Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-45987 May 5, 1939

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CAYAT, defendant-appellant.

Sinai Hamada y Cariño for appellant.

Office of the Solicitor-General Tuason for appellee.

MORAN, J.:

Prosecuted for violation of Act No. 1639 (secs. 2 and 3), the accused, Cayat, a native of Baguio,
Benguet, Mountain Province, was sentenced by the justice of the peace court of Baguio to pay a
fine of five pesos (P5) or suffer subsidiary imprisonment in case of insolvency. On appeal of the
Court of First Instance, the following information was filed against him:

That on or about the 25th day of January, 1937, in the City of Baguio, Commonwealth of
the Philippines, and within the jurisdiction of this court, the above-named accused,
Cayat, being a member of the non-Christian tribes, did then and there willfully,
unlawfully, and illegally receive, acquire, and have in his possession and under his
control or custody, one bottle of A-1-1 gin, an intoxicating liquor, other than the so-called
native wines and liquors which the members of such tribes have been accustomed
themselves to make prior to the passage of Act No. 1639.

Accused interposed a demurrer which was overruled. At the trial, he admitted all the facts
alleged in the information, but pleaded not guilty to the charge for the reasons adduced in his
demurrer and submitted the case on the pleadings. The trial court found him guilty of the crime
charged and sentenced him to pay a fine of fifty pesos (P50) or supper subsidiary imprisonment
in case of insolvency. The case is now before this court on appeal. Sections 2 and 3 of Act No.
1639 read:

SEC. 2. It shall be unlawful for any native of the Philippine Islands who is a member of a
non-Christian tribe within the meaning of the Act Numbered Thirteen hundred and
ninety-seven, to buy, receive, have in his possession, or drink any ardent spirits, ale,
beer, wine, or intoxicating liquors of any kind, other than the so-called native wines and
liquors which the members of such tribes have been accustomed themselves to make
prior to the passage of this Act, except as provided in section one hereof; and it shall be
the duty of any police officer or other duly authorized agent of the Insular or any
provincial, municipal or township government to seize and forthwith destroy any such
liquors found unlawfully in the possession of any member of a non-Christian tribe.

SEC. 3. Any person violating the provisions of section one or section two of this Act
shall, upon conviction thereof, be punishable for each offense by a fine of not exceeding
 two hundred pesos or by imprisonment for a term not exceeding six months, in the
discretion of the court.

The accused challenges the constitutionality of the Act on the following grounds:

(1) That it is discriminatory and denies the equal protection of the laws;

(2) That it is violative of the due process clause of the Constitution: and.

(3) That it is improper exercise of the police power of the state.

Counsel for the appellant holds out his brief as the "brief for the non-Christian tribes." It is said
that as these less civilized elements of the Filipino population are "jealous of their rights in a
democracy," any attempt to treat them with discrimination or "mark them as inferior or less
capable rate or less entitled" will meet with their instant challenge. As the constitutionality of the
Act here involved is questioned for purposes thus mentioned, it becomes imperative to examine
and resolve the issues raised in the light of the policy of the government towards the non-
Christian tribes adopted and consistently followed from the Spanish times to the present, more
often with sacrifice and tribulation but always with conscience and humanity.

As early as 1551, the Spanish Government had assumed an unvarying solicitous attitude
toward these inhabitants, and in the different laws of the Indies, their concentration in so-called
"reducciones" (communities) have been persistently attempted with the end in view of according
them the "spiritual and temporal benefits" of civilized life. Throughout the Spanish regime, it had
been regarded by the Spanish Government as a sacred "duty to conscience and humanity" to
civilize these less fortunate people living "in the obscurity of ignorance" and to accord them the
"the moral and material advantages" of community life and the "protection and vigilance
afforded them by the same laws." (Decree of the Governor-General of the Philippines, Jan. 14,
1887.) This policy had not been deflected from during the American period. President McKinley
in his instructions to the Philippine Commission of April 7, 1900, said:

In dealing with the uncivilized tribes of the Islands, the Commission should adopt the
same course followed by Congress in permitting the tribes of our North American Indians
to maintain their tribal organization and government, and under which many of those
tribes are now living in peace and contentment, surrounded by civilization to which they
are unable or unwilling to conform. Such tribal government should, however, be
subjected to wise and firm regulation; and, without undue or petty interference, constant
and active effort should be exercised to prevent barbarous practices and introduce
civilized customs.

Since then and up to the present, the government has been constantly vexed with the problem
of determining "those practicable means of bringing about their advancement in civilization and
material prosperity." (See, Act No. 253.) "Placed in an alternative of either letting them alone or
guiding them in the path of civilization," the present government "has chosen to adopt the latter
measure as one more in accord with humanity and with the national conscience."
(Memorandum of Secretary of the Interior, quoted in Rubi vs. Provincial Board of Mindoro, 39
Phil., 660, 714.) To this end, their homes and firesides have been brought in contact with
civilized communities through a network of highways and communications; the benefits of public
education have to them been extended; and more lately, even the right of suffrage. And to
complement this policy of attraction and assimilation, the Legislature has passed Act No. 1639
undoubtedly to secure for them the blessings of peace and harmony; to facilitate, and not to
mar, their rapid and steady march to civilization and culture. It is, therefore, in this light that the
Act must be understood and applied.

It is an established principle of constitutional law that the guaranty of the equal protection of the
laws is not equal protection of the laws is not violated by a legislation based on reasonable
classification. And the classification, to be reasonable, (1) must rest on substantial distinctions;
(2) must be germane to the purposes of the law; (3) must not be limited to existing conditions
only; and (4) must apply equally to all members of the same class. (Borgnis vs. Falk Co., 133
N.W., 209; Lindsley vs. Natural Carbonic Gas Co., 220 U.S. 61; 55 Law. ed., Rubi vs. Provincial
Board of Mindoro, 39 Phil., 660; People and Hongkong & Shanghai Banking Corporation vs.
Vera and Cu Unjieng, 37 Off. Gaz ., 187.)

Act No. 1639 satisfies these requirements. The classification rests on real and substantial, not
merely imaginary or whimsical, distinctions. It is not based upon "accident of birth or parentage,"
as counsel to the appellant asserts, but upon the degree of civilization and culture. "The term
'non-Christian tribes' refers, not to religious belief, but, in a way, to the geographical area, and,
more directly, to natives of the Philippine Islands of a low grade of civilization, usually living in
tribal relationship apart from settled communities." (Rubi vs. Provincial Board of Mindoro,
supra.) This distinction is unquestionably reasonable, for the Act was intended to meet the
peculiar conditions existing in the non-Christian tribes. The exceptional cases of certain
members thereof who at present have reached a position of cultural equality with their Christian
brothers, cannot affect the reasonableness of the classification thus established.

That it is germane to the purposes of law cannot be doubted. The prohibition "to buy, receive,
have in his possession, or drink any ardent spirits, ale, beer, wine, or intoxicating liquors of any
kind, other than the so-called native wines and liquors which the members of such tribes have
been accustomed themselves to make prior to the passage of this Act.," is unquestionably
designed to insure peace and order in and among the non-Christian tribes. It has been the sad
experience of the past, as the observations of the lower court disclose, that the free use of
highly intoxicating liquors by the non-Christian tribes have often resulted in lawlessness and
crimes, thereby hampering the efforts of the government to raise their standard of life and
civilization.

The law is not limited in its application to conditions existing at the time of its enactment. It is
intended to apply for all times as long as those conditions exist. The Act was not predicated, as
counsel for appellant asserts, upon the assumption that the non-Christians are "impermeable to
any civilizing influence." On the contrary, the Legislature understood that the civilization of a
people is a slow process and that hand in hand with it must go measures of protection and
security.

Finally, that the Act applies equally to all members of the class is evident from a perusal thereof.
That it may be unfair in its operation against a certain number non-Christians by reason of their
degree of culture, is not an argument against the equality of its application.

Appellants contends that that provision of the law empowering any police officer or other duly
authorized agent of the government to seize and forthwith destroy any prohibited liquors found
unlawfully in the possession of any member of the non-Christian tribes is violative of the due
process of law provided in the Constitution. But this provision is not involved in the case at bar.
Besides, to constitute due process of law, notice and hearing are not always necessary. This
rule is especially true where much must be left to the discretion of the administrative officials in
applying a law to particular cases. (McGehee, Due Process of Law p. 371, cited with approval in
Rubi vs. Provincial Board of Mindoro, supra.) Due process of law means simply: (1) that there
shall be a law prescribed in harmony with the general powers of the legislative department of
the government; (2) that it shall be reasonable in its operation; (3) that it shall be enforced
according to the regular methods of procedure prescribed; and (4) that it shall be applicable
alike to all citizens of the state or to all of the class. (U.S. vs. Ling Su Fan, 10 Phil., 104, affirmed
on appeal by the United States Supreme Court, 218 U.S., 302: 54 Law. ed., 1049.) Thus, a
person's property may be seized by the government in payment of taxes without judicial
hearing; or property used in violation of law may be confiscated (U.S. vs. Surla, 20 Phil., 163,
167), or when the property constitutes corpus delicti, as in the instant case (Moreno vs. Ago Chi,
12 Phil., 439, 442).

Neither is the Act an improper exercise of the police power of the state. It has been said that the
police power is the most insistent and least limitable of all powers of the government. It has
been aptly described as a power co-extensive with self-protection and constitutes the law of
overruling necessity. Any measure intended to promote the health, peace, morals, education
and good order of the people or to increase the industries of the state, develop its resources
and add to its wealth and prosperity (Barbier vs. Connolly, 113 U.S., 27), is a legitimate exercise
of the police power, unless shown to be whimsical or capricious as to unduly interfere with the
rights of an individual, the same must be upheld.

Act No. 1639, as above stated, is designed to promote peace and order in the non-Christian
tribes so as to remove all obstacles to their moral and intellectual growth and, eventually, to
hasten their equalization and unification with the rest of their Christian brothers. Its ultimate
purpose can be no other than to unify the Filipino people with a view to a greater Philippines.

The law, then, does not seek to mark the non-Christian tribes as "an inferior or less capable
race." On the contrary, all measures thus far adopted in the promotion of the public policy
towards them rest upon a recognition of their inherent right to equality in tht enjoyment of those
privileges now enjoyed by their Christian brothers. But as there can be no true equality before
the law, if there is, in fact, no equality in education, the government has endeavored, by
appropriate measures, to raise their culture and civilization and secure for them the benefits of
their progress, with the ultimate end in view of placing them with their Christian brothers on the
basis of true equality. It is indeed gratifying that the non-Christian tribes "far from retrograding,
are definitely asserting themselves in a competitive world," as appellant's attorney impressively
avers, and that they are "a virile, up-and -coming people eager to take their place in the world's
social scheme." As a matter of fact, there are now lawyers, doctors and other professionals
educated in the best institutions here and in America. Their active participation in the
multifarious welfare activities of community life or in the delicate duties of government is
certainly a source of pride and gratification to people of the Philippines. But whether conditions
have so changed as to warrant a partial or complete abrogation of the law, is a matter which
rests exclusively within the prerogative of the National Assembly to determine. In the
constitutional scheme of our government, this court can go no farther than to inquire whether
the Legislature had the power to enact the law. If the power exists, and we hold it does exist, the
wisdom of the policy adopted, and the adequacy under existing conditions of the measures
enacted to forward it, are matters which this court has no authority to pass upon. And, if in the
application of the law, the educated non-Christians shall incidentally suffer, the justification still
exists in the all-comprehending principle of salus populi suprema est lex. When the public safety
or the public morals require the discontinuance of a certain practice by certain class of persons,
the hand of the Legislature cannot be stayed from providing for its discontinuance by any
incidental inconvenience which some members of the class may suffer. The private interests of
such members must yield to the paramount interests of the nation (Cf. Boston Beer Co. vs.
Mass., 97 U.S., 25; 24 law. ed., 989).

Judgment is affirmed, with costs against appellant.

Avanceña, C.J., Villa-Real, Imperial, Diaz, Laurel, and Conception, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

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.

PADILLA, J.:

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.

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 11 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 of Republic Act 6425, 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.

Probable cause has been defined as such facts and circumstances which could lead a
reasonable, discreet and prudent man to believe that an offense has been committed, and that
the objects sought in connection with the offense are in the place sought to be searched.8 The
required probable cause that will justify a warrantless search and seizure is not determined by
any fixed formula but is resolved according to the facts of each case.9

Warrantless search of the personal effects of an accused has been declared by this Court as
valid, because of existence of probable cause, where the smell of marijuana emanated from a
plastic bag owned by the accused,10 or where the accused was acting suspiciously,11 and
attempted to flee.12

Aside from the persistent reports received by the NARCOM that vehicles coming from Sagada
were transporting marijuana and other prohibited drugs, their Commanding Officer also received
information that a Caucasian coming from Sagada on that particular day had prohibited drugs in
his possession. Said information was received by the Commanding Officer of NARCOM the
very same morning that accused came down by bus from Sagada on his way to Baguio City.

When NARCOM received the information, a few hours before the apprehension of herein
accused, that a Caucasian travelling from Sagada to Baguio City was carrying with him
prohibited drugs, there was no time to obtain a search warrant. In the Tangliben case,13 the
police authorities conducted a surveillance at the Victory Liner Terminal located at Bgy. San
Nicolas, San Fernando Pampanga, against persons engaged in the traffic of dangerous drugs,
based on information supplied by some informers. Accused Tangliben who was acting
suspiciously and pointed out by an informer was apprehended and searched by the police
authorities. It was held that when faced with on-the-spot information, the police officers had to
act quickly and there was no time to secure a search warrant.

It must be observed that, at first, the NARCOM officers merely conducted a routine check of the
bus (where accused was riding) and the passengers therein, and no extensive search was
initially made. It was only when one of the officers noticed a bulge on the waist of accused,
during the course of the inspection, that accused was required to present his passport. The
failure of accused to present his identification papers, when ordered to do so, only managed to
arouse the suspicion of the officer that accused was trying to hide his identity. For is it not a
regular norm for an innocent man, who has nothing to hide from the authorities, to readily
present his identification papers when required to do so?

The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited
drugs in his possession, plus the suspicious failure of the accused to produce his passport,
taken together as a whole, led the NARCOM officers to reasonably believe that the accused
was trying to hide something illegal from the authorities. From these circumstances arose a
probable cause which justified the warrantless search that was made on the personal effects of
the accused. In other words, the acts of the NARCOM officers in requiring the accused to open
his pouch bag and in opening one of the wrapped objects found inside said bag (which was
discovered to contain hashish) as well as the two (2) travelling bags containing two (2) teddy
bears with hashish stuffed inside them, were prompted by accused's own attempt to hide his
identity by refusing to present his passport, and by the information received by the NARCOM
that a Caucasian coming from Sagada had prohibited drugs in his possession. To deprive the
NARCOM agents of the ability and facility to act accordingly, including, to search even without
warrant, in the light of such circumstances, would be to sanction impotence and ineffectiveness
in law enforcement, to the detriment of society.

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.

Separate Opinions

NARVASA, J., concurring and dissenting:

The ancient tradition that a man's home is his castle, safe from intrusion even by the king, has
not only found its niche in all our charters, from 1935 to the present; it has also received
unvarying recognition and acceptance in our case law.1 The present Constitution2 declares that
—

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.

It further ordains that any evidence obtained in violation of said right, among others, "shall be
inadmissible for any purpose in any proceeding."3
The rule is that no person may be subjected by the police or other government authority to a
search of his body, or his personal effects or belongings, or his residence except by virtue of a
search warrant or on the occasion of a legitimate arrest.4

An arrest is legitimate, of course, if effected by virtue of a warrant of arrest. Even without a

warrant, an arrest may also be lawfully made by a peace officer or a private person:5

(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.

In any of these instances of a lawful arrest, the person 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."6 And it has been held that the search may extend to the area "within
his immediate control," i.e., the area from which said person arrested might gain possession of a
weapon or destructible evidence.7

Apart from "search incidental to an arrest," a warrantless search has also been held to be
proper in cases of "search of a moving vehicle,8 and "seizure of evidence in plain view."9 This
was the pronouncement in Manipon, Jr. v. Sandiganbayan, 143 SCRA 267, 276, which drew
attention to Moreno v. Ago Chi;10 Alvero v. Dizon,11 Papa v. Mago,12 and an American
precedent, Harris v. U.S.13

If, on the other, a person is searched without a warrant, or under circumstances other than
those justifying an arrest without warrant in accordance with law, supra, merely on suspicion
that he is engaged in some felonious enterprise, and in order to discover if he has indeed
committed a crime, it is not only the arrest which is illegal but also, the search on the occasion
thereof, as being "the fruit of the poisonous tree.14 In that event, any evidence taken, even if
confirmatory of the initial suspicion, is inadmissible "for any purpose in any proceeding."15 But
the right against an unreasonable search and seizure may be waived by the person arrested,
provided he knew of such right and knowingly decided not to invoke it.16

There is unanimity among the members of the Court upon the continuing validity of these
established principles. However, the Court is divided as regards the ultimate conclusions which
may properly be derived from the proven facts and consequently, the manner in which the
principles just cited should apply thereto.

The proofs of the prosecution and those of the defense are diametrically at odds. What is
certain, however, is that the soldiers had no warrant of arrest when they conducted a search of
Malmstedt's person and the things in his possession at the time. Indeed, the Court a quo
acknowledged that the soldiers could "not be expected to be armed with a warrant or arrest nor
a search warrant everytime they establish a temporary checkpoint . . . (and) no judge would
issue them one considering that searching questions have to be asked before a warrant could
be issued." Equally plain is that prior to the search, a warrantless arrest of Malmstedt could not
validly have been in accordance with the norms of the law. For Malmstedt had not committed,
nor was he actually committing or attempting to commit a crime, in the soldiers' presence, nor
did said soldiers have personal and competent knowledge that Malmstedt had in fact just
committed a crime. All they had was a suspicion that Malmstedt might have some prohibited
drug on him or in his bags; all they had was, in the words of the Trial Court, "the hope of
intercepting any dangerous drug being transported," or, as the Office of the Solicitor General
asserts, "information that most of the buses coming . . . (from the Cordillera) were transporting
marijuana and other prohibited drugs."

This case, is remarkably similar to Peo. v. Aminnudin, decided on July 6, 1988 also by the First
Division.17 There, Aminnudin was arrested without a warrant by PC officers as he was
disembarking from an inter-island vessel. The officers were waiting for him because he was,
according to an informer's report, then transporting marijuana. The search of Aminnudin's bag
confirmed the informer's report; the bag indeed contained marijuana. The Court nevertheless
held that since the PC officers had failed to procure a search warrant although they had
sufficient time (two days) to do so and therefore, the case presented no such urgency as to
justify a warrantless search, the search of Aminnudin's person and bag, the seizure of the
marijuana and his subsequent arrest were illegal; and the marijuana was inadmissible in
evidence in the criminal action subsequently instituted against Aminnudin for violating the
Dangerous Drugs Act.

There are, on the other hand, other cases adjudicated by this Court in which apparently different
conclusions were reached. It is needful to devote a few words to them so that the relevant
constitutional and legal propositions are not misunderstood.

In People v. Claudio (decision promulgated on April 15, 1988),18 the accused boarded a
"Victory Liner" passenger bus going to Olongapo from Baguio City. She placed the plastic bag
she was carrying at the back of the seat then occupied by Obiña, an INP member "on Detached
Service with the Anti-Narcotics Unit." This avowedly aroused Obiña's suspicion, and at the first
opportunity, and without Claudio's knowledge, he surreptitiously looked into the plastic bag and
noted that it contained camote tops as well as a package, and that there emanated from the
package the smell of marijuana with which he had become familiar on account of his work. So
when the bus stopped at Sta. Rita, and Claudio alighted, Obiña accosted her, showed her his
ID, identified himself as a policeman, and announced his intention to search her bag which he
said contained marijuana because of the distinctive odor detected by him. Ignoring her plea —
"Please go with me, let us settle this at home" — he brought her to the police headquarters.,
where examination of the package in Claudio's bag confirmed his suspicion that it indeed
contained marijuana. The Court held the warrantless arrest under the circumstances to be
lawful, the search justified, and the evidence thus discovered admissible in evidence against the
accused.

In People v. Tangliben (decision promulgated on April 6, 1990),19 two police officers and a
barangay tanod were conducting a "surveillance mission" at the Victory Liner Terminal at San
Nicolas, San Fernando, Pampanga, "aimed not only against persons who may commit
misdemeanors . . . (there) but also on persons who may be engaging in the traffic of dangerous
drugs based on information supplied by informers; . . . they noticed a person carrying a red
travelling bag . . who was acting suspiciously;" they asked him to open the bag; the person did
so only after they identified themselves as peace officers; found in the bag were marijuana
leaves wrapped in plastic weighing one kilogram, more or less; the person was then taken to the
police headquarters at San Fernando, Pampanga, where he was investigated; and an
information was thereafter filed against that person, Tangliben, charging him with a violation of
the Dangerous Drugs Act of 1972 (RA 6425), as amended. Upon these facts it was ruled, citing
Claudio, supra, that there was a valid warrantless arrest and a proper warrantless search
incident thereto.

The facts in Tangliben were pronounced to be different from those in People v. Aminnudin,
supra. "In contrast" to Aminnudin where the Court perceived no urgency as to preclude the
application for and obtention of a search warrant, it was declared that the Tangliben case —

. . . presented urgency. . . (The evidence revealed) that there was an informer who
pointed to the accused-appellant as carrying marijuana . . . Faced with such on-the-spot
information, the police officers had to act quickly. There was not enough time to secure a
search warrant . . . To require search warrants during on-the-spot apprehensions of drug
pushers, illegal possessors of firearms, jueteng collectors, smugglers of contraband
goods, robber, etc. would make it extremely difficult, if not impossible to contain the
crimes with which these persons are associated.

In Tangliben, therefore, there was in the Court's view sufficient evidence on hand to enable the
PC officers to secure a search warrant, had there been time. But because there was actually no
time to get the warrant, and there were "on-the-spot" indications that Tangliben was then
actually committing a crime, the search of his person and his effects was considered valid.

Two other decisions presented substantially similar circumstance instances: Posadas v. C.A., et
al., decided on August 2, 1990,20 and People v. Moises Maspil, Jr., et al., decided on August
20, 1990.21

In the first case, Posadas was seen to be acting suspiciously by two members of the INP,
Davao Metrodiscom, and when he was accosted by the two, who identified themselves as
police officers, he suddenly fled. He was pursued, overtaken and, notwithstanding his
resistance, placed in custody. The buri bag Posadas was then carrying was found to contain a
revolver, for which he could produce no license or authority to possess, four rounds of live
ammunition, and a tear gas grenade. He was prosecuted for illegal possession of firearms and
ammunition and convicted after trial. This Court affirmed Posadas' conviction, holding that there
was, in the premises, probable cause for a search without warrant, i.e., the appellant was acting
suspiciously and attempted to flee with the buri bag he had with him at the time. The Court cited
with approval the ruling of the U.S. Federal Supreme Court in John W. Terry v. State of Ohio,22
a 1968 case, which the Solicitor General had invoked to justify the search.

In the case of Maspil, et al., a checkpoint was set up by elements of the First Narcotics Regional
Unit of the Narcotics Command at Sayangan, Atok, Benguet, to monitor, inspect and scrutinize
vehicles on the highway going towards Baguio City. This was done because of a confidential
report by informers that Maspil and another person, Bagking, would be transporting a large
quantity of marijuana to Baguio City. In fact, the informers were with the policemen manning the
checkpoint. As expected, at about 2 o'clock in the early morning of November 1, 1986, a
jeepney approached the checkpoint, driven by Maspil, with Bagking as passenger. The officers
stopped the vehicle and saw that on it were loaded 2 plastic sacks, a jute sack, and 3 big round
tin cans. When opened, the sacks and cans were seen to contain what appeared to be
marijuana leaves. The policemen thereupon placed Maspil and Bagking under arrest, and
confiscated the leaves which, upon scientific examination, were verified to be marijuana leaves.
The Court upheld the validity of the search thus conducted, as being incidental to a lawful
warrantless arrest,23 and declared that, as in Tangliben, supra, Maspil and Bagking had been
caught in flagrante delicto transporting prohibited drugs at the time of their arrest. Again, the
Court took occasion to distinguish the case from Aminnudin24 in which, as aforestated, it
appeared that the police officers were aware of Aminnudin's identity, his projected criminal
enterprise and the vessel on which he would be arriving, and, equally as importantly, had
sufficient time and opportunity to obtain a search warrant. In the case of Maspil and Bagking,
the Court found that the officers concerned had no exact description of the vehicle the former
would be using to transport marijuana, and no inkling of the definite time of the suspects' arrival,
and pointed out that a jeepney on the road is not the same as a passenger boat on the high
seas whose route and time of arrival are more or less certain, and which ordinarily cannot
deviate from or otherwise alter its course, or select another destination.25

The most recent decision treating of warrantless search and seizure appears to be People v. Lo
Ho Wing; et al., G.R. No. 88017, decided on January 21, 1991 (per Gancayco, J.). In that case,
an undercover or "deep penetration" agent, Tia, managed somehow to gain acceptance into a
group of suspected drug smugglers, which included Peter Lo and Lim Ching Huat. Tia
accompanied Peter Lo to Guangzhou, China, where he saw him and other person empty the
contents of six (6) tins of tea and replace them with white powder. On their return to Manila with
the cans of substituted "tea," they were met at the airport by Lim. As they were leaving the
airport in separate vehicles, they were intercepted by officers and operatives of the Narcotics
Command (NARCOM), who had earlier been tipped off by Tia, and placed under arrest. As
search of the luggage brought in by Tia and Peter Lo, loaded on the group's vehicles, quickly
disclosed the six (6) tin cans containing fifty-six (56) bags of white crystalline powder which,
upon analysis, was identified as metamphetamine. Tia, Lo and Lim were indicted for violation of
the Dangerous Drugs Act of 1972. Tia was discharged as state witness. Lo and Lim were
subsequently convicted and sentenced to life imprisonment. One of the questions raised by
them in this Court on appeal was whether the warrantless search of their vehicles and personal
effects was legal. The Court, citing Manipon, Jr. v. Sandiganbayan, 143 SCRA 267 (1986),26
held legal the search of the appellants' moving vehicles and the seizure therefrom of the
dangerous drug, considering that there was intelligence information, including clandestine
reports by a planted spy actually participating in the activity, that the appellants were bringing
prohibited drugs into the country; that the requirement of obtaining a search warrant "borders on
the impossible in the case of smuggling effected by the use of a moving vehicle that can
transport contraband from one place to another with impunity," and "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.27

In all five cases, Claudio, Tangliben, Posadas, Maspil, and Lo Ho Wing, facts existed which
were found by the Court as justifying warantless arrests. In Claudio, the arresting officer had
secretly ascertained that the woman he was arresting was in fact in possession of marijuana; he
had personally seen that her bag contained not only vegetables but also a package emitting the
odor of marijuana. In Tangliben, the person arrested and searched was acting suspiciously, and
had been positively pointed to as carrying marijuana. And in both cases, the accused were
about to board passenger buses, making it urgent for the police officers concerned to take quick
and decisive action. In Posadas, the person arrested and searched was acting suspiciously, too,
and when accosted had attempted to flee from the police officers. And in Maspil and Lo Ho
Wing, there was definite information of the precise identity of the persons engaged in
transporting prohibited drugs at a particular time and place.

Now, as regards the precise issue at hand, whether or not the facts in the case at bar make out
a legitimate instance of a warrantless search and seizure, there is, as earlier pointed out, a
regrettable divergence of views among the members of the Court.

Contrary to the conclusion reached by the majority, I believe that the appellant should be
absolved on reasonable doubt. There was in this case no confidential report from, or positive
identification by an informer; no attempt to flee; no bag or package emitting tell-tale odors; no
other reasonably persuasive indications that Malmstedt was at the time in process of
perpetrating the offense for which he was subsequently prosecuted. Hence, when the soldiers
searched Malmstedt's pouch and the bags in his possession, they were simply "fishing" for
evidence. It matters not that the search disclosed that the bags contained prohibited
substances, confirming their initial information and suspicion. The search was not made by
virtue of a warrant or as an incident of a lawful warrantless arrest, i.e., under circumstances
sufficient to engender a reasonable belief that some crime was being or about to be committed,
or adjust been committed. There was no intelligent and intentional waiver of the right against
unreasonable searches and seizure. The search was therefore illegal, since the law requires
that there first be a lawful arrest of an individual before a search of his body and his belongings
may licitly be made. The process cannot be reversed, i.e., a search be first undertaken, and
then an arrest effected, on the strength of the evidence yielded by the search. An arrest made in
that case would be unlawful, and the search undertaken as an incident of such an unlawful
arrest, also unlawful.

The fact that when investigated at the headquarters of the Narcotic Command at Camp
Dangwa, La Trinidad, Malmstedt had, it is said, willingly admitted that there were was hashish
inside the "teddy bears" in the luggage found in his possession — an admission subsequently
confirmed by laboratory examination — does not help the cause of the prosecution one bit.
Nothing in the record even remotely suggests that Malmstedt was accorded the rights
guaranteed by the Constitution to all persons under custodial investigation.28 He was not
informed, prior to being interrogated, that he had the "right to remain silent and to have
competent and independent counsel preferably of his own choice," and that if he could not
afford the services of counsel, he would be provided with one; not does it appear at all that he
waived those rights "in writing and in the presence of counsel." The soldiers and the police
officers simply went ahead with the investigation of Malmstedt, without counsel. The admissions
elicited from Malmstedt under these circumstances, as the Constitution clearly states, are
"inadmissible in evidence against him.29

The prohibited drugs supposedly discovered in Malmstedt's bags, having been taken in violation
of the constitutional right against unreasonable searches and seizures, are inadmissible against
him "for any purpose in any proceeding." Also pronounced as incompetent evidence against him
are the admissions supposedly made by him without his first being accorded the constitutional
rights of persons under custodial investigation. Without such object evidence and admissions,
nothing remains of the case against Malmstedt.

It may be conceded that, as the Trial Court points out, the evidence presented by Malmstedt in
his defense is feeble, unworthy of credence. This is beside the point; for conformably to the
familiar axiom, the State must rely on the strength of its evidence and not on the weakness of
the defense. The unfortunate fact is that although the existence of the hashish is an objective
physical reality that cannot but be conceded, there is in law no evidence to demonstrate with
any degree of persuasion, much less beyond reasonable doubt, that Malmstedt was engaged in
a criminal activity. This is the paradox created by the disregard of the applicable constitutional
safeguards. The tangible benefit is that the hashish in question has been correctly confiscated
and thus effectively withdrawn from private use.

What is here said should not by any means be taken as a disapproval or a disparagement of the
efforts of the police and military authorities to deter and detect offenses, whether they be
possession of and traffic in prohibited drugs, or some other. Those efforts obviously merit the
support and commendation of the Courts and indeed of every responsible citizen. But those
efforts must take account of the basic rights granted by the Constitution and the law to persons
who may fall under suspicion of engaging in criminal acts. Disregard of those rights may not be
justified by the objective of ferreting out and punishing crime, no matter how eminently desirable
attainment of that objective might be. Disregard of those rights, as this Court has earlier
stressed, may result in the escape of the guilty, and all because the "constable has blundered,"
rendering the evidence inadmissible even if truthful or otherwise credible.30

I therefore vote to reverse the Trial Court's judgment of October 12, 1989 and to acquit the
appellant on reasonable doubt.

CRUZ, J., dissenting:

I join Mr. Justice Andres R. Narvasa in his dissent, which I believe represents the correct
application to the facts of this case of the provisions of the Bill of Rights and the Rules of Court
on searches and seizures. It is consistent with my ponencia in People v. Aminnudin, 163 SCRA
402, and also with Alih v. Castro, 151 SCRA 279, the latter being a unanimous decision of the
Court en banc, and my dissents in Umil v. Ramos (on warrantless arrests, 187 SCRA 311,
Valmonte v. De Villa (on checkpoints), 178, SCRA 211, 185 SCRA 665, and Guazon v. De Villa
(on "zonas"), 181 SCRA 623.

I write this separate opinion merely to remark on an observation made during the deliberation on
this case that some members of the Court seem to be coddling criminals instead of extending its
protection to society, which deserves our higher concern. The inference is that because of our
wrong priorities, criminals are being imprudently let free, to violate our laws again; and it is all
our fault.

Believing myself to be among those alluded to, I will say without apology that I do not consider a
person a criminal, until he is convicted by final judgment after a fair trial by a competent and
impartial court. Until then, the Constitution bids us to presume him innocent. He may seem
boorish or speak crudely or sport tattoos or dress weirdly or otherwise fall short of our own
standards of propriety and decorum. None of these makes him a criminal although he may look
like a criminal.

It is so easy to condemn a person on the basis of his appearance but it is also so wrong.

On the question before us, it seems to be the inclination of some judges to wink at an illegal
search and seizure as long as the suspect has been actually found in possession of a prohibited
article That fact will retroactively validate the violation of the Bill of Rights for after all, as they
would rationalize, the suspect is a criminal. What matters to them is the fact of illegal
possession, not the fact of illegal search and seizure.
This kind of thinking takes us back to the intolerant days of Moncado v. People's Court, 80 Phil.
1, which was discredited in Stonehill v. Diokno, 20 SCRA 383, even before it was definitely
rejected by an express provision in the 1973 Constitution. That provision, which has been
retained in the present Constitution, again explicitly declares that any evidence illegally obtained
"shall be inadmissible for any purpose in any proceeding."

The fruit of the poisonous tree should not be allowed to poison our system of criminal
justice.1âwphi1 In the case at bar, the search was made at a checkpoint established for the
preposterous reason that the route was being used by marijuana dealers and on an individual
who had something bulging at his waist that excited the soldier's suspicion. Was that probable
cause? The ponencia notes that the military had advance information that a Caucasian was
coming from the Sagada with prohibited drugs in his possession. This is what the military says
now, after the fact, to justify the warrantless search. It is so easy to make such a claim, and I am
surprised that the majority should readily accept it.

The conclusion that there was probable cause may have been influenced by the subsequent
discovery that the accused was carrying a prohibited drug. This is supposed to justify the
soldier's suspicion. In other words, it was the fact of illegal possession that retroactively
established the probable cause that validated the illegal search and seizure. It was the fruit of
the poisonous tree that washed clean the tree itself.

In Olmstead v. U.S., 277 U.S. 438, Justice Holmes said sixty-four years ago:

. . . It is desirable that criminals should be detected, and to that end that all available
evidence should be used.1avvphi1 It is also desirable that the government should not
itself foster and pay for other crimes, when they are the means by which the evidence is
to be obtained. If it pays its officers for having got evidence by crime, I do not see why it
may not as well pay them for getting it in the same way, and I can attach no importance
to protestations of disapproval if it knowingly accepts and pays and announces that in
the future it will pay for the fruits. We have to choose, and for my part I think it a less evil
that some criminals should escape than that the government should play an ignoble part.

If by deterring the government from playing "an ignoble part," I am "coddling criminals," I
welcome the accusation and take pride in it. I would rather err in favor of the accused who is
impaled with outlawed evidence than exalt order at the price of liberty.

Footnotes

* The case was referred to the Court En Banc by the First Division (to which it had
originally been assigned). Thereafter the Court En Banc resolved to accept and itself
decide the case.

1 Brief for Defendant-appellant, Rollo, pp. 43-44.

2 Brief for Plaintiff-appellee, Rollo, p. 89.

3 Decision of the RTC of La Trinidad, Branch 10, dated 12 October 1989, Rollo, pp. 14-
20.

4 Rollo, pp. 16-17.

5 Art. III, Sec. 2, 1987 Constitution.

6 Sec. 5, Rule 1 13 of the Rules on Criminal Procedure.

7 People vs. Maspil, G.R. No. 885177, 20 August 1990; People vs. Tangliben, G.R. No.
63630, 6 April 1990, 184 SCRA 220; People vs. Claudio G.R. No. 72564, 15 April
1988,160 SCRA 646.

8 Quintero vs. NBI, G.R. No. 35149, 23 June 1988, 162 SCRA 467.

9 Valmonte vs. De Villa, G.R. No. 83988, 29 September 1989, 178 SCRA 211.

10 People vs. Claudio, supra.

11 People vs. Tangliben, supra.

12 Posadas vs. Court of Appeals, G.R. No. 83139, 2 August 1990.

13 Supra.

NARVASA, J., CONCURRING AND DISSENTING:

1 SEE People v. Burgos, 144 SCRA 1 (1986); Roan v. Gonzales, 145 SCRA 687 (1986);
Alih v. Castro, 151 SCRA 279 (1987); Guazon v. de Villa, G.R. No. 80508, Jan. 30,
1990.

2 Art. III, Sec. 2, 1987 Constitution; to the same effect: ART. IV, Sec. 3, 1973
Constitution, and ART. IV, Sec. 3, 1935 Constitution.

3 ART. III, Sec. 3 (2).

4 Peo. v. de la Cruz, G.R. No. 83260, April 18, 1990.

5 Sec. 5, Rule 113, Rules of Court; SEE Cruz, I.A., Constitutional Law, 1987 ed., pp.
141-142, citing Adams v. Williams, 47 U.S. 143 and Terry v. Ohio, 392 U.S. 1.

6 Sec. 12, Rule 126, Rules of Court.

7 SEE Chimel v. California, 395 U.S. 752 (1969), cited in the monograph of Mr. Justice
Mendoza, V.V. entitled Reflections on the Constitutional Law of Arrest, Search and
Seizure, Philippine Law Journal, Vol. LXIII, Third Quarter, September, 1988, p. 241.

8 As pointed out in Cruz, op. cit. p. 142, in the U.S., "searches without warrant may also
be made of automobiles for the purpose of preventing violations of smuggling or
immigration laws, provided such searches are made at borders or "constructive borders"
like checkpoints near the boundary lines of the State," but "the mere mobility of these
vehicles does not justify their indiscriminate searches without warrants if made within the
interior of the territory and in the absence of probable cause (Almeida-Sanchez v. U.S.,
37 L. ed. 2d 596; Carrol v. U.S. 267 U.SS. 132).
9 SEE footnote 13, infra.

10 12 Phil. 439, to the effect that, "An officer making an arrest may take from the person
arrested any money or property found upon his persons which was used in the
commission of the crime or was the fruit of the crime of which might furnish the prisoner
with the means of committing violence of escaping, or which may be used in evidence in
the trial of the case."

11 76 Phil. 637 to the effect that, "The most important exception to the necessity for a
search warrant is the right of search and seizure as an incident to a lawful arrest. A
lawful arrest may be made either while a crime is being committed or after its
commission. The right to search includes in both instances that of searching the person
of him who is arrested, in order to find and seize things connected with the crime as its
fruits or as the means by which it was committed (Agnello vs. United States, 269 U.S.,
20).

12 22 SCRA 857 –– that the "Tariff and Customs Code does not require any search
warrant issued by a competent court before police authorities can effect the seizure. But
the Code requires it in the search of a dwelling house."

13 390 U.S. 243, holding that "prohibited articles within plain view "open to eye and"
hand of the law-enforcement officer who comes upon them "inadvertently," may also be
seized by him even without warrant (SEE Cruz, op. cit. p. 143).

14 SEE U.S. v. Hachaw, 21 Phil. 514 (1912); U.S. v. Santos, 36 Phil. 853 (1917),
Integrated Bar of the Philippines v. Enrile, Oct. 21, 1985, cited in Gupit, Rules of Criminal
Procedure, 1986 ed., pp. 179182; Peo. v. Aminnudin, 163 SCRA 402 (1988); Guazon v.
de Villa, G.R. No. 80508, Jan. 30, 1990; cf., Peo. v. Cruz, 165 SCRA 135 (1988).

15 Nolasco v. Ernani Cruz-Paño, 147 SCRA 509 (1987); SEE, also, People v. Burgos,
144 SCRA 1 (1986) where the petitioner, while plowing his field, was arrested and his
premises searched on the basis of information that he was in possession of unlicensed
firearms, and thereafter, on discovery by the authorities of a gun and subversive
documents, had admitted ownership thereof –– upon which facts, this Court ruled the
gun and documents to be inadmissible in evidence because their seizure was not an
incident of a lawful arrest, and his acknowledgment of ownership thereof equally
incompetent because obtained in violation of the Miranda doctrine.

16 SEE Cruz, op. cit. p. 142, citing Terry v. Ohio, supra, and Magoncia v. Palacio, 80
Phil. 770, and pointing out, on the authority of Callanta vs. Villanueva, 77 SCRA 377 and
Bagcal v. Villaraza, 120 SCRA 525, that the posting by the accused of a bail bond
constitutes waiver of any irregularity attending his arrest and estops him from
questioning its validity.

17 163 SCRA 402, per Cruz, J., Griño-Aquino, J., dissenting; SEE footnote 6 at page 2
supra.

18 160 SCRA 646, Third Division, per Gutierrez, Jr., J.

19 184 SCRA 22, Third Division, per Gutierrez, Jr., J.

 20 G.R. No. 83139, First Division, per Gancayco, J.

21 G.R. No. 85177, Third Division, per Gutierrez, Jr., J:

22 392 US 1, 20 L Ed 2d 889, 88 S Ct 1868.

23 Sec. 12, Rule 126 in relation to Sec. 5, Rule 113 of the 1985 Rules of Criminal
Procedure.

24 SEE footnote 20, supra.

25 Attention may be drawn, in this connection, to the Resolution of May 24, 1990 in G.R.
No. 83988 (Valmonte v. de Villa, [Sept. 29, 1989], 178 SCRA 211) where the Court cited
with approval a ruling of the U.S. Supreme Court that "Automobiles, because of their
mobility, may be searched without a warrant upon facts not justifying a warrantless
search of a residence or office. Brinegar v. United States, 338 US 160, 93 L Ed 1879, 69
S Ct 1302 (1949); Carroll v. United States, 267 US 132, 69 L Ed 543, 45 S Ct 280, 39
ALR 790 (1952). The cases so holding have, however, always insisted that the officers
conducting the search have "reasonale or probable cause" to believe that they will find
the instrumentality of a crime or evidence pertaining to a crime before they begin their
warrantless search. . . . (Dyke v. Taylor, 391 US 216, 20 L Ed 538, 88 S Ct 1472)."

26 SEEFootnotes 9 and 13, supra.

27 Citing Carroll v. U.S., 267 U.S. 132, 153 (1925).

28 ART. III, Sec. 12 (1).

29 Id., Sec. 12 (3); Peo. v. Buenaflor, G.R. No. 62805, Jan. 22, 1990; Peo. v. Camalog,
G.R. No. 77116, Jan. 31, 1989; Peo. v. Lagahan, G.R. No. 78692, Dec. 8, 1988; Peo. v.
Newman, G.R. No. 45354, July 26, 1988.

30 Peo. v. Hizon, G.R. No. 71273, July 29, 1988, per Cruz, J.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 88017 January 21, 1991

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LO HO WING alias PETER LO, LIM CHENG HUAT alias ANTONIO LIM and REYNALDO TIA
y SANTIAGO, defendants. LO HO WING alias PETER LO, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Segundo M. Gloria, Jr. for defendant-appellant.

GANCAYCO, J.:

This case involves the unlawful transport of metamphetamine, a regulated drug under Republic
Act No. 6425, as amended. One of its derivatives is metamphetamine hydrochloride, notoriously
known in street parlance as "shabu" or "poor man's cocaine."

Appellant Peter Lo, together with co-accused Lim Cheng Huat alias Antonio Lim and Reynaldo
Tia, were charged with a violation of Section 15, Article III of the aforementioned statute
otherwise known as the Dangerous Drugs Act of 1972, before Branch 114 of the Regional Trial
Court of Pasay City. Only appellant and co-accused Lim Cheng Huat were convicted. They
were sentenced to suffer life imprisonment, to pay a fine of P25,000.00 each, and to pay the
costs. Their co-accused Reynaldo Tia was discharged as a state witness. The pertinent portion
of the information reads as follows:

That on or about the 6th day of October, 1987, in Pasay City, Metro Manila, and within
the jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating together and mutually helping one another, without authority of law, did
then and there willfully, unlawfully and feloniously deliver, dispatch or transport 56
teabags of Metamphetamine, a regulated drug.

Contrary to law.1

The antecedent facts of the case as found by the trial court are as follows:

In July 1987, the Special Operations Group, a unit of the Criminal Investigation Service (CIS) of
the Philippine Constabulary (PC), received a tip from one of its informers about an organized
group engaged in the importation of illegal drugs, smuggling of contraband goods, and
gunrunning. After an evaluation of the information thus received, a project codenamed "OPLAN
SHARON 887" was created in order to bust the suspected syndicate.

As part of the operations, the recruitment of confidential men and "deep penetration agents' was
carried out to infiltrate the crime syndicate. One of those recruited was the discharged accused,
Reynaldo Tia (hereinafter referred to as Tia).

Tia was introduced to his co-accused Lim Cheng Huat (hereinafter referred to as Lim) by
another confidential agent named George on August 3, 1987. Lim expressed a desire to hire a
male travelling companion for his business nips abroad. Tia offered his services and was hired.

Lim and Tia met anew on several occasions to make arrangements for a trip to China. In the
course of those meetings, Tia was introduced to Peter Lo (hereinafter referred to as appellant),
whom Tia found out to be the person he was to accompany to China in lieu of Lim.
As a "deep penetration agent," Tia regularly submitted reports of his undercover activities on the
suspected criminal syndicate. Meanwhile, the officer-in-charge of OPLAN SHARON 887,
Captain Luisito Palmera, filed with his superiors the reports submitted to him, and officially
informed the Dangerous Drugs Board of Tia's activities.

On October 4, 1987, appellant and Tia left for Hongkong on board a Philippine Airlines flight.
Before they departed, Tia was able to telephone Captain Palmera to inform him of their
expected date of return to the Philippines as declared in his round-trip plane ticket-October 6,
1987 at two o'clock in the afternoon.

The day after they arrived in Hongkong, Tia and appellant boarded a train bound for
Guangzhou, in the People's Republic of China. Upon arriving there, they checked in at a hotel,
and rested for a few hours. The pair thereafter went to a local store where appellant purchased
six (6) tin cans of tea. Tia saw the paper tea bags when the cans were opened for examination
during the purchase. Afterwards, they returned to the hotel. Appellant kept the cans of tea in his
hotel room. That evening, Tia went to appellant's room to talk to him. Upon entering, he saw two
other men with appellant. One was fixing the tea bags, while the other was burning substance
on a piece of aluminum foil using a cigarette lighter. Appellant joined the second man and
sniffed the smoke emitted by the burning substance. Tia asked the latter what they would be
bringing back to the Philippines. He was informed that their cargo consisted of Chinese drugs.
Tia stayed in the room for about twenty minutes before going back to his room to sleep.

The next day, October 6,1987, the two returned to Manila via a China Airlines flight. Appellant
had with him his red traveling bag with wheels. Before departing from Guangzhou however,
customs examiners inspected their luggage. The tin cans of tea were brought out from the
traveling bag of appellant. The contents of the cans were not closely examined, and appellant
was cleared along with Tia.

The plane landed at the Ninoy Aquino International Airport (NAIA), then named Manila
International Airport, on schedule. Lim met the newly-arrived pair at the arrival area. Lim talked
to appellant, while Tia, upon being instructed, looked after their luggage. After Lim and appellant
finished their conversation, the latter hailed a taxicab. Appellant and Tia boarded the taxicab
after putting their luggage inside the back compartment of the vehicle. Lim followed in another
taxi cab.

Meanwhile, a team composed of six operatives headed by Captain Palmera was formed to act
on the tip given by Tia. On the expected date of arrival, the team proceeded to the NAIA.
Captain Palmera notified the Narcotics Command (NARCOM) Detachment at the airport for
coordination. After a briefing, the operatives were ordered to take strategic positions around the
arrival area. Two operatives stationed just outside the arrival area were the first ones to spot the
suspects emerging therefrom. Word was passed on to the other members of the team that the
suspects were in sight. Appellant was pulling along his red traveling bag while Tia was carrying
a shoulder bag. The operatives also spotted Lim meeting their quarry.

Upon seeing appellant and Tia leave the airport, the operatives who first spotted them followed
them. Along Imelda Avenue, the car of the operatives overtook the taxicab ridden by appellant
and Tia and cut into its path forcing the taxi driver to stop his vehicle. Meanwhile, the other
taxicab carrying Lim sped away in an attempt to escape. The operatives disembarked from their
car, approached the taxicab, and asked the driver to open the baggage compartment. Three
pieces of luggage were retrieved from the back compartment of the vehicle. The operatives
requested from the suspects permission to search their luggage. A tin can of tea was taken out
of the red traveling bag owned by appellant. Sgt. Roberto Cayabyab, one of the operatives,
pried the lid open, pulled out a paper tea bag from the can and pressed it in the middle to feel its
contents. Some crystalline white powder resembling crushed alum came out of the bag. The
sergeant then opened the tea bag and examined its contents more closely. Suspecting the
crystalline powder to be a dangerous drug, he had the three traveling bags opened for
inspection. From the red traveling bag, a total of six (6) tin cans were found, including the one
previously opened. Nothing else of consequence was recovered from the other bags. Tia and
appellant were taken to the CIS Headquarters in Quezon City for questioning.

Meanwhile, the second taxicab was eventually overtaken by two other operatives on Retiro
Street, Quezon City. Lim was likewise apprehended and brought to the CIS Headquarters for
interrogation.

During the investigation of the case, the six tin cans recovered from the traveling bag of
appellant were opened and examined. They contained a total of fifty-six (56) paper tea bags
with white crystalline powder inside instead of tea leaves.

The tea bag opened by Sgt. Cayabyab during the search and seizure was sent to the PC-INP
Crime Laboratory for preliminary examination. Tests conducted on a sample of the crystalline
powder inside the tea bag yielded a positive result that the specimen submitted was
metamphetamine. Samples from each of the fifty-six (56) tea bags were similarly tested. The
tests were also positive for metamphetamine. Hence, the three suspects were indicted.

In rendering a judgment of conviction, the trial court gave full credence to the testimonies of the
government anti-narcotics operatives, to whom the said court applied the well-settled
presumption of regularity in the performance of official duties.

Appellant now assigns three errors alleged to have been committed by the trial court, namely:

I.

THE TRIAL COURT ERRED IN NOT DECLARING THE SEARCH AND SEIZURE ON
THE ACCUSED AS ILLEGAL.

II.

THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY OF DELIVERING,

DISPATCHING OR TRANSPORTING METAMPHETAMINE, A REGULATED DRUG.

III.

THE TRIAL COURT ERRED IN DISCHARGING REYNALDO TIA TO TESTIFY FOR

THE PROSECUTION.2

We affirm.

Anent the first assignment of error, appellant contends that the warrantless search and seizure
made against the accused is illegal for being violative of Section 2, Article III of the Constitution.
He reasons that the PC-CIS officers concerned could very well have procured a search warrant
since they had been informed of the date and time of a arrival of the accused at the NAIA well
ahead of time, specifically two (2) days in advance. The fact that the search and seizure in
question were made on a moving vehicle, appellant argues, does not automatically make the
warrantless search herein fall within the coverage of the well-known exception to the rule of the
necessity of a valid warrant to effect a search because, as aforementioned, the anti-narcotics
agents had both time and opportunity to secure a search warrant.

The contentions are without merit. As correctly averred by appellee, that search and seizure
must be supported by a valid warrant is not an absolute rule. There are at least three (3) well-
recognized exceptions thereto. As set forth in the case of Manipon, Jr. vs. Sandiganbayan,3
these are: [1] a search incidental to an arrest, [2] a search of a moving vehicle, and [3] seizure
of evidence in plain view (emphasis supplied). The circumstances of the case clearly show that
the search in question was made as regards a moving vehicle. Therefore, a valid warrant was
not necessary to effect the search on appellant and his co-accused.

In this connection, We cite with approval the averment of the Solicitor General, as contained in
the appellee's brief, that the rules governing search and seizure have over the years been
steadily liberalized whenever a moving vehicle is the object of the search on the basis of
practicality. This is so considering that before a warrant could be obtained, the place, things and
persons to be searched must be described to the satisfaction of the issuing judge—a
requirement which borders on the impossible in the case of smuggling effected by the use of a
moving vehicle that can transport contraband from one place to another with impunity.4

We might add that a warrantless search of a moving vehicle is justified on the ground that "it is
not practicable to secure a warrant because the vehicle can be quickly moved out of the locality
or jurisdiction in which the warrant must be sought."5

In the instant case, it was firmly established from the factual findings of the trial court that the
authorities had reasonable ground to believe that appellant would attempt to bring in contraband
and transport it within the country. The belief was based on intelligence reports gathered from
surveillance activities on the suspected syndicate, of which appellant was touted to be a
member. Aside from this, they were also certain as to the expected date and time of arrival of
the accused from China. But such knowledge was clearly insufficient to enable them to fulfill the
requirements for the issuance of a search warrant. Still and all, the important thing is that there
was probable cause to conduct the warrantless search, which must still be present in such a
case.

The second assignment of error is likewise lacking in merit. Appellant was charged and
convicted under Section 15, Article III of Republic Act No. 6425, as amended, which reads:

The penalty of life imprisonment to death and a fine ranging from twenty thousand to
thirty thousand pesos shall be imposed upon any person who, unless authorized by law,
shall sell, dispose, deliver, transport or distribute any regulated drug (emphasis
supplied).

The information charged the accused of delivering, transporting or dispatching fifty-six (56) tea
bags containing metamphetamine, a regulated drug. The conjunction "or' was used, thereby
implying that the accused were being charged of the three specified acts in the alternative.
Appellant argues that he cannot be convicted of "delivery" because the term connotes a source
and a recipient, the latter being absent under the facts of the case. It is also argued that
"dispatching' cannot apply either since appellant never sent off or disposed of drugs. As for
"transporting," appellant contends that he cannot also be held liable therefor because the act of
transporting necessarily requires a point of destination, which again is non- existent under the
given facts.

The contentions are futile attempts to strain the meaning of the operative acts of which appellant
and his co-accused were charged in relation to the facts of the case. There is no doubt that law
enforcers caught appellant and his co-accused in flagrante delicto of transporting a prohibited
drug. The term "transport" is defined as "to carry or convey from one place to another."6 The
operative words in the definition are "to carry or convey." The fact that there is actual
conveyance suffices to support a finding that the act of transporting was committed. It is
immaterial whether or not the place of destination is reached. Furthermore, the argument of
appellant gives rise to the illogical conclusion that he and his co- accused did not intend to bring
the metamphetamine anywhere, i.e. they had no place of destination.

The situation in the instant case is one where the transport of a prohibited drug was interrupted
by the search and arrest of the accused. Interruption necessarily infers that an act had already
been commenced. Otherwise, there would be nothing to interrupt.

Therefore, considering the foregoing, since the information included the acts of delivery,
dispatch or transport, proof beyond reasonable doubt of the commission of any of the acts so
included is sufficient for conviction under Section 15, Article III of Republic Act No. 6425, as
amended.

Moreover, the act of transporting a prohibited drug is a malum prohibitum because it is punished
as an offense under a special law. It is a wrong because it is prohibited by law. Without the law
punishing the act, it cannot be considered a wrong. As such, the mere commission of said act is
what constitutes the offense punished and suffices to validly charge and convict an individual
caught committing the act so punished, regardless of criminal intent.7

As to the third assigned error, appellant contests the discharge of accused Reynaldo Tia to
testify for the prosecution on the ground that there was no necessity for the same. Appellant
argues that deep penetration agents such as Tia "have to take risks and accept the
consequences of their actions."8 The argument is devoid of merit. The discharge of accused Tia
was based on Section 9, Rule 119 of the Rules of Court, which reads in part:

Sec. 9. Discharge of the accused to be state witness. — When two or more persons are
jointly charged with the commission of any offense, upon motion of the prosecution
before resting its case, the court may direct one or more of the accused to be discharged
with their consent so that they may be witnesses for the state . . . (emphasis supplied).

As correctly pointed out by the Solicitor General, the discharge of an accused is left to the
sound discretion of the lower court.1âwphi1 The trial court has the exclusive responsibility to
see that the conditions prescribed by the rule exist.9 In the instant case, appellant does not
allege that any of the conditions for the discharge had not been met by the prosecution.
Therefore, the discharge, as ordered by the trial court, stands.

Finally, appellant alleges that the testimony of Sgt. Roberto Cayabyab regarding the facts
surrounding the commission of the offense proves that the discharge of accused Tia is
unnecessary. The allegation is baseless. Appellant himself admits that the sergeant's testimony
corroborates the testimony of the discharged accused. The fact of corroboration of the
testimonies bolsters the validity of the questioned discharge precisely because paragraph (a) of
the aforequoted rule on discharge requires that the testimony be substantially corroborated in its
material points. The corroborative testimony of the PC-CIS operative does not debunk the claim
of the prosecution that there is absolute necessity for the testimony of accused Tia.

WHEREFORE, the decision appealed from is hereby AFFIRMED in toto and the appeal is
thereby DISMISSED. No costs.

SO ORDERED.

Narvasa, Cruz, Griño-Aquino and Medialdea, JJ., concur.

Footnotes

1 Page 45, Rollo.

2 Page 176, Rollo.

3 143 SCRA 267 (1986).

4 Pages 244-245, Rollo.

5 Carroll vs. United States, 267 U.S. 132, 153 (1925).

6 Black's Law Dictionary, 1979 edition, page 1344.

7 People vs. Bayona, 61 Phil. 181 (1935).

8 Page 189, Rollo.

9 People vs. Court of Appeals, 124 SCRA 338 (1983); People vs. Ibañez, 92 Phil. 933
(1953).

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-64261 December 26, 1984

JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS MEDIA
SERVICES, INC., petitioners,
vs.
THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF, PHILIPPINE
CONSTABULARY, THE CHIEF LEGAL OFFICER, PRESIDENTIAL SECURITY COMMAND,
THE JUDGE ADVOCATE GENERAL, ET AL., respondents.
Lorenzo M. Tañada, Wigberto E. Tañada, Martiniano Vivo, Augusto Sanchez, Joker P. Arroyo,
Jejomar Binay and Rene Saguisag for petitioners.

The Solicitor General for respondents.

ESCOLIN, J.:

Assailed in this petition for certiorari prohibition and mandamus with preliminary mandatory and
prohibitory injunction is the validity of two [2] search warrants issued on December 7, 1982 by
respondent Judge Ernani Cruz-Pano, Executive Judge of the then Court of First Instance of
Rizal [Quezon City], under which the premises known as No. 19, Road 3, Project 6, Quezon
City, and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, business addresses of
the "Metropolitan Mail" and "We Forum" newspapers, respectively, were searched, and office
and printing machines, equipment, paraphernalia, motor vehicles and other articles used in the
printing, publication and distribution of the said newspapers, as well as numerous papers,
documents, books and other written literature alleged to be in the possession and control of
petitioner Jose Burgos, Jr. publisher-editor of the "We Forum" newspaper, were seized.

Petitioners further pray that a writ of preliminary mandatory and prohibitory injunction be issued
for the return of the seized articles, and that respondents, "particularly the Chief Legal Officer,
Presidential Security Command, the Judge Advocate General, AFP, the City Fiscal of Quezon
City, their representatives, assistants, subalterns, subordinates, substitute or successors" be
enjoined from using the articles thus seized as evidence against petitioner Jose Burgos, Jr. and
the other accused in Criminal Case No. Q- 022782 of the Regional Trial Court of Quezon City,
entitled People v. Jose Burgos, Jr. et al. 1

In our Resolution dated June 21, 1983, respondents were required to answer the petition. The
plea for preliminary mandatory and prohibitory injunction was set for hearing on June 28, 1983,
later reset to July 7, 1983, on motion of the Solicitor General in behalf of respondents.

At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners' prayer for a writ
of preliminary mandatory injunction, manifested that respondents "will not use the
aforementioned articles as evidence in the aforementioned case until final resolution of the
legality of the seizure of the aforementioned articles. ..." 2 With this manifestation, the prayer for
preliminary prohibitory injunction was rendered moot and academic.

Respondents would have this Court dismiss the petition on the ground that petitioners had come
to this Court without having previously sought the quashal of the search warrants before
respondent judge. Indeed, petitioners, before impugning the validity of the warrants before this
Court, should have filed a motion to quash said warrants in the court that issued them. 3 But this
procedural flaw notwithstanding, we take cognizance of this petition in view of the seriousness
and urgency of the constitutional issues raised not to mention the public interest generated by
the search of the "We Forum" offices, which was televised in Channel 7 and widely publicized in
all metropolitan dailies. The existence of this special circumstance justifies this Court to exercise
its inherent power to suspend its rules. In the words of the revered Mr. Justice Abad Santos in
the case of C. Vda. de Ordoveza v. Raymundo, 4 "it is always in the power of the court
[Supreme Court] to suspend its rules or to except a particular case from its operation, whenever
the purposes of justice require it...".
Respondents likewise urge dismissal of the petition on ground of laches. Considerable stress is
laid on the fact that while said search warrants were issued on December 7, 1982, the instant
petition impugning the same was filed only on June 16, 1983 or after the lapse of a period of
more than six [6] months.

Laches is failure or negligence for an unreasonable and unexplained length of time to do that
which, by exercising due diligence, could or should have been done earlier. It is negligence or
omission to assert a right within a reasonable time, warranting a presumption that the party
entitled to assert it either has abandoned it or declined to assert it. 5

Petitioners, in their Consolidated Reply, explained the reason for the delay in the filing of the
petition thus:

Respondents should not find fault, as they now do [p. 1, Answer, p. 3,

Manifestation] with the fact that the Petition was filed on June 16, 1983, more
than half a year after the petitioners' premises had been raided.

The climate of the times has given petitioners no other choice. If they had waited
this long to bring their case to court, it was because they tried at first to exhaust
other remedies. The events of the past eleven fill years had taught them that
everything in this country, from release of public funds to release of detained
persons from custody, has become a matter of executive benevolence or
largesse

Hence, as soon as they could, petitioners, upon suggestion of persons close to

the President, like Fiscal Flaminiano, sent a letter to President Marcos, through
counsel Antonio Coronet asking the return at least of the printing equipment and
vehicles. And after such a letter had been sent, through Col. Balbino V. Diego,
Chief Intelligence and Legal Officer of the Presidential Security Command, they
were further encouraged to hope that the latter would yield the desired results.

After waiting in vain for five [5] months, petitioners finally decided to come to
Court. [pp. 123-124, Rollo]

Although the reason given by petitioners may not be flattering to our judicial system, We find no
ground to punish or chastise them for an error in judgment. On the contrary, the extrajudicial
efforts exerted by petitioners quite evidently negate the presumption that they had abandoned
their right to the possession of the seized property, thereby refuting the charge of laches against
them.

Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used and marked
as evidence some of the seized documents in Criminal Case No. Q- 022872, he is now
estopped from challenging the validity of the search warrants. We do not follow the logic of
respondents. These documents lawfully belong to petitioner Jose Burgos, Jr. and he can do
whatever he pleases with them, within legal bounds. The fact that he has used them as
evidence does not and cannot in any way affect the validity or invalidity of the search warrants
assailed in this petition.

Several and diverse reasons have been advanced by petitioners to nullify the search warrants in
question.
1. Petitioners fault respondent judge for his alleged failure to conduct an examination under oath
or affirmation of the applicant and his witnesses, as mandated by the above-quoted
constitutional provision as wen as Sec. 4, Rule 126 of the Rules of Court .6 This objection,
however, may properly be considered moot and academic, as petitioners themselves conceded
during the hearing on August 9, 1983, that an examination had indeed been conducted by
respondent judge of Col. Abadilla and his witnesses.

2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two distinct places: No.
19, Road 3, Project 6, Quezon City and 784 Units C & D, RMS Building, Quezon Avenue,
Quezon City, respectively. Objection is interposed to the execution of Search Warrant No. 20-
82[b] at the latter address on the ground that the two search warrants pinpointed only one place
where petitioner Jose Burgos, Jr. was allegedly keeping and concealing the articles listed
therein, i.e., No. 19, Road 3, Project 6, Quezon City. This assertion is based on that portion of
Search Warrant No. 20- 82[b] which states:

Which have been used, and are being used as instruments and means of
committing the crime of subversion penalized under P.D. 885 as amended and
he is keeping and concealing the same at 19 Road 3, Project 6, Quezon City.

The defect pointed out is obviously a typographical error. Precisely, two search warrants were
applied for and issued because the purpose and intent were to search two distinct premises. It
would be quite absurd and illogical for respondent judge to have issued two warrants intended
for one and the same place. Besides, the addresses of the places sought to be searched were
specifically set forth in the application, and since it was Col. Abadilla himself who headed the
team which executed the search warrants, the ambiguity that might have arisen by reason of the
typographical error is more apparent than real. The fact is that the place for which Search
Warrant No. 20- 82[b] was applied for was 728 Units C & D, RMS Building, Quezon Avenue,
Quezon City, which address appeared in the opening paragraph of the said warrant. 7
Obviously this is the same place that respondent judge had in mind when he issued Warrant
No. 20-82 [b].

In the determination of whether a search warrant describes the premises to be searched with
sufficient particularity, it has been held "that the executing officer's prior knowledge as to the
place intended in the warrant is relevant. This would seem to be especially true where the
executing officer is the affiant on whose affidavit the warrant had issued, and when he knows
that the judge who issued the warrant intended the building described in the affidavit, And it has
also been said that the executing officer may look to the affidavit in the official court file to
resolve an ambiguity in the warrant as to the place to be searched." 8

3. Another ground relied upon to annul the search warrants is the fact that although the warrants
were directed against Jose Burgos, Jr. alone, articles b belonging to his co-petitioners Jose
Burgos, Sr., Bayani Soriano and the J. Burgos Media Services, Inc. were seized.

Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be
seized under a search warrant, to wit:

Sec. 2. Personal Property to be seized. — A search warrant may be issued for

the search and seizure of the following personal property:

[a] Property subject of the offense;

 [b] Property stolen or embezzled and other proceeds or fruits of
the offense; and

[c] Property used or intended to be used as the means of

committing an offense.

The above rule does not require that the property to be seized should be owned by the person
against whom the search warrant is directed. It may or may not be owned by him. In fact, under
subsection [b] of the above-quoted Section 2, one of the properties that may be seized is stolen
property. Necessarily, stolen property must be owned by one other than the person in whose
possession it may be at the time of the search and seizure. Ownership, therefore, is of no
consequence, and it is sufficient that the person against whom the warrant is directed has
control or possession of the property sought to be seized, as petitioner Jose Burgos, Jr. was
alleged to have in relation to the articles and property seized under the warrants.

4. Neither is there merit in petitioners' assertion that real properties were seized under the
disputed warrants. Under Article 415[5] of the Civil Code of the Philippines, "machinery,
receptables, instruments or implements intended by the owner of the tenement for an industry
or works which may be carried on in a building or on a piece of land and which tend directly to
meet the needs of the said industry or works" are considered immovable property. In Davao
Sawmill Co. v. Castillo9 where this legal provision was invoked, this Court ruled that machinery
which is movable by nature becomes immobilized when placed by the owner of the tenement,
property or plant, but not so when placed by a tenant, usufructuary, or any other person having
only a temporary right, unless such person acted as the agent of the owner.

In the case at bar, petitioners do not claim to be the owners of the land and/or building on which
the machineries were placed. This being the case, the machineries in question, while in fact
bolted to the ground remain movable property susceptible to seizure under a search warrant.

5. The questioned search warrants were issued by respondent judge upon application of Col.
Rolando N. Abadilla Intelligence Officer of the P.C. Metrocom.10 The application was
accompanied by the Joint Affidavit of Alejandro M. Gutierrez and Pedro U. Tango, 11 members
of the Metrocom Intelligence and Security Group under Col. Abadilla which conducted a
surveillance of the premises prior to the filing of the application for the search warrants on
December 7, 1982.

It is contended by petitioners, however, that the abovementioned documents could not have
provided sufficient basis for the finding of a probable cause upon which a warrant may validly
issue in accordance with Section 3, Article IV of the 1973 Constitution which provides:

SEC. 3. ... and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined by the judge, or such other responsible officer
as may be authorized by law, after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.

We find petitioners' thesis impressed with merit. Probable cause for a search is defined as such
facts and circumstances which would lead a reasonably 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. And when the search warrant applied for is directed
against a newspaper publisher or editor in connection with the publication of subversive
materials, as in the case at bar, the application and/or its supporting affidavits must contain a
specification, stating with particularity the alleged subversive material he has published or is
intending to publish. Mere generalization will not suffice. Thus, the broad statement in Col.
Abadilla's application that petitioner "is in possession or has in his control printing equipment
and other paraphernalia, news publications and other documents which were used and are all
continuously being used as a means of committing the offense of subversion punishable under
Presidential Decree 885, as amended ..." 12 is a mere conclusion of law and does not satisfy
the requirements of probable cause. Bereft of such particulars as would justify a finding of the
existence of probable cause, said allegation cannot serve as basis for the issuance of a search
warrant and it was a grave error for respondent judge to have done so.

Equally insufficient as basis for the determination of probable cause is the statement contained
in the joint affidavit of Alejandro M. Gutierrez and Pedro U. Tango, "that the evidence gathered
and collated by our unit clearly shows that the premises above- mentioned and the articles and
things above-described were used and are continuously being used for subversive activities in
conspiracy with, and to promote the objective of, illegal organizations such as the Light-a-Fire
Movement, Movement for Free Philippines, and April 6 Movement." 13

In mandating that "no warrant shall issue except upon probable cause to be determined by the
judge, ... after examination under oath or affirmation of the complainant and the witnesses he
may produce; 14 the Constitution requires no less than personal knowledge by the complainant
or his witnesses of the facts upon which the issuance of a search warrant may be justified. In
Alvarez v. Court of First Instance, 15 this Court ruled that "the oath required must refer to the
truth of the facts within the personal knowledge of the petitioner or his witnesses, because the
purpose thereof is to convince the committing magistrate, not the individual making the affidavit
and seeking the issuance of the warrant, of the existence of probable cause." As couched, the
quoted averment in said joint affidavit filed before respondent judge hardly meets the test of
sufficiency established by this Court in Alvarez case.

Another factor which makes the search warrants under consideration constitutionally
objectionable is that they are in the nature of general warrants. The search warrants describe
the articles sought to be seized in this wise:

1] All printing equipment, paraphernalia, paper, ink, photo (equipment,

typewriters, cabinets, tables, communications/recording equipment, tape
recorders, dictaphone and the like used and/or connected in the printing of the
"WE FORUM" newspaper and any and all documents communication, letters and
facsimile of prints related to the "WE FORUM" newspaper.

2] Subversive documents, pamphlets, leaflets, books, and other publication to

promote the objectives and piurposes of the subversive organization known as
Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement;
and,

3] Motor vehicles used in the distribution/circulation of the "WE FORUM" and

other subversive materials and propaganda, more particularly,

1] Toyota-Corolla, colored yellow with Plate No. NKA 892;

 2] DATSUN pick-up colored white with Plate No. NKV 969

3] A delivery truck with Plate No. NBS 524;

4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665;

and,

5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with
marking "Bagong Silang."

In Stanford v. State of Texas 16 the search warrant which authorized the search for "books,
records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written
instruments concerning the Communist Party in Texas," was declared void by the U.S. Supreme
Court for being too general. In like manner, directions to "seize any evidence in connectionwith
the violation of SDC 13-3703 or otherwise" have been held too general, and that portion of a
search warrant which authorized the seizure of any "paraphernalia which could be used to
violate Sec. 54-197 of the Connecticut General Statutes [the statute dealing with the crime of
conspiracy]" was held to be a general warrant, and therefore invalid. 17 The description of the
articles sought to be seized under the search warrants in question cannot be characterized
differently.

In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in English
history: the era of disaccord between the Tudor Government and the English Press, when
"Officers of the Crown were given roving commissions to search where they pleased in order to
suppress and destroy the literature of dissent both Catholic and Puritan Reference herein to
such historical episode would not be relevant for it is not the policy of our government to
suppress any newspaper or publication that speaks with "the voice of non-conformity" but poses
no clear and imminent danger to state security.

As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum newspapers. As a consequence of the search and
seizure, these premises were padlocked and sealed, with the further result that the printing and
publication of said newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the
press guaranteed under the fundamental law, 18 and constitutes a virtual denial of petitioners'
freedom to express themselves in print. This state of being is patently anathematic to a
democratic framework where a free, alert and even militant press is essential for the political
enlightenment and growth of the citizenry.

Respondents would justify the continued sealing of the printing machines on the ground that
they have been sequestered under Section 8 of Presidential Decree No. 885, as amended,
which authorizes "the sequestration of the property of any person, natural or artificial, engaged
in subversive activities against the government and its duly constituted authorities ... in
accordance with implementing rules and regulations as may be issued by the Secretary of
National Defense." It is doubtful however, if sequestration could validly be effected in view of the
absence of any implementing rules and regulations promulgated by the Minister of National
Defense.
Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no less than
President Marcos himself denied the request of the military authorities to sequester the property
seized from petitioners on December 7, 1982. Thus:

The President denied a request flied by government prosecutors for

sequestration of the WE FORUM newspaper and its printing presses, according
to Information Minister Gregorio S. Cendana.

On the basis of court orders, government agents went to the We Forum offices in
Quezon City and took a detailed inventory of the equipment and all materials in
the premises.

Cendaña said that because of the denial the newspaper and its equipment
remain at the disposal of the owners, subject to the discretion of the court. 19

That the property seized on December 7, 1982 had not been sequestered is further confirmed
by the reply of then Foreign Minister Carlos P. Romulo to the letter dated February 10, 1983 of
U.S. Congressman Tony P. Hall addressed to President Marcos, expressing alarm over the
"WE FORUM " case. 20 In this reply dated February 11, 1983, Minister Romulo stated:

2. Contrary to reports, President Marcos turned down the recommendation of our

authorities to close the paper's printing facilities and confiscate the equipment
and materials it uses. 21

IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b] issued by
respondent judge on December 7, 1982 are hereby declared null and void and are accordingly
set aside. The prayer for a writ of mandatory injunction for the return of the seized articles is
hereby granted and all articles seized thereunder are hereby ordered released to petitioners. No
costs.

SO ORDERED.

Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana, Relova,

Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur.

Aquino, J., took no part.

Separate Opinions

ABAD SANTOS, J., concurring

I am glad to give my concurrence to the ponencia of Mr. Justice Escolin At the same time I wish
to state my own reasons for holding that the search warrants which are the subject of the
petition are utterly void.

The action against "WE FORUM" was a naked suppression of press freedom for the search
warrants were issued in gross violation of the Constitution.
The Constitutional requirement which is expressed in Section 3, Article IV, stresses two points,
namely: "(1) that no warrant shall issue but upon probable cause, to be determined by the judge
in the manner set forth in said provision; and (2) that the warrant shall particularly describe the
things to be seized." (Stonehill vs. Diokno, 126 Phil. 738, 747: 20 SCRA 383 [1967].)

Any search warrant is conducted in disregard of the points mentioned above will result in wiping
"out completely one of the most fundamental rights guaranteed in our Constitution, for it would
place the sanctity of the domicile and the privacy of communication and correspondence at the
mercy of the whims caprice or passion of peace officers." (Ibid, p. 748.)

The two search warrants were issued without probable cause. To satisfy the requirement of
probable cause a specific offense must be alleged in the application; abstract averments will not
suffice. In the case at bar nothing specifically subversive has been alleged; stated only is the
claim that certain objects were being used as instruments and means of committing the offense
of subversion punishable under P.D. No. 885, as amended. There is no mention of any specific
provision of the decree. I n the words of Chief Justice C Concepcion, " It would be legal heresy
of the highest order, to convict anybody" of violating the decree without reference to any
determinate provision thereof.

The search warrants are also void for lack of particularity. Both search warrants authorize Col.
Rolando Abadilla to seize and take possession, among other things, of the following:

Subversive documents, pamphlets, leaflets, books and other publication to

promote the objectives and purposes of the subversive organizations known as
Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement.

The obvious question is: Why were the documents, pamphlets, leaflets, books, etc. subversive?
What did they contain to make them subversive? There is nothing in the applications nor in the
warrants which answers the questions. I must, therefore, conclude that the warrants are general
warrants which are obnoxious to the Constitution.

In point of fact, there was nothing subversive published in the WE FORUM just as there is
nothing subversive which has been published in MALAYA which has replaced the former and
has the same content but against which no action has been taken.

Conformably with existing jurisprudence everything seized pursuant to the warrants should be
returned to the owners and all of the items are subject to the exclusionary rule of evidence.

Teehankee, J., concur.

Separate Opinions

ABAD SANTOS, J., concurring

I am glad to give my concurrence to the ponencia of Mr. Justice Escolin At the same time I wish
to state my own reasons for holding that the search warrants which are the subject of the
petition are utterly void.
The action against "WE FORUM" was a naked suppression of press freedom for the search
warrants were issued in gross violation of the Constitution.

The Constitutional requirement which is expressed in Section 3, Article IV, stresses two points,
namely: "(1) that no warrant shall issue but upon probable cause, to be determined by the judge
in the manner set forth in said provision; and (2) that the warrant shall particularly describe the
things to be seized." (Stonehill vs. Diokno, 126 Phil. 738, 747: 20 SCRA 383 [1967].)

Any search warrant is conducted in disregard of the points mentioned above will result in wiping
"out completely one of the most fundamental rights guaranteed in our Constitution, for it would
place the sanctity of the domicile and the privacy of communication and correspondence at the
mercy of the whims caprice or passion of peace officers." (Ibid, p. 748.)

The two search warrants were issued without probable cause. To satisfy the requirement of
probable cause a specific offense must be alleged in the application; abstract averments will not
suffice. In the case at bar nothing specifically subversive has been alleged; stated only is the
claim that certain objects were being used as instruments and means of committing the offense
of subversion punishable under P.D. No. 885, as amended. There is no mention of any specific
provision of the decree. I n the words of Chief Justice C Concepcion, " It would be legal heresy
of the highest order, to convict anybody" of violating the decree without reference to any
determinate provision thereof.

The search warrants are also void for lack of particularity. Both search warrants authorize Col.
Rolando Abadilla to seize and take possession, among other things, of the following:

Subversive documents, pamphlets, leaflets, books and other publication to

promote the objectives and purposes of the subversive organizations known as
Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement.

The obvious question is: Why were the documents, pamphlets, leaflets, books, etc. subversive?
What did they contain to make them subversive? There is nothing in the applications nor in the
warrants which answers the questions. I must, therefore, conclude that the warrants are general
warrants which are obnoxious to the Constitution.

In point of fact, there was nothing subversive published in the WE FORUM just as there is
nothing subversive which has been published in MALAYA which has replaced the former and
has the same content but against which no action has been taken.

Conformably with existing jurisprudence everything seized pursuant to the warrants should be
returned to the owners and all of the items are subject to the exclusionary rule of evidence.

Teehankee, J., concur.

Footnotes

1 Petition, P. 44, Rollo.

2 Manifestation and Opposition, p. 75, Rollo.

3 Templo v. Dela Cruz, 60 SCRA 295.

4 463 Phil. 275.

5 Tijam v. Sibonghanoy, 23 SCRA 29.

6 Sec. 4, Rule 126, Rules of Court provides:

Sec. 4. Examination of the Applicant. — The municipal or city judge must, before
issuing the warrant, personally examine on oath or affirmation the complainant
and any witnesses he may produce and take their deposition in writing and
attach them to the record, in addition to any affidavits presented to them.

7 The opening paragraph of Search Warrant No. 20- 82 [b] reads:

"It appearing to the satisfaction of the undersigned after examination under oath
of Maj. Alejandro M. Gutierrez and Lt. Pedro U. Tango, that there are good and
sufficient reason to believe that Jose Burgos, Jr. Publisher-Editor of "WE
FORUM" with office address at 784 Units C & D, RMS Building, Quezon Avenue,
Quezon City, has in his possession and control at said address the following; ... :

8 68 Am. Jur. 2d., 729.

9 61 Phil. 709. Annex "C", Petition, pp. 51-52,

10 Rollo.

11 Annex "B", Petition, pp. 53-54, Rollo.

12 Annex "C", Petition, p. 51, Rollo.

13 Annex "D", Petition, p. 54, Rollo.

14 Sec. 3, Art. IV, 1973 Constitution.

15 64 Phil. 33.

18 Sec. 9. Art. IV of the Constitution

19 Annex "K", Consolidated Reply, p. 175, Rollo.

20 Annex "L", Consolidated Reply, p. 178, Rollo.

21 Annex "M", Consolidated Reply, p. 179, Rollo.