Special Investigator III of the National Bureau of

Investigation (NBI), filed an application, in the Regional Trial Court (RTC) of
Manila, for the issuance of a search warrant concerning the first and second
floors of the Shalimar Building, located at No. 1571, Aragon Street (formerly No.
1524, Lacson Avenue, Sta. Cruz, Manila) occupied and/or used by Shalimar
Philippines, owned/operated by Ernesto Isip; and for the seizure of the following
for violation of Section 4(a), in relation to Section 8, of Republic Act (R.A.) No.
8203:
a. Finished or unfinished products of UNITED LABORATORIES
(UNILAB), particularly REVICON multivitamins;
b. Sundry items such as tags, labels, boxes, packages, wrappers,
receptacles, advertisements and other paraphernalia used in the
offering for sale, sale and/or distribution of counterfeit REVICON
multivitamins;
c. Sales invoices, delivery receipts, official receipts, ledgers, journals,
purchase orders and all other books of accounts and documents
used in recording the manufacture and/or importation, distribution
and/or sales of counterfeit REVICON multivitamins. 1
The application was docketed as People v. Ernesto Isip, et al., Respondents,
Search Warrant Case No. 04-4916 and raffled to Branch 24 of the court.
Appended thereto were the following: (1) a sketch 2 showing the location of the
building to be searched; (2) the affidavit 3 of Charlie Rabe of the Armadillo
Protection and Security Agency hired by United Laboratories, Inc. (UNILAB), who
allegedly saw the manufacture, production and/or distribution of fake drug
products such as Revicon by Shalimar Philippines; (3) the letter-request of
UNILAB, the duly licensed and exclusive manufacturer and/or distributor of
Revicon and Disudrin, for the monitoring of the unauthorized
production/manufacture of the said drugs and, if warranted, for their seizure; (4)
the letter-complaint 4 of UNILAB issued through its Director of the Security and
Safety Group; and (5) the joint affidavit 5 of NBI Agents Roberto Divinagracia and
Rolando Besarra containing the following allegations:
2. When learned that an Asset was already placed by ARMADILLO
PROTECTIVE AND SECURITY AGENCY named CHARLIE
RABE, who was renting a room since November 2003, at the said
premises located at No. 1571 Aragon St., Sta. Cruz, Manila. MR.
RABE averred that the owner of the premises is a certain MR.
ERNESTO ISIP and that the said premises which is known as
SHALIMAR PHILIPPINES, Shalimar Building, are being used to
manufacture counterfeit UNILAB products, particularly REVICON
multivitamins, which was already patented by UNILAB since
1985; SacDIE
 3. Upon verification of the report, we found out that the said premises is
a six-story structure, with an additional floor as a penthouse, and
colored red-brown. It has a tight security arrangement wherein
non-residents are not allowed to enter or reconnoiter in the
premises;
4. We also learned that its old address is No. 1524 Lacson Avenue, Sta.
Cruz, Manila, and has a new address as 1571 Aragon St., Sta.
Cruz, Manila; and that the area of counterfeiting operations are
the first and second floors of Shalimar Building;
5. Since we cannot enter the premises, we instructed the Asset to take
pictures of the area especially the places wherein the clandestine
manufacturing operations were being held. At a peril to his well-
being and security, the Asset was able to take photographs herein
incorporated into this Search Warrant Application. 6
A representative from UNILAB, Michael Tome, testified during the hearing on the
application for the search warrant. After conducting the requisite searching
questions, the court granted the application and issued Search Warrant No. 04-
4916 dated January 27, 2004, directing any police officer of the law to conduct a
search of the first and second floors of the Shalimar Building located at No. 1571,
Aragon Street, Sta. Cruz, Manila. The court also directed the police to seize the
following items:
a. Finished or unfinished products of UNITED LABORATORIES
(UNILAB), particularly REVICON multivitamins;
b. Sundry items such as tags, labels, boxes, packages, wrappers,
receptacles, advertisements and other paraphernalia used in the
offering for sale, sale and/or distribution of counterfeit REVICON
multivitamins;
c. Sales invoices, delivery receipts, official receipts, ledgers, journals,
purchase orders and all other books of accounts and documents
used in recording the manufacture and/or importation, distribution
and/or sales of counterfeit REVICON multivitamins. 7
The court also ordered the delivery of the seized items before it, together with a
true inventory thereof executed under oath.
The search warrant was implemented at 4:30 p.m. on January 27, 2004 by NBI
agents Besarra and Divinagracia, in coordination with UNILAB employees. No
fake Revicon multivitamins were found; instead, there were sealed boxes at the
first and second floors of the Shalimar Building which, when opened by the NBI
agents in the presence of respondent Isip, contained the following:
QUANTITY/UNIT DESCRIPTION
792 Bottles Disudrin 60 ml.
30 Boxes (100 pieces each) Inoflox 200 mg. 8
NBI Special Investigator Divinagracia submitted an inventory of the things seized
in which he declared that the search of the first and second floors of the Shalimar
Building at No. 1571, Aragon Street, Sta. Cruz, Manila, the premises described in
the warrant, was done in an orderly and peaceful manner. He also filed a Return
of Search Warrant, 9 alleging that no other articles/items other than those
mentioned in the warrant and inventory sheet were seized. The agent prayed that
of the items seized, ten boxes of Disudrin 60 ml., and at least one box of Inoflox
be turned over to the custody of the Bureau of Food and Drugs (BFAD) for
examination. 10 The court issued an order granting the motion, on the condition
that the turn over be made before the court, in the presence of a representative
from the respondents and the court. 11
The respondents filed an "Urgent Motion to Quash the Search Warrant or to
Suppress Evidence." 12 They contended that the implementing officers of the NBI
conducted their search at the first, second, third and fourth floors of the building
at No. 1524-A, Lacson Avenue, Sta. Cruz, Manila, where items in "open display"
were allegedly found. They pointed out, however, that such premises was
different from the address described in the search warrant, the first and second
floors of the Shalimar Building located at No. 1571, Aragon Street, Sta. Cruz,
Manila. The respondents, likewise, asserted that the NBI officers seized Disudrin
and Inoflox products which were not included in the list of properties to be seized
in the search warrant. HICATc

UNILAB, in collaboration with the NBI, opposed the motion, insisting that the
search was limited to the first and second floors of the Shalimar building located
at the corner of Aragon Street and Lacson Avenue, Sta. Cruz, Manila. They
averred that, based on the sketch appended to the search warrant application,
Rabe's affidavit, as well as the joint affidavit of Besarra and Divinagracia, the
building where the search was conducted was located at No. 1571, Aragon
Street corner Lacson Avenue, Sta. Cruz, Manila. They pointed out that No. 1524
Lacson Avenue, Sta. Cruz, Manila was the old address, and the new address
was No. 1571, Aragon Street, Sta. Cruz, Manila. They maintained that the
warrant was not implemented in any other place. 13
In reply, the respondents insisted that the items seized were different from those
listed in the search warrant. They also claimed that the seizure took place in the
building located at No. 1524-A which was not depicted in the sketch of the
premises which the applicant submitted to the trial court. 14 In accordance with
the ruling of this Court in People v. Court of Appeals, 15the respondents served a
copy of their pleading on UNILAB. 16
On March 11, 2004, the trial court issued an Order 17 granting the motion of the
respondents, on the ground that the things seized, namely, Disudrin and Inoflox,
were not those described in the search warrant. On March 16, 2004, the trial
court issued an advisory 18 that the seized articles could no longer be admitted in
evidence against the respondents in any proceedings, as the search warrant had
already been quashed.
UNILAB, through the Ureta Law Office, filed a motion, in collaboration with the
NBI agents, for the reconsideration of the order, contending that the ground used
by the court in quashing the warrant was not that invoked by the respondents,
and that the seizure of the items was justified by the plain view doctrine. The
respondents objected to the appearance of the counsel of UNILAB, contending
that the latter could not appear for the People of the Philippines. The
respondents moved that the motion for reconsideration of UNILAB be stricken off
the record. Disputing the claims of UNILAB, they insisted that the items seized
were contained in boxes at the time of the seizure at No. 1524-A, Lacson Avenue
corner Aragon Street, Sta. Cruz, Manila, and were not apparently incriminating
on plain view. Moreover, the seized items were not those described and itemized
in the search warrant application, as well as the warrant issued by the court itself.
The respondents emphasized that the Shalimar Laboratories is authorized to
manufacture galenical preparations of the following products:
Products:
- Povidone Iodine
- Chamomile Oil
- Salicylic Acid 10 g.
- Hydrogen Peroxide 3% Topical Solution
- Aceite de Alcamforado
 - Aceite de Manzanilla 19
In a manifestation and opposition, the respondents assailed the appearance of
the counsel of UNILAB, and insisted that it was not authorized to appear before
the court under the Rules of Court, and to file pleadings. They averred that the
BFAD was the authorized government agency to file an application for a search
warrant.
In its counter-manifestation, UNILAB averred that it had the personality to file the
motion for reconsideration because it was the one which sought the filing of the
application for a search warrant; besides, it was not proscribed by Rule 126 of
the Revised Rules of Criminal Procedure from participating in the proceedings
and filing pleadings. The only parties to the case were the NBI and UNILAB and
not the State or public prosecutor. UNILAB also argued that the offended party,
or the holder of a license to operate, may intervene through counsel
underSection 16 of Rule 110, in relation to Section 7(e), of the Rules of Criminal
Procedure.
UNILAB prayed that an ocular inspection be conducted of the place searched by
the NBI officers. 20 In their rejoinder, the respondents manifested that an ocular
inspection was the option to look forward to. 21 However, no such ocular
inspection of the said premises was conducted.
In the meantime, the BFAD submitted to the court the result of its examination of
the Disudrin and Inoflox samples which the NBI officers seized from the Shalimar
Building. On its examination of the actual component of Inoflox, the BFAD
declared that the substance failed the test. 22 The BFAD, likewise, declared that
the examined Disudrin syrup failed the test. 23The BFAD had earlier issued the
following report:
PRODUCT NAME Manufacturer L.N. E.D. FINDINGS
1. Phenylpropanolamine Unilab 21021552 3-06 - Registered, however,
(Disudrin) label/physical appearance
12.5 mg./5mL Syrup does not conform with the
BFAD approved
label/registered
specifications.
2. Ofloxacin (Inoflox) Unilab 99017407 3-05 - Registered, however,
200 mg. tablet label/physical appearance
does not conform with the
BFAD approved
label/registered
specifications. 24
On May 28, 2004, the trial court issued an Order 25 denying the motion for
reconsideration filed by UNILAB. The court declared that:
The Search Warrant is crystal clear: The seizing officers were only
authorized to take possession of "finished or unfinished products of
United Laboratories (UNILAB), particularly REVICON Multivitamins, and
documents evidencing the counterfeit nature of said products. The
Receipt/Inventory of Property Seized pursuant to the warrant does not,
however, include REVICON but other products. And whether or not
these seized products are imitations of UNILAB items is beside the point.
No evidence was shown nor any was given during the proceedings on
the application for search warrant relative to the seized products.ACTESI

On this score alone, the search suffered from a fatal infirmity and, hence,
cannot be sustained. 26
UNILAB, thus, filed the present petition for review on certiorari under Rule 45 of
the Rules of Court, where the following issues are raised:
 Whether or not the seized 792 bottles of Disudrin 60 ml. and 30 boxes
of Inoflox 200 mg. are INADMISSIBLE as evidence against the
respondents because they constitute the "fruit of the poisonous tree" or,
CONVERSELY, whether or not the seizure of the same counterfeit drugs
is justified and lawful under the "plain view" doctrine and, hence, the
same are legally admissible as evidence against the respondents in any
and all actions? 27
The petitioner avers that it was deprived of its right to a day in court when the trial
court quashed the search warrant for a ground which was not raised by the
respondents herein in their motion to quash the warrant. As such, it argues that
the trial court ignored the issue raised by the respondents. The petitioner insists
that by so doing, the RTC deprived it of its right to due process. The petitioner
asserts that the description in the search warrant of the products to be seized —
"finished or unfinished products of UNILAB" — is sufficient to include counterfeit
drugs within the premises of the respondents not covered by any license to
operate from the BFAD, and/or not authorized or licensed to manufacture, or
repackage drugs produced or manufactured by UNILAB. Citing the ruling of this
Court in Padilla v. Court of Appeals, 28 the petitioner asserts that the products
seized were in plain view of the officers; hence, may be seized by them. The
petitioner posits that the respondents themselves admitted that the seized
articles were in open display; hence, the said articles were in plain view of the
implementing officers.
In their comment on the petition, the respondents aver that the petition should
have been filed before the Court of Appeals (CA) because factual questions are
raised. They also assert that the petitioner has no locus standi to file the petition
involving the validity and the implementation of the search warrant. They argue
that the petitioner merely assisted the NBI, the BFAD and the Department of
Justice; hence, it should have impleaded the said government agencies as
parties-petitioners. The petition should have been filed by the Office of the
Solicitor General (OSG) in behalf of the NBI and/or the BFAD, because under the
1987 Revised Administrative Code, the OSG is mandated to represent the
government and its officers charged in their official capacity in cases before the
Supreme Court. The respondents further assert that the trial court may consider
issues not raised by the parties if such consideration would aid the court in the
just determination of the case.
The respondents, likewise, maintain that the raiding team slashed the sealed
boxes so fast even before respondent Isip could object. They argue that the
seizure took place at No. 1524-A, Lacson Avenue, Sta. Cruz, Manila covered by
Transfer Certificate of Title (TCT) No. 220778, and not at No. 1571, Aragon
Street, Sta. Cruz, Manila covered by TCT No. 174412 as stated in the search
warrant. They assert that the ruling of the Court in People v. Court of
Appeals 29 is applicable in this case. They conclude that the petitioner failed to
prove the factual basis for the application of the plain view doctrine. 30
In reply, the petitioner asserts that it has standing and is, in fact, the real party-in-
interest to defend the validity of the search warrant issued by the RTC; after all, it
was upon its instance that the application for a search warrant was filed by the
NBI, which the RTC granted. It asserts that it is not proscribed under R.A. No.
8203 from filing a criminal complaint against the respondents and requesting the
NBI to file an application for a search warrant. The petitioner points out that the
Rules of Criminal Procedure does not specifically prohibit a private complainant
from defending the validity of a search warrant. Neither is the participation of a
state prosecutor provided in Rule 126 of the said Rules. After all, the petitioner
insists, the proceedings for the application and issuance of a search warrant is
not a criminal action. The petitioner asserts that the place sought to be searched
was sufficiently described in the warrant for, after all, there is only one building on
the two parcels of land described in two titles where Shalimar Philippines is
located, the place searched by the NBI officers. 31 It also asserts that the building
is located at the corner of Aragon Street and Lacson Avenue, Sta. Cruz,
Manila. 32
The petitioner avers that the plain view doctrine is applicable in this case
because the boxes were found outside the door of the respondents' laboratory on
the garage floor. The boxes aroused the suspicion of the members of the raiding
team — precisely because these were marked with the distinctive UNILAB logos.
The boxes in which the items were contained were themselves so designated to
replicate true and original UNILAB boxes for the same medicine. Thus, on the left
hand corner of one side of some of the boxes 33 the letters "ABR" under the
words "60 ml," appeared to describe the condition/quality of the bottles inside (as
it is with genuine UNILAB box of the true medicine of the same brand). The
petitioner pointed out that "ABR" is the acronym for "amber bottle round"
describing the bottles in which the true and original Disudrin (for children) is
contained. CTAIHc

The petitioner points out that the same boxes also had their own "license plates"
which were instituted as among its internal control/countermeasures. The license
plates indicate that the items within are, supposedly, "Disudrin." The NBI officers
had reasonable ground to believe that all the boxes have one and the same data
appearing on their supposedly distinctive license plates. The petitioner insists
that although some of the boxes marked with the distinctive UNILAB logo were,
indeed, sealed, the tape or seal was also a copy of the original because these,
too, were marked with the distinctive UNILAB logo. The petitioner appended to its
pleading pictures of the Shalimar building and the rooms searched showing
respondent Isip; 34the boxes seized by the police officers containing Disudrin
syrup; 35 and the boxes containing Inoflox and its contents. 36
The issues for resolution are the following: (1) whether the petitioner is the proper
party to file the petition at bench; (2) whether it was proper for the petitioner to file
the present petition in this Court under Rule 45 of the Rules of Court; and (3)
whether the search conducted by the NBI officers of the first and second floors of
the Shalimar building and the seizure of the sealed boxes which, when opened,
contained Disudrin syrup and Inoflox, were valid.
On the first issue, we agree with the petitioner's contention that a search warrant
proceeding is, in no sense, a criminal action 37 or the commencement of a
prosecution. 38 The proceeding is not one against any person, but is solely for the
discovery and to get possession of personal property. It is a special and peculiar
remedy, drastic in nature, and made necessary because of public necessity. It
resembles in some respect with what is commonly known as John Doe
proceedings. 39 While an application for a search warrant is entitled like a criminal
action, it does not make it such an action.

A search warrant is a legal process which has been likened to a writ of discovery
employed by the State to procure relevant evidence of crime. 40 It is in the nature
of a criminal process, restricted to cases of public prosecutions. 41 A search
warrant is a police weapon, issued under the police power. A search warrant
must issue in the name of the State, namely, the People of the Philippines. 42
A search warrant has no relation to a civil process. It is not a process for
adjudicating civil rights or maintaining mere private rights. 43 It concerns the
public at large as distinguished from the ordinary civil action involving the rights
of private persons. 44 It may only be applied for in the furtherance of public
prosecution. 45
However, a private individual or a private corporation complaining to the NBI or to
a government agency charged with the enforcement of special penal laws, such
as the BFAD, may appear, participate and file pleadings in the search warrant
proceedings to maintain, inter alia, the validity of the search warrant issued by
the court and the admissibility of the properties seized in anticipation of a criminal
case to be filed; such private party may do so in collaboration with the NBI or
such government agency. The party may file an opposition to a motion to quash
the search warrant issued by the court, or a motion for the reconsideration of the
court order granting such motion to quash. 46
In this case, UNILAB, in collaboration with the NBI, opposed the respondents'
motion to quash the search warrant. The respondents served copies of their reply
and opposition/comment to UNILAB, through Modesto Alejandro, Jr. 47 The
court a quo allowed the appearance of UNILAB and accepted the pleadings filed
by it and its counsel. CacTIE

The general rule is that the proper party to file a petition in the CA or Supreme
Court to assail any adverse order of the RTC in the search warrant proceedings
is the People of the Philippines, through the OSG. However, in Columbia
Pictures Entertainment, Inc. v. Court of Appeals, 48 the Court allowed a private
corporation (the complainant in the RTC) to file a petition for certiorari, and
considered the petition as one filed by the OSG. The Court in the said case even
held that the petitioners therein could argue its case in lieu of the OSG:
From the records, it is clear that, as complainants, petitioners were
involved in the proceedings which led to the issuance of Search Warrant
No. 23. In People v. Nano, the Court declared that while the general rule
is that it is only the Solicitor General who is authorized to bring or defend
actions on behalf of the People or the Republic of the Philippines once
the case is brought before this Court or the Court of Appeals, if there
appears to be grave error committed by the judge or a lack of due
process, the petition will be deemed filed by the private complainants
therein as if it were filed by the Solicitor General. In line with this ruling,
the Court gives this petition due course and will allow petitioners to
argue their case against the questioned order in lieu of the Solicitor
General. 49
The general rule is that a party is mandated to follow the hierarchy of courts.
However, in exceptional cases, the Court, for compelling reasons or if warranted
by the nature of the issues raised, may take cognizance of petitions filed directly
before it. 50 In this case, the Court has opted to take cognizance of the petition,
considering the nature of the issues raised by the parties.
The Court does not agree with the petitioner's contention that the issue of
whether the Disudrin and Inoflox products were lawfully seized was never raised
in the pleadings of the respondents in the court a quo. Truly, the respondents
failed to raise the issue in their motion to quash the search warrant; in their reply,
however, they averred that the seized items were not included in the subject
warrant and, therefore, were not lawfully seized by the raiding team. They also
averred that the said articles were not illegal per se, like explosives and shabu,
as to justify their seizure in the course of unlawful search. 51 In their
Opposition/Comment filed on March 15, 2004, the respondents even alleged the
following:
The jurisdiction of this Honorable Court is limited to the determination of
whether there is a legal basis to quash the search warrant and/or to
suppress the seized articles in evidence. Since the articles allegedly
seized during the implementation of the search warrant — Disudrin and
Inoflux products — were not included in the search warrant, they were,
therefore, not lawfully seized by the raiding team; they are not illegal per
se, as it were, like an arms cache, subversive materials or shabu as to
justify their seizure in the course of a lawful search, or being in plain view
or some such. No need whatever for some public assay.
The NBI manifestation is a glaring admission that it cannot tell without
proper examination or assay that the Disudrin and Inoflox samples
 allegedly seized from respondent's place were counterfeit. All the
relevant presumptions are in favor of legality. 52
The Court, therefore, finds no factual basis for the contention of the petitioner
that the respondents never raised in the court a quo the issue of whether the
seizure of the Disudrin and Inoflox products was valid.
In any event, the petitioner filed a motion for the reconsideration of the March 11,
2004 Order of the court a quo on the following claims:
2.01 The Honorable Court ERRED in ruling on a non-issue or the issue
as to the alleged failure to particularly describe in the search
warrant the items to be seized but upon which NOchallenge was
then existing and/or NO controversy is raised;
2.02 The Honorable Court ERRED in its ruling that "finished or
unfinished products of UNILAB" cannot stand the test of a
particular description for which it then reasons that the search is,
supposedly unreasonable; and,
2.03 The Honorable Court ERRED in finding that the evidence seized is
lawfully inadmissible against respondents. 53
The court a quo considered the motion of the petitioner and the issue raised by it
before finally resolving to deny the same. It cannot thus be gainsaid that the
petitioner was denied its right to due process.
On the validity of the seizure of the sealed boxes and its contents of Disudrin and
Inoflox, the Court, likewise, rejects the contention of the petitioner. DSAacC

A search warrant, to be valid, must particularly describe the place to be searched

and the things to be seized. The officers of the law are to seize only those things
particularly described in the search warrant. A search warrant is not a sweeping
authority empowering a raiding party to undertake a fishing expedition to seize
and confiscate any and all kinds of evidence or articles relating to a crime. The
search is limited in scope so as not to be general or explanatory. Nothing is left to
the discretion of the officer executing the warrant. 54
Objects, articles or papers not described in the warrant but on plain view of the
executing officer may be seized by him. However, the seizure by the officer of
objects/articles/papers not described in the warrant cannot be presumed as plain
view. The State must adduce evidence, testimonial or documentary, to prove the
confluence of the essential requirements for the doctrine to apply, namely: (a) the
executing law enforcement officer has a prior justification for an initial intrusion or
otherwise properly in a position from which he can view a particular order; (b) the
officer must discover incriminating evidence inadvertently; and (c) it must be
immediately apparent to the police that the items they observe may be evidence
of a crime, contraband, or otherwise subject to seizure. 55
The doctrine is not an exception to the warrant. It merely serves to supplement
the prior justification — whether it be a warrant for another object, hot pursuit,
search as an incident to a lawful arrest or some other legitimate reason for being
present, unconnected with a search directed against the accused. The doctrine
may not be used to extend a general exploratory search from one object to
another until something incriminating at last emerges. It is a recognition of the
fact that when executing police officers comes across immediately incriminating
evidence not covered by the warrant, they should not be required to close their
eyes to it, regardless of whether it is evidence of the crime they are investigating
or evidence of some other crime. It would be needless to require the police to
obtain another warrant. 56 Under the doctrine, there is no invasion of a legitimate
expectation of privacy and there is no search within the meaning of the
Constitution.
The immediate requirement means that the executing officer can, at the time of
discovery of the object or the facts therein available to him, determine probable
cause of the object's incriminating evidence. 57 In other words, to be immediate,
probable cause must be the direct result of the officer's instantaneous sensory
perception of the object. 58 The object is apparent if the executing officer had
probable cause to connect the object to criminal activity. The incriminating nature
of the evidence becomes apparent in the course of the search, without the
benefit of any unlawful search or seizure. It must be apparent at the moment of
seizure. 59
The requirement of inadvertence, on the other hand, means that the officer must
not have known in advance of the location of the evidence and intend to seize
it. 60 Discovery is not anticipated. 61
The immediately apparent test does not require an unduly high degree of
certainty as to the incriminating character of evidence. It requires merely that the
seizure be presumptively reasonable assuming that there is probable cause to
associate the property with criminal activity; that a nexus exists between a
viewed object and criminal activity. 62

Incriminating means the furnishing of evidence as proof of circumstances tending

to prove the guilt of a person. 63
Indeed, probable cause is a flexible, common sense standard. It merely requires
that the facts available to the officer would warrant a man of reasonable caution
and belief that certain items may be contrabanded or stolen property or useful as
evidence of a crime. It does not require proof that such belief be correct or more
likely than true. A practical, non-traditional probability that incriminating evidence
is involved is all that is required. The evidence thus collected must be seen and
verified as understood by those experienced in the field of law enforcement. 64
In this case, Disudrin and/or Inoflox were not listed in the search warrant issued
by the court a quo as among the properties to be seized by the NBI agents. The
warrant specifically authorized the officers only to seize "counterfeit Revicon
multivitamins, finished or unfinished, and the documents used in recording,
manufacture and/or importation, distribution and/or sale, or the offering for sale,
sale and/or distribution of the said vitamins." The implementing officers failed to
find any counterfeit Revicon multivitamins, and instead seized sealed boxes
which, when opened at the place where they were found, turned out to contain
Inoflox and Disudrin. EcAHDT

It was thus incumbent on the NBI agents and the petitioner to prove their claim
that the items were seized based on the plain view doctrine. It is not enough to
prove that the sealed boxes were in the plain view of the NBI agents; evidence
should have been adduced to prove the existence of all the essential
requirements for the application of the doctrine during the hearing of the
respondents' motion to quash, or at the very least, during the hearing of the NBI
and the petitioner's motion for reconsideration on April 16, 2004. The immediately
apparent aspect, after all, is central to the plain view exception relied upon by the
petitioner and the NBI. There is no showing that the NBI and the petitioner even
attempted to adduce such evidence. In fact, the petitioner and the NBI failed to
present any of the NBI agents who executed the warrant, or any of the
petitioner's representative who was present at the time of the enforcement of the
warrant to prove that the enforcing officers discovered the sealed boxes
inadvertently, and that such boxes and their contents were incriminating and
immediately apparent. It must be stressed that only the NBI agent/agents who
enforced the warrant had personal knowledge whether the sealed boxes and
their contents thereof were incriminating and that they were immediately
apparent. 65 There is even no showing that the NBI agents knew the contents of
the sealed boxes before they were opened.
In sum then, the Court finds and so hold that the petitioner and the NBI failed to
prove the essential requirements for the application of the plain view doctrine.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit.
The assailed orders of the Regional Trial Court are AFFIRMED.
SO ORDERED.
Puno, Austria-Martinez, Tinga and Chico-Nazario, JJ., concur.
(United Laboratories Inc. v. Isip, G.R. No. 163858, [June 28, 2005], 500 PHIL
|||

342-364)
 EN BANC

[G.R. No. L-27360. February 28, 1968.]

HON. RICARDO G. PAPA, as Chief of Police of Manila, HON.

JUAN PONCE ENRILE, as Commissioner of Customs, PEDRO
PACIS, as Collector of Customs of the Port of Manila, and
MARTIN ALAGAO, as Patrolman of the Manila Police-
Department, petitioners, vs. REMEDIOS MAGO and HON.
HILARION U. JARENCIO, as Presiding Judge of Branch 23,
Court of First Instance of Manila, respondents.

Solicitor General for petitioners.

Juan T . David for respondents.

SYLLABUS

1. CUSTOMS BUREAU; POWERS AND DUTIES OF BUREAU OF CUSTOMS.

— Among others, the Bureau of Customs has the duties, powers and the
jurisdiction to assess and collect all lawful revenues from imported articles and all
other dues, fees, charges, fines and penalties accruing under the tariff and
customs laws; to prevent and suppress smuggling and other frauds upon the
customs; and to enforce tariff and customs laws.
2. ID.; JURISDICTION; CUSTOMS BUREAU HAS JURISDICTION OVER
IMPORTED GOODS; "IMPORTATION", MEANING OF. — Where the goods in
question were imported from Hongkong as shown in the statement and receipts
of duties collected on informal entry and where the importation has not been
terminated, the imported goods remain under the jurisdiction of the Bureau of
Customs. Importation is terminated only upon the payment of duties, taxes and
other charges upon the articles, or secured to be paid, at the port of entry and the
legal permit for withdrawal shall have been granted. Payment of the duties,
taxes, fees and other charges must be in full.
3. ID; ID; BUREAU OF CUSTOMS, NOT THE COURT OF FIRST INSTANCE,
HAS JURISDICTION OVER THE CASE WHERE GOODS ARE UNDER
CUSTODY OF SAID BUREAU, EVEN IF NO WARRANT OF SEIZURE AND
DETENTION IS YET ISSUED ON GOODS. — Since the goods were under the
custody and at the disposal of the Bureau of Customs when the petition for
mandamus was filed in the Court of First Instance, the latter could not exercise
jurisdiction over said goods even if the warrant of seizure and detention of goods
for purposes of seizure and forfeiture proceedings had not yet been issued by the
Collector. It is settled that the Bureau of Customs acquires exclusive jurisdiction
over imported goods for purposes of enforcing the Customs laws, from the
moment the goods are actually in possession and control of said Bureau even in
the absence on any warrant of seizure or detention.
4. ID.; ID.; SEIZURE OF GOODS BY MPD, DEPUTIZED BY BUREAU OF
CUSTOMS GAVE THE LATTER EXCLUSIVE JURISDICTION OVER CASE;
ISSUANCE OF WARRANT OF SEIZURE BY CUSTOMS BUREAU AFTER
FILLING OF MANDAMUS SUIT IN CFI, DID NOT DIVEST THE LATTER OF
JURISDICTION IT DID NOT ACQUIRE. — Where the Bureau of Customs,
through the Manila Police Department acting under petitioner police
chief Papa who was formally deputized by the Commissioner of Customs seized
the goods on November 4, 1966, the Bureau from that date acquired jurisdiction
over the goods to the exclusion of the regular courts. The issuance of the warrant
of seizure and detention by the Customs Collector after the filing of the
mandamus suit in the regular court, did not deprive the latter of its jurisdiction
which it never acquired in the first place, as the Bureau of Customs had already
previously acquired jurisdiction on the case to the exclusion of regular courts for
purposes of enforcement of customs and tariff laws.
5. ID.; ID.; GOODS, EVEN IF BROUGHT OUT OF CUSTOMS AREA, STILL
FALL WITHIN JURISDICTION OF BUREAU OF CUSTOMS; JURISDICTION OF
CUSTOMS BUREAU IS REGAINED. — Even if it be conceded, arguendo, that
after the goods have been brought out of the customs area, the Bureau of
Customs lost jurisdiction over the same, still when said goods were intercepted at
the Agrifina Circle by members of the MPD acting under directions and orders of
petitioner Papa who had been formally deputized by the Commissioner of
Customs, such jurisdiction was regained by the Bureau of Customs. Sec. 1206 of
the Tariff and Customs Code imposes upon the Collector of Customs the duty to
hold possession of all imported articles upon which duties, taxes and other
charges have not been paid or secured to be paid and to dispose of the same
according to law.
6. ID.; IMPORTATIONS MADE CONTRARY TO LAW ARE SUBJECT TO
FORFEITURE. — Where from the record, the duties, taxes and other charges on
the imported articles have not been paid in full, such articles are subject to
forfeiture under Section 2530 pars. e and m, (1), (4) and (5) of the Tariff and
Customs Code; for well settled is the rule that merchandise imported contrary to
law is subject to forfeiture and goods released contrary to law are likewise
subject to seizure and forfeiture.
7. ID.; ID.; SEARCH WARRANT; LAWFUL SEARCH WITHOUT SEARCH
WARRANT CAN BE EFFECTED. — The Tariff and Customs Code does not
require a search warrant for purposes of enforcing customs and tariff laws. Under
Sec. 2203 thereof, persons having police authority may enter, pass through or
search any land, inclosure, warehouse, store or building not being a dwelling
house and also, to inspect, search and examine any vehicle or aircraft and any
trunk, package, box or envelope or any person on board or stop and search and
examine any vehicle, beast or person suspected of holding or conveying any
dutiable or prohibited article introduced into the Philippines contrary to law,
without mentioning the need of a search warrant in said cases. Except in the
search of a dwelling house, therefore, persons exercising police authority under
the customs law may effect search and seizure without search warrant in the
enforcement of customs laws.

DECISION

ZALDIVAR, J : p

This is an original action for prohibition and certiorari, with preliminary injunction,
filed by Ricardo Papa, Chief of Police of Manila; Juan Ponce Enrile,
Commissioner of Customs; Pedro Pacis, Collector of Customs of the Port of
Manila; and Martin Alagao, a patrolman of the Manila Police Department, against
Remedios Mago and Hon. Hilarion Jarencio, Presiding Judge of Branch 23 of the
Court of First Instance of Manila, praying for the annulment of the order issued by
respondent Judge in Civil Case No. 67496 of the Court of First Instance of Manila
under date of March 7, 1967, which authorized the release under bond of certain
goods which were seized and held by petitioners in connection with the
enforcement of the Tariff and Customs Code, but which were claimed by
respondent Remedios Mago, and to prohibit respondent Judge from further
proceeding in any manner whatsoever in said Civil Case No. 67496. Pending the
determination of this case this Court issued a writ of preliminary injunction
restraining the respondent Judge from executing, enforcing and/or implementing
the questioned order in Civil Case No. 67496 and from proceeding with said
case.
Petitioner Martin Alagao, head of the counter-intelligence unit of the Manila
Police Department, acting upon a reliable information received on November 3,
1966 to the effect that a certain shipment of personal effects, allegedly
misdeclared and undervalued, would be released the following day from the
customs zone of the port of Manila and loaded on two trucks, and upon orders of
petitioner Ricardo Papa, Chief of Police of Manila and a duly deputized agent of
the Bureau of Customs, conducted surveillance at gate No. 1 of the customs
zone. When the trucks left gate No. 1 at about 4:30 in the afternoon of November
4, 1966, elements of the counter-intelligence unit went after the trucks and
intercepted them at the Agrifina Circle, Ermita, Manila. The load of the two trucks,
consisting of nine bales of goods, and the two trucks, were seized on instructions
of the Chief of Police. Upon investigation, a person claimed ownership of the
goods and showed to the policemen a "Statement and Receipts of Duties
Collected on Informal Entry No. 147-5501", issued by the Bureau of Customs in
the name of a certain Bienvenido Naguit.
Claiming to have been prejudiced by the seizure and detention of the two trucks
and their cargo, Remedios Mago and Valentin B. Lanopa filed with the Court of
First Instance of Manila a petition "for mandamus with restraining order or
preliminary injunction," docketed as Civil Case No. 67496, alleging, among
others, that Remedios Mago was the owner of the goods seized, having
purchased them from the Sta. Monica Grocery in San Fernando, Pampanga; that
she hired the trucks owned by Valentin B. Lanopa to transport the goods from
said place to her residence at 1657 Laon Laan St., Sampaloc, Manila; that the
goods were seized by members of the Manila Police Department without search
warrant issued by a competent court; that Manila Chief of Police
Ricardo Papa denied the request of counsel for Remedios Mago that the bales
be not opened and the goods contained therein be not examined; that then
Customs Commissioner Jacinto Gavino had illegally assigned appraisers to
examine the goods because the goods were no longer under the control and
supervision of the Commissioner of Customs; that the goods, even assuming
them to have been misdeclared and undervalued, were not subject to seizure
under Section 2531 of the Tariff and Customs Code because
Remedios Mago had bought them from another person without knowledge that
they were imported illegally; that the bales had not yet been opened, although
Chief of Police Papa had arranged with the Commissioner of Customs regarding
the disposition of the goods, and that unless restrained their constitutional rights
would be violated and they would truly suffer irreparable injury. Hence
Remedios Mago and Valentin Lanopa prayed for the issuance of a restraining
order, ex parte, enjoining the above-named police and customs authorities, or
their agents, from opening the bales and examining the goods, and a writ of
mandamus for the return of the goods and the trucks, as well as a judgment for
actual, moral and exemplary damages in their favor.
On November 10, 1966, respondent Judge Hilarion Jarencio issued an order ex
parte restraining the respondents in Civil Case No. 67496 — now petitioners in
the instant case before this Court — from opening the nine bales in question, and
at the same time set the hearing of the petition for preliminary injunction on
November 16, 1966. However, when the restraining order was received by herein
petitioners, some bales had already been opened by the examiners of the
Bureau of Customs in the presence of officials of the Manila Police Department,
an assistant city fiscal and a representative of herein respondent
Remedios Mago.
Under date of November 15, 1966, Remedios Mago filed an amended petition in
Civil Case No. 67496, including as party defendants Collector of Customs Pedro
Pacis of the Port of Manila and Lt. Martin Alagao of the Manila Police
Department. Herein petitioners (defendants below) filed, on November 24, 1966,
their "Answer with Opposition to the Issuance of a Writ of Preliminary Injunction",
denying the alleged illegality of the seizure and detention of the goods and the
trucks and of their other actuations, and alleging special and affirmative
defenses, to wit: that the Court of First Instance of Manila had no jurisdiction to
try the case; that the case fell within the exclusive jurisdiction of the Court of Tax
Appeals; that, assuming that the court had jurisdiction over the case, the petition
stated no cause of action in view of the failure of Remedios Mago to exhaust the
administrative remedies provided for in the Tariff and Customs Code; that the
Bureau of Customs had not lost jurisdiction over the goods because the full
duties and charges thereon had not been paid; that the members of the Manila
Police Department had the power to make the seizure; that the seizure was not
unreasonable; and that the persons deputized under Section 2203 (c) of
the Tariff and Customs Code could effect searches, seizures and arrests in
inland places in connection with the enforcement of the said Code. In opposing
the issuance of the writ of preliminary injunction, herein petitioners averred in the
court below that the writ could not be granted for the reason that
Remedios Mago was not entitled to the main reliefs she prayed for; that the
release of the goods, which were subject to seizure proceedings under the Tariff
and Customs Code, would deprive the Bureau of Customs of the authority to
forfeit them; and that Remedios Mago and Valentin Lanopa would not suffer
irreparable injury. Herein petitioners prayed the court below for the lifting of the
restraining order, for the denial of the issuance of the writ of preliminary
injunction, and for the dismissal of the case.
At the hearing on December 9, 1966, the lower court, with the conformity of the
parties, ordered that an inventory of the goods be made by its clerk of court in the
presence of the representatives of the claimant of the goods, the Bureau of
Customs, and the Anti- Smuggling Center of the Manila Police Department. On
December 13, 1966, the above-named persons filed a "Compliance" itemizing
the contents of the nine bales.
Herein respondent Remedios Mago, on December 23, 1966, filed an ex
parte motion to release the goods, alleging that since the inventory of the goods
seized did not show any article of prohibited importation, the same should be
released as per agreement of the parties upon her posting of the appropriate
bond that may be determined by the court. Herein petitioners filed their
opposition to the motion, alleging that the court had no jurisdiction to order the
release of the goods in view of the fact that the court had no jurisdiction over the
case, and that most of the goods, as shown in the inventory, were not declared
and were, therefore, subject to forfeiture. A supplemental opposition was filed by
herein petitioners on January 19, 1967, alleging that on January 12, 1967 seizure
proceedings against the goods had been instituted by the Collector of Customs
of the Port of Manila, and the determination of all questions affecting the disposal
of property proceeded against in seizure and forfeiture proceedings should
thereby be left to the Collector of Customs. On January 30, 1967, herein
petitioners filed a manifestation that the estimated duties, taxes and other
charges due on the goods amounted to P95,772.00. On February 2, 1967, herein
respondent Remedios Mago filed an urgent manifestation and reiteration of the
motion for the release under bond of the goods.
On March 7, 1967, the respondent Judge issued an order releasing the goods to
herein respondent Remedios Mago upon her filing of a bond in the amount of
P40,000.00, and on March 13, 1967, said respondent filed the corresponding
bond.
On March 13, 1967, herein petitioner Ricardo Papa, on his own behalf, filed a
motion for reconsideration of the order of the court releasing the goods under
bond, upon the ground that the Manila Police Department had been directed by
the Collector of Customs of the Port of Manila to hold the goods pending
termination of the seizure proceedings.
Without waiting for the court's action on the motion for reconsideration, and
alleging that they had no plain, speedy and adequate remedy in the ordinary
course of law, herein petitioners filed the present action for prohibition and
certiorari with preliminary injunction before this Court. In their petition petitioners
allege, among others, that the respondent Judge acted without jurisdiction in
ordering the release to respondent Remedios Mago of the disputed goods, for
the following reasons: (1) the Court of First Instance of Manila, presided by
respondent Judge, had no jurisdiction over the case; (2) respondent
Remedios Mago had no cause of action in Civil Case No. 67496 of the Court of
First Instance of Manila due to her failure to exhaust all administrative remedies
before invoking judicial intervention; (3) the Government was not estopped by the
negligent and/or illegal acts of its agents in not collecting the correct taxes; and
(4) the bond fixed by respondent Judge for the release of the goods was grossly
insufficient.
In due time, the respondents filed their answer to the petition for prohibition and
certiorari in this case. In their answer, respondents alleged, among others: (1)
that it was within the jurisdiction of the lower court presided by respondent Judge
to hear and decide Civil Case No. 67496 and to issue the questioned order of
March 7, 1967, because said Civil Case No. 67496 was instituted long before
seizure and identification proceedings against the nine bales of goods in question
were instituted by the Collector of Customs; (2) that petitioners could no longer
go after the goods in question after the corresponding duties and taxes had been
paid and said goods had left the customs premises and were no longer within the
control of the Bureau of Customs; (3) that respondent Remedios Mago is a
purchaser in good faith of the goods in question so that those goods can not be
the subject of seizure and forfeiture proceedings; (4) that the seizure of the
goods was effected by members of the Manila Police Department at a place
outside the control and jurisdiction of the Bureau of Customs and effected without
any search warrant or a warrant of seizure and detention; (5) that the warrant of
seizure and detention subsequently issued by the Collector of Customs is illegal
and unconstitutional, it not being issued by a judge; (6) that the seizing officers
have no authority to seize the goods in question because they are not articles of
prohibited importation; (7) that petitioners are estopped to institute the present
action because they had agreed before the respondent Judge that they would not
interpose any objection to the release of the goods under bond to answer for
whatever duties and taxes the said goods may still be liable; and (8) that the
bond for the release of the goods was sufficient.
The principal issue in the instant case is whether or not, the respondent Judge
had acted with jurisdiction in issuing the order of March 7, 1967 releasing the
goods in question.
The Bureau of Customs has the duties, powers and jurisdiction, among others,
(1) to assess and collect all lawful revenues from imported articles, and all other
dues, fees, charges, fines and penalties, accruing under the tariff and customs
laws; (2) to prevent and suppress smuggling and other frauds upon the customs;
and (3) to enforce tariff and customs laws. 1 The goods in question were
imported from Hongkong, as shown in the "Statement and Receipts of Duties
Collected on Informal Entry." 2 As long as the importation has not been
terminated the imported goods remain under the jurisdiction of the Bureau of
Customs. Importation is deemed terminated only upon the payment of the duties,
taxes and other charges upon the articles, or secured to be paid, at the port of
entry and the legal permit for withdrawal shall have been granted. 3 The payment
of the duties, taxes, fees and other charges must be in full. 4
The record shows, by comparing the articles and duties stated in the aforesaid
"Statement and Receipts of Duties Collected on Informal Entry" with the
manifestation of the Office of the Solicitor General 5 wherein it is stated that the
estimated duties, taxes and other charges on the goods subject of this case
amounted to P95,772.00 as evidenced by the report of the appraiser of the
Bureau of Customs, that the duties, taxes and other charges had not been paid
in full. Furthermore, a comparison of the goods on which duties had been
assessed, as shown in the "Statement and Receipts of Duties Collected on
Informal Entry" and the "compliance" itemizing the articles found in the bales
upon examination and inventory, 6 shows that the quantity of the goods was
underdeclared, presumably to avoid the payment of duties thereon. For example,
Annex B (the statement and receipts of duties collected) states that there were
40 pieces of ladies' sweaters, whereas Annex H (the inventory contained in the
"compliance") states that in bale No. 1 alone there were 42 dozens and 1 piece
of ladies' sweaters of assorted colors; in Annex B, only 100 pieces of watch
bands were assessed, but in Annex H, there were in bale No. 2, 209 dozens and
5 pieces of men's metal watch bands (white) and 120 dozens of men's metal
watch bands (gold color), and in bale No. 7, 320 dozens of men's metal watch
bands (gold color); in Annex B, 20 dozens only of men's handkerchief were
declared, but in Annex H it appears that there were 224 dozens of said goods in
bale No. 2, 120 dozens in bale No. 6, 380 dozens in bale No. 7, 220 dozens in
bale No. 8, and another 200 dozens in bale No. 9. The articles contained in the
nine bales in question, were, therefore, subject to forfeiture under Section 2530,
pars. e and m, (1), (3), (4), and (5) of the Tariff and Customs Code. And this
Court has held that merchandise, the importation of which is effected contrary to
law, is subject to forfeiture, 7 and that goods released contrary to law are subject
to seizure and forfeiture. 8

Even if it be granted, arguendo, that after the goods in question had been
brought out of the customs area the Bureau of Customs had lost jurisdiction over
the same, nevertheless, when said goods were intercepted at the Agrifina Circle
on November 4, 1966 by members of the Manila Police Department, acting under
directions and orders of their Chief, Ricardo G. Papa, who had been formally
deputized by the Commissioner of Customs, 9 the Bureau of Customs had
regained jurisdiction and custody of the goods. Section 1206 of the Tariff and
Customs Code imposes upon the Collector of Customs the duty to hold
possession of all imported articles upon which duties, taxes, and other charges
have not been paid or secured to be paid, and to dispose of the same according
to law. The goods in question, therefore, were under the custody and at the
disposal of the Bureau of Customs at the time the petition for mandamus,
docketed as Civil Case No. 67496, was filed in the Court of First Instance of
Manila on November 9, 1966. The Court of First Instance of Manila, therefore,
could not exercise jurisdiction over said goods even if the warrant of seizure and
detention of the goods for the purposes of the seizure and forfeiture proceedings
had not yet been issued by the Collector of Customs.
The ruling in the case of "Alberto de Joya, et al. v. Hon. Gregorio Lantin, et al.,"
G. R. No. L-24037, decided by this Court on April 27, 1967, is squarely
applicable to the instant case. In the De Joya case, it appears that Francindy
Commercial of Manila bought from Ernerose Commercial of Cebu City 90 bales
of assorted textiles and rags, valued at P117,731.00, which had been imported
and entered thru the port of Cebu. Ernerose Commercial shipped the goods to
Manila on board an inter-island vessel. When the goods were about to leave the
customs premises in Manila, on October 6, 1964, the customs authorities held
them for further verification, and upon examination the goods were found to be
different from the declaration in the cargo manifest of the carrying vessel.
Francindy Commercial subsequently demanded from the customs authorities the
release of the goods, asserting that it is a purchaser in good faith of those goods;
that a local purchase was involved so the Bureau of Customs had no right to
examine the goods; and that the goods came from a coastwise port. On October
26, 1964, Francindy Commercial filed in the Court of First Instance of Manila a
petition for mandamus against the Commissioner of Customs and the Collector
of Customs of the port of Manila to compel said customs authorities to release
the goods.
Francindy Commercial alleged in its petition for mandamus that the Bureau of
Customs had no jurisdiction over the goods because the same were not imported
to the port of Manila; that it was not liable for duties and taxes because the
transaction was not an original importation; that the goods were not in the hands
of the importer nor subject to said importer's control, nor were the goods
imported contrary to law with its (Francindy Commercial's) knowledge; and that
the importation had been terminated. On November 12, 1964, the Collector of
Customs of Manila issued a warrant of seizure and identification against the
goods. On December 3, 1964, the Commissioner of Customs and the Collector
of Customs, as respondents in the mandamus case, filed a motion to dismiss the
petition on the grounds of lack of jurisdiction, lack of cause of action, and in view
of the pending seizure and forfeiture proceedings. The court of first instance held
resolution on the motion to dismiss in abeyance pending decision on the merits.
On December 14, 1964, the Court of First Instance of Manila issued a writ of
preventive and mandatory injunction, on prayer by Francindy Commercial, upon
a bond of P20,000.00. The Commissioner of Customs and the Collector of
Customs sought the lifting of the preliminary and mandatory injunction, and the
resolution of their motion to dismiss. The Court of First Instance of Manila,
however, on January 12, 1965, ordered them to comply with the preliminary and
mandatory injunction, upon the filing by Francindy Commercial of an additional
bond of P50,000.00. Said customs authorities thereupon filed with this Court, on
January 14, 1965, a petition for certiorari and prohibition with preliminary
injunction. In resolving the question raised in that case, this Court held:
"This petition raises two related issues: first, has the Customs bureau
jurisdiction to seize the goods and institute forfeiture proceeding against
them? and (2) has the Court of First Instance jurisdiction to entertain the
petition for mandamus to compel the Customs authorities to release the
goods?
"Francindy Commercial contends that since the petition in the Court of
First Instance was filed (on October 26, 1964) ahead of the issuance of
the Customs warrant of seizure and forfeiture (on November 12, 1964),
the Customs bureau should yield to the jurisdiction of the said court.
"The record shows, however, that the goods in question were actually
seized on October 6, 1964, i.e., before Francindy Commercial sued in
court. The purpose of the seizure by the Customs bureau was to verify
whether or not Custom duties and taxes were paid for their importation.
Hence, on December 23, 1964, Customs released 22 bales thereof, for
the same were found to have been released regularly from the Cebu
Port (Petition Annex 'L'). As to goods imported illegally or released
irregularly from Customs custody, these are subject to seizure under
Section 2530 m. of the Tariff and Customs Code (RA 1957).
"The Bureau of Customs has jurisdiction and power, among others, to
collect revenues from imported articles, fines and penalties and
suppress smuggling and other frauds on customs; and to enforce tariff
and customs laws (Sec. 602, Republic Act 1957).
 "The goods in question are imported articles entered at the Port of Cebu.
Should they be found to have been released irregularly from Customs
custody in Cebu City, they are subject to seizure and forfeiture, the
proceedings for which comes within the jurisdiction of the Bureau of
Customs pursuant to Republic Act 1937.
"Said proceedings should be followed; the owner of the goods may set
up defenses therein (Pacis v. Averia, L-22526, Nov. 20, 1966). From the
decision of the Commissioner of Customs appeal lies to the Court of Tax
Appeals, as provided in Sec. 2402 of Republic Act 1937 and Sec. 11
of Republic Act 1125. To permit recourse to the Court of First Instance in
cases of seizure of imported goods would in effect render ineffective the
power of the Customs authorities under the Tariff Code and deprive the
Court of Tax Appeals of one of its exclusive appellate jurisdictions. As
this Court has ruled in Pacis v. Averia, supra, Republic Acts 1937 and
1125 vest jurisdiction over seizure and forfeiture proceedings exclusively
upon the Bureau of Customs and the Court of Tax Appeals. Such law
being special in nature, while the Judiciary Act defining the jurisdiction of
Courts of First Instance is a general legislation, not to mention that the
former are later enactments, the Court of First Instance should yield to
the jurisdiction of the Customs authorities."
It is the settled rule, therefore, that the Bureau of Customs acquires exclusive
jurisdiction over imported goods, for the purposes of enforcement of the customs
laws, from the moment the goods are actually in its possession or control, even if
no warrant of seizure or detention had previously been issued by the Collector of
Customs in connection with seizure and forfeiture proceedings. In the present
case, the Bureau of Customs actually seized the goods in question on November
4, 1966, and so from that date the Bureau of Customs acquired jurisdiction over
the goods for the purposes of the enforcement of the tariff and customs laws, to
the exclusion of the regular courts. Much less then would the Court of First
Instance of Manila have jurisdiction over the goods in question after the Collector
of Customs had issued the warrant of seizure and detention on January 12,
1967. 10 And so, it cannot be said, as respondents contend, that the issuance of
said warrant was only an attempt to divest the respondent Judge of jurisdiction
over the subject matter of the case. The court presided by respondent Judge did
not acquire jurisdiction over the goods in question when the petition for
mandamus was filed before it, and so there was no need of divesting it of
jurisdiction. Not having acquired jurisdiction over the goods, it follows that the
Court of First Instance of Manila had no jurisdiction to issue the questioned order
of March 7, 1967 releasing said goods.
Respondents also aver that petitioner Martin Alagao, an officer of the Manila
Police Department, could not seize the goods in question without a search
warrant. This contention cannot be sustained. The Chief of the Manila Police
Department, Ricardo G. Papa, having been deputized in writing by the
Commissioner of Customs, could, for the purposes of the enforcement of the
customs and tariff laws, effect searches, seizures, and arrests, 11 and it was his
duty to make seizure, among others, of any cargo, articles or other movable
property when the same may be subject to forfeiture or liable for any fine
imposed under customs and tariff laws. 12 He could lawfully open and examine
any box, trunk, envelope or other container wherever found when he had
reasonable cause to suspect the presence therein of dutiable articles introduced
into the Philippines contrary to law; and likewise to stop, search and examine any
vehicle, beast or person reasonably suspected of holding or conveying such
article as aforesaid. 13 It cannot be doubted, therefore, that petitioner Ricardo
G. Papa, Chief of Police of Manila, could lawfully effect the search and seizure of
the goods in question. The Tariff and Customs Code authorizes him to demand
assistance of any police officer to effect said search and seizure, and the latter
has the legal duty to render said assistance. 14 This was what happened
precisely in the case of Lt. Martin Alagao who, with his unit, made the search and
seizure of the two trucks loaded with the nine bales of goods in question at the
Agrifina Circle. He was given authority by the Chief of Police to make the
interception of the cargo. 15

Petitioner Martin Alagao and his companion policemen had authority to effect the
seizure without any search warrant issued by a competent court. The Tariff and
Customs Code does not require said warrant in the instant case. The Code
authorizes persons having police authority under Section 2203 of the Tariff and
Customs Code to enter, pass through or search any land, inclosure, warehouse,
store or building, not being a dwelling house; and also to inspect, search and
examine any vessel or aircraft and any trunk, package, box or envelope or any
person on board, or stop and search and examine any vehicle, beast or person
suspected of holding or conveying any dutiable or prohibited article introduced
into the Philippines contrary to law, without mentioning the need of a search
warrant in said cases. 16 But in the search of a dwelling house, the Code
provides that said "dwelling house may be entered and searched only upon
warrant issued by a judge or justice of the peace . . ." 17 It is our considered view,
therefore, that except in the case of the search of a dwelling house, persons
exercising police authority under the customs law may effect search and seizure
without a search warrant in the enforcement of customs laws.
Our conclusion finds support in the case of Carroll v. United States, 39 A.L.R.,
790, 799, wherein the court, considering a legal provision similar to Section 2211
of the Philippine Tariff and Customs Code, said as follows:
"Thus, contemporaneously with the adoption of the 4th Amendment, we
find in the first Congress, and in the following second and fourth
Congresses, a difference made as to the necessity for a search warrant
between goods subject to forfeiture, when concealed in a dwelling house
or similar place, and like goods in course of transportation and
concealed in a movable vessel, where they readily could be put out of
reach of a search warrant . . ."
"Again, by the 2d section of the Act of March 3, 1815 (3 Stat. at L. 231,
232, chap. 94), it was made lawful for customs officers not only to board
and search vessels within their own and adjoining districts, but also to
stop, search, and examine any vehicle, beast, or person on which or
whom they should suspect there was merchandise which was subject to
duty or had been introduced into the United States in any manner
contrary to law, whether by the person in charge of the vehicle or beast
or otherwise, and if they should find any goods, wares, or merchandise
thereon, which they had probable cause to believe had been so
unlawfully brought into the country, to seize and secure the same, and
the vehicle or beast as well, for trial and forfeiture. This Act was renewed
April 27, 1816 (3 Stat. at L. 315, chap. 100), for a year and expired. The
Act of February 28, 1865, revived § 2 of the Act of 1815, above
described, chap. 67, 13 Stat. at L. 441. The substance of this section
was re-enacted in the 3d section of the Act of July 18, 1866, chap. 201,
14 Stat. at L. 178, and was thereafter embodied in the Revised Statutes
as § 3061, Comp. Stat. § 5763, 2 Fed. Stat. Anno. 2d ed. p. 1161.
Neither § 3061 nor any of its earlier counterparts has ever been attacked
as unconstitutional. Indeed, that section was referred to and treated as
operative by this court in Von Cotzhausen v. Nazro, 107 U. S. 215, 219,
27 L. ed. 540, 541, 2 Sup. Ct. Rep. 503 . . ."
In the instant case, we note that petitioner Martin Alagao and his companion
policemen did not have to make any search before they seized the two trucks
and their cargo. In their original petition, and amended petition, in the court below
Remedios Mago and Valentin Lanopa did not even allege that there was a
search. 18 All that they complained of was,
"That while the trucks were on their way, they were intercepted without
any search warrant near the Agrifina Circle and taken to the Manila
Police, where they were detained."
But even if there was a search, there is still authority to the effect that no search
warrant would be needed under the circumstances obtaining in the instant case.
Thus, it has been held that:
"The guaranty of freedom from unreasonable searches and seizures is
construed as recognizing a necessary difference between a search of a
dwelling house or other structure in respect of which a search warrant
may readily be obtained and a search of a ship, motorboat, wagon, or
automobile for contraband goods, where 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." (47 Am. Jur., pp. 513-
514, citing Carroll v. United States, 267 U.S., 132, 69 L. ed., 543, 45 S.
Ct., 280, 39 A.L.R., 790; People v. Case, 320 Mich., 379, 190 N.W., 389,
27 A.L.R., 686.)
In the case of People v. Case (320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686),
the question raised by defendant's counsel was whether an automobile truck or
an automobile could be searched without search warrant or other process and
the goods therein seized used afterwards as evidence in a trial for violation of the
prohibition laws of the State. Same counsel contended the negative, urging the
constitutional provision forbidding unreasonable searches and seizures. The
Court said:
". . . Neither our state nor the Federal Constitution directly prohibits
search and seizure without a warrant, as is sometimes asserted. Only
'unreasonable' search and seizure is forbidden. . . .
". . . The question whether a seizure or a search is unreasonable in the
language of the Constitution is a judicial and not a legislative question;
but in determining whether a seizure is or is not unreasonable, all of the
circumstances under which it is made must be looked to.
"The automobile is a swift and powerful vehicle of recent development,
which has multiplied by quantity production and taken possession of our
highways in battalions, until the slower, animal- drawn vehicles, with
their easily noted individuality, are rare. Constructed as covered vehicles
to standard form in immense quantities, and with a capacity for speed
rivaling express trains, they furnish for successful commission of crime a
disguising means of silent approach and swift escape unknown in the
history of the world before their advent. The question of their police
control and reasonable search on highways or other public places is a
serious question far deeper and broader than their use in so-called
"bootlegging' or 'rum running,' which is itself is no small matter. While a
possession in the sense of private ownership, they are but a vehicle
constructed for travel and transportation on highways. Their active use is
not in homes or on private premises, the privacy of which the law
especially guards from search and seizure without process. The baffling
extent to which they are successfully utilized to facilitate commission of
crime of all degrees, from those against morality, chastity, and decency,
to robbery, rape, burglary, and murder, is a matter of common
knowledge. Upon that problem a condition, and not a theory, confronts
proper administration of our criminal laws. Whether search of and
seizure from an automobile upon a highway or other public place without
a search warrant is unreasonable is in its final analysis to be determined
as a judicial question in view of all the circumstances under which it is
made."
Having declared that the seizure by the members of the Manila Police
Department of the goods in question was in accordance with law and by that
seizure the Bureau of Customs had acquired jurisdiction over the goods for the
purposes of the enforcement of the customs and tariff laws, to the exclusion of
the Court of First Instance of Manila, We have thus resolved the principal and
decisive issue in the present case. We do not consider it necessary, for the
purposes of this decision, to discuss the incidental issues raised by the parties in
their pleadings.
WHEREFORE, judgment is hereby rendered, as follows:
(a) Granting the writ of certiorari and prohibition prayed for by petitioners;
(b) Declaring null and void, for having been issued without jurisdiction, the order
of respondent Judge Hilarion U. Jarencio, dated March 7, 1967, in Civil Case No.
67496 of the Court of First Instance of Manila;
(c) Declaring permanent the preliminary injunction issued by this Court on March
31, 1967 restraining respondent Judge from executing, enforcing and/or
implementing his order of March 7, 1967 in Civil Case No. 67496 of the Court of
First Instance of Manila, and from proceeding in any manner in said case;
(d) Ordering the dismissal of Civil Case No. 67496 of the Court of First Instance
of Manila; and
(e) Ordering the private respondent, Remedios Mago, to pay the costs.
It is so ordered.
Concepcion, C . J ., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Sanchez,
Castro, Angeles and Fernando, JJ ., concur.
||| (Papa v. Mago, G.R. No. L-27360, [February 28, 1968], 130 PHIL 886-905)
 THIRD DIVISION

[G.R. No. 96177. January 27, 1993.]

PEOPLE OF THE PHILIPPINES, plaintiff-

appellee, vs. MARI MUSA y HANTATALU, accused-appellant.

The Solicitor General for plaintiff-appellee.

Pablo L. Murillo for accused-appellant.

SYLLABUS

1. CRIMINAL LAW; DANGEROUS DRUGS ACT (R.A. 6425); ILLEGAL SALE

OF MARIJUANA DRUGS; FAMILIARITY BETWEEN BUYER AND SELLER,
NOT MATERIAL. — The contention that the appellant could not have transacted
with Sgt. Ani because they do not know each other is without merit. The day
before the buy-bust operation, Sgt. Ani conducted a test-buy and he successfully
bought a wrapper of marijuana from the appellant. Through this previous
transaction, Sgt. Ani was able to gain the appellant's confidence for the latter to
sell more marijuana to Sgt. Ani the following day, during the buy-bust operation.
Moreover, the Court has held that what matters is not an existing familiarity
between the buyer and the seller, for quite often, the parties to the transaction
may be strangers, but their agreement and the acts constituting the sale and
delivery of the marijuana.
2. ID.; ID.; ID.; PRESENCE OF OTHER PEOPLE, NOT CRUCIAL. — The
appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was
impossible for the appellant to sell marijuana while his wife, cousin and
manicurist were present. But the place of the commission of the crime of selling
prohibited drugs has been held to be not crucial and the presence of
other people apart from the buyer and seller will not necessarily prevent the
consummation of the illegal sale. As the Court observed in People v. Paco, these
factors may sometimes camouflage the commission of the crime. In the instant
case, the fact that the other people inside the appellant's house are known to the
appellant may have given him some assurance that these people will not report
him to the authorities.
3. ID.; ID.; ID.; CASE OF PEOPLE VS. ALE, NOT APPLICABLE IN CASE AT
BAR. — The case of People v. Ale does not apply here because the policeman in
that case testified that he and his companion were certain that the appellant
therein handed marijuana cigarettes to the poseur-buyer based on the
appearance of the cigarette sticks. The Court rejected this claim. 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."
4. REMEDIAL LAW; EVIDENCE; CORROBORATIVE EVIDENCE SUPPORTING
DIRECT EVIDENCE; SUFFICIENT TO PROVE THE CRIME COMMITTED. —
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 corroborative testimony of T/Sgt.
Belarga strengthens the direct evidence given by Sgt. Ani. Additionally, the Court
has ruled that the fact that the police officers who accompanied the poseur-buyer
were unable to see exactly what the appellant gave the poseur-buyer because of
their distance or position will not be fatal to the prosecution's case provided there
exists other evidence, direct or circumstantial, e.g., the testimony of the poseur-
buyer, which is sufficient to prove the consummation of the sale of the prohibited
drug.
5. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM AGAINST
UNREASONABLE SEARCH AND SEIZURE; EVIDENCE OBTAINED IN
VIOLATION THEREOF. — Built into the Constitution are guarantees on the
freedom of every individual against unreasonable searches and seizures.
Furthermore, the Constitution, in conformity with the doctrine laid down
in Stonehill v. Diokno, (G.R. No. L-19550, June 19, 1967, 20 SCRA 383)
declares inadmissible, any evidence obtained in violation of the freedom from
unreasonable searches and seizures.
6. REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH & SEIZURE; SEARCH
INCIDENTAL TO LAWFUL ARREST. — 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, 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." Rule 126, Section 12 of the
Rules of Court expressly authorizes a warrantless search and seizure incident to
a lawful arrest. 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 and 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 . . ." 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.
7. ID.; ID.; ID.; ID.; DOCTRINE OF "PLAIN VIEW". — 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. 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.
8. ID.; ID.; ID.; ID.; ID.; LIMITATION. — 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. 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. 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.
9. ID.; ID.; ID.; ID.; ID.; NOT APPLICABLE IN CASE AT BAR. — 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. Moreover,
when the NARCOM agents saw the plastic bag hanging in one corner of the
kitchen, they had no clue as to its contents. They had to ask the appellant what
the bag contained. When the appellant refused to respond, they opened it and
found the marijuana. Unlike Ker v. California, where the marijuana was visible to
the police officer's eyes, the NARCOM agents in this case could not have
discovered the inculpatory nature of the contents of the bag had they not forcibly
opened it. Even assuming then, that the NARCOM agents inadvertently came
across the plastic bag because it was within their "plain view," what may be said
to be the object in their "plain view" was just the plastic bag and not the
marijuana. The incriminating nature of the contents of the plastic bag was not
immediately apparent from the "plain view" of said object. It cannot be claimed
that the plastic bag clearly betrayed its contents, whether by its distinctive
configuration, its transparency, or otherwise, that its contents are obvious to an
observer. 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.
10. REMEDIAL LAW; EVIDENCE; QUANTUM OF PROOF REQUIRED IN
CRIMINAL; SATISFIED IN CASE AT BAR. — 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.

DECISION

ROMERO, J : p

The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision,
dated August 31, 1990, 1 of the Regional Trial Court (RTC) of Zamboanga City,
Branch XII, finding him guilty of selling marijuana in violation of Article II, Section
4 of Republic Act No. 6425, as amended, otherwise known as the Dangerous
Drugs Act of 1972.
The information filed on December 15, 1989 against the appellant reads:
"That on or about December 14, 1989, in the City of Zamboanga,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, not being authorized by law, did then and there,
wilfully, unlawfully and feloniously sell to one SGT. AMADO ANI, two (2)
wrappers containing dried marijuana leaves, knowing the same to be a
prohibited drug.
CONTRARY TO LAW." 2
Upon his arraignment on January 11, 1990, the appellant pleaded not guilty. 3
At the trial, the prosecution presented three (3) witnesses, namely: (1) Sgt.
Amado Ani, Jr. of the 9th Narcotics Command (NARCOM) of Zamboanga City,
who acted as poseur-buyer in the buy-bust operation made against the appellant;
(2) T/Sgt. Jesus Belarga, also of the 9th Narcotics Command of Zamboanga City,
who was the NARCOM team leader of the buy-bust operation; and (3) Athena
Elisa P. Anderson, the Document Examiner and Forensic Chemist of PC-INP
Crime Laboratory of Regional Command (RECOM) 9. The evidence of the
prosecution was summarized by the trial court as follows: LLjur

"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 Musawas 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 MariMusa to
which house the civilian informer had guided him. The same civilian
informer had also described to him the appearance of Mari Musa.
Amado Ani was able to buy one newspaper-wrapped dried marijuana
(Exh. 'E') for P10.00. Sgt. Ani returned to the NARCOM office and turned
over the newspaper-wrapped marijuana to T/Sgt. Jesus Belarga. Sgt.
Belarga inspected the stuff turned over to him and found it to be
marijuana.
The next day, December 14, 1989, about 1:30 P.M., a buy-bust was
planned. Sgt. Amado Ani was assigned as the poseur buyer for which
purpose he was given P20.00 (with SN GA955883) by Belarga. The buy-
bust money had been taken by T/Sgt. Jesus Belarga from M/Sgt. Noh
Sali Mihasun, Chief of Investigation Section, and for which Belarga
signed a receipt (Exh. 'L' & 'L-1'). 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 house of Mari Musa,
while the rest of the NARCOM group positioned themselves at strategic
places about 90 to 100 meters from MariMusa's house. T/Sgt. Belarga
could see what went on between Ani and suspect Mari Musa from where
he was. Ani approached Mari Musa, who came out of his house, and
asked Ani what he wanted. Ani said he wanted some more stuff. Ani
gave Mari Musa the P20.00 marked money. After receiving the money,
Mari Musa went back to his house and came back and gave Amado Ani
two newspaper wrappers containing dried marijuana. Ani opened the two
wrappers and inspected the contents. Convinced that the contents were
marijuana, Ani walked back towards his companions and raised his right
hand. The two NARCOM teams, riding the two civilian vehicles, sped
towards Sgt. Ani. Ani joined Belarga's team and returned to the house.
At the time Sgt. Ani first approached Mari Musa, there were four persons
inside his house: Mari Musa, another boy, and two women, one of whom
Ani and Belarga later came to know to be Mari Musa's wife. The second
time, Ani with the NARCOM team returned to Mari Musa's house, the
woman, who was later known as Mari Musa's wife, slipped away from
the house. Sgt. Belarga frisked Mari Musa but could not find the P20.00
marked money with him. Mari Musa was then asked where the P20.00
was and he told the NARCOM team he has given the money to his wife
(who had slipped away). Sgt. Belarga also found a plastic bag containing
dried marijuana inside it somewhere in the kitchen. Mari Musa was then
placed under arrest and brought to the NARCOM office. At Suterville,
Sgt. Ani turned over to Sgt. Belarga the two newspaper-wrapped
marijuana he had earlier bought from Mari Musa (Exhs. 'C' & 'D'). LexLib

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 (Exh. 'B'), which was stamped
'RECEIVED' by the PC Crime Laboratory (Exh. 'E-1') on the same day.
 Mrs. Athena Elisa P. Anderson, the Forensic Chemist of the PC Crime
Laboratory, examined the marijuana specimens subjecting the same to
her three tests. All submitted specimens she examined gave positive
results for the presence of marijuana. Mrs. Anderson reported the results
of her examination in her Chemistry Report D-100-89, dated December
14, 1989, (Exh. 'J', 'J-1', 'J-2', 'J-3', 'J-4' and 'J-5'). Mrs. Anderson
identified in court the two newspaper wrapped marijuana bought at the
buy-bust on December 14, 1989, through her initial and the weight of
each specimen written with red ink on each wrapper (Exhs. 'C-1' and 'D-
1'). She also identified the one newspaper-wrapped marijuana bought at
the test-buy on December 13, 1989, through her markings (Exh. 'E-1').
Mrs. Anderson also identified her Chemistry Report (Exh. 'J' & sub-
markings.)
T. Sgt. Belarga identified the two buy-bust newspaper wrapped
marijuana through his initial, the words 'buy-bust' and the words
'December 14, 1989, 2:45 P.M.' (written on Exhs. 'C' and 'D'). Belarga
also identified the receipt of the P20 marked money (with SN GA955883)
(Exh. 'L'), dated December 14, 1989, and his signature thereon (Exh. 'L-
1'). He also identified the letter-request, dated December 14, 1989,
addressed to the PC Crime Laboratory (Exh. 'B') and his signature
thereon (Exh. 'B-2') and the stamp of the PC Crime Laboratory marked
'RECEIVED' (Exh. 'B-1')." 4
For the defense, the following testified as witnesses: (1) the accused-appellant
Mari H. Musa; and (2) Ahara R. Musa, his wife. The trial court summarized the
version of the defense, thus:
"[O]n December 14, 1989, at about 1:30 in the afternoon, Mari Musa was
in his house at Suterville, Zamboanga City. With him were his wife,
Ahara Musa, known as Ara, his one-year old child, a woman manicurist,
and a male cousin named Abdul Musa. 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 MariMusa 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, MariMusa 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.
cdll

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. MariMusa said he had not been arrested for selling marijuana
before. 5
After trial, the trial court rendered the assailed decision with the following
disposition:
"WHEREFORE, finding accused Mari Musa y Hantatalu guilty beyond
reasonable doubt of selling marijuana and pursuant to Sec. 4, Art II
of Rep. Act No. 6425, he is sentenced to life imprisonment and to pay
the fine of P20,000.00, the latter imposed without subsidiary
imprisonment." 6
In this appeal, the appellant contends that his guilt was not proved beyond
reasonable doubt and impugns the credibility of the prosecution witnesses.
The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not
credible because: (1) prior to the buy-bust operation, neither Sgt. Ani nor the
other NARCOM agents were personally known by the appellant or vice-versa;
and (2) there was no witness to the alleged giving of the two wrappers of
marijuana by the appellant to Sgt. Ani.
Sgt. Ani testified that on December 13, 1989, upon instruction by T/Sgt. Jesus
Belarga, he conducted a test-buy operation on the appellant whereby he bought
one wrapper of marijuana for P15.00 from the latter. 7 He reported the successful
operation to T/Sgt. Belarga on the same day. 8 Whereupon, T/Sgt. Belarga
conducted a conference to organize a buy-bust operation for the following day. 9

On December 14, 1989, at 1:30 p.m., two NARCOM teams in separate vehicles
headed by T/Sgt. Belarga and a certain Sgt. Foncardas went to the place of
operation, which was the appellant's house located in Laquian Compound,
Suterville, Zamboanga City. Sgt. Ani was with the team of T/Sgt. Belarga, whose
other members were Sgts. Lego and Biong. 10 Sgt. Ani was given a marked
P20.00 bill by T/Sgt. Belarga, which was to be used in the operation.
Upon reaching the place, the NARCOM agents positioned themselves at
strategic places. 11 Sgt. Ani approached the house. Outside the house, the
appellant asked Sgt. Ani what he wanted. Sgt. Ani asked him for some more
marijuana. 12 Sgt. Ani gave him the marked P20.00 bill and the appellant went
inside the house and brought back two paper wrappers containing marijuana
which he handed to Sgt. Ani. 13 From his position, Sgt. Ani could see that there
were other people in the house. 14
After the exchange, Sgt. Ani approached the other NARCOM agents and made
the pre-arranged signal of raising his right hand. 15 The NARCOM agents,
accompanied by Sgt. Ani, went inside the house and made the arrest. The
agents searched the appellant and unable to find the marked money, they asked
him where it was. The appellant said that he gave it to his wife.16
The Court, after a careful reading of the record, finds the testimony of Sgt. Ani
regarding the buy-bust operation, which resulted in the apprehension,
prosecution and subsequent conviction of the appellant, to be direct, lucid and
forthright. Being totally untainted by contradictions in any of the material points, it
deserves credence.
The contention that the appellant could not have transacted with Sgt. Ani
because they do not know each other is without merit. The day before the buy-
bust operation, Sgt. Ani conducted a test-buy and he successfully bought a
wrapper of marijuana from the appellant. Through this previous transaction, Sgt.
Ani was able to gain the appellant's confidence for the latter to sell more
marijuana to Sgt. Ani the following day, during the buy-bust operation. Moreover,
the Court has held that what matters is not an existing familiarity between the
buyer and the seller, for quite often, the parties to the transaction may be
strangers, but their agreement and the acts constituting the sale and delivery of
the marijuana. 17
The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was
impossible for the appellant to sell marijuana while his wife, cousin and
manicurist were present. But the place of the commission of the crime of selling
prohibited drugs has been held to be not crucial 18 and the presence of
other people apart from the buyer and seller will not necessarily prevent the
consummation of the illegal sale. As the Court observed in People v.
Paco, 19 these factors may sometimes camouflage the commission of the crime.
In the instant case, the fact that the other people inside the appellant's house are
known to the appellant may have given him some assurance that
these people will not report him to the authorities. cdll

The appellant, besides assailing Sgt. Ani's credibility, also questions the
credibility of T/Sgt. Belarga. The appellant submits that since T/Sgt. Belarga
admitted that he was about 90 meters away from Sgt. Ani and the appellant, he
could not have possibly witnessed the sale. The appellant invokes People v.
Ale 20 where the Court observed that from a distance of 10-15 meters, a
policeman cannot distinguish between marijuana cigarette from ordinary ones by
the type of rolling done on the cigarette sticks. And since T/Sgt. Belarga allegedly
did not see the sale, the appellant contends that the uncorroborated testimony of
Sgt. Ani can not stand as basis for his conviction.
People v. Ale does not apply here because the policeman in that case testified
that he and his companion were certain that the appellant therein handed
marijuana cigarettes to the poseur-buyer based on the appearance of the
cigarette sticks. The Court rejected this claim, stating that:
"This Court cannot give full credit to the testimonies of the prosecution
witnesses marked as they are with contradictions and tainted with
inaccuracies.
Biñan testified that they were able to tell that the four cigarettes were
marijuana cigarettes because according to him, the rolling of ordinary
cigarettes are different from those of marijuana cigarettes. (tsn,
November 13, 1984, p. 10).
It is however, incredible to believe that they could discern the type of
rolling done on those cigarettes from the distance where they were
observing the alleged sale of more or less 10 to 15 meters." 21
In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw
the appellant hand over marijuana to Sgt. Ani. What he said was that there was
an exchange of certain articles between the two. The relevant portion of T/Sgt.
Belarga's testimony reads: 2 2
Q Now, do you remember whether Sgt. Ani was able to reach the house
of Mari Musa?
A Yes, ma'am.
Q After reaching Mari Musa, did you see what happened (sic)?
 A Yes, ma'am.
Q Could you please tell us?
A From our vehicle the stainless owner type jeep where Sgt. Lego, Sgt.
Biong were boarded, I saw that Sgt. Ani proceeded to the house
near the road and he was met by one person and later known as
Mari Musa who was at the time wearing short pants and later on I
saw that Sgt. Ani handed something to him, thereafter received by
Mari Musa and went inside the house and came back later and
handed something to Sgt. Ani.
Contrary to the contention of the appellant, it was not impossible for T/Sgt.
Belarga to have seen, from a distance of 90-100 meters, Sgt. Ani hand to the
appellant "something" and for the latter to give to the former "something."
Notwithstanding the fact that T/Sgt. Belarga could not have been certain that
what Sgt. Ani received from the appellant was marijuana because of the
distance, his testimony, nevertheless, corroborated the direct evidence, which
the Court earlier ruled to be convincing, presented by Sgt. Ani on the following
material points: (1) T/Sgt. Belarga instructed Sgt. Ani to conduct a surveillance
and test-buy operation on the appellant at Suterville, Zamboanga City on
December 13, 1939; 23 (2) later that same day, Sgt. Ani went back to their office
and reported a successful operation and turned over to T/Sgt. Belarga one
wrapper of marijuana; 24 (3) T/Sgt. Belarga then organized a team to conduct a
buy-bust operation the following day; 25 (4) on December 14, 1989, T/Sgt.
Belarga led a team of NARCOM agents who went to Suterville, Zamboanga
City; 26 (5) T/Sgt. Belarga gave a P20.00 marked bill to Sgt. Ani which was to be
used in the buy-bust operation; 27 (6) upon the arrival of the NARCOM agents in
Suterville, Zamboanga City, Sgt. Ani proceeded to the house of the appellant
while some agents stayed in the vehicles and others positioned themselves in
strategic places; 28 the appellant met Sgt. Ani and an exchange of articles took
place. 29
The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence
given by Sgt. Ani. Additionally, the Court has ruled that the fact that the police
officers who accompanied the poseur-buyer were unable to see exactly what the
appellant gave the poseur-buyer because of their distance or position will not be
fatal to the prosecution's case 30 provided there exists other evidence, direct or
circumstantial, e.g., the testimony of the poseur-buyer, which is sufficient to
prove the consummation of the sale of the prohibited drug. cdll

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:
SECTION 12. Search incident to lawful arrest. — A person lawfully
arrested may be searched for dangerous weapons or anything which
may be used as proof of the commission of an offense, without a search
warrant.
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 and 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. LLjur

The warrantless search and seizure, as an incident to a suspect's lawful arrest,

may extend beyond the person of the one arrested to include the premises or
surroundings under his immediate control. 40 Objects in the "plain view" of an
officer who has the right to be in the position to have that view are subject to
seizure and may be presented as evidence. 41
In Ker v. California, 42 police officers, without securing a search warrant but
having information that the defendant husband was selling marijuana from his
apartment, obtained from the building manager a passkey to defendants'
apartment, and entered it. There they found the defendant husband in the living
room. The defendant wife emerged from the kitchen, and one of the officers, after
identifying himself, observed through the open doorway of the kitchen, a small
scale atop the kitchen sink, upon which lay a brick-shaped package containing
green leafy substance which he recognized as marijuana. The package of
marijuana was used as evidence in prosecuting defendants for violation of the
Narcotic Law. The admissibility of the package was challenged before the U.S.
Supreme Court, which held, after observing that it was not unreasonable for the
officer to walk to the doorway of the adjacent kitchen on seeing the defendant
wife emerge therefrom, that "the discovery of the brick of marijuana did not
constitute a search, since the officer merely saw what was placed before him in
full view." 43The U.S. Supreme Court ruled that the warrantless seizure of the
marijuana was legal on the basis of the "plain view" doctrine and upheld the
admissibility of the seized drugs as part of the prosecution's evidence. 44
The "plain view" doctrine may not, however, be used to launch unbridled
searches and indiscriminate seizures nor to extend a general exploratory search
made solely to find evidence of defendant's guilt. The "plain view" doctrine is
usually applied where a police officer is not searching for evidence against the
accused, but nonetheless inadvertently comes across an incriminating object. 45
Furthermore, the U.S. Supreme Court stated the following limitations on the
application of the doctrine:
"What the 'plain view' cases have in common is that the police officer in
each of them had a prior justification for an intrusion in the course of
which he came inadvertently across a piece of evidence incriminating
the accused. The doctrine serves to supplement the prior justification —
whether it be a warrant for another object, hot pursuit, search incident to
lawful arrest, or some other legitimate reason for being present
unconnected with a search directed against the accused — and permits
the warrantless seizure. Of course, the extension of the original
justification is legitimate only where it is immediately apparent to the
police that they have evidence before them; the 'plain view' doctrine may
not be used to extend a general exploratory search from one object to
another until something incriminating at last emerges." 46
It has also been suggested that even if an object is observed in "plain view," the
"plain view" doctrine will not justify the seizure of the object where the
incriminating nature of the object is not apparent from the "plain view" of the
object. 47 Stated differently, it must be immediately apparent to the police that the
items that they observe may be evidence of a crime, contraband, or otherwise
subject to seizure.
In the instant case, the appellant was arrested and his person searched in the
living room. Failing to retrieve the marked money which they hoped to find, the
NARCOM agents searched the whole house and found the plastic bag in the
kitchen. The plastic bag was, therefore, not within their "plain view" when they
arrested the appellant as to justify its seizure. The NARCOM agents had to move
from one portion of the house to another before they sighted the plastic bag.
Unlike Ker v. California, where the police officer had reason to walk to the
doorway of the adjacent kitchen and from which position he saw the marijuana,
the NARCOM agents in this case went from room to room with the obvious
intention of fishing for more evidence.
Moreover, when the NARCOM agents saw the plastic bag hanging in one corner
of the kitchen, they had no clue as to its contents. They had to ask the appellant
what the bag contained. When the appellant refused to respond, they opened it
and found the marijuana. Unlike Ker v. California, where the marijuana was
visible to the police officer's eyes, the NARCOM agents in this case could not
have discovered the inculpatory nature of the contents of the bag had they not
forcibly opened it. Even assuming then, that the NARCOM agents inadvertently
came across the plastic bag because it was within their "plain view," what may be
said to be the object in their "plain view" was just the plastic bag and not the
marijuana. The incriminating nature of the contents of the plastic bag was not
immediately apparent from the "plain view" of said object. It cannot be claimed
that the plastic bag clearly betrayed its contents, whether by its distinctive
configuration, its transparency, or otherwise, that its contents are obvious to an
observer. 48
We, therefore, hold that under the circumstances of the case, the "plain view"
doctrine does not apply and the marijuana contained in the plastic bag was
seized illegally and cannot be presented in evidence pursuant to Article III,
Section 3(2) of the Constitution. cdrep
The exclusion of this particular evidence does not, however, diminish, in any
way, the damaging effect of the other pieces of evidence presented by the
prosecution to prove that the appellant sold marijuana, in violation of Article II,
Section 4 of the Dangerous Drugs Act of 1972. We hold that by virtue of the
testimonies of Sgt. Ani and T/Sgt. Belarga and the two wrappings of marijuana
sold by the appellant to Sgt. Ani, among other pieces of evidence, the guilt of the
appellant of the crime charged has been proved beyond reasonable doubt.
WHEREFORE, the appeal is DISMISSED and the judgment of the Regional Trial
Court AFFIRMED.
SO ORDERED.
Gutierrez, Jr., Bidin, Davide, Jr. and Melo, JJ ., concur.
(People v. Musa y Hantatalu, G.R. No. 96177, [January 27, 1993], 291 PHIL
|||

623-642)
 FIRST DIVISION

[G.R. No. 145176. March 30, 2004.]

PEOPLE OF THE PHILIPPINES, appellee, vs. SANTIAGO

PERALTA y POLIDARIO (at large), ARMANDO DATUIN JR. y
GRANADOS (at large), ULYSSES GARCIA y TUPAS,
MIGUELITO DE LEON y LUCIANO, LIBRANDO FLORES y
CRUZ and ANTONIO LOYOLA y SALISI, accused,

ULYSSES GARCIA y TUPAS, MIGUELITO DE LEON y

LUCIANO, LIBRANDO FLORES y CRUZ and ANTONIO
LOYOLA y SALISI, appellants.

DECISION

PANGANIBAN, J : p

The right of the accused to counsel demands effective, vigilant and independent
representation. The lawyer's role cannot be reduced to being that of a mere
witness to the signing of an extra-judicial confession.
The Case
Before the Court is an appeal from the August 21, 2000 Decision 1 of the
Regional Trial Court (RTC) of Manila (Branch 18) in Criminal Case No. 92-
112322. Appellants Ulysses Garcia y Tupas, Miguelito de Leon y Luciano,
Librando Flores y Cruz and Antonio Loyola y Salisi, as well as their co-accused
— Santiago Peralta y Polidario and Armando Datuin Jr. y Granados — were
convicted therein of qualified theft. The dispositive portion of the Decision reads:
"WHEREFORE, the accused, Santiago Peralta y Polidario, Armando
Datuin, Jr. y Granados, Ulysses Garcia y Tupas, Miguelito De Leon y
Luciano, Librando Flores y Cruz and Antonio Loyola y Salisi, are hereby
convicted of the crime of qualified theft of P194,190.00 and sentenced to
suffer the penalty of reclusion perpetua with all the accessory penalties
provided by law, and to pay the costs. Moreover, all the accused are
ordered to pay the Central Bank of the Philippines, now Bangko Sentral
ng Pilipinas, actual damages in the sum of P194,190.00 with interest
thereon at the legal rate from the date of the filing of this action,
November 9, 1992, until fully paid." 2
In an Information dated November 9, 1992, 3 appellants and their co-accused
were charged as follows:
"That sometime in the year 1990 and including November 4, 1992, in the
City of Manila, Philippines, the said accused, conspiring and
confederating with others whose true names, identities and present
whereabouts are still unknown and helping one another, did then and
there wilfully, unlawfully and feloniously, with intent to gain and without
the knowledge and consent of the owner thereof, take, steal and carry
away punctured currency notes due for shredding in the total amount of
P194,190.00, belonging to the Central Bank of the Philippines as
represented by Pedro Labita y Cabriga, to the damage and prejudice of
the latter in the aforesaid sum of P194,190.00 Philippine currency;
"That said accused Santiago Peralta y Polidario, Armando Datuin, Jr. y
Granados, Ulysses Garcia y Tupas, Miguelito de Leon y Luciano and
Antonio Loyola y Salisi committed said offense with grave abuse of
 confidence they being at the time employed as Currency Reviewers,
Driver, Currency Assistant I and Money Counter of the offended party
and as such they had free access to the property stolen." 4
Garcia was arrested on November 4, 1992; and his co-accused, on November 9,
1992. Appellants, however, obtained two Release Orders from RTC Vice
Executive Judge Corona Ibay-Somera on November 9 and 10, 1992, upon their
filing of a cash bond to secure their appearance whenever required by the trial
court. 5
During their arraignment on May 4, 1993, appellants, assisted by their respective
counsels, pleaded not guilty. 6 On September 30, 1998, the trial court declared
that Datuin Jr. and Peralta were at large, because they had failed to appear in
court despite notice. 7
After trial in due course, they were all found guilty and convicted of qualified theft
in the appealed Decision.
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) presents the prosecution's version of
the facts as follows:
"About 10:00 o'clock in the morning of November 4, 1992, Pedro Labita
of Central Bank of the Philippines (CBP) [now Bangko Sentral ng
Pilipinas (BSP)] went to the Theft and Robbery Section of Western
Police District Command (WPDC), and filed a complaint for Qualified
Theft against Santiago Peralta, Armando Datuin, Jr., Ulysses Garcia,
Miguelito de Leon, Librando Flores and Antonio S. Loyola.
"Pedro Labita submitted to SPO4 Cielito Coronel, the investigating
officer at WPDC, punctured currency notes in P100.00 and P500.00 bills
with a face value of Php194,190.00. Said notes were allegedly
recovered by the BSP Cash Department during its cash counting of
punctured currency bills submitted by different banks to the latter. The
punctured bills were rejected by the BSP money counter machine and
were later submitted to the investigation staff of the BSP Cash
Department. As a result of the investigation, it was determined that said
rejected currency bills were actually punctured notes already due for
shredding. These currency bills were punctured because they were no
longer intended for circulation. Before these notes could be shredded,
they were stolen from the BSP by the above-named accused.
"On the basis of the complaint filed by Pedro Labita, Ulysses Garcia was
apprehended in front of Golden Gate Subdivision, Las Piñas City, while
he was waiting for a passenger bus on his way to the BSP. Garcia was
brought to the police station for investigation.
"On November 4, 5 and 6, 1992, while in the custody of the police
officers, Garcia gave three separate statements admitting his guilt and
participation in the crime charged. He also identified the other named
accused as his cohorts and accomplices and narrated the participation
of each and everyone of them.
"On the basis of Garcia's sworn statements, the other named accused
were invited for questioning at the police station and were subsequently
charged with qualified theft together with Garcia." 8 (Citations omitted)
Version of the Defense
The defense states its version of the facts in the following manner:
"Accused-appellant Garcia served as a driver of the armored car of the
Central Bank from 1978 to 1994.
"On November 4, 1992, between 7:00 a.m. and 8:00 a.m., a man who
had identified himself as a police officer arrested accused-appellant
Garcia while waiting for a passenger bus in front of the Golden Gate
Subdivision, Las Piñas City. He was arrested without any warrant for his
arrest. The police officer who had arrested accused-appellant Garcia
dragged the latter across the street and forced him to ride . . . a car.
"While inside the car, he was blindfolded, his hands were handcuffed
behind his back, and he was made to bend with his chest touching his
knees. Somebody from behind hit him and he heard some of the
occupants of the car say that he would be salvaged if he would not tell
the truth. When the occupants of the car mentioned perforated notes, he
told them that he does not know anything about those notes.
"After the car had stopped, he was dragged out of the car and . . . up
and down . . . the stairs. While being dragged out of the car, he felt
somebody frisk his pocket.
"At a safe house, somebody mentioned to him the names of his co-
accused and he told them that he does not know his co-accused. . . .
Whenever he would deny knowing his co-accused, somebody would box
him on his chest. Somebody poured water on accused-appellant
Garcia's nose while lying on the bench. He was able to spit out the water
that had been poured on his nose [at first], but somebody covered his
mouth. As a result, he could not breath[e].
"When accused-appellant Garcia realized that he could not bear the
torture anymore, he decided to cooperate with the police, and they
stopped the water pouring and allowed him to sit down.
"Accused-appellant Garcia heard people talking and he heard somebody
utter, 'may nakikinig.' Suddenly his two ears were hit with open palm[s]. .
. . As he was being brought down, he felt somebody return his personal
belongings to his pocket. Accused-appellant Garcia's personal
belongings consisted of [his] driver's license, important papers and coin
purse.
"He was forced to ride . . . the car still with blindfold. His blindfold and
handcuffs were removed when he was at the office of police officer
Dante Dimagmaliw at the Western Police District, U.N. Avenue, Manila.
"SPO4 Cielito Coronel asked accused-appellant Garcia about the latter's
name, age and address. The arrival of Mr. Pedro Labita of the Cash
Department, Central Bank of the Philippines, interrupted the interview,
and Mr. Labita instructed SPO4 Coronel to get accused-appellant
Garcia's wallet and examine the contents thereof. SPO4 Coronel
supposedly found three pieces of P100 perforated bill in accused-
appellant Garcia's wallet and the former insisted that they recovered the
said perforated notes from accused-appellant's wallet. SPO4 Coronel
took down the statement of Mr. Labita.
"It was actually Mr. Labita, and not accused-appellant Garcia, who gave
the answers appearing in accused-appellant Garcia's alleged three
sworn statements dated November 4, 1992, November 5, 1992 and . . .
November 6, 1992. cASIED

"At or about 6:00 p.m. on November 5, 1992, accused-appellant Garcia

was brought to the cell of the Theft and Robbery Section of the WPD. At
or about 8:00 p.m., he was brought to the office of Col. Alladin
Dimagmaliw where his co-accused were also inside. He did not identify
his co-accused, but he merely placed his hands on the shoulders of
each of his co-accused, upon being requested, and Mr. Labita took . . .
pictures while he was doing the said act.
"Accused-appellant Garcia came to know Atty. Francisco Sanchez of the
Public Attorney's Office on November 4, 1992, at the office of police
officer Dante Dimagmaliw, when SPO4 Coronel introduced Atty.
 Sanchez to accused-appellant Garcia and told him that Atty. Sanchez
would be his lawyer. However, accused-appellant Garcia did not agree
to have Atty. Sanchez to be his lawyer. Atty. Sanchez left after talking to
SPO4 Coronel, and accused-appellant Garcia had not met Atty.
Sanchez anymore since then. He was not present when Atty. Sanchez
allegedly signed . . . the alleged three (3) sworn statements.

"During the hearing of the case on April 6, 2000, Atty. Sanchez

manifested in open court that he did not assist accused-appellant Garcia
when the police investigated accused-appellant Garcia, and that he
signed . . . the three (3) sworn statements only as a witness thereto.
"Accused-appellant Garcia signed the alleged three sworn statements
due to SPO4 Coronel's warning that if he would not do so, he would
again be tortured by water cure.
"SPO[4] Coronel caused the arrest without any warrant of accused
appellants De Leon, Loyola, [Flores] on the basis of the complaint of Mr.
Pedro Labita, and which arrest was effected on November 5, 1992, by
SPO1 Alfredo Silva and SPO1 Redelico.
"SPO4 Coronel, in his letter dated November 6, 1992, forwarded the
case to the Duty Inquest Prosecutor assigned at the WPDC
Headquarters." 9 (Citations omitted)
Ruling of the Trial Court
The trial court found that all the accused used to work for the BSP. Garcia was a
driver assigned to the Security and Transport Department; while Peralta, Datuin
Jr., De Leon, Flores and Loyola were laborers assigned to the Currency
Retirement Division. Their main task was to haul perforated currency notes from
the currency retirement vault to the basement of the BSP building for shredding.
On several occasions, during the period 1990-1992, they handed to Garcia
perforated currency notes placed in a coin sack that he, in turn, loaded in an
armored escort van and delivered to someone waiting outside the premises of
the building. The trial court held that the coordinated acts of all the accused
unerringly led to the conclusion that they had conspired to pilfer the perforated
currency notes belonging to the BSP.
The RTC rejected the disclaimer by Garcia of his own confessions, as such
disclaimer was "an eleventh hour concoction to exculpate himself and his co-
accused." The trial court found his allegations of torture and coerced confessions
unsupported by evidence. Moreover, it held that the recovery of three pieces of
perforated P100 bills from Garcia's wallet and the flight of Peralta and Datuin Jr.
were indicative of the guilt of the accused.
Hence, this appeal. 10
Issues
In his Brief, Garcia raises the following issues:
"1
The trial court erred in admitting in evidence the alleged three Sworn
Statements of Accused-appellant Garcia and the alleged three pieces of
P100 perforated notes
"2
The trial court erred in finding the accused-appellant guilty of qualified
theft." 11
In their joint Brief, De Leon, Loyola and Flores interpose this additional
assignment of errors:
 "1
The trial court erred in admitting in evidence the alleged three sworn
statements of Accused Ulysses Garcia (Exhibits 'I', 'J' and 'K') and the
alleged three pieces of P100 perforated notes (Exhibits 'N' to 'N-2') over
the objections of the accused-appellants.
"2
The trial court erred in denying the demurrer to evidence of Accused-
appellants De Leon, Loyola and Flores;
"3
The trial court erred in denying the Motion for Reconsideration of the
Order denying the demurrer to evidence;
"4
The trial court erred when it failed to consider the evidence adduced by
the accused-appellants, consisting of exhibits '1', '2' to '2-B', '3' and '4'
and the testimony of their witness, State Auditor Esmeralda Elli;
"5
The trial court erred in finding the accused-appellants guilty of qualified
theft." 12
Simplified, the issues are as follows: (1) the sufficiency of the evidence against
appellants, including the admissibility of Garcia's confessions and of the three
perforated P100 currency notes; and (2) the propriety of the denial of their
demurrer to evidence.
The Court's Ruling
The appeal has merit.
First Issue:
Sufficiency of Evidence
The trial court convicted appellants mainly on the strength of the three
confessions given by Garcia and the three perforated P100 currency notes
confiscated from him upon his arrest. Appellants, however, contend that these
pieces of evidence are inadmissible.
Extrajudicial Confessions
Appellants aver that the alleged three Sworn Statements of Garcia were obtained
without the assistance of counsel — in violation of his rights under Article III,
Section 12 (1) and (2) of the1987 Constitution, which provides thus:
"SECTION 12. (1) Any person under investigation for the commission of
an offense shall have the right to be informed of his right to remain silent
and to have competent and independent counsel, preferably of his own
choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and
in the presence of counsel.
"(2) No torture, force, violence, threat, intimidation, or any other means
which vitiate the free will shall be used against him. Secret detention
places, solitary, incomunicado, or other similar forms of detention are
prohibited."
On the other hand, the OSG contends that counsel, Atty. Francisco Sanchez III
of the Public Attorney's Office, duly assisted Garcia during the custodial
investigation.
It is clear from a plain reading of the three extrajudicial confessions 13 that Garcia
was not assisted by Atty. Sanchez. The signature of the latter on those
documents was affixed after the word "SAKSI." Moreover, he appeared in court
and categorically testified that he had not assisted Garcia when the latter was
investigated by the police, and that the former had signed the Sworn Statement
only as a witness. 14
The written confessions, however, were still admitted in evidence by the RTC on
the ground that Garcia had expressed in writing his willingness and readiness to
give the Sworn Statements without the assistance of counsel. The lower court's
action is manifest error.
The right to counsel has been written into our Constitution in order to prevent the
use of duress and other undue influence in extracting confessions from a suspect
in a crime. The basic law specifically requires that any waiver of this right must
be made in writing and executed in the presence of a counsel. In such case,
counsel must not only ascertain that the confession is voluntarily made and that
the accused understands its nature and consequences, but also advise and
assist the accused continuously from the time the first question is asked by the
investigating officer until the signing of the confession.
Hence, the lawyer's role cannot be reduced to being that of a mere witness to the
signing of a pre-prepared confession, even if it indicated compliance with the
constitutional rights of the accused. 15 The accused is entitled to effective, vigilant
and independent counsel. 16
A waiver in writing, like that which the trial court relied upon in the present case,
is not enough. Without the assistance of a counsel, the waiver has no evidentiary
relevance. 17 The Constitution states that "[a]ny confession or admission obtained
in violation of [the aforecited Section 12] shall be inadmissible in evidence. . . ."
Hence, the trial court was in error when it admitted in evidence the uncounseled
confessions of Garcia and convicted appellants on the basis thereof. The
question of whether he was tortured becomes moot. CADSHI

Perforated Currency Notes

Appellants contend that the three P100 perforated currency notes (Exhibits "N" to
"N-2") allegedly confiscated from Garcia after his arrest were "fruits of the
poisonous tree" and, hence, inadmissible in evidence.
The solicitor general evades the issue and argues, instead, that appellants
waived the illegality of their arrest when they entered a plea. He further contends
that the exclusion from the evidence of the three punctured currency bills would
not alter the findings of the trial court.
The police arrested Garcia without a warrant, while he had merely been waiting
for a passenger bus after being pointed out by the Cash Department personnel of
the BSP. At the time of his arrest, he had not committed, was not committing,
and was not about to commit any crime. Neither was he acting in a manner that
would engender a reasonable ground to suspect that he was committing a
crime. None of the circumstances justifying an arrest without a warrant under
Section 5 of Rule 113 of the Rules of Court was present.
Hence, Garcia was not lawfully arrested. Nonetheless, not having raised the
matter before entering his plea, he is deemed to have waived the illegality of his
arrest. Note, however, that this waiver is limited to the arrest. It does not extend
to the search made as an incident thereto or to the subsequent seizure of
evidence allegedly found during the search.
The Constitution proscribes unreasonable searches and seizures 18 of whatever
nature. Without a judicial warrant, these are allowed only under the following
exceptional circumstances: (1) a search incident to a lawful arrest, (2) seizure of
evidence in plain view, (3) search of a moving motor vehicle, (4) customs search,
(5) stop and frisk situations, and (6) consented search.19
Where the arrest was incipiently illegal, it follows that the subsequent search was
similarly illegal. 20 Any evidence obtained in violation of the constitutional
provision is legally inadmissible in evidence under the exclusionary rule. 21 In the
present case, the perforated P100 currency notes were obtained as a result of a
search made without a warrant subsequent to an unlawful arrest; hence, they are
inadmissible in evidence.
Moreover, untenable is the solicitor general's argument that Appellants De Leon,
Flores and Loyola waived the illegality of the arrest and seizure when, without
raising objections thereto, they entered a plea of guilty. It was Garcia who was
unlawfully arrested and searched, not the aforementioned three appellants. The
legality of an arrest can be contested only by the party whose rights have been
impaired thereby. Objection to an unlawful search and seizure is purely personal,
and third parties cannot avail themselves of it. 22

Indeed, the prosecution sufficiently proved the theft of the perforated currency
notes for retirement. It failed, however, to present sufficient admissible evidence
pointing to appellants as the authors of the crime.
The evidence presented by the prosecution shows that there were other people
who had similar access to the shredding machine area and the currency
retirement vault. 23 Appellants were pinpointed by Labita because of an
anonymous phone call informing his superior of the people allegedly behind the
theft; and of the unexplained increase in their spending, which was incompatible
with their income. Labita, however, did not submit sufficient evidence to support
his allegation.
Without the extrajudicial confession and the perforated currency notes, the
remaining evidence would be utterly inadequate to overturn the constitutional
presumption of innocence.
Second Issue:
Demurrer to Evidence
Appellants contend that the trial court seriously erred when it denied the
demurrer to evidence filed by Appellants Loyola, De Leon and Flores. Not one of
the documents offered by the prosecution and admitted in evidence by the RTC
established the alleged qualified theft of perforated notes, and not one of the
pieces of evidence showed appellants' participation in the commission of the
crime.
On the exercise of sound judicial discretion rests the trial judge's determination of
the sufficiency or the insufficiency of the evidence presented by the prosecution
to establish a prima facie case against the accused. Unless there is a grave
abuse of discretion amounting to lack of jurisdiction, the trial court's denial of a
motion to dismiss may not be disturbed. 24
As discussed earlier, the inadmissibility of the confessions of Garcia did not
become apparent until after Atty. Francisco had testified in court. Even if the
confiscated perforated notes from the person of the former were held to be
inadmissible, the confessions would still have constituted prima facie evidence of
the guilt of appellants. On that basis, the trial court did not abuse its discretion in
denying their demurrer to evidence.
WHEREFORE, the assailed Decision is REVERSED and SET ASIDE. Appellants
are hereby ACQUITTED and ordered immediately RELEASED, unless they are
being detained for any other lawful cause. The director of the Bureau of
Corrections is hereby directed to submit his report on the release of the appellant
or the reason for his continued detention within five (5) days from notice of this
Decision. No costs.
SO ORDERED.
Davide, Jr., C.J., Ynares-Santiago, Carpio and Azcuna, JJ., concur.
||| (People v. Garcia y Tupas, G.R. No. 145176, [March 30, 2004])
 EN BANC

[G.R. No. 83988. September 29, 1989.]

RICARDO C. VALMONTE AND UNION OF LAWYERS AND

ADVOCATES FOR PEOPLE'S RIGHTS
(ULAP), petitioners, vs. GEN. RENATO DE VILLA AND
NATIONAL CAPITAL REGION DISTRICT
COMMAND, respondents.

Ricardo C. Valmonte for himself and his co-petitioners.

SYLLABUS

SARMIENTO, J., dissenting:

1. CONSTITUTIONAL LAW; CONSTITUTION; BEDROCK OF THE REGIME OF
LAW AND CONSTITUTIONALISM. — The Charter says that the people enjoy
the right of security of person, home, and effects. (CONST.,art. III, sec. 2.) It is
also the bedrock — the right of the people to be left alone — on which the regime
of law and constitutionalism rest. It is not, as the majority would put it, a matter of
"occasional inconveniences, discomfort and even irritation." (Resolution, 4.) To
say that it is, is — so I submit — to trivialize the plain command of the
Constitution.
2. ID.; SEARCH AND SEIZURE; BURDEN OF PROVING REASONABLENESS
INCUMBENT UPON THE STATE. — While the right against unreasonable
searches and seizures, as my brethren advance, is a right personal to the
aggrieved party, the petitioners, precisely, have come to Court because they had
been, or had felt, aggrieved. I submit that in that event, the burden is the State's,
to demonstrate the reasonableness of the search. The petitioners, Ricardo
Valmonte in particular, need not, therefore, have illustrated the "details of the
incident" (Resolution, supra, 4) in all their gore and gruesomeness.
3. ID.; ID.; ABSENCE ALONE OF A SEARCH WARRANT MAKES
CHECKPOINT SEARCHES UNREASONABLE. — The absence alone of a
search warrant, as I have averred, makes checkpoint searches unreasonable,
and by itself, subject to constitutional challenges. (Supra.) As it is, "checkpoints",
have become "search warrants" unto themselves — a roving one at that.
4. ID.; ID.; CASE AT BAR NOT SIMPLY A POLICEMAN ON THE BEAT. — The
American cases the majority refers to involve routine checks compelled by
"probable cause". What we have here, however, is not simply a policeman on the
beat but armed men, CAFGU or Alsa Masa, who hold the power of life or death
over the citizenry, who fire with no provocation and without batting an eyelash.
They likewise shoot you simply because they do not like your face.

DECISION

PADILLA, J : p

This is a petition for prohibition with preliminary injunction and/or temporary

restraining order, seeking the declaration of checkpoints in Valenzuela, Metro
Manila or elsewhere, as unconstitutional and the dismantling and banning of the
same or, in the alternative, to direct the respondents to formulate guidelines in
the implementation of checkpoints, for the protection of the people.
Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the Republic,
taxpayer, member of the Integrated Bar of the Philippines (IBP), and resident of
Valenzuela, Metro Manila; while petitioner Union of Lawyers and Advocates for
People's Rights (ULAP) sues in its capacity as an association whose members
are all members of the IBP.
The factual background of the case is as follows:
On 20 January 1987, the National Capital Region District Command (NCRDC)
was activated pursuant to Letter of Instruction 02/87 of the Philippine General
Headquarters, AFP, with the mission of conducting security operations within its
area of responsibility and peripheral areas, for the purpose of establishing an
effective territorial defense, maintaining peace and order, and providing an
atmosphere conducive to the social, economic and political development of the
National Capital Region. 1 As part of its duty to maintain peace and order, the
NCRDC installed checkpoints in various parts of Valenzuela, Metro Manila.
Petitioners aver that, because of the installation of said checkpoints, the
residents of Valenzuela are worried of being harassed and of their safety being
placed at the arbitrary, capricious and whimsical disposition of the military
manning the checkpoints, considering that their cars and vehicles are being
subjected to regular searches and check-ups, especially at night or at dawn,
without the benefit of a search warrant and/or court order. Their alleged fear for
their safety increased when, at dawn of 9 July 1988, Benjamin Parpon, a supply
officer of the Municipality of Valenzuela, Bulacan, was gunned down allegedly in
cold blood by the members of the NCRDC manning the checkpoint along
McArthur Highway at Malinta, Valenzuela, for ignoring and/or refusing to submit
himself to the checkpoint and for continuing to speed off inspite of warning shots
fired in the air. Petitioner Valmonte also claims that, on several occasions, he
had gone thru these checkpoints where he was stopped and his car subjected to
search/check-up without a court order or search warrant.
Petitioners further contend that the said checkpoints give the respondents a
blanket authority to make searches and/or seizures without search warrant or
court order in violation of the Constitution; 2 and, instances have occurred where
a citizen, while not killed, had been harassed.
Petitioners' concern for their safety and apprehension at being harassed by the
military manning the checkpoints are not sufficient grounds to declare the
checkpoints as per se illegal. No proof has been presented before the Court to
show that, in the course of their routine checks, the military indeed committed
specific violations of petitioners' right against unlawful search and seizure or
other rights.
In a case filed by the same petitioner organization, Union of Lawyers and
Advocates for People's Right (ULAP) vs. Integrated National Police, 3 it was held
that individual petitioners who do not allege that any of their rights were violated
are not qualified to bring the action, as real parties in interest.
The constitutional right against unreasonable searches and seizures is a
personal right invocable only by those whose rights have been infringed, 4 or
threatened to be infringed. What constitutes a reasonable or unreasonable
search and seizure in any particular case is purely a judicial question,
determinable from a consideration of the circumstances involved. 5
Petitioner Valmonte's general allegation to the effect that he had been stopped
and searched without a search warrant by the military manning the checkpoints,
without more, i.e., without stating the details of the incidents which amount to a
violation of his right against unlawful search and seizure, is not sufficient to
enable the Court to determine whether there was a violation of Valmonte's right
against unlawful search and seizure. Not all searches and seizures are
prohibited. Those which are reasonable are not forbidden. A reasonable search
is not to be determined by any fixed formula but is to be resolved according to
the facts of each case. 6
Where, for example, the officer merely draws aside the curtain of a vacant
vehicle which is parked on the public fair grounds, 7 or simply looks into a
vehicle, 8 or flashes a light therein, 9 these do not constitute unreasonable
search.
The setting up of the questioned checkpoints in Valenzuela (and probably in
other areas) may be considered as a security measure to enable the NCRDC to
pursue its mission of establishing effective territorial defense and maintaining
peace and order for the benefit of the public. Checkpoints may also be regarded
as measures to thwart plots to destabilize the government, in the interest of
public security. In this connection, the Court may take judicial notice of the shift to
urban centers and their suburbs of the insurgency movement, so clearly reflected
in the increased killings in cities of police and military men by NPA "sparrow
units," not to mention the abundance of unlicensed firearms and the alarming rise
in lawlessness and violence in such urban centers, not all of which are reported
in media, most likely brought about by deteriorating economic conditions —
which all sum up to what one can rightly consider, at the very least, as abnormal
times. Between the inherent right of the state to protect its existence and promote
public welfare and an individual's right against a warrantless search which is
however reasonably conducted, the former should prevail.
True, the manning of checkpoints by the military is susceptible of abuse by the
men in uniform, in the same manner that all governmental power is susceptible of
abuse. But, at the cost of occasional inconvenience, discomfort and even
irritation to the citizen, the checkpoints during these abnormal times, when
conducted within reasonable limits, are part of the price we pay for an orderly
society and a peaceful community.
Finally, on 17 July 1988, military and police checkpoints in Metro Manila were
temporarily lifted and a review and refinement of the rules in the conduct of the
police and military manning the checkpoints was ordered by the National Capital
Regional Command Chief and the Metropolitan Police Director.10
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano,
Gancayco, Bidin, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.
(Valmonte v. De Villa, G.R. No. 83988, [September 29, 1989], 258 PHIL 838-
|||

848)
 RULE 113

Arrest

Section 1. Definition of arrest. — Arrest is the taking of a person into custody in order that he may be
bound to answer for the commission of an offense. (1)

Section 2. Arrest; how made. — An arrest is made by an actual restraint of a person to be arrested, or by
his submission to the custody of the person making the arrest.

No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be
subject to a greater restraint than is necessary for his detention. (2a)

Section 3. Duty of arresting officer. — It shall be the duty of the officer executing the warrant to arrest
the accused and to deliver him to the nearest police station or jail without unnecessary delay. (3a)

Section 4. Execution of warrant. — The head of the office to whom the warrant of arrest was delivered
for execution shall cause the warrant to be executed within ten (10) days from its receipt. Within ten (10)
days after the expiration of the period, the officer to whom it was assigned for execution shall make a
report to the judge who issued the warrant. In case of his failure to execute the warrant, he shall state the
reasons therefor. (4a)

Section 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a
warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;

(b) When an offense has 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 paragraph (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. (5a)

Section 6. Time of making arrest. — An arrest may be made on any day and at any time of the day or
night. (6)

Section 7. Method of arrest by officer by virtue of warrant. — When making an arrest by virtue of a
warrant, the officer shall inform the person to be arrested of the cause of the arrest and of the fact that a
warrant has been issued for his arrest, except when he flees or forcibly resists before the officer has
opportunity to so inform him, or when the giving of such information will imperil the arrest. The officer
need not have the warrant in his possession at the time of the arrest but after the arrest, if the person
arrested so requires, the warrant shall be shown to him as soon as practicable. (7a)

Section 8. Method of arrest by officer without warrant. — When making an arrest without a warrant, the
officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the latter is
either engaged in the commission of an offense, is pursued immediately after its commission, has
escaped, flees or forcibly resists before the officer has opportunity so to inform him, or when the giving of
such information will imperil the arrest. (8a)

Section 9. Method of arrest by private person. — When making an arrest, a private person shall inform
the person to be arrested of the intention to arrest him and cause of the arrest, unless the latter is either
engaged in the commission of an offense, is pursued immediately after its commission, or has escaped,
flees, or forcibly resists before the person making the arrest has opportunity to so inform him, or when the
giving of such information will imperil the arrest. (9a)

Section 10. Officer may summon assistance. — An officer making a lawful arrest may orally summon as
many persons as he deems necessary to assist him in effecting the arrest. Every person so summoned by
an officer shall assist him in effecting the arrest when he can render such assistance without detriment to
himself. (10a)
Section 11. Right of officer to break into building or enclosure. — An officer, in order to make an arrest
either by virtue of a warrant, or without a warrant as provided in section 5, may break into any building or
enclosure where the person to be arrested is or is reasonably believed to be, if he is refused admittance
thereto, after announcing his authority and purpose. (11a)

Section 12. Right to break out from building or enclosure. — Whenever an officer has entered the
building or enclosure in accordance with the preceding section, he may break out therefrom when
necessary to liberate himself. (12a)

Section 13. Arrest after escape or rescue. — If a person lawfully arrested escapes or is rescued, any
person may immediately pursue or retake him without a warrant at any time and in any place within the
Philippines. (13)

Section 14. Right of attorney or relative to visit person arrested. — Any member of the Philippine Bar
shall, at the request of the person arrested or of another acting in his behalf, have the right to visit and
confer privately with such person in the jail or any other place of custody at any hour of the day or night.
Subject to reasonable regulations, a relative of the person arrested can also exercise the same right. (14a)

RULE 126

Search and Seizure

Section 1. Search warrant defined. — A search warrant is an order in writing issued in the name of the
People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search
for personal property described therein and bring it before the court. (1)

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

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

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

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

Section 3. Personal property to be seized. — A search warrant may be issued for the search and seizure
of personal property:

(a) Subject of the offense;

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

(c) Used or intended to be used as the means of committing an offense. (2a)

Section 4. Requisites for issuing search warrant. — A search warrant shall not issue except upon
probable cause in connection with one specific offense to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the things to be seized which may be anywhere in the
Philippines. (3a)

Section 5. Examination of complainant; record. — The judge must, before issuing the warrant, personally
examine in the form of searching questions and answers, in writing and under oath, the complainant and
the witnesses he may produce on facts personally known to them and attach to the record their sworn
statements, together with the affidavits submitted. (4a)

Section 6. Issuance and form of search warrant. — If the judge is satisfied of the existence of facts upon
which the application is based or that there is probable cause to believe that they exist, he shall issue the
warrant, which must be substantially in the form prescribed by these Rules. (5a)

Section 7. Right to break door or window to effect search. — The officer, if refused admittance to the
place of directed search after giving notice of his purpose and authority, may break open any outer or
inner door or window of a house or any part of a house or anything therein to execute the warrant or
liberate himself or any person lawfully aiding him when unlawfully detained therein. (6)
Section 8. Search of house, room, or premise to be made in presence of two witnesses. — No search of a
house, room, or any other premise shall be made except in the presence of the lawful occupant thereof or
any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion
residing in the same locality. (7a)

Section 9. Time of making search. — The warrant must direct that it be served in the day time, unless the
affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a
direction may be inserted that it be served at any time of the day or night. (8)

Section 10. Validity of search warrant. — A search warrant shall be valid for ten (10) days from its date.
Thereafter it shall be void. (9a)

Section 11. Receipt for the property seized. — The officer seizing property under the warrant must give a
detailed receipt for the same to the lawful occupant of the premises in whose presence the search and
seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of
sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found
the seized property. (10a)

Section 12. Delivery of property and inventory thereof to court; return and proceedings thereon. — (a)
The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a
true inventory thereof duly verified under oath.

(b) Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the
return has been made, and if none, shall summon the person to whom the warrant was issued and
require him to explain why no return was made. If the return has been made, the judge shall
ascertain whether section 11 of this Rule has been complained with and shall require that the
property seized be delivered to him. The judge shall see to it that subsection (a) hereof has been
complied with.

(c) The return on the search warrant shall be filed and kept by the custodian of the log book on
search warrants who shall enter therein the date of the return, the result, and other actions of the
judge.

A violation of this section shall constitute contempt of court.(11a)

Section 13. Search incident to lawful arrest. — A person lawfully arrested may be searched for
dangerous weapons or anything which may have been used or constitute proof in the commission of an
offense without a search warrant. (12a)

Section 14. Motion to quash a search warrant or to suppress evidence; where to file. — A motion to
quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only
by the court where the action has been instituted. If no criminal action has been instituted, the motion may
be filed in and resolved by the court that issued the search warrant. However, if such court failed to
resolve the motion and a criminal case is subsequent filed in another court, the motion shall be resolved
by the latter court. (n)