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EN BANC

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

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

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

SYLLABUS

SARMIENTO, J., dissenting:

1. CONSTITUTIONAL LAW; CONSTITUTION; BEDROCK OF THE REGIME OF LAW AND CONSTITUTIONALISM. — The Charter says that the people enjoy the right of security of person,
home, and effects. (CONST.,art. III, sec. 2.) It is also the bedrock — the right of the people to be left alone — on which the regime of law and constitutionalism rest. It is not, as the majority
would put it, a matter of "occasional inconveniences, discomfort and even irritation." (Resolution, 4.) To say that it is, is — so I submit — to trivialize the plain command of the Constitution.

2. ID.; SEARCH AND SEIZURE; BURDEN OF PROVING REASONABLENESS INCUMBENT UPON THE STATE. — While the right against unreasonable searches and seizures, as my brethren
advance, is a right personal to the aggrieved party, the petitioners, precisely, have come to Court because they had been, or had felt, aggrieved. I submit that in that event, the burden is the
State's, to demonstrate the reasonableness of the search. The petitioners, Ricardo Valmonte in particular, need not, therefore, have illustrated the "details of the incident"
(Resolution, supra, 4) in all their gore and gruesomeness.

3. ID.; ID.; ABSENCE ALONE OF A SEARCH WARRANT MAKES CHECKPOINT SEARCHES UNREASONABLE. — The absence alone of a search warrant, as I have averred, makes checkpoint
searches unreasonable, and by itself, subject to constitutional challenges. (Supra.) As it is, "checkpoints", have become "search warrants" unto themselves — a roving one at that.

4. ID.; ID.; CASE AT BAR NOT SIMPLY A POLICEMAN ON THE BEAT. — The American cases the majority refers to involve routine checks compelled by "probable cause". What we have
here, however, is not simply a policeman on the beat but armed men, CAFGU or Alsa Masa, who hold the power of life or death over the citizenry, who fire with no provocation and without
batting an eyelash. They likewise shoot you simply because they do not like your face.

DECISION

PADILLA, J p:

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

EN BANC
[G.R. No. 83988. May 24, 1990.]

RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLES'S RIGHTS (ULAP), petitioners, vs. GEN. RENATO DE VILLA AND
NATIONAL CAPITAL REGION DISTRICT COMMAND, respondents.

Ricardo C. Valmonte for and in his own behalf and co-petitioners.

DECISION

PADILLA, J p:

In the Court's decision dated 29 September 1989, petitioners' petition for prohibition seeking the
declaration of the checkpoints as unconstitutional and their dismantling and/or banning, was
dismissed. cdphil
Petitioners have filed the instant motion and supplemental motion for reconsideration of said
decision. Before submission of the incident for resolution, the Solicitor General, for the respondents, filed
his comment, to which petitioners filed a reply.
It should be stated, at the outset, that nowhere in the questioned decision did this Court legalize all
checkpoints, i.e. at all times and under all circumstances. What the Court declared is, that checkpoints are
not illegal per se. Thus, under exceptional circumstances, as where the survival of organized government
is on the balance, or where the lives and safety of the people are in grave peril, checkpoints may be allowed
and installed by the government. Implicit in this proposition is, that when the situation clears and such
grave perils are removed, checkpoints will have absolutely no reason to remain.
Recent and on-going events have pointed to the continuing validity and need for checkpoints
manned by either military or police forces. The sixth (6th) attemptedcoup d'etat (stronger than all previous
ones) was staged only last 1 December 1989. Another attempt at a coup d'etat is taken almost for granted.
The NPA, through its sparrow units, has not relented but instead accelerated its liquidation of armed forces
and police personnel. Murders, sex crimes, hold-ups and drug abuse have become daily occurrences.
Unlicensed firearms and ammunition have become favorite objects of trade. Smuggling is at an all-time
high. Whether or not effective as expected, checkpoints have been regarded by the authorities as a security
measure designed to entrap criminals and insurgents and to constitute a dragnet for all types of articles in
illegal trade.
No one can be compelled, under our libertarian system, to share with the present government its
ideological beliefs and practices, or commend its political, social and economic policies or performance.
But, at least, one must concede to it the basic right to defend itself from its enemies and, while in power,
to pursue its program of government intended for public welfare; and in the pursuit of those objectives,
the government has the equal right, under its police power, to select the reasonable means and methods
for best achieving them. The checkpoint is evidently one of such means it has selected. cdphil
Admittedly, the routine checkpoint stop does intrude, to a certain extent, on motorist's right to
"free passage without interruption", but it cannot be denied that, as a rule, it involves only a brief detention
of travellers during which the vehicle's occupants are required to answer a brief question or two. 1 For as
long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of
the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual's
right against unreasonable search.
These routine checks, when conducted in a fixed area, are even less intrusive. As held by the U.S.
Supreme Court:
"Routine checkpoint stops do not intrude similarly on the motoring public. First,
the potential interference with legitimate traffic is minimal. Motorists using these
highways are not taken by surprise as they know, or may obtain knowledge of, the
location of the checkpoints and will not be stopped elsewhere. Second checkpoint
operations both appear to and actually involve less discretionary enforcement activity.
The regularized manner in which established checkpoints are operated is visible
evidence, reassuring to law-abiding motorists, that the stops are duly authorized and
believed to serve the public interest. The location of a fixed checkpoint is not chosen by
officers in the field, but by officials responsible for making overall decisions as to the
most effective allocation of limited enforcement resources. We may assume that such
officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively
on motorists as a class, and since field officers may stop only those cars passing the
checkpoint, there is less room for abusive or harassing stops of individuals them there
was in the case of roving-patrol stops. Moreover, a claim that a particular exercise of
discretion in locating or operating a checkpoint is unreasonable is subject to post-stop
judicial review." 2
The checkpoints are nonetheless attacked by the movants as a warrantlesssearch and seizure and,
therefore, violative of the Constitution. 3
As already stated, vehicles are generally allowed to pass these checkpoints after a routine
inspection and a few questions. If vehicles are stopped and extensively searched, it is because of some
probable cause which justifies a reasonable belief of the men at the checkpoints that either the motorist is
a law-offender or the contents of the vehicle are or have been instruments of some offense. Again, as held
by the U.S. Supreme Court —
"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 (1925). The cases so holding have, however, always
insisted that the officers conducting the search have 'reasonable 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. . . ." 4
Besides these warrantless searches and seizures at the checkpoints are quite similar to searches
and seizures accompanying warrantless arrests during the commission of a crime, or immediately
thereafter. In People vs. Kagui Malasuqui, it was held —
"To hold that no criminal can, in any case, be arrested and searched for the
evidence and tokens of his crime without a warrant, would be to leave society, to a large
extent, at the mercy of the shrewdest, the most expert, and the most depraved of
criminals, facilitating their escape in many instances." 5
By the same token, a warrantless search of incoming and outgoing passengers, at the arrival and
departure areas of an international airport, is a practice not constitutionally objectionable because it is
founded on public interest, safety, and necessity.
Lastly, the Court's decision on checkpoints does not, in any way, validate nor condone abuses
committed by the military manning the checkpoints. The Court's decision was concerned with power, i.e.
whether the government employing the military has the power to install said checkpoints. Once that
power is acknowledged, the Court's inquiry ceases. True, power implies the possibility of its abuse. But
whether there is abuse in a particular situation is a different "ball game" to be resolved in the constitutional
arena.
The Court, like all other concerned members of the community, has become aware of how some
checkpoints have been used as points of thievery and extortion practiced upon innocent civilians. Even the
increased prices of foodstuffs coming from the provinces, entering the Metro Manila area and other urban
centers, are largely blamed on the checkpoints, because the men manning them have reportedly become
"experts" in mulcting travelling traders. This, of course, is a national tragedy.llcd
But the Court could not a priori regard in its now assailed decision that the men in uniform are
rascals or thieves. The Court had to assume that the men in uniform live and act by the code of honor and
they are assigned to the checkpoints to protect, and not to abuse, the citizenry. 6 The checkpoint is a
military "concoction." It behooves the military to improve the QUALITY of their men assigned to these
checkpoints. For no system or institution will succeed unless the men behind it are honest, noble and
dedicated.
In any situation, where abuse marks the operation of a checkpoint, the citizen is not helpless. For
the military is not above but subject to the law. And the courts exist to see that the law is supreme. Soldiers,
including those who man checkpoints, who abuse their authority act beyond the scope of their authority
and are, therefore, liable criminally and civilly for their abusive acts. 7 This tenet should be ingrained in the
soldiery in the clearest of terms by higher military authorities.
ACCORDINGLY, the Motion and Supplemental Motion for Reconsideration are DENIED. This
denial is FINAL.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano, Bidin, Cortes, Griño-Aquino,
Medialdea and Regalado, JJ., concur.
Gancayco, J., is on leave.

Separate Opinions

GUTIERREZ, JR., J., concurring:

The problem we face in the resolution of this petition arises from our knowledge that law enforcement officers use checkpoints as opportunities for mulcting,
oppression, and other forms of abuse. However, to completely ban checkpoints as unconstitutional is to lose sight of the fact that the real objective behind their use is laudable and
necessary. If we say that ALL checkpoints are unconstitutional, we are banning a law enforcement measure not because it is per seillegal but because it is being used for evil purposes
by the soldiers or police who man it.
This is another instance where the Supreme Court is urged to solve a problem of discipline facing the executive and the military. My reluctant concurrence with the
majority opinion is premised on the hope that our top military and police officials will devise effective measures which would insure that checkpoints are used only where absolutely
needed and that the officers who are assigned to these checkpoints discharge their duties as professional soldiers or peace officers in the best traditions of the military and the
police. I repeat that this is a problem of enforcement and not legality. LLpr

CRUZ, J., dissenting:

I reiterate my original dissent and add the following observations.


The majority would justify the checkpoints on the ground of rampant criminality, e.g., the failed coup, the "sparrow" killings, murders, sex crimes, drug abuse,
smuggling, etc. I was not aware that the failure of the authorities to suppress crime was an excuse to suspend the Bill of Rights. It has always been my impression that even criminals,
and more so the innocent, are entitled to the right against unreasonable searches and seizures.
The protection of the security of the State is a convenient pretext of the police state to suppress individual rights. Constitutional shortcuts should not be allowed in a
free regime where the highest function of authority is precisely to exalt liberty.
The ponencia says that the Constitution is not violated because "the inspection of the vehicle is limited to a visual search." Assuming that this is all the search entails, it
suffers from the additional defect of inefficaciousness, making it virtually useless. It did not prevent the staging of the December 1 coup, where the rebels used all kinds of high-
powered weapons that were not detected by "a visual search."
Under Article III, Section 2 of the Constitution, probable cause is determined "personally by the judge," not by a soldier or a policeman. It is not for the peace officer to
decide when a warrantless search and seizure may be made save in the exceptional instances allowed, as where a crime is being committed or before or after its commission. I can
hardly believe that the majority is seriously offering this exception as a continuing situation to justify the regular warrantless searches at the checkpoints. LibLex
It is easy to say that "where abuse marks the operation of a checkpoint, the citizen is not helpless." Let us at least be realistic. This Court would be the first to dismiss the
complaint if not supported by hard evidence, which we know is not easily come by. The remedy, in my view, is to remove the source of the evil instead of leaving it unchecked and
then simply suggesting a cure, which is not even effective. It is like inoculating a patient after exposing him to contagion.

SARMIENTO, J., dissenting:


The majority states that checkpoints are justified by "grave peril." The question, however, is whether or not the existence of such grave perils has the effect of
suspending the Bill of Rights, specifically, the right against unreasonable searches and seizures.
Under the Constitution, "[a] state of martial law does not suspend the operation of the Constitution." (CONST.,art. VII, sec. 18). If not even martial law can suspend the
fundamental law, I do not see how a mere executive act can.
That the State has the light to defend itself is a proposition difficult to argue against. The query, again, is whether or not it may defend itself against its enemies at the
expense of liberty. After fourteen years of authoritarian rule, I think by now we should have learned our lesson, and known better.
Although "routine inspections" are another matter, I can not think that the checkpoints in question have been meant to undertake routine inspections alone. As it is, no
ground rules have been given our law enforcers, which is to say that they have the carte blanche to search vehicles and even persons without the benefit of a valid judicial warrant. I
do not believe that this can be done in a constitutional regime.
I find references to the case of People v. Kagui Malasugui [63 Phil. 221 (1936)] to be inapt. In that case, there was a waiver of the right against unreasonable search and
secondly, there existed a clear probable cause for search and arrest. Certainly, there was reason for excepting the case from the rule. Malasugui, however, is an exception. And
obviously, the majority would make a general rule out of it. prcd
Certainly, it is different where the authority has probable cause to believe that a crime has been committed by a suspect, in which case, it may place him under arrest or
search his person (Malasugui, supra). But I do not think that it may claim the existence of probable cause for every vehicle or person stopped and searched at a checkpoint. And
precisely, checkpoints are intended to allow the authorities to fish for probable cause even if in the beginning there was none. This makes, to my mind, the setting up of checkpoints
unconstitutional.
Footnotes
1.U.S. v. Martinez-Fuerte, 428 U.S. 543, 49 L Ed. 2d 1116 (1976).

2.Ibid.

3.Section 2, Article III, 1987 Constitution.

4.Dyke v. Taylor, 391 US 216, 20 L Ed 538, 88 S Ct 1472.

5.63 Phil. 221.

6.Section 3, Article II of the 1987 Constitution provides:

SEC. 3. Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the
sovereignty of the State and the integrity of the national territory.

7.Aberca v. Ver, G.R. No. 69866, 15 April 1988, 160 SCRA 590.

||| (Valmonte v. De Villa, G.R. No. 83988, [May 24, 1990], 264 PHIL 265-276)

EN BANC

[G.R. No. 80508. January 30, 1990.]

EDDIE GUAZON, JOSEFINA CABRERA, YOLANDA DACUNES, VIOLETA SEVILLA, QUERUBIN BILLONES, ESTELITA BILLONES, GORGONIA MACARAEG,
LAUREANA JOAQUIN, CRESTITA LICUP, SOLIDAD ABURDO, ROSALINA VILLARDA, CONRADA HOBALANE, ERLINDA RESTORAN, VERIDIAN FLORA,
ROSELA CONDE, SOSIMA COSTO, JOSEFINA ALDIANO, ROSALINA DOMINGO, ARESTIO YANGA, MILAGROS GONZALES, ESTRELITA ESTARES, BONIFACIA
ANTIVO, PATRIA VALLES, ERLINDA LEE, MELANIO GAROFIL, ERIBERTO MATEO, FRANCISCO HORTILLANO, ANATALIA PESIMO, LOSENDO GARBO,
VIRGINIA LORESTO, LYDIA ELA, RAFAEL VILLABRILLE, MA. RECHILDA SABALZA, EDITHA MAAMO, ELENIETA BANOSA, ALEXANDER LABADO, ANDREW
GO, WYNEFREDO REYES, ROSARIO SESPENE, ROSA MARTIN and JAIME BONGAT, petitioners, vs. MAJ. GEN. RENATO DE VILLA, BRIG. GEN ALEXANDER
AGUIRRE, BRIG. GEN. RAMON MONTANO, BRIG. GEN. ALFREDO LIM, and COL. JESUS GARCIA, respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; SATURATION DRIVE; CONSIDERED UNLAWFUL IN CASE AT BAR. — The facts that on twelve occasions between March and November, 1987 the military
conducted the saturation drives in question is a fact open to no question. The Solicitor General admits that they, the saturation drives, had been done, except that they had been done "with
due regard to human rights." "Not only that," so he states: ...they were intelligently and carefully planned months ahead of the actual operation. They were executed in coordination with
barangay officials who pleaded with their constituents to submit themselves voluntarily for character and personal verification. Local and foreign correspondents, who had joined these
operations, witnessed, and reported the events that transpired relative thereto. (After Operation Reports: November 5, 1987, Annex 12; November 20, 1987, Annex 13; November 24, 1987,
Annex 14).That is why in all the drives so far conducted, the alleged victims who numbered thousands had not themselves complained. The question, then, is purely one of law: Are the
saturation drives in question lawful and legitimate? It is also a question that is nothing novel: No, because the arrests were not accompanied by a judicial warrant. Therefore, the fact that
they had been carefully planned, executed in coordination with Tondo's barangay officials, and undertaken with due courtesy and politeness (which I doubt),will not validate them. The lack
of a warrant makes them, per se, illegal. I find allusions to the last aborted coup d'etat inapt. In that case, our men in uniform had all the right to act amidst crimes being committed in
flagrante.The instant case is quite different. There are no offenses being committed, but rather, police officers fishing for evidence of offenses thatmay have been committed. As I said, in that
event, a court warrant is indispensable.

2. ID.;ID.;"SHOW OF FORCE" IN THE ABSENCE OF JUDICIAL WARRANT; CONSIDERED A VIOLATION OF HUMAN RIGHT. — According to the majority, "the remedy is not to stop all police
actions, including the essential and legitimate ones ...[w]e see nothing wrong in police making their presence visibly felt in troubled areas ..." But the petitioners have not come to court to
"stop all police actions" but rather, the saturation drives, which are, undoubtedly, beyond police power. That "[a] show of force is sometimes necessary as long as the rights of people are
protected and not violated" is a contradiction in terms. A "show of force" (by way of saturation drives) is a violation of human rights because it is not covered by a judicial warrant. In all candor,
I can not swallow what I find is a complete exaggeration of the issues: ...A show of force is sometimes necessary as long as the rights of people are protected and not violated. A blanket
prohibition such as that sought by the petitioners would limit all police actions to one on one confrontations where search warrants and warrants of arrests against specific individuals are
easily procured. Anarchy may reign if the military and the police decide to sit down in their offices because all concerted drives where a show of force is present are totally prohibited. As a
general rule, a peace officer can not act unless he is possessed of the proper arrest or search warrant. The exception is when a criminal offense is unfolding before him, in which case, action
is justified and necessary. The majority would have the exception to be simply, the general rule.

3. ID.;ID.;ID.;FALLS WITHIN THE JURISDICTION OF SUPREME COURT. — That "the problem is not initially for the Supreme Court" is to me, an abdication of judicial duty. As I indicated, the
controversy is purely one of law — the facts being undisputed. Law, needless to say, is the problem of the Supreme Court, not the Executive. Worse, it is passing the buck. The petitioners,
precisely, have a grievance to raise, arising from abuses they pinpoint to the lower offices of the Executive (which presumably has its imprimatur).To make it an executive problem, so I hold,
is to make the Executive judge and jury of its own acts, and hardly, a neutral arbiter. I am also taken aback by references to "[w]ell meaning citizens with only second hand knowledge of the
events ...keep[ing] on indiscriminately tossing problems of the Executive, the military, and the police to the Supreme Court as if we are the repository of all remedies for all evils." First, the
facts are not "second-hand",they are undisputed: There had been saturation drives.Second, the petitioners have trooped to the highest court with a legitimate grievance against the Executive
(and military).

DECISION

GUTIERREZ, JR.,J p:

This is a petition for prohibition with preliminary injunction to prohibit the military and police officers
represented by public respondents from conducting "Areal Target Zonings" or "Saturation Drives" in Metro
Manila.
The forty one (41) petitioners state that they are all of legal age, bonafide residents of Metro Manila and
taxpayers and leaders in their respective communities. They maintain that they have a common or general
interest in the preservation of the rule of law, protection of their human rights and the reign of peace and order
in their communities. They claim to represent "the citizens of Metro Manila who have similar interests and are
so numerous that it is impracticable to bring them all before this Court."
The public respondents, represented by the Solicitor General, oppose the petition contending inter alia that
petitioners lack standing to file the instant petition for they are not the proper parties to institute the
action. prcd
According to the petitioners, the following "saturation drives" were conducted in Metro Manila:
1. March 5, 1987 at about 9:30 PM in Tindalo, Kagitingan, and Magdalena Streets, Tondo,
Manila.
2. June 19, 1987 at about 10:00 PM in Mata Street, Panday Pira Extension and San Sebastian
Street, Tondo, Manila.
3. July 20, 1987 at about 8:00 AM in Bangkusay Street, Tondo, Manila.
4. August 11 to 13, 1987 between 11:00 PM and 2:00 AM in six blocks along Aroma Beach up to
Happy Land, Magsaysay Village, Tondo, Manila.
5. August 19, 1987 at 9:00 PM in Herbosa Extension, Quirino Street, and Pacheco Street,
Tondo, Manila.
6. August 28, 1987 at 10:30 PM, in Block 34, Dagat-dagatan, Navotas, Metro Manila.
7. August 30, 1987 at 9:30 PM at Paraiso Extension, Magsaysay Village, Tondo, Manila.
8. October 12, 1987 at 12:00 midnight in Apelo Cruz Compound, Quezon City.
9. October 17, 1987 at 11:00 PM in Quirino Street, Tondo, Manila.
10. October 23, 1987 at 2:30 A.M. in Sun Valley Drive, Manila International Airport, Pasay City.
11. November 1, 1987 at 4:00 A.M. in Cordillera Street, Sta. Mesa, Manila.
12. November 3, 1987 at 5:00 A.M. in Lower Maricaban, Pasay City, Metro Manila.
According to the petitioners, the "areal target zonings" or "saturation drives" are in critical areas pinpointed by
the military and police as places where the subversives are hiding. The arrests range from seven (7) persons
during the July 20 saturation drive in Bangkusay, Tondo to one thousand five hundred (1,500) allegedly
apprehended on November 3 during the drive at Lower Maricaban, Pasay City. The petitioners claim that the
saturation drives follow a common pattern of human rights abuses. In all these drives, it is alleged that the
following were committed:
"1. Having no specific target house in mind, in the dead of the night or early morning hours,
police and military units without any search warrant or warrant of arrest cordon an area of
more than one residence and sometimes whole barangay or areas of barangay in Metro
Manila. Most of them are in civilian clothes and without nameplates or identification cards.
"2. These raiders rudely rouse residents form their sleep by banging on the walls and windows
of their homes, shouting, kicking their doors open (destroying some in the process),and then
ordering the residents within to come out of their respective residences.
"3. The residents at the point of high-powered guns are herded like cows, the men are ordered
to strip down to their briefs and examined for tattoo marks and other imagined marks.
"4. While the examination of the bodies of the men are being conducted by the raiders, some
of the members of the raiding team force their way into each and every house within the
cordoned off area and then proceed to conduct search of the said houses without civilian
witnesses from the neighborhood.
"5. In many instances, many residents have complained that the raiders ransack their homes,
tossing about the residents' belongings without total regard for their value. In several
instances, walls are destroyed, ceilings are damaged in the raiders' illegal effort to 'fish' for
incriminating evidence.
"6. Some victims of these illegal operations have complained with increasing frequency that
their money and valuables have disappeared after the said operations.
"7. All men and some women who respond to these illegal and unwelcome intrusions are
arrested on the spot and hauled off to waiting vehicles that take them to detention centers
where they are any warrants of arrest duly issued by a judge, nor under the conditions that will
authorize warrantless arrest. Some hooded men are used to fingerpoint suspected
subversives.

"8. In some instances, arrested persons are released after the expiration of the period wherein
they can be legally detained without any charge at all. In other instances, some arrested
persons are released without charge after a few days of arbitrary detention.
"9. The raiders almost always brandish their weapons and point them at the residents during
these illegal operations.
"10. Many have also reported incidents of 'on-the-spot beatings',maulings and maltreatment.
"11. Those who are detained for further 'verification' by the raiders are subjected to mental and
physical torture to extract confessions and tactical information." (Rollo, pp. 2-4)
The public respondents stress two points in their Comment which was also adopted as their Memorandum after
the petition was given due course.
First, the respondents have legal authority to conduct saturation drives. And second, they allege that the
accusations of the petitioners about a deliberate disregard for human rights are total lies.
Insofar as the legal basis for saturation drives is concerned, the respondents cite Article VII, Section 17 of
the Constitution which provides:
"The President shall have control of all the executive departments, bureaus and offices. He
shall ensure that the laws be faithfully executed.(Emphasis supplied by the respondents.)
They also cite Section 18 of the same Article which provides:
"The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. ...."
There can be no question that under ordinary circumstances, the police action of the nature described by the
petitioners would be illegal and blantantly violative of the express guarantees of the Bill of Rights. If the military
and the police must conduct concerted campaigns to flush out and catch criminal elements, such drives must
be consistent with the constitutional and statutory rights of all the people affected by such actions. llcd
There is, of course, nothing in the Constitution which denies the authority of the Chief Executive, invoked by
the Solicitor General, to order police actions to stop unabated criminality, rising lawlessness, and alarming
communist activities. The Constitutiongrants to Government the power to seek and cripple subversive
movements which would bring down constituted authority and substitute a regime where individual liberties
are suppressed as a matter of policy in the name of security of the State. However, all police actions are
governed by the limitations of the Bill of Rights. The Government cannot adopt the same reprehensible
methods of authoritarian systems both of the right and of the left, the enlargement of whose spheres of
influence it is trying hard to suppress. Our democratic institutions may still be fragile but they are not in the
least bit strengthened through violations of the constitutional protections which are their distinguishing
features.
In Roan v. Gonzales (145 SCRA 687; 690-691 [1986],the Court stated:
"One of the most precious rights of the citizen in a free society is the right to be left alone in
the privacy of his own house. That right has ancient roots, dating back through the mists of
history to the mighty English kings in their fortresses of power. Even then, the lowly subject
had his own castle where he was monarch of all he surveyed. This was his humble cottage from
which he could bar his sovereign lord and all the forces of the Crown.
"That right has endured through the ages albeit only in a few libertarian regimes. Their
number, regrettably, continues to dwindle against the onslaughts of authoritarianism. We are
among the fortunate few, able again to enjoy this right after the ordeal of the past despotism.
We must cherish and protect it all the more now because it is like a prodigal son returning.
"That right is guaranteed in the following provisions of article IV of the 1973 Constitution:
"SEC. 3. The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures of whatever nature and for any
purpose shall not be violated, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined by the judge, or such other responsible
officer as may be authorized by law, after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place
to be searched, and the persons or things to be seized."
xxx xxx xxx
Only last year, the Court again issued this reminder in 20th Century Fox Film Corporation v. Court of Appeals (164
SCR 650, 660-661 [1988]):
"This constitutional right protects a citizen against wanton and unreasonable invasion of his
privacy and liberty as to his person, papers and effects. We have explained in the case of People
vs. Burgos (144 SCRA 1) citing Villanueva v. Querubin (48 SCRA 345) why the right is so
important:
"'It is deference to one's personality that lies at the core of this right, but it could be also looked
upon as a recognition of a constitutionally protected area, primarily one's home, but not
necessarily thereto confined. (Cf. Hoffa v. United States, 385 US 293 [1966]) What is sought to
be guarded is a man's prerogative to choose who is allowed entry to his residence. In that
haven of refuge, his individuality can assert itself not only in the choice of who shall be
welcome but likewise in the kind of objects he wants around him. There the state, however
powerful, does not as such have access except under the circumstances above noted, for in the
traditional formulation, his house, however humble, is his castle. Thus is outlawed any
unwarranted intrusion by government, which is called upon to refrain from any invasion of his
dwelling and to respect the privacies of his life. (Cf. Schmerber v. California, 384 US 757
[1966],Brennan, J. and Boyd v. United States, 116 630 [1886]).In the same vein, Landynski in
his authoritative work (Search and Seizure and the Supreme Court [1966]),could fitly
characterize constitutional right as the embodiment of a 'spiritual concept: the belief that to
value the privacy of home and person and to afford its constitutional protection against the
long reach of government is no less than to value human dignity, and that his privacy must not
be disturbed except in case of overriding social need, and then only under stringent procedural
safeguards.' (ibid, p. 74.)"
The decision of the United States Supreme Court in Rochin v. California, (342 US 165; 96 L. Ed. 183 [1952])
emphasizes clearly that police actions should not be characterized by methods that offend a sense of justice.
The court ruled:
"Applying these general considerations to the circumstances of the present case, we are
compelled to conclude that the proceedings by which this conviction was obtained do more
than offend some fastidious squeamishness or private sentimentalism about combatting
crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the
privacy of the petitioner, the struggle to open his mouth and remove what was there, the
forcible extraction of his stomach's contents — this course of proceeding by agents of
government to obtain evidence is bound to offend even hardened sensibilities. They are
methods too close to the rack and the screw to permit of constitutional differentiation."
It is significant that it is not the police action per se which is impermissible and which should be prohibited.
Rather, it is the procedure used or in the words of the court, methods which "offend even hardened
sensibilities." In Breithaupt v. Abram (352 US 432, 1 L. Ed. 2nd 448 [1957]),the same court validated the use of
evidence, in this case blood samples involuntarily taken from the petitioner, where there was nothing brutal or
offensive in the taking. The Court stated:
"Basically the distinction rests on the fact that there is nothing 'brutal' or 'offensive' in the
taking of a sample of blood when done, as in this case, under the protective eye of a physician.
To be sure, the driver here was unconscious when the blood was taken, but the absence of
conscious consent, without more, does not necessarily render the taking a violation of a
constitutional right; and certainly the rest was administered here would not be considered
offensive by even the most delicate. Furthermore, due process is not measured by the
yardstick of personal reaction or the sphygmogram of the most sensitive person, but by that
whole community sense of 'decency and fairness' that has been woven by common experience
into the fabric of acceptable conduct. ...."
The individual's right to immunity from such invasion of his body was considered as "far outweighed by the
value of its deterrent effect" on the evil sought to be avoided by the police action. LexLib
It is clear, therefore, that the nature of the affirmative relief hinges closely on the determination of the exact
facts surrounding a particular case.
The violations of human rights alleged by the petitioners are serious. If an orderly procedure ascertains their
truth, not only a writ of prohibition but criminal prosecutions would immediately issue as a matter of course. A
persistent pattern of wholesale and gross abuse of civil liberties, as alleged in the petition, has no place in
civilized society.
On the other hand, according to the respondents, the statements made by the petitioners are a complete lie.
The Solicitor General argues:
"This is a complete lie.
Just the contrary, they had been conducted with due regard to human rights. Not only that,
they were intelligently and carefully planned months ahead of the actual operation. They were
executed in coordination with barangay officials who pleaded with their constituents to submit
themselves voluntarily for character and personal verification. Local and foreign
correspondents, who had joined these operations, witnessed and recorded the events that
transpired relative thereto. (After Operation Reports: November 5, 1987, Annex 12; November
20, 1987, Annex 13; November 24, 1987, Annex 14).That is why in all the drives so far
conducted, the alleged victims who numbered thousands had not themselves complained.

"In her speech during turn-over rites on January 26, 1987 at Camp Aguinaldo, President Aquino
branded all accusations of deliberate disregard for human rights as 'total lies.' Here are
excerpts from her strongest speech yet in support of the military:
"'All accusations of a deliberate disregard for human rights have been shown up
to be total lies.
"' ...To our soldiers, let me say go out and fight, fight with every assurance that
I will stand by you through thick and thin to share the blame, defend your actions,
mourn the losses and enjoy with you the final victory that I am certain will be ours.
"'You and I will see this through together.
"'I've sworn to defend and uphold the Constitution.
"'We have wasted enough time answering their barkings for it is still a long way
to lasting peace. ....The dangers and hardships to our men in the field are great enough
as it is without having them distracted by this worthless carping at their backs.
"'Our counter-insurgency policy remains the same: economic development to
pull out the roots — and military operations to slash the growth — of the insurgency.
"'The answer to terror is force — now.
"'Only feats of arms can buy us the time needed to make our economic and
social initiatives bear fruit. ....Now that the extreme Right has been defeated, I expect
greater vigor in the prosecution of the war against the communist insurgency, even as we
continue to watch our backs against attacks from the Right. (Philippine Star, January
27, 1988, p. 1, Annex 15; emphasis ours.)'
"Viewed in the light of President Aquino's observation on the matter, it can be said that
petitioners misrepresent as human nights violations the military and police zealous vigilance
over the people's right to live in peace and safety." (Rollo, pp. 36-38)
Herein lies the problem of the Court. We can only guess the truth. Everything before us consists of allegations.
According to the petitioners, more than 3,407 persons were arrested in the saturation drives covered by the
petition. No estimates are given for the drives in Block 34, Dagat-dagatan, Navotas; Apelo Cruz Compound,
Pasig; and Sun Valley Drive near the Manila International Airport area. Not one of the several thousand persons
treated in the illegal and inhuman manner described by the petitioners appears as a petitioner or has come
before a trial court to present the kind of evidence admissible in courts of justice. Moreover, there must have
been tens of thousands of nearby residents who were inconvenienced in addition to the several thousand
allegedly arrested. None of those arrested has apparently been charged and none of those affected has
apparently complained.
A particularly intriguing aspect of the Solicitor General's comments is the statement that local and foreign
correspondents actually joined the saturation drives and witnessed and recorded the events. In other words,
the activities sought to be completely proscribed were in full view of media. The sight of hooded men allegedly
being used to fingerpoint suspected subversives would have been good television copy. If true, this was
probably effected away from the ubiquitous eye of the TV cameras or, as the Solicitor General contends, the
allegation is a "complete lie." LLjur
The latest attempt to stage a coup d'etat where several thousand members of the Armed Forces of the
Philippines sought to overthrow the present Government introduces another aspect of the problem and
illustrates quite clearly why those directly affected by human rights violations should be the ones to institute
court actions and why evidence of what actually transpired should first be developed before petitions are filed
with this Court.
Where there is large scale mutiny or actual rebellion, the police or military may go in force to the combat areas,
enter affected residences or buildings, round up suspected rebels and otherwise quell the mutiny or rebellion
without having to secure search warrants and without violating the Bill of Rights. This is exactly what happened
in the White Plains Subdivision and the commercial center of Makati during the first week of December, 1989.
The aerial target zonings in this petition were intended to flush out subversives and criminal elements
particularly because of the blatant assassinations of public officers and police officials by elements supposedly
coddled by the communities where the "drives" were conducted.
It is clear from the pleadings of both petitioners and respondents, however, that there was no rebellion or
criminal activity similar to that of the attempted coup d' etats. There appears to have been no impediment to
securing search warrants or warrants of arrest before any houses were searched or individuals roused from
sleep were arrested. There is no strong showing that the objectives sought to be attained by the "areal zoning'
could not be achieved even as the rights of squatter and low income families are fully protected.
Where a violation of human rights specifically guaranteed by the Constitution is involved, it is the duty of the
court to stop the transgression and state where even the awesome power of the state may not encroach upon
the rights of the individual.
It is the duty of the court to take remedial action even in cases such as the present petition where the petitioners
do not complain that they were victims of the police actions, where no names of any of the thousands of alleged
victims are given, and where the prayer is a general one to stop all police "saturation drives," as long as the
Court is convinced that the event actually happened.
The Court believes it highly probable that some violations were actually committed. This is so inspite of the
alleged pleas of barangay officials for the thousands of residents "to submit themselves voluntarily for
character and personal verification." We cannot imagine police actions of the magnitude described in the
petitions and admitted by the respondents, being undertaken without some undisciplined soldiers and
policemen committing certain abuses. However, the remedy is not to stop all police actions,including the
essential and legitimate ones.We see nothing wrong in police making their presence visibly felt in troubled
areas. Police cannot respond to riots or violent demonstrations if they do not move in sufficient numbers. A
show of force is sometimes necessary as long as the rights of people are protected and not violated.A blanket
prohibition such as that sought by the petitioners would limit all police actions to one on one confrontations
where search warrants and warrants of arrests against specific individuals are easily procured. Anarchy may
reign if the military and the police decide to sit down in their offices because all concerted drives where a show
of force is present are totally prohibited. LibLex
The remedy is not an original action for prohibition brought through a taxpayers' suit. Where not one victim
complains and not one violator is properly charged, the problem is not initially for the Supreme Court.It is
basically one for the executive departments and for trial courts.Well meaning citizens with only second hand
knowledge of the events cannot keep on indiscriminately tossing problems of the executive, the military, and
the police to the Supreme Court as if we are the repository of all remedies for all evils. The rules of constitutional
litigation have been evolved for an orderly procedure in the vindication of rights. They should be followed. If
our policy makers sustain the contention of the military and the police that occasional saturation drives are
essential to maintain the stability of government and to insure peace and order, clear policy guidelines on the
behavior of soldiers and policemen must not only be evolved, they should also be enforced. A method of
pinpointing human rights abuses and identifying violators is necessary.
The problem is appropriate for the Commission on Human Rights. A high level conference should bring
together the heads of the Department of Justice, Department of National Defense and the operating heads of
affected agencies and institutions to devise procedures for the prevention of abuses.
Under the circumstances of this taxpayers' suit, there is no erring soldier or policeman whom we can order
prosecuted. In the absence of clear facts ascertained through an orderly procedure, no permanent relief can be
given at this time. Further investigation of the petitioners' charges and a hard look by administration officials
at the policy implications of the prayed for blanket prohibition are also warranted:
In the meantime and in the face of a prima facie showing that some abuses were probably committed and could
be committed during future police actions, we have to temporarily restrain the alleged banging on walls, the
kicking in of doors, the herding of half-naked men to assembly areas for examination of tattoo marks, the
violation of residences even if these are humble shanties of squatters, and the other alleged acts which are
shocking to the conscience.
WHEREFORE, the petition is hereby REMANDED to the Regional Trial Courts of Manila, Malabon, and Pasay
City where the petitioners may present evidence supporting their allegations and where specific erring parties
may be pinpointed and prosecuted.
Copies of this decision are likewise forwarded to the Commission on Human Rights, the Secretary of Justice,
the Secretary of National Defense, and the Commanding General PC-INP for the drawing up and enforcement
of clear guidelines to govern police actions intended to abate riots and civil disturbances, flush out criminal
elements, and subdue terrorist activities.
In the meantime, the acts violative of human rights alleged by the petitioners as committed during the police
actions are ENJOINED until such time as permanent rules to govern such actions are promulgated.
SO ORDERED.
Fernan, C.J.,Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Bidin, Cortes, Medialdea and Regalado,
JJ., concur.

THIRD DIVISION

[G.R. No. 81561. January 18, 1991.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANDRE MARTI,accused-appellant.

The Solicitor General for plaintiff-appellee.

Reynaldo B . Tatoy and Abelardo E . Rogacion for accused-appellant.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; GUARANTEE AGAINST UNREASONABLE SEARCHES AND SEIZURES; PRONOUNCEMENT OF UNITED STATES FEDERAL SUPREME COURT
AND STATE APPELLATE COURTS, DOCTRINAL IN THIS JURISDICTION. — Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in
the 1935 Charter which was in turn derived almost verbatim from the Fourth Amendment to the United States Constitution. As such, the Court may turn to the pronouncements of the United
States Federal Supreme Court and State Appellate Courts which are considered doctrinal in this jurisdiction.

2. REMEDIAL LAW; EVIDENCE; ADMISSIBILITY; EXCLUSIONARY RULE ON EVIDENCE OBTAINED IN VIOLATION OF THE GUARANTEE AGAINST UNREASONABLE SEARCHES AND
SEIZURES. — In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the admissibility of evidence obtained in violation of the constitutional safeguard
against unreasonable searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299 [1975]; Peoplev. Burgos, 144 SCRA 1 [1986]; Roan v.
Gonzales, 145 SCRA 687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990).

3. CONSTITUTIONAL LAW; BILL OF RIGHTS; LIBERTIES MAY BE INVOKED ONLY AGAINST THE STATE, NOT UPON PRIVATE INDIVIDUALS. — In the absence of governmental
interference, the liberties guaranteed by the Constitution cannot be invoked against the State. As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]: 1. This constitutional
right (against unreasonable search and seizure) refers to the immunity of one's person, whether citizen or alien, from interference by government, included in which is his residence, his papers,
and other possessions . . . That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private individuals finds support in the deliberations of the
Constitutional Commission. The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only against the government and its agencies
tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed.

4. ID.; ID.; ID.; GUARANTEE AGAINST UNREASONABLE SEARCH AND SEIZURE; CASE AT BAR. — The contraband in the case at bar having come into possession of the Government without
the latter transgressing appellant's rights against unreasonable search and seizure, the Court sees no cogent reason why the same should not be admitted against him in the prosecution of
the offense charged. If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to pass the test of constitutionality. However, if the search is
made at the behest or initiative of the proprietor of a private establishment for its own and private purposes, as in the case at bar, and without the intervention of police authorities, the right
against unreasonable search and seizure cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the protection against unreasonable searches and
seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government.

5. ID.; ID.; ID.; ID.; MERE PRESENCE OF NBI AGENTS TO OBSERVE AND LOOK AT WHICH IS IN PLAIN SIGHT IS NOT A SEARCH. — The mere presence of the NBI agents did not convert
the reasonable search effected by Reyes into a warrantless search and seizure proscribed by the Constitution. Merely to observe and look at that which is in plain sight is not a search. Having
observed that which is open, where no trespass has been committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135). Where the contraband articles are identified without a
trespass on the part of the arresting officer, there is not the search that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202 [1927]; Ker v. State of California 374 US 23, 10 L.
Ed. 2d. 726 [1963]; Moore v. State, 429 SW2d 122 [1968]).

6. ID.; CONSTITUTION; DOES NOT GOVERN RELATIONSHIP BETWEEN INDIVIDUALS. —The constitution, in laying down the principles of the government and fundamental liberties of the
people, does not govern relationships between individuals.

7. REMEDIAL LAW; EVIDENCE; ADMISSIBILITY; EVIDENCE PROCURED BY INDIVIDUALS EFFECTED THROUGH PRIVATE SEIZURE, ADMISSIBLE. — Similarly, the admissibility of the
evidence procured by an individual effected through private seizure equally applies, inpari passu, to the alleged violation, non-governmental as it is, of appellant's constitutional rights to
privacy and communication.

8. ID.; ID.; CREDIBILITY; SELF-SERVING DENIALS, DESERVE NO WEIGHT IN LAW. — Denials, if unsubstantiated by clear and convincing evidence, are negative self-serving evidence which
deserve no weight in law and cannot be given greater evidentiary weight than the testimony of credible witnesses who testify on affirmative matters (People v. Esquillo, 171 SCRA 571 [1989];
People vs. Sariol, 174 SCRA 237 [1989]).

9. ID.; ID.; ID.; REQUISITE FOR EVIDENCE TO BE BELIEVED. — Evidence, to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself such as
the common experience and observation of mankind can approve as probable under the circumstances.

10. ID.; ID.; BURDEN OF PROOF AND PRESUMPTIONS; THINGS WHICH A PERSON POSSESSES ARE PRESUMED OWNED BY HIM; CASE AT BAR. — As records further show, appellant did
not even bother to ask Michael's full name, his complete address or passport number. Furthermore, if indeed, the German national was the owner of the merchandise, appellant should have
so indicated in the contract of shipment. On the contrary, appellant signed the contract as the owner and shipper thereof giving more weight to the presumption that things which a person
possesses, or exercises acts of ownership over, are owned by him (Sec. 5 [j], Rule 131). At this point, appellant is therefore estopped to claim otherwise.

DECISION

BIDIN, J p:

This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional Trial Court,
Branch XLIX) convicting accused-appellant of violation of Section 21 (b), Article IV in relation to Section 4,
Article II and Section 2 (e)(i), Article I of Republic Act 6425, as amended, otherwise known as the Dangerous
Drugs Act.
The facts as summarized in the brief of the prosecution are as follows:
"On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law wife,
Shirley Reyes, went to the booth of the "Manila Packing and Export Forwarders" in the Pistang
Pilipino Complex, Ermita, Manila, carrying with them four (4) gift-wrapped packages. Anita
Reyes (the proprietress and no relation to Shirley Reyes) attended to them. The appellant
informed Anita Reyes that he was sending the packages to a friend in Zurich, Switzerland.
Appellant filled up the contract necessary for the transaction, writing therein his name,
passport number, the date of shipment and the name and address of the consignee, namely,
"WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)
"Anita Reyes then asked the appellant if she could examine and inspect the packages.
Appellant, however, refused, assuring her that the packages simply contained books, cigars,
and gloves and were gifts to his friend in Zurich. In view of appellant's representation, Anita
Reyes no longer insisted on inspecting the packages. The four (4) packages were then placed
inside a brown corrugated box one by two feet in size (1' x 2'). Styro-foam was placed at the
bottom and on top of the packages before the box was sealed with masking tape, thus making
the box ready for shipment (Decision, p. 8). LLpr
"Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts, Mr. Job
Reyes (proprietor) and husband of Anita (Reyes), following standard operating procedure, opened
the boxes for final inspection. When he opened appellant's box, a peculiar odor emitted therefrom.
His curiosity aroused, he squeezed one of the bundles allegedly containing gloves and felt dried
leaves inside. Opening one of the bundles, he pulled out a cellophane wrapper protruding from
the opening of one of the gloves. He made an opening on one of the cellophane wrappers and took
several grams of the contents thereof (tsn, pp. 29-30, October 6, 1987; Emphasis supplied).
"Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a
laboratory examination of the samples he extracted from the cellophane wrapper (tsn, pp. 5-
6, October 6, 1987).
"He brought the letter and a sample of appellant's shipment to the Narcotics Section of the
National Bureau of Investigation (NBI), at about 1:30 o'clock in the afternoon of that date, i.e.,
August 14, 1987. He was interviewed by the Chief of Narcotics Section. Job Reyes informed
the NBI that the rest of the shipment was still in his office. Therefore, Job Reyes and three (3)
NBI agents, and a photographer, went to the Reyes' office at Ermita, Manila (tsn, p. 30,
October 6, 1987).
"Job Reyes brought out the box in which appellant's packages were placed and, in the presence of
the NBI agents, opened the top flaps, removed the styro-foam and took out the cellophane
wrappers from inside the gloves. Dried marijuana leaves were found to have been contained
inside the cellophane wrappers (tsn, p. 38, October 6, 1987; Emphasis supplied).
"The package which allegedly contained books was likewise opened by Job Reyes. He
discovered that the package contained bricks or cake-like dried marijuana leaves. The package
which allegedly contained tabacalera cigars was also opened. It turned out that dried
marijuana leaves were neatly stocked underneath the cigars (tsn, p. 39, October 6, 1987).

"The NBI agents made an inventory and took charge of the box and of the contents thereof,
after signing a "Receipt" acknowledging custody of the said effects (tsn, pp. 2-3, October 7,
1987).
Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in his passport
being the Manila Central Post Office, the agents requested assistance from the latter's Chief Security. On
August 27, 1987, appellant, while claiming his mail at the Central Post Office, was invited by the NBI to shed
light on the attempted shipment of the seized dried leaves. On the same day the Narcotics Section of the NBI
submitted the dried leaves to the Forensic Chemistry Section for laboratory examination. It turned out that the
dried leaves were marijuana flowering tops as certified by the forensic chemist. (Appellee's Brief, pp. 9-11,
Rollo, pp. 132-134).
Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known as the
Dangerous Drugs Act.
After trial, the court a quo rendered the assailed decision.
In this appeal, accused/appellant assigns the following errors, to wit:
"THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY SEARCHED AND
SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS.
"THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE UNDISPUTED
FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE UNDER CUSTODIAL
PROCEEDINGS WERE NOT OBSERVED. cdphil
"THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION OF THE
APPELLANT ON HOW THE FOUR PARCELS CAME INTO HIS POSSESSION." (Appellant's
Brief, p. 1; Rollo, p. 55)
1. Appellant contends that the evidence subject of the imputed offense had been obtained in violation of his
constitutional rights against unreasonable search and seizure and privacy of communication (Secs. 2 and 3, Art.
III, Constitution) and therefore argues that the same should be held inadmissible in evidence (Sec. 3 (2), Art. III).
Sections 2 and 3, Article III of the Constitution provide:
"Section 2. The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
"Section 3. (1) The privacy of communication and correspondence shall be inviolable except
upon lawful order of the court, or when public safety or order requires otherwise as prescribed
by law.
"(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible
for any purpose in any proceeding."
Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin
in the 1935 Charter which, worded as follows:
"The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but
upon probable cause, to be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched, and the persons or things to be seized." (Sec. 1 [3], Article III).
was in turn derived almost verbatim from the Fourth Amendment ** to the United States Constitution. As
such, the Court may turn to the pronouncements of the United States Federal Supreme Court and State
Appellate Courts which are considered doctrinal in this jurisdiction.
Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme Court (367 US 643,
81 S.Ct. 1684, 6 L.Ed. 1081 2d [1961]), this Court, in Stonehill v. Diokno (20 SCRA 383 [1967]), declared as
inadmissible any evidence obtained by virtue of a defective search and seizure warrant, abandoning in the
process the ruling earlier adopted in Moncado v. People's Court (80 Phil. 1 [1948]) wherein the admissibility of
evidence was not affected by the illegality of its seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized
the Stonehill ruling and is carried over up to the present with the advent of the 1987 Constitution.
In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the admissibility
of evidence obtained in violation of the constitutional safeguard against unreasonable searches and seizures.
(Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People v.
Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA 687 [1987]; See also Salazar v. Hon. Achacoso, et al.,
GR No. 81510, March 14, 1990).
It must be noted, however, that in all those cases adverted to, the evidence so obtained were invariably
procured by the State acting through the medium of its law enforcers or other authorized government
agencies. LLpr
On the other hand, the case at bar assumes a peculiar character since the evidence sought to be excluded was
primarily discovered and obtained by a private person, acting in a private capacity and without the intervention
and participation of State authorities. Under the circumstances, can accused/appellant validly claim that his
constitutional right against unreasonable searches and seizure has been violated? Stated otherwise, may an
act of a private individual, allegedly in violation of appellant's constitutional rights, be invoked against the
State?
We hold in the negative. In the absence of governmental interference, the liberties guaranteed by the
Constitution cannot be invoked against the State.
As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:
"1. This constitutional right (against unreasonable search and seizure) refers to the immunity of
one's person, whether citizen or alien, from interference by government, included in which is his
residence, his papers, and other possessions . . .
". . . There the state, however powerful, does not as such have the access except under the
circumstances above noted, for in the traditional formulation, his house, however humble, is
his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to
refrain from any invasion of his dwelling and to respect the privacies of his life . . ." (Cf.
Schermerber v. California, 384 US 757 [1966] and Boyd v. United States, 116 US 616 [1886];
Emphasis supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in construing the right
against unreasonable searches and seizures declared that:
"(t)he Fourth Amendment gives protection against unlawful searches and seizures, and as
shown in previous cases, its protection applies to governmental action. Its origin and history
clearly show that it was intended as a restraint upon the activities of sovereign authority, and
was not intended to be a limitation upon other than governmental agencies; as against such
authority it was the purpose of the Fourth Amendment to secure the citizen in the right of
unmolested occupation of his dwelling and the possession of his property, subject to the right
of seizure by process duly served."
The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant who searched
the automobile to ascertain the owner thereof found marijuana instead, without the knowledge and
participation of police authorities, was declared admissible in prosecution for illegal possession of narcotics.
And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and seizure clauses
are restraints upon the government and its agents, not upon private individuals, (citing People v. Potter, 240
Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or., 317
P.2d 938 (1957).
Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:
"The search of which appellant complains, however, was made by a private citizen — the
owner of a motel in which appellant stayed overnight and in which he left behind a travel case
containing the evidence *** complained of. The search was made on the motel owner's own
initiative. Because of it, he became suspicious, called the local police, informed them of the
bag's contents, and made it available to the authorities.
"The fourth amendment and the case law applying it do not require exclusion of evidence
obtained through a search by a private citizen. Rather, the amendment only proscribes
governmental action."
The contraband in the case at bar having come into possession of the Government without the latter
transgressing appellant's rights against unreasonable search and seizure, the Court sees no cogent reason why
the same should not be admitted against him in the prosecution of the offense charged. LLphil
Appellant, however, would like this court to believe that NBI agents made an illegal search and seizure of the
evidence later on used in prosecuting the case which resulted in his conviction.
The postulate advanced by accused/appellant needs to be clarified in two days. In both instances, the argument
stands to fall on its own weight, or the lack of it.
First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents conducted
an illegal search and seizure of the prohibited merchandise. Records of the case clearly indicate that it was Mr.
Job Reyes, the proprietor of the forwarding agency, who made search/inspection of the packages. Said
inspection was reasonable and a standard operating procedure on the part of Mr. Reyes as a precautionary
measure before delivery of packages to the Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7,
1987, pp. 15-18; pp. 7-8; Original Records, pp. 119-122; 167-168).
It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of the same to
the NBI and later summoned the agents to his place of business. Thereafter, he opened the parcels containing
the rest of the shipment and entrusted the care and custody thereof to the NBI agents. Clearly, the NBI agents
made no search and seizure, much less an illegal one, contrary to the postulate of accused/appellant.

Second, the mere presence of the NBI agents did not convert the reasonable search effected by Reyes into a
warrantless search and seizure proscribed by the Constitution. Merely to observe and look at that which is in
plain sight is not a search. Having observed that which is open, where no trespass has been committed in aid
thereof, is not search (Chadwick v. State, 429 SW2d 135). Where the contraband articles are identified without
a trespass on the part of the arresting officer, there is not the search that is prohibited by the constitution (US
v. Lee 274 US 559, 71 L.Ed. 1202 [1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v.
State, 429 SW2d 122 [1968]).
In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was taken into
custody of the police at the specific request of the manager and where the search was initially made by the
owner there is no unreasonable search and seizure within the constitutional meaning of the term.
That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private
individuals finds support in the deliberations of the Constitutional Commission. True, the liberties guaranteed
by the fundamental law of the land must always be subject to protection. But protection against whom?
Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the query which he himself posed,
as follows:
"First, the general reflections. The protection of fundamental liberties in the essence of
constitutional democracy. Protection against whom? Protection against the state. The Bill of
Rights governs the relationship between the individual and the state. Its concern is not the
relation between individuals, between a private individual and other individuals. What the Bill of
Rights does is to declare some forbidden zones in the private sphere inaccessible to any power
holder." (Sponsorship Speech of Commissioner Bernas; Record of the Constitutional
Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied)
The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed
only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be
invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is
imposed. cdphil
If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to pass
the test of constitutionality. However, if the search is made at the behest or initiative of the proprietor of a
private establishment for its own and private purposes, as in the case at bar, and without the intervention of
police authorities, the right against unreasonable search and seizure cannot be invoked for only the act of
private individual, not the law enforcers, is involved. In sum, the protection against unreasonable searches and
seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of
alleged unlawful intrusion by the government.
Appellant argues, however, that since the provisions of the 1935 Constitution has been modified by the present
phraseology found in the 1987 Charter, expressly declaring as inadmissible any evidence obtained in violation
of the constitutional prohibition against illegal search and seizure, it matters not whether the evidence was
procured by police authorities or private individuals (Appellant's Brief, p. 8, Rollo, p. 62).
The argument is untenable. For one thing, the constitution, in laying down the principles of the government
and fundamental liberties of the people, does not govern relationships between individuals. Moreover, it must
be emphasized that the modifications introduced in the 1987 Constitution (re: Sec. 2, Art. III) relate to the
issuance of either a search warrant or warrant of arrest vis-a-vis the responsibility of the judge in the issuance
thereof (See Soliven v. Makasiar, 167 SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12
[June 30, 1987]. The modifications introduced deviate in no manner as to whom the restriction or inhibition
against unreasonable search and seizure is directed against. The restraint stayed with the State and did not
shift to anyone else.
Corollarily, alleged violations against unreasonable search and seizure may only be invoked against the State
by an individual unjustly traduced by the exercise of sovereign authority. To agree with appellant that an act of
a private individual in violation of the Bill of Rights should also be construed as an act of the State would result
in serious legal complications and an absurd interpretation of the constitution.
Similarly, the admissibility of the evidence procured by an individual effected through private seizure equally
applies, in pari passu, to the alleged violation, non-governmental as it is, of appellant's constitutional rights to
privacy and communication.
2. In his second assignment of error, appellant contends that the lower court erred in convicting him despite
the undisputed fact that his rights under the constitution while under custodial investigation were not
observed.
Again, the contention is without merit, We have carefully examined the records of the case and found nothing
to indicate, as an "undisputed fact", that appellant was not informed of his constitutional rights or that he gave
statements without the assistance of counsel. The law enforcers testified that accused/appellant was informed
of his constitutional rights. It is presumed that they have regularly performed their duties (Sec. 5(m), Rule 131)
and their testimonies should be given full faith and credence, there being no evidence to the contrary. What is
clear from the records, on the other hand, is that appellant refused to give any written statement while under
investigation as testified by Atty. Lastimoso of the NBI, Thus:
"Fiscal Formoso:
"You said that you investigated Mr. and Mrs. Job Reyes. What about the accused
here, did you investigate the accused together with the girl?
"WITNESS:
"Yes, we have interviewed the accused together with the girl but the accused
availed of his constitutional right not to give any written statement, sir." (TSN,
October 8, 1987, p. 62; Original Records, p. 240)
The above testimony of the witness for the prosecution was not contradicted by the defense on cross-
examination. As borne out by the records, neither was there any proof by the defense that appellant gave
uncounselled confession while being investigated. What is more, we have examined the assailed judgment of
the trial court and nowhere is there any reference made to the testimony of appellant while under custodial
investigation which was utilized in the finding of conviction. Appellant's second assignment of error is therefore
misplaced. cdphil
3. Coming now to appellant's third assignment of error, appellant would like us to believe that he was not the
owner of the packages which contained prohibited drugs but rather a certain Michael, a German national,
whom appellant met in a pub along Ermita, Manila; that in the course of their 30-minute conversation, Michael
requested him to ship the packages and gave him P2,000.00 for the cost of the shipment since the German
national was about to leave the country the next day (October 15, 1987, TSN, pp. 2-10).
Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-serving and
contrary to human experience. It can easily be fabricated. An acquaintance with a complete stranger struck in
half an hour could not have pushed a man to entrust the shipment of four (4) parcels and shell out P2,000.00
for the purpose and for appellant to readily accede to comply with the undertaking without first ascertaining
its contents. As stated by the trial court, "(a) person would not simply entrust contraband and of considerable
value at that as the marijuana flowering tops, and the cash amount of P2,000.00 to a complete stranger like
the Accused. The Accused, on the other hand, would not simply accept such undertaking to take custody of
the packages and ship the same from a complete stranger on his mere say-so" (Decision, p. 19, Rollo, p. 91). As
to why he readily agreed to do the errand, appellant failed to explain. Denials, if unsubstantiated by clear and
convincing evidence, are negative self-serving evidence which deserve no weight in law and cannot be given
greater evidentiary weight than the testimony of credible witnesses who testify on affirmative matters (People
v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237 [1989]).
Appellant's bare denial is even made more suspect considering that, as per records of the Interpol, he was
previously convicted of possession of hashish by the Kleve Court in the Federal Republic of Germany on January
1, 1982 and that the consignee of the frustrated shipment, Walter Fierz, also a Swiss national, was likewise
convicted for drug abuse and is just about an hour's drive from appellant's residence in Zurich, Switzerland
(TSN, October 8, 1987, p. 66; Original Records, p. 244; Decision, p. 21; Rollo, p. 93).
Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be credible
in itself such as the common experience and observation of mankind can approve as probable under the
circumstances (People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van Dyke, 37 N.J. Eg. 130; see also People
v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123 SCRA 327 [1983]); Castañares v. CA, 92 SCRA 567 [1979]).
As records further show, appellant did not even bother to ask Michael's full name, his complete address or
passport number. Furthermore, if indeed, the German national was the owner of the merchandise, appellant
should have so indicated in the contract of shipment (Exh. "B", Original Records, p. 40). On the contrary,
appellant signed the contract as the owner and shipper thereof giving more weight to the presumption that
things which a person possesses, or exercises acts of ownership over, are owned by him (Sec. 5 [j], Rule 131). At
this point, appellant is therefore estopped to claim otherwise. LexLib

Premises considered, we see no error committed by the trial court in rendering the assailed judgment.
WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of the crime
charged is hereby AFFIRMED. No costs.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr . and Feliciano, JJ., concur.
EN BANC

[G.R. No. L-19550. June 19, 1967.]

HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL BECK, petitioners, vs. HON. JOSE W. DIOKNO, in his capacity as SECRETARY
OF JUSTICE, JOSE LUKBAN, in his capacity as Acting Director of the National Bureau of Investigation; SPECIAL PROSECUTORS PEDRO D. CENZON,
EFREN I. PLANA and MANUEL VILLAREAL, JR. and ASST. FISCAL MANASES G. REYES, JUDGE AMADO ROAN, Municipal Court of Manila, JUDGE
ROMAN CANSINO, Municipal Court of Manila, JUDGE HERMOGENES CALUAG, Court of First Instance of Rizal-Quezon City Branch, and JUDGE DAMIAN
JIMENEZ, Municipal Court of Quezon City,respondents.

Paredes, Poblador, Cruz & Nazareno and Meer, Meer & Meer and Juan T . Davidfor petitioners.

Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro, Assistant Solicitor General Frine C . Zaballero, Solicitor Camilo D. Quiason andSolicitor
C . Padua for respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; SEARCH AND SEIZURE; WHO MAY CONTEST LEGALITY THEREOF CASE AT BAR. — It is well settled that the legality of a seizure can be
contested only by the party whose rights have been impaired thereby (Lewis vs.U.S., 6 F. 2d. 22) and that the objection to an unlawful search and seizure is purely personal and cannot
be availed of by third parties (In. re Dooley, 48 F. 2d. 121: Roudavs. U.S., 10 F. 2d. 916; Lusco vs. U.S., 287 F. 69; Ganci vs. U.S., 287 F, 60; Moriz vs. U.S., 26 F. 2d. 444). Consequently,
petitioner in the case at bar may not validly object to the use in evidence against them of the document, papers, and things seized from the offices and premises of the corporation
adverted to, since the right to object to the admission of said papers in evidence belongs exclusively to the corporations, to whom the seized effects belong, and may not be invoked
by the corporate officers in proceedings against them in their individual capacity U.S., vs. Gaas, 17 F. 2d. 997; People vs. Rubio, 57 Phil., 384).

2. ID.; ID.; REQUISITES FOR ISSUANCE OF SEARCH WARRANT. — Two points must be stressed in connection with this constitutional mandate, namely: (1) that no warrant
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. None
of these requirements has been complied with in the contested warrants. Indeed, the same were issued upon applications stating that the natural and juridical persons therein named
had committed a "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code." In other words, no specific offense had been alleged in
said applications. The averments thereof with respect to the offense committed were abstract. As a consequence, it was impossible for the judges who issued the warrants to have
found the existence of probable cause, for the same presupposes the introduction of competent proof that the party against whom it is sought has performed particular acts, or
committed specific omissions, violating a given provision of our criminal laws. As a matter of fact, the applications involved in the case at bar do not allege any specific acts performed
by herein petitioners. It would be a legal heresy, of the highest order, to convict anybody of a "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and
Revised Penal Code", — as alleged in aforementioned applications — without reference to any determine provision of said laws or coders.

3. ID.; ID.; ID.; GENERAL WARRANTS ARE OUTLAWED BY THE CONSTITUTION. — To uphold the validity of the warrants in question, would be to wipe 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 victims, caprice or passion of peace officers. This is precisely the evil sought to be remedied by the constitutional provision Sec. 1, par. 3 Art. III, Const.) — to outlaw the so-called
general warrants. It is not difficult to imagine what would happen, in times of keen political strife, when the party in power feels that the minority is likely to wrest it, even though by
legal means. Such is the seriousness of the irregularities committed in connection with the disputed search warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the
former Rules of Court, by providing in its counterpart, under the Revised Rules of Court (Sec. 3, Rule 126) that "a search warrant shall not issue but upon probable cause in connection
with one specific offense." Not satisfied with this qualification, the Court added thereto paragraph, directing that "no search warrant shall issue for more than one specific offense."

4. ID.; ID.; ID.; ID.; CASE AT BAR. — The grave violation of the Constitution made in the application for the contested search warrants was compounded by the description
therein made of the effects to be searched for and seized, to wit: "Books of accounts, Financial records, vouchers, journals, correspondence, receipts, ledgers, portfolios, credit journals,
typewriters, and other documents and/or papers, showing all business transactions including disbursement receipts, balance sheets and related profit and loss statements." Thus, the
warrants authorized the search for and seizure of records pertaining to all business transactions petitioners herein, regardless of whether the transaction were legal or illegal. The
warrants sanctioned the seizure of all records of the petitioners and the aforementioned corporations, whatever their nature, thus openly contravening the explicit command of our
Bill of Rights — that the things to be seized be particularly described — as well as tending to defeat its major objective: the elimination of general warrants.

5. ID.; ID.; ID.; NON-EXCLUSIONARY RULE CONTRAVENES THE CONSTITUTIONAL PROHIBITIONS AGAINST UNREASONABLE SEARCH AND SEIZURES. — Indeed,
the non-exclusionary rule is contrary, not only to the letter, but also to the spirit of the constitutional injunction against unreasonable searches and seizures. To be sure, if the applicant
for a search warrant has competent evidence to establish probable cause of the commission of a given crime by the party against whom the warrant is intended, then there is no reason
why the applicant should not comply with the requirements of the fundamental law. Upon the other hand, if he has no such competent evidence, then it is not possible for the Judge
to find that there is probable cause and only possible for the Judge to find that there is probable cause and hence, no justification for the issuance of the warrant. The only possible
explanation (not justification) for its issuance is the necessity of fishing evidence of the commission of crime. But when this fishing expedition is indicative of the absence of evidence
to establish a probable cause.

6. ID.; ID.; ID.; ID.; PROSECUTION OF THOSE WHO SECURE ILLEGAL SEARCH WARRANT OR MAKE UNREASONABLE SEARCH OR SEIZURE IS NO EXCUSE. — The
theory that the criminal prosecution of those who secure an illegal search warrant and/or make unreasonable searches or seizures would suffice to protect the constitutional guarantee
under consideration, overlooks the fact that violations thereof are, in general, committed by agents of the party in power, for certainly, those belonging to the minority could not
possibly abuse a power they do not have. Regardless of the handicap under which the minority usually but understandably finds itself in prosecuting agents of the majority, one must
not lose sight of the fact that the psychological and moral effect of the possibility of securing their conviction, is watered down by the pardoning power of the party for whose benefit
the illegality had been committed.

7. ID.; ID.; ID.; MONCADO DOCTRINE ABANDONED. — The doctrine adopted in the Moncado case must be, as it is hereby, abandoned; the warrants for the search of 3
residences of petitioners, as specified in the Resolution of June 29, 1962, are null and void; the searches and seizures therein made are illegal.
DECISION

CONCEPCION, C .J p:

Upon application of the officers of the government named on the margin 1 — hereinafter referred to as
Respondent-Prosecutors — several judges 2 — hereinafter referred to as Respondent-Judges — issued, on different
dates, 3 a total of 42 search warrants against petitioners herein 4 and/or the corporations of which they were
officers, 5 directed to any peace officer, to search the persons above-named and/or the premises of their offices,
warehouses and/or residences, and to seize and take possession of the following personal property to wit:
"Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals,
portfolios, credit journals, typewriters, and other documents and/or papers showing all business
transactions including disbursements receipts, balance sheets and profit and loss statements and
Bobbins (cigarette wrappers)."
as "the subject of the offense; stolen or embezzled and proceeds or fruits of the offense," or "used or intended to be
used as the means of committing the offense," which is described in the applications adverted to above as
"violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and the Revised Penal Code."
Alleging that the aforementioned search warrants are null and void, as contravening the Constitution and
the Rules of Court — because, inter alia: (1) they do not describe with particularity the documents, books and things
to be seized; (2) cash money, not mentioned in the warrants, were actually seized; (3) the warrants were issued to
fish evidence against the aforementioned petitioners in deportation cases filed against them; (4) the searches and
seizures were made in an illegal manner; and (5) the documents, papers and cash money seized were not delivered
to the courts that issued the warrants, to be disposed of in accordance with law — on March 20, 1962, said petitioners
filed with the Supreme Court this original action for certiorari, prohibition, mandamus and injunction, and prayed
that, pending final disposition of the present case, a writ of preliminary injunction be issued restraining Respondent-
Prosecutors, their agents and or representatives from using the effects seized as aforementioned, or any copies
thereof, in the deportation cases already adverted to, and that, in due course, thereafter, decision be rendered
quashing the contested search warrants and declaring the same null and void, and commanding the respondents,
their agents or representatives to return to petitioners herein, in accordance with Section 3, Rule 67, of the Rules of
Court, the documents, papers, things and cash moneys seized or confiscated under the search warrants in question.
In their answer, respondents-prosecutors alleged 6 (1) that the contested search warrants are valid and have
been issued in accordance with law; (2) that the defects of said warrants, if any, were cured by petitioners' consent;
and (3) that, in any event, the effects seized are admissible in evidence against herein petitioners, regardless of the
alleged illegality of the aforementioned searches and seizures.
On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in the petition. However,
by resolution dated June 29, 1962, the writ was partially lifted or dissolved, insofar as the papers, documents and
things seized from the offices of the corporations above mentioned are concerned; but, the injunction was
maintained as regards the papers, documents and things found and seized in the residences of petitioners herein. 7
Thus, the documents, papers, and things seized under the alleged authority of the warrants in question may
be split into (2) major groups, namely: (a) those found and seized in the offices of the aforementioned corporations
and (b) those found seized in the residences of petitioners herein.
As regards the first group, we hold that petitioners herein have no cause of action to assail the legality of the
contested warrants and of the seizures made in pursuance thereof, for the simple reason that said corporations have
their respective personalities, separate and distinct from the personality of herein petitioners, regardless of the
amount of shares of stock or of the interest of each of them in said corporations, and whatever the offices they hold
therein may be. 8 Indeed, it is well settled that the legality of a seizure can be contested only by the party whose
rights have been impaired thereby, 9 and that the objection to an unlawful search and seizure is purely personal and
cannot be availed of by third parties. 10 Consequently, petitioners herein may not validly object to the use in evidence
against them of the documents, papers and things seized from the offices and premises of the corporations adverted
to above, since the right to object to the admission of said papers in evidence belongs exclusively to the corporations,
to whom the seized effects belong, and may not be invoked by the corporate officers in proceedings against them in
their individual capacity. 11 Indeed, it has been held:
". . . that the Government's action in gaining possession of papers belonging to
the corporation did not relate to nor did it affect the personal defendants. If these papers were
unlawfully seized and thereby the constitutional rights of or any one were invaded, they were the rights
of the corporation and notthe rights of the other defendants. Next, it is clear that a question of the
lawfulness of a seizure can be raised only by one whose rights have been invaded. Certainly, such a
seizure, if unlawful, could not affect the constitutional rights of defendants whose property had not
been seized or the privacy of whose homes had not been disturbed; nor could they claim for themselves
the benefits of the Fourth Amendment, when its violation, if any, was with reference to the rights of
another. Remus vs. United States (C.C.A.) 291 F. 501, 511. It follows, therefore, that the question of the
admissibility of the evidence based on an alleged unlawful search and seizure does not extend to the
personal defendants but embraces only the corporation whose property was taken . . ." (A.
Guckenheimer & Bros. Co. vs. United States, [1925] 3 F. 2d, 786, 789, Emphasis supplied.)
With respect to the documents, papers and things seized in the residences of petitioners herein, the
aforementioned resolution of June 29, 1962, denied the lifting of the writ of preliminary injunction previously issued
by this Court, 12 thereby, in effect, restraining herein Respondent-Prosecutors from using them in evidence against
petitioners herein.
In connection with said documents, papers and things, two (2) important questions need be settled, namely:
(1) whether the search warrants in question, and the searches and seizures made under the authority thereof, are
valid or not; and (2) if the answer to the preceding question is in the negative, whether said documents, papers and
things may be used in evidence against petitioners herein.
Petitioners maintain that the aforementioned search warrants are in the nature of general warrants and that,
accordingly, the seizures effected upon the authority thereof are null and void. In this connection, the
Constitution 13 provides:
"The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable
cause, to be determined 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."
Two points must be stressed in connection with this constitutional mandate, 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 shallparticularly describe the things to be seized.
None of these requirements has been complied with in the contested warrants. Indeed, the same were issued
upon applications stating that the natural and juridical persons therein named had committed a "violation of Central
Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code." In other words,
nospecific offense had been alleged in said applications. The averments thereof with respect to the offense
committed were abstract. As a consequence, it was impossiblefor the judges who issued the warrants to have found
the existence of probable cause, for the same presupposes the introduction of competent proof that the party against
whom it is sought has performed particular acts, or committed specificomissions, violating a given provision of our
criminal laws. As a matter of fact, the applications involved in this case do not allege any specific acts performed by
herein petitioners. It would be a legal heresy, of the highest order, to convict anybody of a "violation of Central Bank
Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code," — as alleged in the
aforementioned applications — without reference to any determinate provision of said laws or codes.
To uphold the validity of the warrants in question would be to wipe 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. This is precisely
the evil sought to be remedied by the constitutional provision above quoted — to outlaw the so-called general
warrants. It is not difficult to imagine what would happen, in times of keen political strife, when the party in power
feels that the minority is likely to wrest it, even though by legal means.
Such is the seriousness of the irregularities committed in connection with the disputed search warrants, that
this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of Court 14 by providing in its counterpart,
under the Revised Rules of Court 15 that "a search warrant shall not issue upon probable cause in connection with one
specific offense." Not satisfied with this qualification, the Court added thereto a paragraph, directing that "no search
warrant shall issue for more than one specific offense."
The grave violation of the Constitution made in the application for the contested search warrants was
compounded by the description therein made of the effects to be searched for and seized, to wit:
"Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers,
portfolios, credit journals, typewriters, and other documents and/or papers showing all business
transactions including disbursement receipts, balance sheets and related profit and loss statements."
Thus, the warrants authorized the search for and seizure of records pertaining to all business transactions of
petitioners herein, regardless of whether the transactions were legal or illegal. The warrants sanctioned the seizure
of all records of the petitioners and the aforementioned corporations, whatever their nature, thus openly
contravening the explicit command of our Bill of Rights — that the things to be seized be particularly described — as
well as tending to defeat its major objective: the elimination of general warrants.
Relying upon Moncado vs. People's Court (80 Phil. 1), Respondent- Prosecutors maintain that, even if the
searches and seizures under consideration were unconstitutional, the documents, papers and things thus seized are
admissible in evidence against petitioners herein. Upon mature deliberation, however, we are unanimously of the
opinion that the position taken in the Moncado case must be abandoned. Said position was in line with the American
common law rule, that the criminal should not be allowed to go free merely "because the constable has
blundered," 16 upon the theory that the constitutional prohibition against unreasonable searches and seizures is
protected by means other than the exclusion of evidence unlawfully obtained, 17 such as the common-law action for
damages against the searching officer, against the party who procured the issuance of the search warrant and against
those assisting in the execution of an illegal search, their criminal punishment, resistance, without liability to an
unlawful seizure, and such other legal remedies as may be provided by other laws.
However, most common law jurisdictions have already given up this approach and eventually adopted the
exclusionary rule, realizing that this is the only practical means of enforcing the constitutional injunction against
unreasonable searches and seizures. In the language of Judge Learned Hand:
"As we understand it, the reason for the exclusion of evidence competent as such, which has
been unlawfully acquired, is that exclusion is the only practical way of enforcing the constitutional
privilege. In earlier times the action of trespass against the offending official may have been protection
enough; but that is true no longer. Only in case the prosecution which itself controls the seizing
officials, knows that it cannot profit by their wrong, will that wrong be repressed". 18
In fact, over thirty (30) years before, the Federal Supreme Court had already declared:
"If letters and private documents can thus be seized and held and used in evidence against a
citizen accused of an offense, the protection of the 4th Amendment, declaring his rights to be secure
against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might
as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to
punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles
established by years of endeavor and suffering which have resulted in their embodiment in the
fundamental law of the land." 19
This view was, not only reiterated, but, also, broadened in subsequent decisions of the same Federal
Court. 20 After reviewing previous decisions thereon, said Court held, in Mapp vs. Ohio (supra.):
". . . Today we once again examine the Wolf's constitutional documentation of the right of
privacy free from unreasonable state intrusion, and, after its dozen years on our books, are led by it to
close the only courtroom door remaining open to evidence secured by official lawlessness in flagrant
abuse of that basic right, reserved to all persons as a specific guarantee against that very same unlawful
conduct. We held that all evidence obtained by searches and seizures in violation of the Constitution
is, by that same authority, inadmissible in a State court.
"Since the Fourth Amendment's right of privacy has been declared enforceable against the
States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same
sanction of exclusion as it used against the Federal Government. Were it otherwise, then just as without
the Weeks rule the assurance against unreasonable federal searches and seizures would be 'a form of
words', valueless and undeserving of mention in a perpetual charter of inestimable human liberties, so
too, 'without that rule the freedom from state invasions of privacy would be so ephemeral and so neatly
severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not to
permit this Court's high regard as a freedom implicit in the concept of ordered liberty.' At the time that the
Court held in Wolf that the Amendment was applicable to the States through the Due Process Clause,
the cases of this Court as we have seen, had steadfastly held that as to federal officers the Fourth
Amendment included the exclusion of the evidence seized in violation of its provisions. Even Wolf
'stoutly adhered' to that proposition. The right to privacy, when conceded operatively enforceable
against the States, was not susceptible of destruction by avulsion of the sanction upon which its
protection and enjoyment had always been deemed dependent under the Boyd, Weeks and
Silverthorne Cases. Therefore, in extending the substantive protections of due process to all
constitutionally unreasonable searches — state or federal — it was logically and constitutionally
necessary that the exclusion doctrine — an essential part of the right to privacy — be also insisted upon
as an essential ingredient of the right newly recognized by the Wolf Case. In short, the admission of the
new constitutional right by Wolf could not consistently tolerate denial of its most important constitutional
privilege, namely, the exclusion of the evidence which an accused had been forced to give by reason of the
unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its privilege and
enjoinment. Only last year the Court itself recognized that the purpose of the exclusionary rule 'is to deter
— to compel respect for the constitutional guaranty in the only effectively available way — by removing
the incentive to disregard it.' . . .
"The ignoble shortcut to conviction left open to the State tends to destroy the entire system of
constitutional restraints on which the liberties of the people rest. Having once recognized that the right
to privacy embodied in the Fourth Amendment is enforceable against the States, and that the right to
be secure against rude invasions of privacy by state officers is, therefore constitutional in origin, we can
no longer permit that right to remain an empty promise. Because it is enforceable in the same manner
and to like effect as other basic rights secured by the Due Process Clause, we can no longer permit it to
be revocable at the whim of any police officer who, in the name of law enforceable itself, chooses to
suspend its enjoinment. Our decision, founded on reason and truth, gives to the individual no more than
that which the Constitution guarantees him, to the police officer no less than that to which honest law
enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of
justice." (Emphasis ours.)
Indeed, the non-exclusionary rule is contrary, not only to the letter, but, also, to spirit of the constitutional
injunction against unreasonable searches and seizures. To be sure, if the applicant for a search warrant has
competent evidence to establish probable cause of the commission of a given crime by the party against whom the
warrant is intended, then there is no reason why the applicant should not comply with the requirements of the
fundamental law. Upon the other hand, if he has no such competent evidence, then it is not possible for the judge to
find that there is probable cause, and, hence, no justification for the issuance of the warrant. The only possible
explanation (not justification) for its issuance is the necessity of fishingevidence of the commission of a crime. But,
then, this fishing expedition is indicative of the absence of evidence to establish a probable cause.
Moreover, the theory that the criminal prosecution of those who secure an illegal search warrant and/or make
unreasonable searches or seizures would suffice to protect the constitutional guarantee under consideration,
overlooks the fact that violations thereof are, in general, committed by agents of the party in power, for, certainly,
those belonging to the minority could not possibly abuse a power they do not have. Regardless of the handicap under
which the minority usually — but, understandably — finds itself in prosecuting agents of the majority, one must not
lose sight of the fact that the psychological and moral effect of the possibility 21 of securing their conviction, is
watered down by the pardoning, power of the party for whose benefit the illegality had been committed.
In their Motion for Reconsideration and Amendment of the Resolution of this Court dated June 29, 1962,
petitioners allege that Room Nos. 81 and 91 of Carmen Apartments, House No. 2008, Dewey Boulevard, House No.
1436, Colorado Street, and Room No. 304 of the Army-Navy Club, should be included among the premises considered
in said Resolution as residences of herein petitioners, Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl
Beck, respectively, and that, furthermore, the records, papers and other effects seized in the offices of the
corporations above referred to include personal belongings of said petitioners and other effects under their exclusive
possession and control, for the exclusion of which they have a standing under the latest rulings of the federal courts
of the United States. 22
We note, however, that petitioners' theory, regarding their alleged possession of and control over the
aforementioned records, papers and effects, and the alleged "personal" nature thereof, has been advanced, not in
their petition or amended petition herein, but in the Motion for Reconsideration and Amendment of the Resolution
of June 29, 1962. In other words, said theory would appear to be a readjustment of that followed in said petitions, to
suit the approach intimated in the Resolution sought to be reconsidered and amended. Then, too, some of the
affidavits or copies of alleged affidavits attached to said motion for reconsideration, or submitted in support thereof,
contain either inconsistent allegations, or allegations inconsistent with the theory now advanced by petitioners
herein.
Upon the other hand, we are not satisfied that the allegations of said petitions and motion for
reconsideration, and the contents of the aforementioned affidavits and other papers submitted in support of said
motion, have sufficiently established the facts or conditions contemplated in the cases relied upon by the petitioners,
to warrant application of the views therein expressed, should we agree thereto. At any rate, we do not deem it
necessary to express our opinion thereon, it being best to leave the matter open for determination in appropriate
cases in the future.
We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby, abandoned; that
the warrants for the search of three (3) residences of herein petitioners, as specified in the Resolution of June 29, 1962
are null and void; that the searches and seizures therein made are illegal; that the writ of preliminary injunction
heretofore issued, in connection with the documents, papers and other effects thus seized in said residences of herein
petitioners is hereby made permanent, that the writs prayed for are granted, insofar as the documents, papers and
other effects so seized in the aforementioned residences are concerned; that the aforementioned motion for
Reconsideration and Amendment should be, as it is hereby, denied; and that the petition herein is dismissed and the
writs prayed for denied, as regards the documents, papers and other effects seized in the twenty-nine (29) places,
offices and other premises enumerated in the same Resolution, without special pronouncement as to costs.
It is so ordered.
Reyes, J .B.L., Dizon, Makalintal, Bengzon, J .P., Zaldivar and Sanchez, JJ ., concur.

FIRST DIVISION

[G.R. No. 45358. January 29, 1937.]

NARCISO ALVAREZ, petitioner, vs. THE COURT OF FIRST INSTANCE OF TAYABAS and THE ANTI-USURY BOARD, respondents.

Godofredo Reyes for petitioner.

Adolfo N. Feliciano for respondent Anti-Usury Board.


No appearance for other respondent.

SYLLABUS

1. CRIMINAL PROCEDURE; SEARCH WARRANT; DEFINITION. — A search warrant is an order in writing, issued in the name of the People of the Philippine Islands, signed
by a judge or a justice of the peace, and directed to a peace officer, commanding him to search for personal property and bring it before the court (section 95, General Orders, No. 58,
as amended by section 6 of Act No. 2886).
2. CONSTITUTIONAL LAW; SEARCHES AND SEIZURES. — Of all the rights of a citizen, few are of greater importance or more essential to his peace and happiness than
the right of personal security, and that involves the exemption of his private affairs, books, and papers from the inspection and scrutiny of others (In re Pacific Railway Commission, 32
Fed., 241; Interstate Commerce Commn. vs. Brimson, 38 Law. ed., 1047; Boyd vs. U.S., 29 Law. ed., 746; Carroll vs. U. S., 69 Law. ed., 543, 549). While the power to search and seize is
necessary to the public welfare, still it must be exercised and the law enforced without transgressing the constitutional rights of citizens, for the enforcement of no statute is of sufficient
importance to justify indifference to the basic principles of government (People vs. Elias, 147 N. E., 472).
3. ID.; ID. — As the protection of the citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of the court, these constitutional
guaranties should be given a liberal construction or a strict construction in favor of the individual, to prevent stealthy encroachment upon, or gradual depreciation of, the rights secured
by them (State vs. Custer County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965; 237 Pac., 373). Since the proceeding is a drastic one, it is the general rule that statutes authorizing
searches and seizures or search warrants must be strictly construed (Rose vs. St. Clair, 28 Fed. [2d], 189; Leonard vs. U. S., 6 Fed. [2d], 353; Perry vs. U. S., 14 Fed. [2d], 88; Cofer vs.
State, 118 So., 613).
4. ID.; ID.; OATH. — In its broadest sense, an oath includes any form of attestation by which a party signifies that he is bound in conscience to perform an act faithfully and
truthfully; and it is sometimes defined as an outward pledge given by the person taking it that his attestation or promise is made under an immediate sense of his responsibility to God
(Bouvier's Law Dictionary; State vs. Jackson, 137 N. W., 1034; In re Sage, 24 Oh. Cir. Ct. [N. S.], 7; Pumphrey vs. State, 122 N. W., 19; Priest vs. State, 6 N. W., 468; State vs. Jones, 154
Pac., 378; Atwood vs. State, 111 So., 865). 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 (U. S. vs. Tureaud,
20 Fed., 621; U. S. vs. Michalski, 265 Fed., 839; U. S. vs. Pitotto, 267 Fed., 603; U. S. vs. Lai Chew, 298 Fed., 652.) The true test of sufficiency of an affidavit to warrant issuance of a
search warrant is whether it has been drawn in such a manner that perjury could be charged thereon and affiant be held liable for damages caused (State vs. Roosevelt County 20th
Jud. Dis. Ct., 244 Pac. 280; State vs. Quartier, 236 Pac., 746).
5. ID.; UNREASONABLE SEARCH AND SEIZURE. — Unreasonable searches and seizures are a menace against which the constitutional guaranties afford full protection.
The term "unreasonable search and seizure" is not defined in the Constitution or in General Orders, No. 58, and it is said to have no fixed, absolute or unchangeable meaning, although
the term has been defined in general language. All illegal searches and seizures are unreasonable while lawful ones are reasonable. What constitute a reasonable or unreasonable search
or seizure in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved, including the purpose of the search, the presence or
absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured (Go-Bart Importing Co., vs.
U.S., 75 Law. ed., 374; Peru vs. U. S., 4 Fed. [2d], 881; U.S., vs. Vatune, 229 Fed., 497; Agnello vs. U. S., 70 Law. ed., 145; Lambert vs. U. S. 282 Fed., 413; U. S. vs. Bateman, 278 Fed.,
231; Mason vs. Rollins, 16 Fed. Cas. [No. 9252], 2 Biss., 99).
6. ID.; ID.; NECESSITY OF TAKING THE AFFIDAVITS OF THE WITNESSES. — Neither the Constitution nor General Orders, No 58 provides it of imperative necessity to
take the depositions of the witnesses to be presented by the applicant or complainant in addition to the affidavit of the latter. The purpose of both in requiring the presentation of
depositions is nothing else than to satisfy the committing magistrate of the existence of probable cause. Therefore, if the affidavit of the applicant or complainant is sufficient, the
judge may dispense with that of other witnesses. Inasmuch as the affidavit of the agent in this case was insufficient because his knowledge of the facts was not personal but merely
hearsay, it was the duty of the judge to require the affidavit of one or more witnesses for the purpose of determining the existence of probable cause to warrant the issuance of the
search warrant. When the affidavit of the applicant or complainant contains sufficient if the judge is satisfied that there exists probable cause; when the applicants knowledge of the
facts is mere hearsay, the affidavit of one or more witnesses having personal knowledge of the facts is necessary. We conclude, therefore, that the warrant issued is likewise illegal
because it was based only on the affidavit of the agent who had no personal knowledge of the facts.
7. CRIMINAL PROCEDURE; SEARCH WARRANT; SERVICE AT NIGHT. — Section 101 of General Orders, No. 58 authorizes that the search be made at night when it is
positively asserted in the affidavit that the property is on the person or in the place ordered to be searched. As we have declared the affidavit insufficient and the warrant issued
exclusively upon it illegal, our conclusion is that the contention is equally well founded and that the search could not legally be made at night.
8. ID.; ID.; DESCRIPTION OF ARTICLES. — Section 1, paragraph (3) of Article III of the Constitution, and section 97 of General Orders, No. 58 provide that the affidavit to
be presented, which shall serve as the basis for determining whether probable cause exists and whether the warrant should be issued, must contain a particular description of the place
to be searched and the person or thing to be seized. These provisions are mandatory and must be strictly complied with (Munch vs. U. S., 24 Fed. [2d], 518; U. S. vs. Boyd, 1 Fed. [2d],
1019; U. S. vs. Carlson, 292 Fed., 463; U. S. vs. Borkowski, 268 Fed., 408; In re Tri- State Coal & Coke Co., 253 Fed., 605; People vs. Mayen, 188 Cal., 237; People vs. Kahn, 256 Ill. A., 415);
but where, by the nature of the goods to be seized, their description must be rather general, it is not required that a technical description be given, as this would mean that no warrant
could issue (People vs. Rubio, 57 Phil., 384; People vs. Kahn, supra).
9. ID.; ID.; ID. — The only description of the articles given in the affidavit presented to the judge was as follows: "that there are being kept in said premises books,
documents, receipts, lists, chits and other papers used by him in connection with his activities as money- lender, charging a usurious rate of interest, in violation of the law." Taking into
consideration the nature of the articles so described, it is clear that no other more adequate and detailed description could be given, particularly because it is difficult to give a particular
description of the contents thereof. The description so made substantially complies with the legal provisions because the officer of the law who executed the warrant was thereby
placed in a position enabling him to identify the articles in question, which he did.
10. CONSTITUTIONAL LAW; SEARCHES AND SEIZURES; SEIZURE OF BOOKS AND DOCUMENTS TO BE USED AS EVIDENCE IN CRIMINAL PROCEEDINGS AGAINST
THE OWNER OR POSSESSOR THEREOF. — At the hearing of the incidents of the case raised before the court, it clearly appeared that the books and documents had really been seized
to enable the Anti-Usury Board to conduct an investigation and later use all or some of the articles in question as evidence against the petitioner in the criminal cases that may be filed
against him. The seizure of books and documents by means of a search warrant, for the purpose of using them as evidence in a criminal case against the person in whose possession
they were found, is unconstitutional because it makes the warrant unreasonable, and it is equivalent to a violation of the constitutional provision prohibiting the compulsion of an
accused to testify against himself (Uy Kheytin vs. Villareal, 42 Phil., 886; Brady vs. U. S., 266 U. S., 620; Temperani vs. U. S., 299 Fed., 365; U. S. vs. Madden, 297 Fed., 679; Boyd vs. U.
S., 116 U. S., 616; Carroll vs. U. S., 267 U. S., 132). Therefore, it appearing that at least nineteen of the documents in question were seized for the purpose of using them as evidence
against the petitioner in the criminal proceeding or proceedings for violation of the Anti-Usury Law, which it is attempted to institute against him, we hold that the search warrant
issued is illegal and that the documents should be returned to him.
11. ID.; ID.; WAIVER OF THE CONSTITUTIONAL GUARANTEES. — The Anti- Usury Board insinuates in its answer that the petitioner cannot now question the validity of
the search warrant or the proceedings had subsequent to the issuance thereof, because he has waived his constitutional rights in proposing a compromise whereby he agreed to pay a
fine of P200 for the purpose of evading the criminal proceeding or proceedings. We are of the opinion that there was no such waiver, first, because the petitioner has emphatically
denied the offer of compromise and, second, because if there was a compromise it referred not to the search warrant and the incidents thereof but to the institution of criminal
proceedings for violation of the Anti-Usury Law. The waiver would have been a good defense for the respondents had the petitioner voluntarily consented to the search and seizure of
the articles in question, but such was not the case because the petitioner protested from the beginning and stated his protest in writing in the insufficient inventory furnished him by
the agents.
12. CIVIL PROCEDURE; MANDAMUS; WHEN IT LIES. — Section 222 of the Code of Civil Procedure in fact provides that mandamus will not issue when there is another
plain, speedy and adequate remedy in the ordinary course of law. We are of the opinion, however, that an appeal from said orders would not in this case be a plain, speedy and adequate
remedy for the petitioner because a long time would have to elapse before he recovers possession of the documents and before the rights, for which he has been unlawfully deprived,
are restored to him (Fajardo vs. Llorente, 6 Phil., 426; Manotoc vs. McMicking and Trinidad, 10 Phil., 119; Cruz Herrera de Lukban vs. McMicking, 14 Phil., 641; Lamb vs. Phipps, 22 Phil.,
456).
DECISION

IMPERIAL, J p:

The petitioner asks that the warrant of June 3, 1936, issued by the Court of First Instance of Tayabas,
ordering the search of his house and the seizure, at any time of the day or night, of certain accounting
books, documents and papers belonging to him in his residence situated in Infanta, Province of Tayabas, as
well as the order of a later date, authorizing the agents of the Anti-Usury Board to retain the articles seized,
be declared illegal and set aside, and prays that all the articles in question be returned to him.
On the date above-mentioned, the chief of the secret service of the Anti-Usury Board, of the
Department of Justice, presented to Judge Eduardo Gutierrez David then presiding over the Court of First
Instance of Tayabas, an affidavit alleging that according to reliable information, the petitioner kept in his
house in Infanta, Tayabas, books, documents, receipts, lists, chits and other papers used by him in
connection with his activities as a money-lender, charging usurious rates of interest in violation of the law.
In his oath at the end of the affidavit, the chief of the secret service stated that his answers to the questions
were correct to the best of his knowledge and belief. He did not swear to the truth of his statements upon
his own knowledge of the facts but upon the information received by him from a reliable person. Upon the
affidavit in question the judge, on said date, issued the warrant which is the subject matter of the petition,
ordering the search of the petitioner's house at any time of the day or night, the seizure of the books and
documents above-mentioned and the immediate delivery thereof to him to be disposed of in accordance
with the law. With said warrant, several agents of the Anti-Usury Board entered the petitioner's store and
residence at seven o'clock on the night of June 4, 1936, and seized and took possession of the following
articles: internal revenue licenses for the years 1933 to 1936, one ledger, two journals, two cashbooks, nine
order books, four notebooks, four check stubs, two memorandums, three bankbooks, two contracts, four
stubs, forty-eight stubs of purchases of copra, two inventories, two bundles of bills of lading, one bundle of
credit receipts, one bundle of stubs of purchases of copra, two packages of correspondence, one receipt
book belonging to Luis Fernandez, fourteen bundles of invoices and other papers, many documents and
loan contracts with security and promissory notes, 504 chits, promissory notes and stubs of used checks of
the Hongkong & Shanghai Banking Corporation. The search for and seizure of said articles were made with
the opposition of the petitioner who stated his protest below the inventories on the ground that the agents
seized even the originals of the documents. As the articles had not been brought immediately to the judge
who issued the search warrant, the petitioner, through his attorney, filed a motion on June 8, 1936, praying
that the agent Emilio L. Siongco, or any other agent, be ordered immediately to deposit all the seized
articles in the office of the clerk of court and that said agent be declared guilty of contempt for having
disobeyed the order of the court. On said date the court issued an order directing Emilio L. Siongco to
deposit all the articles seized within twenty-four hours from the receipt of notice thereof and giving him a
period of five (5) days within which to show cause why he should not be punished for contempt of court. On
June 10th, Attorney Arsenio Rodriguez, representing the Anti-Usury Board, filed a motion praying that the
order of the 8th of said month be set aside and that the Anti-Usury Board be authorized to retain the articles
seized for a period of thirty (30) days for the necessary investigation. The attorney for the petitioner, on
June 20th, filed another motion alleging that, notwithstanding the order of the 8th of said month, the
officials of the Anti-Usury Board had failed to deposit the articles seized by them and praying that a search
warrant be issued, that the sheriff be ordered to take all the articles into his custody and deposit them in
the clerk's office, and that the officials of the Anti-Usury Board be punished for contempt o court. Said
attorney, on June 24th, filed an ex parte petition alleging that while agent Emilio L. Siongco had deposited
some documents and papers in the office of the clerk of court, he had so far failed to file an inventory duly
verified by oath of all the documents seized by him, to return the search warrant together with the affidavit
presented in support thereof, or to present the report of the proceedings taken by him; and prayed that
said agent be directed to file the documents in question immediately. On the 25th of said month the court
issued an order requiring agent Emilio L. Siongco forthwith to file the search warrant and the affidavit in
the court, together with the proceedings taken by him, and to present an inventory duly verified by oath of
all the articles seized. On July 2d of said year, the attorney for the petitioner filed another petition alleging
that the search warrant issued was illegal and that it had not yet been returned to date together with the
proceedings taken in connection therewith, and praying that said warrant be cancelled, that an order be
issued directing the return of all the articles seized to the petitioner, that the agent who seized them be
declared guilty of contempt of court, and that charges be filed against him for abuse of authority. On
September 10, 1936, the court issued an order holding: that the search warrant was obtained and issued in
accordance with the law, that it had been duly complied with and, consequently, should not be cancelled,
and that agent Emilio L. Siongco did not commit any contempt of court and must, therefore, be
exonerated, and ordering the chief of the Anti-Usury Board in Manila to show cause, if any, within the
unextendible period of two (2) days from the date of notice of said order, why all the articles seized
appearing in the inventory, Exhibit 1, should not be returned to the petitioner. The assistant chief of the
Anti-Usury Board of the Department of Justice filed a motion praying, for the reasons stated therein, that
the articles seized be ordered retained for the purpose of conducting an investigation of the violation of the
Anti-Usury Law committed by the petitioner. In view of the opposition of the attorney for the petitioner,
the court, on September 25th, issued an order requiring the Anti-Usury Board to specify the time needed
by it to examine the documents and papers seized and which of them should be retained, granting it a
period of five (5) days for said purpose. On the 30th of said month the assistant chief of the Anti-Usury
Board filed a motion praying that he be granted ten (10) days to comply with the order of September 25th
and that the clerk of court be ordered to return to him all the documents and papers together with the
inventory thereof. The court, in an order of October 2d of said year, granted him the additional period of
ten (10) days and ordered the clerk of court to send him a copy of the inventory. On October 10th, said
official again filed another motion alleging that he needed sixty (60) days to examine the documents and
papers seized, which are designated on pages 1 to 4 of the inventory by Nos. 5, 10, 16, 23, 25, 26, 27, 30, 31
, 34, 36, 37, 38, 39, 40, 41, 42, 43 and 45, and praying that he be granted said period of sixty (60) days. In an
order of October 16th, the court granted him the period of sixty (60) days to investigate said nineteen (19)
documents. The petitioner alleges, and it is not denied by the respondents, that these nineteen (19)
documents continue in the possession of the court, the rest having been returned to said petitioner.
I. A search warrant is an order in writing, issued in the name of the People of the Philippine Islands,
signed by a judge or a justice of the peace, and directed to a peace officer, commanding him to search for
personal property and bring it before the court (section 95, General Orders, No. 58, as amended by section
6 of Act No. 2886). Of all the rights of a citizen, few are of greater importance or more essential to his peace
and happiness than the right of personal security, and that involves the exemption of his private affairs,
books, and papers from the inspection and scrutiny of others (In re Pacific Railway Commission, 32 Fed.,
241; Interstate Commerce Commn. vs. Brimson, 38 Law. ed., 1047; Boyd vs. U. S., 29 Law. ed., 746; Carroll
vs. U. S., 69 Law. ed., 543, 549). While the power to search and seize is necessary to the public welfare, still
it must be exercised and the law enforced without transgressing the constitutional rights of citizens, for the
enforcement of no statute is of sufficient importance to justify indifference to the basic principles of
government (People vs. Elias, 147 N. E., 472).
II. As the protection of the citizen and the maintenance of his constitutional rights is one of the
highest duties and privileges of the court, these constitutional guaranties should be given a liberal
construction or a strict construction in favor of the individual, to prevent stealthy encroachment upon, or
gradual depreciation of, the rights secured by them (State vs. Custer County, 198 Pac., 362; State vs.
McDaniel, 231 Pac., 965; 237 Pac., 373). Since the proceeding is a drastic one, it is the general rule that
statutes authorizing searches and seizures or search warrants must be strictly construed (Rose vs. St. Clair,
28 Fed. [2d], 189; Leonard vs. U. S., 6 Fed. [2d], 353; Perry vs. U. S., 14 Fed. [2d], 88; Cofer vs. State, 118 So.,
613).

III. The petitioner claims that the search warrant issued by the court is illegal because it has been
based upon the affidavit of agent Mariano G. Almeda in whose oath he declared that he had no personal
knowledge of the facts which were to serve as a basis for the issuance of the warrant but that he had
knowledge thereof through mere information secured from a person whom he considered reliable. To the
question "What are your reasons for applying for this search warrant", appearing in the affidavit, the agent
answered: "It has been reported to me by a person whom I consider to be reliable that there are being kept
in said premises, books, documents, receipts, lists, chits, and other papers used by him in connection with
his activities as a money- lender, charging a usurious rate of interest, in violation of the law" and in attesting
the truth of his statements contained in the affidavit, the said agent stated that he found them to be correct
and true to the best of his knowledge and belief.
Section 1, paragraph 3, of Article III of the Constitution, relative to the bill of rights, provides that
"The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be
determined 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." Section 97 of General Orders, No. 58 provides that "A search warrant shall not issue except for
probable cause and upon application supported by oath particularly describing the place to be searched
and the person or thing to be seized." It will be noted that both provisions require that there be not only
probable cause before the issuance of a search warrant but that the search warrant must be based upon an
application supported by oath of the applicant and the witnesses he may produce. In its broadest sense, an
oath includes any form of attestation by which a party signifies that he is bound in conscience to perform
an act faithfully and truthfully; and it is sometimes defined as an outward pledge given by the person taking
it that his attestation or promise is made under an immediate sense of his responsibility to God (Bouvier's
Law Dictionary; State vs. Jackson, 137 N. W., 1034; In re Sage, 24 Oh. Cir. Ct. [N. S.], 7; Pumphrey vs. State,
122 N. W., 19; Priest vs. State, 6 N. W., 468; State vs. Jones, 154 Pac., 378; Atwood vs. State, 111 So., 865).
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 (U. S. vs.
Tureaud, 20 Fed., 621; U. S. vs. Michalski, 265 Fed., 839; U. S. vs. Pitotto, 267 Fed., 603; U. S. vs. Lai Chew,
298 Fed., 652). The true test of sufficiency of an affidavit to warrant issuance of a search warrant is whether
it has been drawn in such a manner that perjury could be charged thereon and affiant be held liable for
damages caused (State vs. Roosevelt County 20th Jud. Dis. Ct., 244 Pac., 280; State vs. Quartier, 236 Pac.,
746).
It will likewise be noted that section 1, paragraph 3, of Article III of the Constitution prohibits
unreasonable searches and seizures. Unreasonable searches and seizures are a menace against which the
constitutional guaranties afford full protection. The term "unreasonable search and seizure" is not defined
in the Constitution or in General Orders, No. 58, and it is said to have no fixed, absolute or unchangeable
meaning, although the term has been defined in general language. All illegal searches and seizures are
unreasonable while lawful ones are reasonable. What constitutes a reasonable or unreasonable search or
seizure in any particular case is purely a judicial question, determinable from a consideration of the
circumstances involved, including the purpose of the search, the presence or absence of probable cause,
the manner in which the search and seizure was made, the place or thing searched, and the character of the
articles procured (Go-Bart Importing Co. vs. U. S., 75 Law. ed., 374; Peru vs. U. S., 4 Fed., [2d], 881; U. S. vs.
Vatune, 292 Fed., 497; Agnello vs. U. S., 70 Law. ed., 145; Lambert vs. U. S., 282 Fed., 413; U. S. vs. Bateman,
278 Fed., 231; Mason vs. Rollins, 16 Fed. Cas. [No. 9252], 2 Biss., 99).
In view of the foregoing and under the above-cited authorities, it appears that the affidavit, which
served as the exclusive basis of the search warrant, is insufficient and fatally defective by reason of the
manner in which the oath was made, and therefore, it is hereby held that the search warrant in question
and the subsequent seizure of the books, documents and other papers are illegal and do not in any way
warrant the deprivation to which the petitioner was subjected.
IV. Another ground alleged by the petitioner in asking that the search warrant be declared illegal
and cancelled is that it was not supported by other affidavits aside from that made by the applicant. In other
words, it is contended that the search warrant cannot be issued unless it be supported by affidavits made
by the applicant and the witnesses to be presented necessarily by him. Section 1, paragraph 3, of Article III
of the Constitution provides that no warrants shall issue but upon probable cause, to be determined by the
judge after examination under oath or affirmation of the complainant and the witnesses he may produce.
Section 98 of General Orders, No. 58 provides that the judge or justice must, before issuing the warrant,
examine under oath the complainant and any witnesses he may produce and take their depositions in
writing. It is the practice in this jurisdiction to attach the affidavit of at least the applicant or complainant to
the application. It is admitted that the judge who issued the search warrant in this case, relied exclusively
upon the affidavit made by agent Mariano G. Almeda and that he did not require nor take the deposition of
any other witness. Neither the Constitution nor General Orders, No. 58 provides that it is of imperative
necessity to take the depositions of the witnesses to be presented by the applicant or complainant in
addition to the affidavit of the latter. The purpose of both in requiring the presentation of depositions is
nothing more than to satisfy the committing magistrate of the existence of probable cause. Therefore, if
the affidavit of the applicant or complainant is sufficient, the judge may dispense with that of other
witnesses. Inasmuch as the affidavit of the agent in this case was insufficient because his knowledge of the
facts was not personal but merely hearsay, it is the duty of the judge to require the affidavit of one or more
witnesses for the purpose of determining the existence of probable cause to warrant the issuance of the
search warrant. When the affidavit of the applicant or complainant contains sufficient facts within his
personal and direct knowledge, it is sufficient if the judge is satisfied that there exists probable cause; when
the applicant's knowledge of the facts is mere hearsay, the affidavit of one or more witnesses having a
personal knowledge of the facts is necessary. We conclude, therefore, that the warrant issued is likewise
illegal because it was based only on the affidavit of the agent who had no personal knowledge of the facts.
V. The petitioner alleged as another ground for the declaration of the illegality of the search warrant
and the cancellation thereof, the fact that it authorized its execution at night. Section 101 of General
Orders, No. 58 authorizes that the search be made at night when it is positively asserted in the affidavit that
the property is on the person or in the place ordered to be searched. As we have declared the affidavit
insufficient and the warrant issued exclusively upon it illegal, our conclusion is that the contention is equally
well founded and that the search could not legally be made at night.
VI. One of the grounds alleged by the petitioner in support of his contention that the warrant was
issued illegally is the lack of an adequate description of the books and documents to be seized. Section 1,
paragraph 3, of Article III of the Constitution, and section 97 of General Orders, No. 58 provide that the
affidavit to be presented, which shall serve as the basis for determining whether probable cause exists and
whether the warrant should be issued, must contain a particular description of the place to be searched and
the person or thing to be seized. These provisions are mandatory and must be strictly complied with (Munch
vs. U. S., 24 Fed. [2d], 518; U. S. vs. Boyd, 1 Fed. [2d], 1019; U. S. vs. Carlson, 292 Fed., 463; U. S. vs.
Borkowski, 268 Fed., 408; In re Tri-State Coal & Coke Co., 253 Fed., 605; People vs. Mayen, 188 Cal., 237;
People vs. Kahn, 256 Ill. App., 415); but where, by the nature of the goods to be seized, their description
must be rather general, it is not required that a technical description be given, as this would mean that no
warrant could issue (People vs. Rubio, 57 Phil., 284; People vs. Kahn, supra). The only description of the
articles given in the affidavit presented to the judge was as follows: "that there are being kept in said
premises books, documents, receipts, lists, chits and other papers used by him in connection with his
activities as money-lender, charging a usurious rate of interest, in violation of the law." Taking into
consideration the nature of the articles so described, it is clear that no other more adequate and detailed
description could have been given, particularly because it is difficult to give a particular description of the
contents thereof. The description so made substantially complies with the legal provisions because the
officer of the law who executed the warrant was thereby placed in a position enabling him to identify the
articles, which he did.
VII. The last ground alleged by the petitioner, in support of his claim that the search warrant was
obtained illegally, is that the articles were seized in order that the Anti-Usury Board might provide itself
with evidence to be used by it in the criminal case or cases which might be filed against him for violation of
the Anti-Usury Law. At the hearing of the incidents of the case raised before the court, it clearly appeared
that the books and documents had really been seized to enable the Anti-Usury Board to conduct an
investigation and later use all or some of the articles in question as evidence against the petitioner in the
criminal cases that may be filed against him. The seizure of books and documents by means of a search
warrant, for the purpose of using them as evidence in a criminal case against the person in whose possession
they were found, is unconstitutional because it makes the warrant unreasonable, and it is equivalent to a
violation of the constitutional provision prohibiting the compulsion of an accused to testify against himself
(Uy Kheytin vs. Villareal , 42 Phil., 886; Brady vs. U. S., 266 U. S., 620; Temperani vs. U. S., 299 Fed., 365; U.
S. vs. Madden, 297 Fed., 679; Boyd vs. U. S., 116 U. S., 616; Carroll vs. U. S., 267 U. S., 132). Therefore, it
appearing that at least nineteen of the documents in question were seized for the purpose of using them as
evidence against the petitioner in the criminal proceeding or proceedings for violation of the Anti-Usury
Law, which it is attempted to institute against him, we hold that the search warrant issued is illegal and that
the documents should be returned to him.
The Anti-Usury Board insinuates in its answer that the petitioner cannot now question the validity
of the search warrant or the proceedings had subsequent to the issuance thereof, because he has waived
his constitutional rights in proposing a compromise whereby he agreed to pay a fine of P200 for the purpose
of evading the criminal proceeding or proceedings. We are of the opinion that there was no such waiver,
first, because the petitioner has emphatically denied the offer of compromise and, second, because if there
was a compromise it referred not to the search warrant and the incidents thereof but to the institution of
criminal proceedings for violation of the Anti- Usury Law. The waiver would have been a good defense for
the respondents had the petitioner voluntarily consented to the search and seizure of the articles in
question, but such was not the case because the petitioner protested from the beginning and stated his
protest in writing in the insufficient inventory furnished him by the agents.
Said board alleges as another defense that the remedy sought by the petitioner does not lie because
he can appeal from the orders which prejudiced him and are the subject matter of his petition. Section 222
of the Code of Civil Procedure in fact provides that mandamus will not issue when there is another plain,
speedy and adequate remedy in the ordinary course of law. We are of the opinion, however, that an appeal
from said orders would not in this case be a plain, speedy and adequate remedy for the petitioner because
a long time would have to elapse before he recovers possession of the documents and before the rights, of
which he has been unlawfully deprived, are restored to him (Fajardo vs. Llorente, 6 Phil., 426; Manotoc vs.
McMicking and Trinidad, 10 Phil., 119; Cruz Herrera de Lukban vs. McMicking, 14 Phil., 641; Lamb vs.
Phipps, 22 Phil., 456).
Summarizing the foregoing conclusions, we hold:
1. That the provisions of the Constitution and General Orders, No. 58, relative to search and seizure,
should be given a liberal construction in favor of the individual in order to maintain the constitutional
guaranties whole and in their full force;
2. That since the provisions in question are drastic in their form and fundamentally restrict the
enjoyment of the ownership, possession and use of the personal property of the individual, they should be
strictly construed;
3. That the search and seizure made are illegal for the following reasons: (a) Because the warrant
was based solely upon the affidavit of the petitioner who had no personal knowledge of the facts necessary
to determine the existence or non-existence of probable cause, and (b) because the warrant was issued for
the sole purpose of seizing evidence which would later be used in the criminal proceedings that might be
instituted against the petitioner, for violation of the Anti- Usury Law;
4. That as the warrant had been issued unreasonably, and as it does not appear positively in the
affidavit that the articles were in the possession of the petitioner and in the place indicated, neither could
the search and seizure be made at night;
5. That although it is not mandatory to present affidavits of witnesses to corroborate the applicant
or complainant in cases where the latter has personal knowledge of the facts, when the applicant's or
complainant's knowledge of the facts is merely hearsay, it is the duty of the judge to require affidavits of
other witnesses so that he may determine whether probable cause exists;
6. That a detailed description of the person and place to be searched and the articles to be seized is
necessary, but where, by the nature of the articles to be seized, their description must be rather general, it
is not required that a technical description be given, as this would mean that no warrant could issue;
7. That the petitioner did not waive his constitutional rights because the offer of compromise or
settlement attributed to him, does not mean, if so made, that he voluntarily tolerated the search and
seizure; and
8. That an appeal from the orders questioned by the petitioner, if taken by him, would not be an
effective, speedy or adequate remedy in the ordinary course of law, and, consequently, the petition for
mandamus filed by him lies.
For the foregoing considerations, the search warrant and the seizure of June 3, 1936, and the orders
of the respondent court authorizing the retention of the books and documents, are declared illegal and are
set aside, and it is ordered that the judge presiding over the Court of First Instance of Tayabas direct the
immediate return to the petitioner of the nineteen (19) documents designated on pages 1 to 4 of the
inventory by Nos. 5, 10, 16, 23, 25, 26, 27, 30, 31, 34, 36, 37, 38, 39, 40, 41, 42, 43 and 45, without special
pronouncement as to costs. So ordered.
Avanceña, C. J., Villa-Real, Diaz and Concepcion, JJ., concur.

Separate Opinions

ABAD SANTOS, J., concurring:

My views on the fundamental questions involved in this case are fully set forth in my dissenting opinion filed in People vs. Rubio (57 Phil., 384, 395). I am gratified to see
that, in the main, those views have now prevailed. I therefore concur in the decision of the court herein.

LAUREL, J., concurring:

I subscribe to the views expressed in the foregoing carefully prepared opinion, with the reservation now to be stated. To my mind, the search warrant in this case does
not satisfy the constitutional requirement regarding the particularity of the description of "the place to be searched and the persons or things to be seized" (par. 3, sec. 1, Art. III,
Constitution of the Philippines). Reference to "books, documents, receipts, lists, chits and other papers used by him in connection with his activities as money-lender, charging
usurious rates of interest in violation of the law" in the search warrant is so general, loose and vague as to confer unlimited discretion upon the officer serving the warrant to choose
and determine for himself just what are the "books, documents, receipts, lists, chits and other papers" used by the petitioner in connection with his alleged activities as money-
lender. The evident purpose and intent of the constitutional requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant, to the
end that unreasonable searches and seizures may not be made, — that abuses may not be committed (Uy Kheytin vs. Villareal, 42 Phil., 886).
||| (Alvarez v. Court of First Instance of Tayabas, G.R. No. 45358, [January 29, 1937], 64 PHIL 33-51)

EN BANC

[G.R. No. 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 Vino, Augusto Sanchez, Joker P. Arroyo, Jejomar Binay and Rene Saguisag for petitioners.

The Solicitor General for respondents.

SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; ESTOPPEL BY LACHES; DEFINED. — Laches is failure or negligence for an unreasonable 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.

2. ID.; ID.; ID.; CHARGE OF LACHES NEGATED BY EXTRAJUDICIAL EFFORTS EXERTED BY PETITIONERS IN CASE AT BAR. — Although the reason given by petitioners may not be flattering
to our judicial system, the Supreme Court finds 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

3. ID.; EVIDENCE; PETITIONER NOT ESTOPPED FROM QUESTIONING THE VALIDITY OF SEARCH WARRANTS ALTHOUGH HE HAD USED AND MARKED AS EVIDENCE THE SEIZED
DOCUMENTS; CASE AT BAR. — Respondents 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. The Supreme Court does 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 assailed search warrants.

4. ID.; CRIMINAL PROCEDURE; SEARCH AND SEIZURE OF PERSONAL PROPERTY; THE PERSON AGAINST WHOM THE WARRANT IS DIRECTED MUST HAVE CONTROL OR POSSESSION
OF PROPERTY SOUGHT TO BE SEIZED; CASE AT BAR. — Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be seized under a search warrant. The rule
does not require that the property to 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.
5. CIVIL LAW; PROPERTY; MACHINERIES INTENDED FOR AN INDUSTRY WHICH MAY BE CARRIED ON IN A BUILDING WHEN PLACED BY A TENANT REMAIN MOVABLE PROPERTY
SUSCEPTIBLE TO SEIZURE; CASE AT BAR. — Under Article 415 [5] of the Civil Code of the Philippines, "machinery, receptacles. 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. vs. Castillo (61 Phil. 709) 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.

6. REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH AND SEIZURE; PROBABLE CAUSE AS REQUISITE FOR ISSUANCE OF SEARCH WARRANT; DEFINED AND EXPLAINED RELATIVE
TO PUBLICATION OF SUBVERSIVE MATERIALS; CASE AT BAR. — 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. . . " (Annex 'C', Petition, p. 51,Rollo) 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.

7. CONSTITUTIONAL LAW; BILL OF RIGHTS; ISSUANCE OF WARRANT UPON PROBABLE CAUSE; TEST OF SUFFICIENCY NOT MET IN CASE AT BAR. — 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 were used and are continuously being used for subversive activities in conspiracy with, and to promote the objective of, illegal organization such
as the Light-a-Fire Movement." 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; (Sec. 3, Art. IV, 1973 Constitution) 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 vs. Court of First Instance (64 Phil. 33), the Supreme 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." The averment in the joint affidavit filed before respondent judge hardly meets the test of sufficiency established by
the Court in Alvarez case.

8. ID.; ID.; ID.; GENERAL WARRANTS DECLARED VOID. — In Stanford vs. State of Texas (379 U.S. 476, 13 L ed 2nd 431) the search warrants which authorized the search for "books, records,
pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Parties of Texas, and the operations of 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 connection with 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. (68 am. Jur. 2d., pp. 736-737). 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 Court 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 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.

9. ID.; ID.; FREEDOM OF THE PRESS; VIOLATED BY CLOSURE OF BUSINESS AND PRINTING OFFICES IN CASE AT BAR. — 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, (Sec. 9, Art. IV of theConstitution) 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.

10. ID.; ID.; ID.; CONTINUED SEALING OF PRINTING MACHINES IN CASE AT BAR PURSUANT TO PRESIDENTIAL DECREE 885 NOT JUSTIFIED; REASONS. — 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
implementing rules and regulations promulgated by the Ministry of National Defense. Besided, in the December 10, 1982 issue of the Daily Express, it was reporter 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. 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.

ABAD SANTOS, J., concurring:

CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF THE PRESS; SUPPRESSION OF PRESS FREEDOM RESULTING FROM SERVICE OF GENERAL, WARRANTS IN CASE AT BAR
EXPLAINED. — 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 which 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.
885, as amended. There is no mention of any specific provision of the decree. In the words of Chief Justice 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 authorizes Col. Rolando Abadilla
to seize and take possessions, 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. The warrants, therefore
are general warrants which are obnoxious to theConstitution. In point of fact, there was nothing subversive which had 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.

DECISION

ESCOLIN, J p:
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-Paño, 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. LexLib
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 [11] 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 Coronel,
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 well 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 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. Castillo 9 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. prcd
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: LLphil
"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/communications, letters and facsimile of prints related to the 'WE FORUM'
newspaper.
2] Subversive documents, pamphlets, leaflets, books, and other publications to promote the
objectives and purposes of the subversive organizations 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 542;
4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and,
5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with marking 'Bagong Silang.'"
In Standford 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 Parties of Texas, and the operations of the Community 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 connection
with 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 a question cannot be characterized differently.

In the Standford case, the U.S. Supreme Court 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. Thus 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. LLjur
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 filed by government prosecutors for sequestration of the WE
FORUM newspaper and its printing presses, according to Information Minister Gregorio S.
Cendaña."
"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.
EN BANC

[G.R. No. 82585. November 14, 1988.]

MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOILI, and GODOFREDO L. MANZANAS, petitioners, vs. THE HON. RAMON
P.MAKASIAR, Presiding Judge of the Regional Trial Court of Manila, Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice,
LUIS C. VICTOR, THE CITY FISCAL OF MANILA AND PRESIDENT CORAZON C. AQUINO, respondents.

[G.R. No. 82827. November 14, 1988.]

LUIS D. BELTRAN, petitioner, vs. THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila, THE HON. LUIS
VICTOR CITY FISCAL OF MANILA, PEOPLE OF THE PHILIPPINES, SUPERINTENDENT OF THE WESTERN POLICE DISTRICT, AND THE MEMBERS OF THE
PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF MANILA, respondents.

[G.R. No. 83979. November 14, 1988.]

LUIS D. BELTRAN, petitioner, vs. EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY ORDOÑEZ, UNDERSECRETARY
OF JUSTICE SILVESTRE BELLO III, THE FISCAL OF MANILA JESUS F. GUERRERO, AND JUDGE RAMON P. MAKASIAR, Presiding Judge of Branch 35 of
the Regional Trial Court, at Manila,respondents.

Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.

Perfecto V . Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R. No. 82827 and 83979.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS OF LAW; RESPONDENT IN A CRIMINAL CASE NEED NOT FILE HIS COUNTER-AFFIDAVITS BEFORE PRELIMINARY
INVESTIGATION IS DEEMED COMPLETED. — Due process of law does not require that the respondent in a criminal case actually file his counter-affidavits before the preliminary investigation
is deemed completed. All that is required is that the respondent be given the opportunity to submit counter-affidavits if he is so minded.

2. ID.; ID.; RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS AND EFFECTS; ISSUANCE OF WARRANT OF ARREST; PROBABLE CAUSE; THE JUDGE HAS
EXCLUSIVE AND PERSONAL RESPONSIBILITY TO DETERMINE EXISTENCE OF; THE PRESIDENT. — This case is not a simple prosecution for libel. We have as complainant a powerful and
popular President who heads the investigation and prosecution service and appoints members of appellate courts but who feels so terribly maligned that she has taken the unorthodox step
of going to court inspite of the invocations of freedom of the press which would inevitably follow.

3. ID.; ID.; ID.; ID.; HARASSMENT INHERENT IN ANY CRIMINAL PROSECUTION; SUPREME COURT SHOULD DRAW THE DEMARCATION LINE WHERE HARASSMENT GOES BEYOND
USUAL DIFFICULTIES ENCOUNTERED BY ANY ACCUSED. — There is always bound to be harassment inherent in any criminal prosecution. Where the harassment goes beyond the usual
difficulties encountered by any accused and results in an unwillingness of media to freely criticize government or to question government handling of sensitive issues and public affairs, this
Court and not a lower tribunal should draw the demarcation line.

4. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH; WHILE DEFAMATION IS NOT AUTHORIZED, CRITICISM IS TO BE EXPECTED AND SHOULD BE BORNE FOR THE
COMMON GOOD. — As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that "(c)omplete liberty to comment on the conduct of public men is a scalpel in the
case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with
the balm of a clear conscience." The Court pointed out that while defamation is not authorized, criticism is to be expected and should be borne for the common good.

5. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF OFFENSES; LIBEL; RULES THEREON SHOULD BE EXAMINED FROM VARIOUS PERSPECTIVES IF DIRECTED AT A HIGH
GOVERNMENT OFFICIAL; THE SUPREME COURT SHOULD DRAW A FINE LINE INSTEAD OF LEAVING IT TO A LOWER TRIBUNAL. — In fact, the Court observed that high official position,
instead of affording immunity from slanderous and libelous charges would actually invite attacks by those who desire to create sensation. It would seem that what would ordinarily be slander
if directed at the typical person should be examined from various perspectives if directed at a high government official. Again, the Supreme Court should draw this fine line instead of leaving
it to lower tribunals.

6. ID.; ID.; FREEDOM OF EXPRESSION; SAFEGUARDS IN THE NAME THEREOF SHOULD BE FAITHFULLY APPLIED IN TRIAL OF LIBEL CASE. — In the trial of the libel case against the
petitioners, the safeguards in the name of freedom of expression should be faithfully applied.

GUTIERREZ, JR., J., concurring:


1. REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION TO QUASH; COURT SHOULD NOT HESITATE TO QUASH A CRIMINAL PROSECUTION IN INTEREST OF MORE ENLIGHTENED AND
SUBSTANTIAL JUSTICE. — Consistent with our decision in Salonga v. Cruz Paño (134 SCRA 438 [1985]), the Court should not hesitate to quash a criminal prosecution in the interest of more
enlightened and substantial justice where it is not alone the criminal liability of an accused in a seemingly minor libel case which is involved but broader considerations of governmental
power versus a preferred freedom.
2. ID.; ID.; PROSECUTION OF OFFENSES; LIBEL; CASE NOT A SIMPLE PROSECUTION THEREFOR WHERE COMPLAINANT IS THE PRESIDENT; JUDGE NOT REQUIRED TO PERSONALLY
EXAMINE COMPLAINANT AND HIS WITNESSES. — What the Constitutionunderscores is the exclusive and personal responsibility of the issuing judge to satisfy himself the existence of
probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his
witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable
cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.

3. ID.; EXECUTIVE DEPARTMENT; PRESIDENT; IMMUNITY FROM SUIT; RATIONALE. — The rationale for the grant to the President of the privilege of immunity from suit is to assure the
exercise of Presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the
office-holder's time, also demands undivided attention.

4. ID.; ID.; ID.; ID.; PRIVILEGE PERTAINS TO PRESIDENT BY VIRTUE OF THE OFFICE AND MAY BE INVOKED ONLY BY HOLDER OF OFFICE. — But this privilege of immunity from suit,
pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President's behalf. Thus, an accused in a criminal case in
which the President is complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against such accused.

5. ID.; ID.; ID.; ID.; EXERCISE OF PRIVILEGE IS SOLELY THE PRESIDENT'S PREROGATIVE. — Moreover, there is nothing in our laws that would prevent the President from waiving the
privilege. Thus, if so minded the President may shed the protection afforded by the privilege and submit to the court's jurisdiction. The choice of whether to exercise the privilege or to waive
it is solely the President's prerogative. It is a decision that cannot be assumed and imposed by any other person.

RESOLUTION

PER CURIAM p:

In these consolidated cases, three principal issues were raised: (1) whether or not petitioners were denied due
process when informations for libel were filed against them although the finding of the existence of a prima
facie case was still under review by the Secretary of Justice and, subsequently, by the President; (2) whether or
not the constitutional rights of Beltran were violated when respondent RTC judge issued a warrant for his arrest
without personally examining the complainant and the witnesses, if any, to determine probable cause; and (3)
whether or not the President of the Philippines, under the Constitution, may initiate criminal proceedings
against the petitioners through the filing of a complaint-affidavit.
Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the Secretary of
Justice denied petitioners' motion for reconsideration and upheld the resolution of the Undersecretary of
Justice sustaining the City Fiscal's finding of aprima facie case against petitioners. A second motion for
reconsideration filed by petitioner Beltran was denied by the Secretary of Justice on April 7, 1988. On appeal,
the President, through the Executive Secretary, affirmed the resolution of the Secretary of Justice on May 2,
1988. The motion for reconsideration was denied by the Executive Secretary on May 16, 1988. With these
developments, petitioner's contention that they have been denied the administrative remedies available under
the law has lost factual support.
It may also be added that with respect to petitioner Beltran, the allegation of denial of due process of law in the
preliminary investigation is negated by the fact that instead of submitting his counter-affidavits, he filed a
"Motion to Declare Proceeding Closed", in effect waiving his right to refute the complaint by filing counter-
affidavits. Due process of law does not require that the respondent in a criminal case actually file his counter-
affidavits before the preliminary investigation completed. All that is required is that the respondent be given
the opportunity to submit counter-affidavits if he is so minded.
The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on the
issuance of warrants of arrest. The pertinent provision reads:
Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
The addition of the word "personally" after the word "determined" and the deletion of the grant of authority
by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized by law", has
apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine
the complainant and his witnesses determination of probable cause for the issuance of warrants of arrest. This
is not an accurate interpretation.
What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy
himself the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance
of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses.
Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting
documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a
warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report
and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the
existence of probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary
examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases
filed before their courts.
On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down guidelines for the
issuance of warrants of arrest. The procedure therein provided is reiterated and clarified in this resolution.
It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with regard to
the issuance of the warrants of arrest, a finding of grave abuse of discretion amounting to lack or excess of
jurisdiction cannot be sustained.
Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential immunity from
suit impose a correlative disability to file suit". He contends that if criminal proceedings ensue by virtue of the
President's filing of her complaint-affidavit, she may subsequently have to be a witness for the prosecution,
bringing her under the trial court's jurisdiction. This, continues Beltran, would in an indirect way defeat her
privilege of immunity from suit, as by testifying on the witness stand, she would be exposing herself to possible
contempt of court or perjury.
The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of
Presidential duties and functions free from any hindrance or distraction, considering that being the Chief
Executive of the Government is a job that, aside from requiring all of the office-holder's time, also demands
undivided attention.
But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked
only by the holder of the office; not by any other person in the President's behalf Thus, an accused in a criminal
case in which the President is complainant cannot raise the presidential privilege as a defense to prevent the
case from proceeding against such accused.
Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. Thus, if so
minded the President may shed the protection afforded by the privilege and submit to the court's jurisdiction.
The choice of whether to exercise the privilege or to waive it is solely the President's prerogative. It is a decision
that cannot be assumed and imposed by any other person.
As regards the contention of petitioner Beltran that he could not be held liable for libel because of the privileged
character or the publication, the Court reiterates that it is not a trier of facts and that such a defense is best left
to the trial court to appreciate after receiving the evidence of the parties.
As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling effect" on press
freedom, the Court finds no basis at this stage to rule on the point.
The petitions fail to establish that public respondents, through their separate acts, gravely abused their
discretion as to amount to lack of jurisdiction. Hence, the writs of certiorari and prohibition prayed for cannot
issue.
WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the part of
the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979. The
Order to maintain status quocontained in the Resolution of the Court en banc dated April 7, 1988 and reiterated
in the Resolution dated April 26, 1988 is LIFTED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes,
Griño-Aquino, Medialdea and Regalado, JJ., concur.
THIRD DIVISION

[G.R. No. 81756. October 21, 1991.]

NICOMEDES SILVA @ "Comedes", MARLON SILVA @ "Tama" and ANTONIETA SILVA, petitioners, vs. THE HONORABLE PRESIDING JUDGE,
REGIONAL TRIAL COURT OF NEGROS ORIENTAL, BRANCH XXXIII, DUMAGUETE CITY, respondent.

Marcelo G. Flores for petitioners.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNLAWFUL SEARCH AND SEIZURE; PURPOSE. — The purpose of the constitutional provision against unlawful searches and
seizures is to prevent violations of private security in person and property, and unlawful invasion of the sanctity of the home, by officers of the law acting under legislative or judicial sanction,
and to give remedy against such usurpations when attempted. (Alvero vs. Dizon, 76 Phil. 637 [1946]).

2. ID.; ID.; ID.; SEARCH WARRANT; REQUISITES FOR ISSUANCE THEREOF. — Based on Section 2, Article III of the 1987 Constitution and Sections 3 and 4, Rule 126 of the Rules of Court,
the judge must, before issuing a search warrant, determine whether there is probable cause by examining the complainant and witnesses through searching questions and answers.

3. ID.; ID.; ID.; ID.; ID.; PROBABLE CAUSE; DEFINED. — In the case of Prudente vs.Dayrit, G.R. No. 82870, December 14, 1989, 180 SCRA 69, 767 this Court defined "probable cause" as follows:
"The 'probable cause' for a valid search warrant, has been 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 objects sought in connection with the offense are in the place sought to be searched'. This probable cause must be shown to be within the personal knowledge of
the complainant or the witnesses he may produce and not based on mere hearsay."

4. ID.; ID.; ID.; ID.; ID.; DUTY OF JUDGE TO PERSONALLY EXAMINE THE APPLICANT AND THE WITNESSES; EFFECT OF FAILURE TO COMPLY. — In issuing a search warrant, thejudge must
strictly comply with the constitutional and statutory requirement that he must determine the existence of probable cause by personally examining the applicant and his witnesses in the form
of searching questions and answers. His failure to comply with this requirement constitutes grave abuse of discretion. As declared in Marcelo vs.De Guzman, G.R. No. L-29077, June 29, 1982,
114 SCRA 667, "the capricious disregard by the judge in not complying with the requirements before issuance of search warrants constitutes abuse of discretion".

5. ID.; ID.; ID.; ID.; SEIZURE OF PROPERTY NOT SPECIFIED IN THE WARRANT; RULE. — The officers implementing the search warrant clearly abused their authority when they seized the
money of Antonieta Silva. This is highly irregular considering that AntonietaSilva was not even named as one of the respondents, that the warrant did not indicate the seizure of money but
only of marijuana leaves, cigarettes and joints, and that the search warrant was issued for the seizure of personal property (a) subject of the offense and (b) used or intended to be used as
means of committing an offense and NOT for personal property stolen or embezzled or other proceeds of fruits of the offense.

DECISION

FERNAN, C.J p:

In this special civil action for certiorari, petitioners seek the nullification of Search Warrant No. 1 issued by
respondent Judge as well as the return of the money in the amount of P1,231.00 seized from petitioner
Antonieta Silva.
The antecedent facts are as follows:
On June 13, 1986, M/Sgt. Ranulfo Villamor, Jr., as chief of the PC Narcom Detachment in Dumaguete City, Negros
Oriental, filed an "Application for Search Warrant" with the Regional Trial Court, Branch XXXIII, Dumaguete City
against petitioners Nicomedes Silvaand Marlon Silva. 1 This application was accompanied by a "Deposition of
Witness" executed by Pfc. Arthur M. Alcoran and Pat. Leon T. Quindo, also dated June 13, 1986. 2
On the same day, Judge Nickarter A. Ontal, then Presiding Judge of the Regional Trial Court, Branch XXXIII,
Dumaguete City, pursuant to the said "Application for Search Warrant" and "Deposition of Witness", issued Search
Warrant No. 1, directing the aforesaid police officers to search the room of Marlon Silva in the residence of
Nicomedes Silva for violation of Republic Act No. 6425, otherwise known as theDangerous Drugs Act of 1972, as
amended. Pertinent portions of Search Warrant No. 1 read as follows: prLL
"It appearing to the satisfaction of the undersigned after examining oath (sic)MSGT. Ranulfo T.
Villamor, Jr. and his witnesses (sic) Pfc. Arthur M. Alcoran and Pat. Leon T. Quindo that there is
probable cause to believe that possession and control of Marijuana dried leaves, cigarettes, joint has
been committed or is about to be committed and that there are good and sufficient reasons to
believe thatmarijuana dried leaves, cigarettes, joint has in possession and/or control atTama's Room
(Rgt. side 1st Floor) located at Nono-Limbaga Drive, Tanjay, Neg. Or.which is/are:
"X (Subject of the offense stated above
(Stolen or embezzled or other proceeds of fruits of the offense;
"X (Used or intended to be used as means of committing an offense.
"You are hereby commanded to make an immediate search at any time of the day (night) of
the room of Tama Silva residence of his father Comedes Silva to open (sic) aparadors, lockers,
cabinets, cartoons, containers, forthwith seize and take possession of the following
property Marijuana dried leaves, cigarettes, joint and bring the said property to the undersigned to
be dealt with as the law directs." 3
In the course of the search, the serving officers also seized money belonging to Antonieta Silva in the amount of
P1,231.40.
On June 16, 1986, Antonieta Silva filed a motion for the return of the said amount on the grounds that the search
warrant only authorized the serving officers to seize marijuana dried leaves, cigarettes and joint, and that said
officers failed or refused to make a return of the said search warrant in gross violation of Section 11, Rule 126 of the
Rules of Court.4
Acting on said motion, Judge Ontal issued an Order dated July 1, 1986, stating that the court "holds in abeyance the
disposition of the said amount of P1,231.40 pending the filing of appropriate charges in connection with the search
warrant." 5
On July 28, 1987, petitioners filed a motion to quash Search Warrant No. 1 on the grounds that (1) it was issued on
the sole basis of a mimeographed "Application for Search Warrant" and "Deposition of Witness", which were
accomplished by merely filling in the blanks and (2) the judge failed to personally examine the complainant and
witnesses by searching questions and answers in violation of Section 3, Rule 126 of the Rules of Court. 6
On August 11, 1987, respondent trial court, through Judge Eugenio M. Cruz, who, by then, had replaced
retired Judge Ontal, issued an Order denying the motion for lack of merit, finding the requisites necessary for the
issuance of a valid search warrant duly complied with. 7
A motion for reconsideration dated September 1, 1987 filed by petitioners was likewise denied by Judge Cruz in an
order dated October 19, 1987.
Hence, this special civil action for certiorari.
Petitioners allege that the issuance of Search Warrant No. 1 was tainted with illegality and that
respondent Judge should be viewed to have acted without or in excess of jurisdiction, or committed grave abuse of
discretion amounting to lack of jurisdiction when he issued the Order dated August 11, 1987, denying their motion
to quash Search Warrant No. 1.
We rule for petitioners.
Section 2, Article III (Bill of Rights) of the 1987 Constitution guarantees the right to personal liberty and security of
homes against unreasonable searches and seizures. This section provides: LLpr
"SECTION 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized."
The purpose of the constitutional provision against unlawful searches and seizures is to prevent violations of private
security in person and property, and unlawful invasion of the sanctity of the home, by officers of the law acting
under legislative or judicial sanction, and to give remedy against such usurpations when attempted. 8
Thus, Sections 3 and 4, Rule 126 of the Rules of Court provide for the requisites for the issuance of a search warrant,
to wit:
"SECTION 3. Requisite for issuing search warrant. — A search warrant shall not issue but upon
probable cause in connection with one specific offense to be determined personally by
the judge after examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the things to be seized.
"SECTION 4. Examination of complainant; record. — The judge must, before issuing the warrant,
personally examine in the form of searching questions and answers, in writing and under oath the
complainant and any witnesses he may produce on facts personally known to them and attach to
the record their sworn statements together with any affidavits submitted."
Based on the aforecited constitutional and statutory provisions, the judge must, before issuing a search warrant,
determine whether there is probable cause by examining the complainant and witnesses through searching
questions and answers.
In the case of Prudente vs. Dayrit, G.R. No. 82870, December 14, 1989, 180 SCRA 69, 767 this Court defined "probable
cause" as follows:
"The 'probable cause' for a valid search warrant, has been 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 objects sought in connection with the offense are in the place sought to be
searched'. This probable cause must be shown to be within the personal knowledge of the
complainant or the witnesses he may produce and not based on mere hearsay."

In the case at bar, we have carefully examined the questioned search warrant as well as the "Application for Search
Warrant" and "Deposition of Witness", and found that JudgeOntal failed to comply with the legal requirement that
he must examine the applicant and his witnesses in the form of searching questions and answers in order to
determine the existence of probable cause. The joint "Deposition of Witness" executed by Pfc. Alcoran and Pat.
Quindo, which was submitted together with the "Application for Search Warrant" contained, for the most part,
suggestive questions answerable by merely placing "yes" or "no" in the blanks provided thereon. In fact there were
only four (4) questions asked, to wit:
"Q Do you personally know M/Sgt. Ranulfo Villamor, Jr. the applicant for a search warrant?"
A Yes, sir.
"Q Do you have personal knowledge that the said premises subject of the offense stated above,
and other proceeds of fruit of the offense, used or obtain (sic) or intended to be used as
means of committing an offense?"
A Yes, sir. LexLib
"Q Do you know personally who is/are the person who has have the property in his/their possession
and control?"
A Yes, sir.
"Q How did you know all this (sic) things?"
A Through discreet surveillance." 9
The above deposition did not only contain leading questions but it was also very broad. The questions propounded
to the witnesses were in fact, not probing but were merely routinary. The deposition was already mimeographed
and all that the witnesses had to do was fill in their answers on the blanks provided.
In the case of Nolasco vs. Paño, G.R. No. 69803, October 8, 1986, 139 SCRA 152, 163, this Court held:
"The 'probable cause' required to justify the issuance of a search warrant comprehends such facts
and circumstances as will induce a cautious man to rely upon them and act in pursuant thereof Of
the 8 questions asked, the 1st, 2nd and 4th pertain to identity. The 3rd and 5th are leading not
searching questions. The 6th, 7th and 8th refer to the description of the personalities to be seized,
which is identical to that in the Search Warrant and suffers from the same lack of particularity. The
examination conducted was general in nature and merely repetitious of the deposition of said
witness. Mere generalization will not suffice and does not satisfy the requirements or probable
cause upon which a warrant may issue."
Likewise, in the Prudente case cited earlier, this Court declared the search warrant issued as invalid due to the failure
of the judge to examine the witness in the form of searching questions and answers. Pertinent portion of the
decision reads:
"Moreover, a perusal of the deposition of P/Lt. Florencio Angeles shows that it was too brief and
short. Respondent Judge did not examine him 'in the form of searching questions and answers'.
On the contrary, the questions asked were leading as they called for a simple 'yes' or 'no' answer.
As held in Quintero vs. NBI, 'the questions propounded by respondent Executive Judge to the
applicant's witness are not sufficiently searching to establish probable cause. Asking of leading
questions to the deponent in an application for search warrant, and conducting of examination in
a general manner, would not satisfy the requirements for issuance of a valid search warrant." 10
Thus, in issuing a search warrant, the judge must strictly comply with the constitutional and statutory requirement
that he must determine the existence of probable cause by personally examining the applicant and his witnesses in
the form of searching questions and answers. His failure to comply with this requirement constitutes grave abuse
of discretion. As declared in Marcelo vs. De Guzman, G.R. No. L-29077, June 29, 1982, 114 SCRA 667, "the capricious
disregard by the judge in not complying with the requirements before issuance of search warrants constitutes abuse
of discretion".
The officers implementing the search warrant clearly abused their authority when they seized the money of
Antonieta Silva. This is highly irregular considering that AntonietaSilva was not even named as one of the
respondents, that the warrant did not indicate the seizure of money but only of marijuana leaves, cigarettes and
joints, and that the search warrant was issued for the seizure of personal property (a) subject of the offense and (b)
used or intended to be used as means of committing an offense and NOT for personal property stolen or embezzled
or other proceeds of fruits of the offense. Thus, the then presiding Judge Ontal likewise abused his discretion when
he rejected the motion of petitioner Antonieta Silva seeking the return of her seized money.
WHEREFORE, the petition is granted. Search Warrant No. 1 is hereby declared null and void. Respondent Judge of
the Regional Trial Court of Negros Oriental, Branch XXXIII is directed to order the return to petitioner
Antonieta Silva of the amount of P1,231.40 which had earlier been seized from her by virtue of the illegal search
warrant. This decision is immediately executory. No costs. LexLib
SO ORDERED.

EN BANC

[G.R. Nos. 94054-57. February 19, 1991.]

VICENTE LIM, SR. and MAYOR SUSANA LIM, petitioners, vs. HON. NEMESIO S. FELIX and HON. ANTONIO ALFANE, respondents.

[G.R. Nos. 94266-69. February 19, 1991.]


JOLLY T. FERNANDEZ, FLORENCIO T. FERNANDEZ, JR.,NONILON A. BAGALIHOG, MAYOR NESTOR C. LIM and MAYOR ANTONIO
KHO,petitioners, vs. HON. NEMESIO S. FELIX and HON. ANTONIO ALFANE,respondents.

Francisco R. Llamas for petitioners in G.R. Nos. 94054-57.

Jolly T . Fernandez, Elenito Bagalihog, Orlando M . Danao and Hechanova, Ballicid & Associates for petitioners in G.R. Nos. 94266-69.

DECISION

GUTIERREZ, JR.,J p:

May a Judge without ascertaining the facts through his own personal determination and relying solely on the
certification or recommendation of a prosecutor that a probable cause exists issue a warrant of arrest?
On March 17, 1989, at about 7:30 o'clock in the morning, at the vicinity of the airport road of the Masbate
Domestic Airport, located at the municipality of Masbate province of Masbate, Congressman Moises Espinosa,
Sr. and his security escorts, namely Provincial Guards Antonio Cortes, Gaspar Amaro, and Artemio Fuentes
were attacked and killed by a lone assassin. Dante Siblante another security escort of Congressman Espinosa,
Sr. survived the assassination plot, although, he himself suffered a gunshot wound. LLjur
An investigation of the incident then followed.
Thereafter, and for the purpose of preliminary investigation, the designated investigator, Harry O. Tantiado,
TSg, of the PC Criminal Investigation Service at Camp Bagong Ibalon, Legazpi City filed an amended complaint
with the Municipal Trial Court of Masbate accusing, among others, Vicente Lim, Sr.,Mayor Susana Lim of
Masbate (petitioners in G.R. Nos. 94054-57),Jolly T. Fernandez, Florencio T. Fernandez, Jr.,Nonilon A.
Bagalihog, Mayor Nestor C. Lim and Mayor Antonio Kho (petitioners in G.R. Nos. 94266-69) of the crime of
multiple murder and frustrated murder in connection with the airport incident. The case was docketed as
Criminal Case No. 9211. prcd
After conducting the preliminary investigation, the court issued an order dated July 31, 1989 stating therein
that:
"...after weighing the affidavits and answers given by the witnesses for the prosecution during
the preliminary examination in searching questions and answers, concludes that a probable
cause has been established for the issuance of a warrant of arrest of named accused in the
amended complaint, namely, Jimmy Cabarles, Ronnie Fernandez, Nonilon Bagalihog, Jolly
Fernandez, Florencio Fernandez, Jr.,Vicente Lim, Sr.,Susana Lim, Nestor Lim, Antonio Kho,
Jaime Liwanag, Zaldy Dumalag and Rene Tualla alias Tidoy." (Rollo, p. 58, G.R. Nos. 94054-57)
xxx xxx xxx
In the same Order, the court ordered the arrest of the petitioners and recommended the amount of
P200,000.00 as bail for the provisional liberty of each of the accused.
Petitioners Jolly Fernandez and Nonilon Bagalihog filed a motion for the reduction of bail which was granted
by the court and they were allowed to post bail in the amount of P150,000.00 each. Except for Jimmy Cabarles,
all the rest of the accused posted bail at P200,000.00 each.
On August 29, 1989, the entire records of the case consisting of two hundred sixty one (261) pages were
transmitted to the Provincial Prosecutor of Masbate. Respondent Acting Fiscal Antonio C. Alfane was
designated to review the case.
On September 22, 1989, Fiscal Alfane issued a Resolution which affirmed the finding of aprima facie case
against the petitioners but differed in the designation of the crime in that the ruled that "...all of the accused
should not only be charged with Multiple Murder With Frustrated Murder" but for a case of MURDER for each
of the killing of the four victims and a physical injuries case for inflicting gunshot wound on the buttocks of
Dante Siblante." (Annex 'H',Comment of Fiscal Alfane, p. 186, Rollo, G.R. Nos. 94054-57) A motion to
reconsider the Resolution filed by petitioners Vicente Lim, Sr. and Mayor Susana Lim was denied. cdrep
On October 30, 1989, Fiscal Alfane filed with the Regional Trial Court of Masbate, four (4) separate informations
of murder against the twelve (12) accused with a recommendation of no bail.
On November 21, 1989, petitioners Vicente Lim, Sr. and Susana Lim filed with us a verified petition for change
of venue. (Case No. A.M. No. 89-11-1270-MTC, formerly, G.R. Nos. 90587-90).
On December 14, 1989, we issued an en banc Resolution authorizing the change of venue from the Regional
Trial Court of Masbate to the Regional Trial Court of Makati to avoid a miscarriage of justice, to wit:
"Acting on the petition for change of venue of the trial of Criminal Cases Nos. 5811, 5812, 5813,
and 5814 from the Regional Trial Court, Masbate, Masbate to any of the Regional Trial Courts
at Quezon City or Makati, the Court Resolved to (a) GRANT the aforesaid petition for transfer
of venue in order to avoid miscarriage of justice (Article VIII, Section 5(4) of the Philippine
Constitution); (b) DIRECT the Clerk of Court, Regional Trial Court, Masbate, Masbate to
transmit the records of the aforesaid cases to the Executive Judge, Regional Trial Court,
Makati, for raffling among the other branches of the court; and (c) ORDER the Regional Trial
Court of Masbate, Masbate to desist from further taking cognizance of the said cases until such
time that the petition is finally resolved."
The cases were raffled to Branch 56 presided by respondent Judge Nemesio S. Felix.
Petitioners Vicente Lim, Sr. and Susana Lim filed with the respondent court several motions and
manifestations which in substance prayed for the following:
"1. An order be issued requiring the transmittal of the initial records of the preliminary inquiry
or investigation conducted by the Municipal Judge Barsaga of Masbate for the best
enlightenment of this Honorable Court in its personal determination of the existence of a
probable cause or prima facie evidence as well as its determination of the existence of guilt,
pursuant to the mandatory mandate of the constitution that no warrant shall issue unless the
issuing magistrate shall have himself been personally convinced of such probable cause.
2. Movants be given ample opportunity to file their motion for preliminary investigation as a
matter of right; and
3. In the event that this court may later be convinced of the existence of a probable cause, to
be allowed to file a motion for reduction of bail or for admission of bail." (p. 17, Rollo, G.R. Nos.
94054-57)
In another manifestation, the Lims reiterated that the court conduct a hearing to determine if there really exists
a prima facie case against them in the light of documents which are recantations of some witnesses in the
preliminary investigation. The motions and manifestations were opposed by the prosecution.
On July 5, 1990, the respondent court issued an order denying for lack of merit the motions and manifestations
and issued warrants of arrest against the accused including the petitioners herein. The respondent Judge said:
"In the instant cases, the preliminary investigation was conducted by the Municipal Trial Court
of Masbate, Masbate which found the existence of probable cause that the offense of multiple
murder was committed and that all the accused are probably guilty thereof, which was
affirmed upon review by the Provincial Prosecutor who properly filed with the Regional Trial
Court four separate informations for murder. Considering that both the two competent
officers to whom such duty was entrusted by law have declared the existence of probable
cause, each information is complete in form and substance, and there is no visible defect on
its face, this Court finds it just and proper to rely on the prosecutor's certification in each
information which reads:" (pp. 19-20, Rollo, G.R Nos. 94054-57; Emphasis supplied)
xxx xxx xxx
The petitioners then filed these consolidated petitions questioning the July 5, 1990 Order.
In a Resolution dated July 17, 1990 in G.R. Nos. 94054-57, we issued "...a TEMPORARY RESTRAINING ORDER,
effective immediately and continuing until further orders from this Court, ordering the respondent judge or his
duly authorized representatives or agents to CEASE and DESIST from enforcing or implementing the warrant
of arrest without bail issued against the petitioners in his Order dated July 5, 1990 in Criminal Cases Nos. 5811-
14."
In another Resolution dated July 31,1990 in G.R. Nos. 94266-69, we resolved:
xxx xxx xxx
"...To ISSUE writs of (1) PRELIMINARY MANDATORY INJUNCTION, ordering and directing
the respondent judge to recall/set aside and/or annul the legal effects of the warrants of arrest
without bail issued against and served upon herein petitioners Jolly T. Fernandez, Florencio T.
Fernandez, Jr. and Nonilon Bagalihog and release them from confinement at PC-CIS
Detention Center, Camp Crame, Quezon City; and (2) TEMPORARY RESTRAINING ORDER,
effective immediately and continuing until further orders from this Court, ordering the
respondent judge or his duly authorized representatives or agents, to CEASE AND DESIST
from enforcing or implementing the warrants of arrest without bail issued against petitioners
Mayors Nestor C. Lim and Antonio T. Kho."
The primary issue in these consolidated petitions centers on whether or not a judge may issue a warrant of
arrest without bail by simply relying on the prosecution's certification and recommendation that a probable
cause exists.
This is not a novel question. In the case of Placer v. Villanueva (126 SCRA 463 [1983]),we ruled that a judge may
rely upon the fiscal's certification of the existence of probable cause and, on the basis thereof, issue a warrant
of arrest. However, the certification does not bind the judge to come out with the warrant of arrest. This
decision interpreted the "search and seizure" provision of the 1973 Constitution which provides:
"'...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
...'"
We ruled:
"...The issuance of a warrant is not a mere ministerial function; it calls for the exercise of judicial
discretion on the part of the issuing magistrate. This is clear from the following provisions
of Section 6, Rule 112 of the Rules of Court.
Warrant of arrest, when issued.— If the judge be satisfied from the preliminary
examination conducted by him or by the investigating officer that the offense
complained of has been committed and that there is reasonable ground to believe that
the accused has committed it, he must issue a warrant or order for his arrest.
Under this section, the judge must satisfy himself of the existence of probable cause before
issuing a warrant or order of arrest. If on the face of the information the judge finds no probable
cause, he may disregard the fiscal's certification and require the submission of the affidavits of
witnesses to aid him in arriving at a conclusion as to the existence of a probable cause. This
has been the rule since U.S v. Ocampo (18 Phil. 1) and Amarga v. Abbas (98 Phil. 739).And this
evidently is the reason for the issuance by respondent of the questioned orders of April 13, 15,
16, 19, 1982 and July 13, 1982. Without the affidavits of the prosecution witnesses and other
evidence which, as a matter of long-standing practice had been attached to the information
filed in his sala, respondent found the informations inadequate bases for the determination of
probable cause. For as the ensuing events would show, after petitioners had submitted the
required affidavits, respondent wasted no time in issuing the warrants of arrest in the case
where he was satisfied that probable cause existed."
The case of Soliven v. Makasiar (167 SCRA 393 [1988]) was decided after the effectivity of the 1987 Constitution.
We stated:
"The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional
provision on the issuance of warrants of arrest. The pertinent provision reads:
'Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.
The addition of the word 'personally' after the word 'determined' and the deletion of the grant
of authority by the 1973 Constitution to issue warrants to 'other respondent officers as may be
authorized by law', has apparently convinced petitioner Beltran that the Constitution now
requires the judge to personally examine the complainant and his witnesses in his
determination of probable cause for the issuance of warrants of arrest. This is not an accurate
interpretation.
What the Constitution underscores is the exclusive and personal responsibility of the issuing
judge to satisfy himself of the existence of probable cause. In satisfying himself of the
existence of probable cause for the issuance of a warrant of arrest, the judge is not required to
personally examine the complainant and his witnesses. Following established doctrine and
procedures, he shall: (1) personally evaluate the report and the supporting documents
submitted by the fiscal regarding the existence of probable cause and, on the basis thereof,
issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may
disregard the fiscal's report and require the submission of supporting affidavits of witnesses to
aid him in arriving at a conclusion as to the existence of probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden with the
preliminary examinations and investigation of criminal complaints instead of concentrating on
hearing and deciding cases filed before their courts."
The decision in People v. Honorable Enrique B. Inting, et al. (G.R. No. 88919, July 25, 1990),reiterated the above
interpretation of "personal" determination by the Judge:
"We emphasize important features of the constitutional mandate that '. . . no search warrant
or warrant of arrest shall issue except upon probable cause to be determined personally by the
judge . . .' (Article III, Section 2, Constitution)
First, the determination of probable cause is a function of the Judge. It is not for the Provincial
Fiscal or Prosecutor nor for the Election Supervisor to ascertain.Only the Judge and the Judge
alone makes this determination.
Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely
assists him to make the determination of probable cause. The Judge does not have to follow
what the Prosecutor presents to him. By itself the Prosecutor's certification of probable cause is
ineffectual. It is the report, the affidavits, the transcripts of stereographic notes (if any),and all
other supporting documents behind the Prosecutor's certification which are material in assisting
the Judge to make his determination.
And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which
determines probable cause for the issuance of a warrant of arrest from the preliminary
investigation proper which ascertains whether the offender should be held for trial or released.
Even if the two inquiries are conducted in the course of one and the same proceeding, there
should be no confusion about the objectives. The determination of probable cause for the
warrant of arrest is made by the Judge. The preliminary investigation proper — whether or not
there is reasonable ground to believe that the accused is guilty of the offense charged and,
therefore, whether or not he should be subjected to the expense, rigors and embarrassment
of trial — is the function of the Prosecutor.
The Court made this clear m the case of Castillo v. Villaluz (171 SCRA 39 [1989]):
'Judges of Regional Trial Courts (formerly Courts of First Instance) no longer
have authority to conduct preliminary investigations. That authority, at one time
reposed in them under Sections 13,14 and 16, Rule 112 of the Rules of Court of 1964
(See Sec. 4, Rule 108, Rules of Court of 1940; Peoplev. Solon, 47 Phil. 443, cited in
Moran, Comments on the Rules, 1980 ed.,Vol. 4, pp. 115-116) was removed from them
by the 1985 Rules on Criminal Procedure, effective on January 1, 1985, (Promulgated
on November 11, 1984) which deleted all provisions granting that power to said Judges.
We had occasion to point this out in Salta v. Court of Appeals, 143 SCRA 228, and to
stress as well certain other basic propositions, namely: (1) that the conduct of a
preliminary investigation is 'not a judicial function ...(but) part of the prosecution's job,
a function of the executive,' (2) that whenever 'there are enough fiscals or prosecutors
to conduct preliminary investigations, courts are counseled to leave this job which is
essentially executive to them,' and the fact 'that a certain power is granted does not
necessary mean that it should be indiscriminately exercised.
The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared
effective on October 1, 1988, (The 1988 Amendments were published in the issue of
Bulletin Today of October 29, 1988) did not restore that authority to Judges of Regional
Trial Courts; said amendments did not in fact deal at all with the officers or courts
having authority to conduct preliminary investigations.
This is not to say, however, that somewhere along the line RTC Judges also lost
the power to make a preliminary examination for the purpose of determining whether
probable cause exists to justify the issuance of a warrant of arrest (or search warrant).
Such a power — indeed, it is as much a duty as it is a power — has been and remains
vested in every judge by the provisions in the Bill of Rights in the 1935, the 1973 and the
present [1987] Constitutions securing the people against unreasonable searches and
seizures, thereby placing it beyond the competence of mere Court Rule or Statute to
revoke. The distinction must, therefore, be made clear while an RTC Judge may no
longer conduct preliminary investigations to ascertain whether there is sufficient
ground for the filing of a criminal complaint or information, he retains the authority,
when such a pleading is filed with his court, to determine whether there is probable
cause justifying the issuance of a warrant of arrest. It might be added that this
distinction accords, rather than conflicts, with the rationale of Salta because both law
and role, in restricting to judges the authority to order arrest, recognize the function to
be judicial in nature.
We reiterate that preliminary investigation should be distinguished as to whether it is an
investigation for the determination of a sufficient ground for the filing of the information or it
is an investigation for the determination of a probable cause for the issuance of a warrant of
arrest. The first kind of preliminary investigation is executive in nature. It is part of the
prosecution's job. The second kind of preliminary investigation which is more properly called
preliminary examination is judicial in nature and is lodged with the Judge. ..."
Finally in the recent case of People v. Delgado, et al. (G.R. Nos. 93419-32, September 18, 1990) there is a
statement that the judge may rely on the resolution of COMELEC to file the information by the same token
that it may rely on the certification made by the prosecutor who conducted the preliminary investigation in the
issuance of the warrant of arrest. We, however, also reiterated that ". . . the court may require that the record
of the preliminary investigation be submitted to it to satisfy itself that there is probable cause which will
warrant the issuance of a warrant of arrest." (Section 2, Article III,Constitution). Reliance on the COMELEC
resolution or the Prosecutor's certification presupposes that the records of either the COMELEC or the
Prosecutor have been submitted to the Judge and he relies on the certification or resolution because the
records of the investigation sustain the recommendation. The warrant issues not on the strength of the
certification standing alone but because of the records which sustain it. Cdpr
It is obvious from the present petition that notwithstanding the above decisions, some Judges are still bound
by the inertia of decisions and practice under the 1935 and 1973 Constitutions and are sadly confused or
hesitant. Prosecutors are also interested in a clear cut ruling. We will, therefore, restate the rule in greater detail
and hopefully clearer terms.
There is no problem with search warrants which are relatively fewer and far between and where there is no
duplication of work between the Judge and the Prosecutor. The problem lies with warrants of arrest especially
in metropolitan or highly urban areas. If a Judge has to personally question each complainant and witness or
go over the records of the Prosecutor's investigation page by page and word for word before he acts on each
of a big pile of applications for arrest warrants on his desk, he or she may have no more time for his or her more
important judicial functions. LexLib
At the same time, the Judge cannot ignore the clear words of the 1987 Constitutionwhich requires ". . . probable
cause to be personally determined by the judge ...",not by any other officer or person.
If a Judge relies solely on the certification of the Prosecutor as in this case where all the records of the
investigation are in Masbate, he or she has not personally determined probable cause. The determination is
made by the Provincial Prosecutor. The constitutional requirement has not been satisfied. The Judge commits
a grave abuse of discretion.
The records of the preliminary investigation conducted by the Municipal Court of Masbate and reviewed by the
respondent Fiscal were still in Masbate when the respondent Fiscal issued the warrants of arrest against the
petitioners. There was no basis for the respondent Judge to make his own personal determination regarding
the existence of a probable cause for the issuance of a warrant of arrest as mandated by theConstitution. He
could not possibly have known what transpired in Masbate as he had nothing but a certification. Significantly,
the respondent Judge denied the petitioners' motion for the transmittal of the records on the ground that the
mere certification and recommendation of the respondent Fiscal that a probable cause exists is sufficient for
him to issue a warrant of arrest. prLL
We reiterate the ruling in Soliven v. Makasiar that the Judge does not have to personally examine the
complainant and his witnesses. The Prosecutor can perform the same functions as a commissioner for the
taking of the evidence. However, there should be a report and necessary documents supporting the Fiscal's
bare certification. All of these should be before the Judge.
The extent of the Judge's personal examination of the report and its annexes depends on the circumstances of
each case. We cannot determine beforehand how cursory or exhaustive the Judge's examination should be.
The Judge has to exercise sound discretion for, after all, the personal determination is vested in the Judge by
theConstitution. It can be as brief or as detailed as the circumstances of each case require. To be sure, the Judge
must go beyond the Prosecutor's certification and investigation report whenever necessary. He should call for
the complainant and witnesses themselves to answer the court's probing questions when the circumstances of
the case so require. LLjur
It is worthy to note that petitioners Vicente Lim, Sr. and Susana Lim presented to the respondent Judge
documents of recantation of witnesses whose testimonies were used to establish a prima facie case against
them. Although, the general rule is that recantations are not given much weight in the determination of a case
and in the granting of a new trial (Tan Ang Bun v. Court of Appeals, et al.,G.R. No. L-47747, February 15,
1990, People v. Lao Wan Sing,46 SCRA 298 [1972]) the respondent Judge before issuing his own warrants of
arrest should, at the very least, have gone over the records of the preliminary examination conducted earlier in
the light of the evidence now presented by the concerned witnesses in view of the "political undertones"
prevailing in the cases. Even the Solicitor General recognized the significance of the recantations of some
witnesses when he recommends a reinvestigation of the cases, to wit:
"It must be pointed out, however, that among the documents attached to this Petition are
affidavits of recantation subsequently executed by Jimmy Cabarles and Danilo Lozano and an
affidavit executed by one, Camilo Sanano, father of the complainant's witnesses, Renato and
Romeo Sanano. It was precisely on the strength of these earlier written statements of these
witnesses that the Municipal Trial Court of Masbate found the existence of a prima facie case
against petitioners and accordingly recommended the filing of a Criminal Information.
Evidently, the same written statements were also the very basis of the 'Fiscal's Certification',
since the attached affidavits of recantation were not yet then available. Since the credibility of
the prosecution witnesses is now assailed and put in issue and, since the petitioners have not
yet been arraigned, it would be to the broader interest of justice and fair play if a
reinvestigation of this case be had to secure the petitioners against hasty prosecution and to
protect them from an open and public accusation of crime, from the trouble, expense and
anxiety of a public trial, and also to protect the State from useless and expensive trials
(Salonga v. Paño, G.R. No. 59524, February 18, 1985). (Rollo of G.R. Nos. 94054-56, pp. 200-
201).
We reiterate that in making the required personal determination, a Judge is not precluded from relying on the
evidence earlier gathered by responsible officers. The extent of the reliance depends on the circumstances of
each case and is subject to the Judge's sound discretion. However, the Judge abuses that discretion when
having no evidence before him, he issues a warrant of arrest. LLjur
Indubitably, the respondent Judge committed a grave error when he relied solely on the Prosecutor's
certification and issued the questioned Order dated July 5, 1990 without having before him any other basis for
his personal determination of the existence of a probable cause.
WHEREFORE, the instant petitions are hereby GRANTED. The questioned Order of respondent Judge Nemesio
S. Felix of Branch 56, Regional Trial Court of Makati dated July 5, 1990 is declared NULL and VOID and SET
ASIDE. The Temporary Restraining Orders and Preliminary Mandatory Injunction issued in the instant Petitions
are made PERMANENT.
SO ORDERED.
Fernan, C.J.,Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Griño-Aquino,
Medialdea and Regalado, JJ.,concur.
Sarmiento, J.,took no part.
||| (Lim, Sr. v. Felix, G.R. Nos. 94054-57, 94266-69, [February 19, 1991], 272 PHIL 122-138)

SECOND DIVISION

[G.R. No. 50720. March 26, 1984.]

SORIANO MATA, petitioner, vs. HON. JOSEPHINE K. BAYONA, in her capacity as Presiding Judge of the City Court of Ormoc, BERNARDO GOLES and
REYNALDO MAYOTE, respondents.

Valeriano R. Ocubillo for petitioner.

The Solicitor General for respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNLAWFUL SEARCH AND SEIZURE; REQUISITES FOR ISSUANCE OF SEARCH WARRANT. — Under the Constitution "no
search warrant shall issue but 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". More emphatic and detailed is the implementing rule of the constitutional injunction, Section 4 of Rule 126 which provides that the
judge must before issuing the warrant personally examine on oath or affirmation the complainant and any witnesses he may produce and take their depositions in writing, and attach them
to the record, in addition to any affidavits presented to him.

2. ID.; ID.; ID.; ID.; INSUFFICIENCY OF AFFIDAVITS OF COMPLAINANT AND HIS WITNESSES IN THE CASE AT BAR. — Before issuing a search warrant, the examining Judge has to take
depositions in writing of the complainant and the witnesses he may produce and to attach them to the record. Such written deposition is necessary in order that the Judge may be able to
properly determine the existence or non-existence of the probable cause, and to hold liable for perjury the person giving it if it will be found later that his declarations are false. Mere affidavits
of the complainant and his witnesses are thus not sufficient.

3. ID.; ID.; ID.; ID.; NO "DEPOSITION IN WRITING" ATTACHED TO RECORDS OF CASE IN CASE AT BAR. — The judge's insistence that she examined the complainants under oath has become
dubious by petitioner's claim that at the particular time when he examined all the relevant papers connected with the issuance of the questioned search warrant, after he demanded the same
from the lower court since they were not attached to the records, he did not find any certification at the back of the joint affidavit of the complainants. Before he filed his motion to quash the
search warrant and for the return of the articles seized, he was furnished, upon his request, certified true copies of the said affidavits by the Clerk of Court but which certified true copies do
not bear any certification at the back. Petitioner likewise claims that his xerox copy of the said joint affidavit obtained at the outset of this case does not show also the certification of
respondent judge. This doubt becomes more confirmed by respondent Judge's own admission, while insisting that she did examine thoroughly the applicants, that "she did not take the
deposition of Mayote and Goles because to have done so would be to hold a judicial proceeding which will be open and public", such that, according to her, the persons subject of the intended
raid will just disappear and move his illegal operations somewhere else. Could it be that the certification was made belatedly to cure the defect of the warrant? Be that as it may, there was
no "deposition in writing" attached to the records of the case in palpable disregard of the statutory prohibition heretofore quoted.
4. ID.; ID.; ID.; ID.; DEPOSITIONS, HOW TAKEN. — The searching questions propounded to the applicants of the search warrant and his witnesses must depend to a large extent upon the
discretion of the Judge just as long as the answers establish a reasonable ground to believe the commission of a specific offense and that the applicant is one authorized by law, and said
answers particularly describe with certainty the place to be searched and the persons or things to be seized. The examination or investigation which must be under oath may not be in public.
It may even be held in the secrecy of his chambers. Far more important is that the examination or investigation is not merely routinary but one that is thorough and elicit the required
information. To repeat, it must be under oath and must be in writing.

5. ID.; ID.; ID.; ID.; MUST BE STRICTLY COMPLIED WITH; CASE AT BAR. — Nothing can justify the issuance of the search warrant but the fulfillment of the legal requisites. Thus, in issuing a
search warrant the Judge must strictly comply with the requirements of the Constitution and the statutory provisions. In the case at bar, the search warrant is tainted with illegality by the
failure of the Judge to conform with essential requisites of taking the depositions in writing and attaching them to record, rendering the search warrant invalid.

6. ID.; ID.; ID.; ALTHOUGH ILLEGAL, THINGS SEIZED CANNOT BE RETURNED; CASE AT BAR. — While the search warrant is illegal, the return of the things seized cannot be ordered. In
Castro vs. Pabalan (70 SCRA 478), it was held that the illegality of the search warrant does not call for the return of the things seized, the possession of which is prohibited.

DECISION

DE CASTRO, J p:

The validity of the search warrant issued by respondent Judge (not reappointed) is challenged by petitioner for
its alleged failure to comply with the requisites of the Constitution and the Rules of Court.
Specifically, the contention is that the search warrant issued by respondent Judge was based merely on the
application for search warrant and a joint affidavit of private respondents which were wrongfully it is alleged
subscribed, and sworn to before the Clerk of Court of respondent Judge. Furthermore, there was allegedly a
failure on the part of respondent Judge to attach the necessary papers pertinent to the issuance of the search
warrant to the records of Criminal Case No. 4298-CC wherein petitioner is accused under PD 810, as amended
by PD 1306, the information against him alleging that Soriano Mata offered, took and arranged bets on the Jai
Alai game by "selling illegal tickets known as 'Masiao tickets' without any authority from the Philippine Jai Alai
& Amusement Corporation or from the government authorities concerned." 1
Petitioner claims that during the hearing of the case, he discovered that nowhere from the records of the said
case could be found the search warrant and other pertinent papers connected to the issuance of the same, so
that he had to inquire from the City Fiscal its whereabouts, and to which inquiry respondent Judge replied, "it
is with the court". The Judge then handed the records to the Fiscal who attached them to the records. prcd
This led petitioner to file a motion to quash and annul the search warrant and for the return of the articles
seized, citing and invoking, among others, Section 4 of Rule 126 of the Revised Rules of Court. The motion was
denied by respondent Judge on March 1, 1979, stating that the court has made a thorough investigation and
examination under oath of Bernardo U. Goles and Reynaldo T. Mayote, members of the Intelligence Section of
352nd PC Co./Police District II INP; that in fact the court made a certification to that effect; and that the fact
that documents relating to the search warrant were not attached immediately to the record of the criminal
case is of no moment, considering that the rule does not specify when these documents are to be attached to
the records. 2 Petitioner's motion for reconsideration of the aforesaid order having been denied, he came to
this Court, with the instant petition, praying, among others, that this Court declare the search warrant to be
invalid and all the articles confiscated under such warrant as inadmissible as evidence in the case, or in any
proceedings on the matter.
We hold that the search warrant is tainted with illegality for being violative of the Constitution and the Rules
of Court.
Under the Constitution "no search warrant shall issue but 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". More emphatic and detailed is the implementing rule of
the constitutional injunction, Section 4 of Rule 126 which provides that the judge must before issuing the
warrant personally examine on oath or affirmation the complainant and any witnesses he may produce and
take their depositions in writing, and attach them to the record, in addition to any affidavits presented to him.
Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take
depositions in writing of the complainant and the witnesses he may produce and to attach them to the record.
Such written deposition is necessary in order that the Judge may be able to properly determine the existence
or non-existence of the probable cause, to hold liable for perjury the person giving it if it will be found later that
his declarations are false.
We, therefore, hold that the search warrant is tainted with illegality by the failure of the Judge to conform with
the essential requisites of taking the depositions in writing and attaching them to the record, rendering the
search warrant invalid. cdll
The judge's insistence that she examined the complainants under oath has become dubious by petitioner's
claim that at the particular time when he examined all the relevant papers connected with the issuance of the
questioned search warrant, after he demanded the same from the lower court since they were not attached to
the records, he did not find any certification at the back of the joint affidavit of the complainants. As stated
earlier, before he filed his motion to quash the search warrant and for the return of the articles seized, he was
furnished, upon his request, certified true copies of the said affidavits by the Clerk of Court but which certified
true copies do not bear any certification at the back. Petitioner likewise claims that his xerox copy of the said
joint affidavit obtained at the outset of this case does not show also the certification of respondent judge. This
doubt becomes more confirmed by respondent Judge's own admission, while insisting that she did examine
thoroughly the applicants, that "she did not take the deposition of Mayote and Goles because to have done so
would be to hold a judicial proceeding which will be open and public", 3 such that, according to her, the persons
subject of the intended raid will just disappear and move his illegal operations somewhere else.

Could it be that the certification was made belatedly to cure the defect of the warrant? Be that as it may, there
was no "deposition in writing" attached to the records of the case in palpable disregard of the statutory
prohibition heretofore quoted.
Respondent Judge impresses this Court that the urgency to stop the illegal gambling that lures every man,
woman and child, and even the lowliest laborer who could hardly make both ends meet justifies her action. She
claims that in order to abate the proliferation of this illegal "masiao" lottery, she thought it more prudent not
to conduct the taking of deposition which is done usually and publicly in the court room.
Two points must be made clear. The term "depositions" is sometimes used in a broad sense to describe any
written statement verified by oath; but in its more technical and appropriate sense the meaning of the word is
limited to written testimony of a witness given in the course of a judicial proceeding in advance of the trial or
hearing upon oral examination. 4 A deposition is the testimony of a witness, put or taken in writing, under oath
or affirmation before a commissioner, examiner or other judicial officer, in answer to interlocutory and cross
interlocutory, and usually subscribed by the witnesses. 5 The searching questions propounded to the applicants
of the search warrant and his witnesses must depend to a large extent upon the discretion of the Judge just as
long as the answers establish a reasonable ground to believe the commission of a specific offense and that the
applicant is one authorized by law, and said answers particularly describe with certainty the place to be
searched and the persons or things to be seized. The examination or investigation which must be under oath
may not be in public. It may even be held in the secrecy of his chambers. Far more important is that the
examination or investigation is not merely routinary but one that is thorough and elicit the required
information. To repeat, it must be under oath and must be in writing. LexLib
The other point is that nothing can justify the issuance of the search warrant but the fulfillment of the legal
requisites. It might be well to point out what has been said in Asian Surety & Insurance Co., Inc. vs. Herrera:
"It has been said that of all the rights of a citizen, few are of greater importance or more
essential to his peace and happiness than the right of personal security, and that involves the
exemption of his private affairs, books, and papers from inspection and scrutiny of others.
While the power to search and seize is necessary to the public welfare, still it must be exercised
and the law enforced without transgressing the constitutional rights of the citizens, for the
enforcement of no statute is of sufficient importance to justify indifference to the basic
principles of government." 6
Thus, in issuing a search warrant the Judge must strictly comply with the requirements of the Constitution and
the statutory provisions. A liberal construction should be given in favor of the individual to prevent stealthy
encroachment upon, or gradual depreciation of the rights secured by the Constitution. 7 No presumption of
regularity are to be invoked in aid of the process when an officer undertakes to justify it. 8
While We hold that the search warrant is illegal, the return of the things seized cannot be ordered. In Castro vs.
Pabalan, 9 it was held that the illegality of the search warrant does not call for the return of the things seized,
the possession of which is prohibited.
WHEREFORE, the writ of certiorari is granted and the order of March 1, 1979 denying the motion to annul the
search warrant as well as the order of March 21, 1979 denying the motion for reconsideration are hereby
reversed, the search warrant, being declared herein as illegal. Notwithstanding such illegality, the things seized
under such warrant, such as stock of "masiao" tickets; "masiao" issue tickets; bet money; control pad or
"masiao" numbers; stamping pad with rubber stamp marked Ormoc City Jai-Alai," cannot be returned as
sought by petitioner. No costs.
SO ORDERED.
Makasiar, Concepcion, Jr. and Guerrero, JJ ., concur.

Aquino and Escolin, JJ ., concur in the result.

Abad Santos, J ., took no part.

Footnotes
1.Annex "A", of the petition, p. 7, Rollo.

2.Annex "H" of the petition, p. 20, id.

3.Comment, p. 31, id.

4.16 Am Jur, 699.

5.Words & Phrases "Demand", p. 258.

6.54 SCRA 312.

7.Alvarez vs. Court of First Instance of Tayabas, 64 Phil. 42.

8.People vs. Veloso, 40 Phil. 169.

9.70 SCRA 478.

||| (Mata v. Bayona, G.R. No. 50720, [March 26, 1984], 213 PHIL 348-355)
THIRD DIVISION

[G.R. Nos. 76649-51. August 19, 1988.]

20TH CENTURY FOX FILM CORPORATION, petitioner, vs. COURT OFAPPEALS, EDUARDO M. BARRETO, RAUL SAGULLO and FORTUNE
LEDESMA, respondents.

Siguion Reyna, Montecillo & Ongsiako Law Office for petitioner.

B.C. Salazar & Associates for respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURE; IMPORTANCE. — The constitutional right provided in Sec. 2, Art.
III of the present Constitution protects a citizen against wanton and unreasonable invasion of his privacy and liberty as to his person, papers and effects. We have explained in the
case of People v. Burgos (144 SCRA 1) citing Villanueva v.Querubin (48 SCRA 345) why the right is so important: "'It is deference to one's personality that lies at the core of this right but it could
be also looked upon as a recognition of a constitutionally protected area, primarily one's home, but not necessarily thereto confined. (Cf. Hoffa v. United States, 385 US 293 [1966]) What is
sought to be guarded is a man's prerogative to choose who is allowed entry to his residence. In that haven ofrefuge, his individuality can assert itself not only in the choice of who shall be welcome
but likewise in the kind of objects he wants around him. There the state, however powerful, does not as such have access except under the circumstances above noted, for in the traditional
formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling and to respect
the privacies of his life. (Cf. Schmerber v. California, 384 US 757 [1966], Brennan, J. and Boyd v. United States, 116 630 [1886]). In the same vein, Landynski in his authoritative work (Search and
Seizure and the SupremeCourt [1966]), could fitly characterize constitutional right as the embodiment of a 'spiritual concept: the belief that to value the privacy of home and person and to afford
its constitutional protection against the long reach of government is no less than to value human dignity, and that his privacy must not be disturbed except in case of overriding social need, and
then only under stringent procedural safeguards.' (ibid, p. 74).'"

2. ID.; ID.; ID.; ISSUANCE OF SEARCH WARRANT; RESTRICTED BY THE SEARCHES AND SEIZURES PROVISION. — The government's right to issue search warrants against a citizen's papers
and effects is circumscribed by the requirements mandated in the searches and seizures provision of the Constitution.

3. ID.; ID.; ID.; ID.; PROBABLE CAUSE; DEFINED. — In the case of Burgos, Sr. v. Chief ofStaff , AFP (133 SCRA 800), we defined probable cause for a valid search "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."

4. ID.; ID.; ID.; ID.; PERSONAL KNOWLEDGE OF COMPLAINANT OR WITNESSES, REQUIRED. — This constitutional provision also demands "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 order to convince the judge, not the individual making the affidavit and seeking the
issuance of the warrant, of the existence of a probable cause. (Alvarez v. Court of First Instance, 64 Phil. 33; Burgos, Sr. v. Chief of Staff, AFP, supra).

5. ID.; ID.; ID.; ID.; COPYRIGHT INFRINGEMENT, PRESENTATION OF MASTER TAPES ALLEGEDLY COPIED IS NECESSARY. — The essence of a copyright infringement is the similarity or
at least substantial similarity of the purported pirated works to the copyrighted work. Hence, the applicant must present to the court the copyrighted films to compare them with the
purchased evidence of the video tapes allegedly pirated to determine whether the latter is an unauthorized reproduction of the former. This linkageof the copyrighted films to the pirated
films must be established to satisfy the requirements of probable cause. Mere allegations as to the existence of the copyrighted films cannot serve as basis for the issuance of a search warrant.

6. ID.; ID.; ID.; ID.; GENERAL WARRANTS, A VIOLATION OF THE CONSTITUTIONAL RIGHTS. — In the case of Burgos v. Chief of Staff, AFP supra, we stated: "Another factor which makes
the search warrants under consideration constitutionally objectionable is that they are in the nature of general warrants." Undoubtedly, a similar conclusion can be deduced from the
description of the articles sought to be confiscated under the questioned search warrants. Television sets, video cassette recorders, rewinders and tape cleaners are articles which can be
found in a video tape store engaged in the legitimate business of lending or renting out betamax tapes. In short, these articles and appliances are generally connected with, or related to a
legitimate business not necessarily involving piracy of intellectual property or infringement of copyright laws. Hence, including these articles without specification and/or particularity that
they were really instruments in violating an Anti-Piracy law makes the search warrant too general which could result in the confiscation of all items found in any video store.

7. CRIMINAL LAW; ANTI-PIRACY LAW; COURTS MUST NOT IMPOSE OBSTACLES IN ANTI-FILM PIRACY CAMPAIGN; CONSTITUTIONAL RIGHT. HOWEVER, MUST BE SAFEGUARDED.
— The proliferation of pirated tapes of films not only deprives the government of much needed revenues but is also an indication of the widespread breakdown of national order and
discipline. Courts should not impose any unnecessary roadblocks in the way of the anti-film piracy campaign. However, the campaign cannot ignore or violate constitutional safeguards. To
say that the problem of pirated films can be solved only by the use of unconstitutional shortcuts is to denigrate the long history and experience behind the searches and seizures clause of the
Bill of Rights.

DECISION

GUTIERREZ, JR., J p:

The petitioner questions the application of the constitutional provision against illegal searches and seizures to raids
conducted in connection with the government's anti-film piracy campaign. The main issue hinges on whether or not the
judge properly lifted the search warrants he issued earlier upon the application of the National Bureau ofInvestigation on
the basis of the complaint filed by the petitioner.
In a letter-complaint dated August 26, 1985, petitioner 20th Century Fox Film Corporation through counsel sought the
National Bureau of Investigation's (NBI) assistance in the conduct of searches and seizures in connection with the latter's
anti-film piracy campaign. Specifically, the letter-complaint alleged that certain videotape outlets all over Metro Manila
are engaged in the unauthorized sale and renting out ofcopyrighted films in videotape form which constitute a flagrant
violation of Presidential Decree No. 49 (otherwise known as the Decree on the Protection of Intellectual Property).
Acting on the letter-complaint, the NBI conducted surveillance and investigation of the outlets pinpointed by the
petitioner and subsequently filed three (3) applications for search warrants against the video outlets owned by the private
respondents. The applications were consolidated and heard by the Regional Trial Court of Makati, Branch 132. prLL
On September 4, 1985, the lower court issued the desired search warrants.
Armed with the search warrants, the NBI accompanied by the petitioner's agents, raided the video outlets and seized the
items described therein. An inventory of the items seized was made and left with the private respondents.
Acting on a motion to lift search warrants and release seized properties filed by the private respondents, the
lower court issued an order dated October 8, 1985, lifting the three (3) search warrants issued earlier against the private
respondents by the court. The dispositive portion of the order reads:
"WHEREFORE, the Court hereby orders that Search Warrants Nos. SW-85-024; issued against Eduardo
M. Barreto of the Junction Video, etc., Parañaque, Metro Manila; SW No. 85-025, issued against Raul
M. Sagullo of South Video Bug Center, Inc., etc., also of No. 5355 Pres. Avenue BF Homes, Parañaque,
Metro Manila; and SW No. 85-026, issued against Fortune A. Ledesma of Sonix Video Services of San
Antonio Plaza, Forbes Park, Makati, Metro Manila, be lifted.
"Consequently, the articles listed in the returns of the three search warrants which could not be a
basis of any criminal prosecution, now in the possession ofthe National Bureau of Investigation which
under the law must be delivered to this Court, but which the NBI failed to do, are hereby ordered to be
returned to their owners through their lawyer, Atty. Benito Salazar or his agents or representatives,
against proper receipt, to be forwarded to this Court for record purposes, as proof that said properties
have been returned to the possession ofthe rightful owners." (p. 34, Rollo)
The lower court denied a motion for reconsideration filed by the petitioner in its order dated January 2, 1986. llcd
The petitioner filed a petition for certiorari with the Court of Appeals to annul the October 8, 1985 and January 2, 1986
orders of the lower court. The petition was dismissed.
Hence, this petition.
The main issue hinges on the meaning of "probable cause" within the context of the constitutional provision against
illegal searches and seizures (Section 3, Article IV, 1973 Constitution, now, Section 2, Article III, 1987 Constitution.
The petitioner maintains that the lower court issued the questioned search warrants after finding the existence of a
probable cause justifying their issuance. According to the petitioner, the lower court arrived at this conclusion on the
basis of the depositions ofapplicant NBI's two witnesses which were taken through searching questions and answers by
the lower court.

Section 2, Article III of the present Constitution which substantially reproduces Section 3, Article IV of the 1973
Constitution on illegal searches and seizures provides:
"The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant
or warrant of arrest shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the persons or things to be seized."
This constitutional right protects a citizen against wanton and unreasonable invasion ofhis privacy and liberty as to his
person, papers and effects. We have explained in the case of People v. Burgos (144 SCRA 1) citing Villanueva v.
Querubin (48 SCRA 345) why the right is so important:
"'It is deference to one's personality that lies at the core of this right but it could be also looked upon as
a recognition of a constitutionally protected area, primarily one's home, but not necessarily thereto
confined. (Cf. Hoffa v. United States, 385 US 293 [1966]) What is sought to be guarded is a man's
prerogative to choose who is allowed entry to his residence. In that haven of refuge, his individuality
can assert itself not only in the choice of who shall be welcome but likewise in the kind of objects he
wants around him. There the state, however powerful, does not as such have access except under the
circumstances above noted, for in the traditional formulation, his house, however humble, is his castle.
Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any
invasion of his dwelling and to respect the privacies of his life. (Cf. Schmerber v. California, 384 US 757
[1966], Brennan, J. and Boyd v. United States, 116 630 [1886]). In the same vein, Landynski in his
authoritative work (Search and Seizure and the Supreme Court [1966]), could fitly characterize
constitutional right as the embodiment of a 'spiritual concept: the belief that to value the
privacy of home and person and to afford its constitutional protection against the long
reach of government is no less than to value human dignity, and that his privacy must not be disturbed
except in case of overriding social need, and then only under stringent procedural safeguards.' (ibid, p.
74)."
The government's right to issue search warrants against a citizen's papers and effects is circumscribed by the
requirements mandated in the searches and seizures provision ofthe Constitution. llcd
In the case of Burgos, Sr. v. Chief of Staff, AFP (133 SCRA 800), we defined probable cause for a valid search "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." This
constitutional provision also demands "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 order to convince the judge, not the individual making
the affidavit and seeking the issuance of the warrant, of the existence of a probable cause. (Alvarez v.Court of First
Instance, 64 Phil. 33; Burgos, Sr. v. Chief of Staff, AFP, supra).
In the instant case, the lower court lifted the three questioned search warrants against the private respondents on the
ground that it acted on the application for the issuanceof the said search warrants and granted it on the
misrepresentations of applicant NBI and its witnesses that infringement of copyright or a piracy of a particular film have
been committed. Thus the lower court stated in its questioned order dated January 2, 1986:
"According to the movant, all three witnesses during the proceedings in the application for the three
search warrants testified of their own personal knowledge. Yet, Atty. Albino Reyes of the NBI stated
that the counsel or representative of the Twentieth Century Fox Corporation will testify on the video
cassettes that were pirated, so that he did not have personal knowledge of the alleged piracy. The
witness Bacani also said that the video cassettes were pirated without stating the manner it was pirated
and that it was Atty. Domingo that has knowledge of that fact.
"On the part of Atty. Domingo, he said that the re-taping of the allegedly pirated tapes was from
master tapes allegedly belonging to the Twentieth Century Fox, because, according to him, it is of his
personal knowledge.
"At the hearing of the Motion for Reconsideration, Senior NBI Agent Atty. Albino Reyes testified that
when the complaint for infringement was brought to the NBI, the master tapes of the allegedly pirated
tapes were shown to him and he made comparisons of the tapes with those purchased by their man
Bacani. Why the master tapes or at least the film reels of the allegedly pirated tapes were not shown
to the Court during the application gives some misgivings as to the truth ofthat bare statement of the
NBI agent on the witness stand.
"Again as the application and search proceedings is a prelude to the filing ofcriminal cases under PD
49, the copyright infringement law, and although what is required for the issuance thereof is merely
the presence of probable cause, that probable cause must be satisfactory to the Court, for it is a time-
honored precept that proceedings to put a man to task as an offender under our laws should be
interpreted in strictissimi juris against the government and liberally in favor of the alleged offender.
xxx xxx xxx
"This doctrine has never been overturned, and as a matter of fact it had been enshrined in the
Bill of Rights in our 1973 Constitution.
"So that lacking in persuasive effect, the allegation that master tapes were viewed by the NBI and were
compared to the purchased and seized video tapes from the respondents' establishments, it should be
dismissed as not supported by competent evidence and for that matter the probable cause hovers in
that grey debatable twilight zone between black and white resolvable in favor ofrespondents herein.
"But the glaring fact is that 'Cocoon,' the first video tape mentioned in the search warrant, was not even
duly registered or copyrighted in the Philippines. (Annex Cof Opposition p. 152 record). So, that lacking
in the requisite presentation to theCourt of an alleged master tape for purposes of comparison with the
purchased evidence of the video tapes allegedly pirated and those seized from respondents, there was
no way to determine whether there really was piracy, or copying of the film of the complainant
Twentieth Century Fox." (pp. 37-39, Rollo)
xxx xxx xxx
The lower court, therefore, lifted the three (3) questioned search warrants in the absenceof probable cause that the
private respondents violated P.D. 49. As found out by thecourt, the NBI agents who acted as witnesses did not have
personal knowledge of the subject matter of their testimony which was the alleged commission of the offense by the
private respondents. Only the petitioner's counsel who was also a witness during the application for the issuance of the
search warrants stated that he had personal knowledge that the confiscated tapes owned by the private respondents
were pirated tapes taken from master tapes belonging to the petitioner. However, the lower court did not give much
credence to his testimony in view of the fact that the master tapes of the allegedly pirated tapes were not shown to
the court during the application.
All these factors were taken into consideration by the lower court when it lifted the three questioned search warrants.
There is no truth, therefore, to the petitioner's allegation that the lower court based its January 2, 1986 order only "on
the fact that the original or master copies of the copyrighted films were not presented during the application for search
warrants, thus leading it to conclude that it had been "misled by the applicant and his witnesses." (p. 17, Rollo)
The presentation of the master tapes of the copyrighted films from which the pirated films were allegedly copied, was
necessary for the validity of search warrants against those who have in their possession the pirated films. The petitioner's
argument to the effect that the presentation of the master tapes at the time of application may not be necessary as these
would be merely evidentiary in nature and not determinative ofwhether or not a probable cause exists to justify the
issuance of the search warrants is not meritorious. The court cannot presume that duplicate or copied tapes were
necessarily reproduced from master tapes that it owns.
The application for search warrants was directed against video tape outlets which allegedly were engaged in the
unauthorized sale and renting out of copyrighted films belonging to the petitioner pursuant to P.D. 49.
The essence of a copyright infringement is the similarity or at least substantial similarityof the purported pirated works
to the copyrighted work. Hence, the applicant must present to the court the copyrighted films to compare them with the
purchased evidenceof the video tapes allegedly pirated to determine whether the latter is an unauthorized
reproduction of the former. This linkage of the copyrighted films to the pirated films must be established to satisfy the
requirements of probable cause. Mere allegations as to the existence of the copyrighted films cannot serve as basis for
the issuance of a search warrant. LLphil
Furthermore, we note that the search warrants described the articles sought to be seized as follows:
xxx xxx xxx
"c) Television sets, Video Cassettes Recorders, rewinders, tape head cleaners, accessories, equipments
and other machines used or intended to be used in the unlawful reproduction, sale, rental/lease,
distribution of the above-mentioned video tapes which she is keeping and concealing in the premises
above-described." (p 26, Rollo)

In the case of Burgos v. Chief of Staff, AFP supra, we stated:


xxx xxx xxx
"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 related to the WE FORUM' newspaper and any
and all document/communications, letters and facsimile of prints related to the 'WE FORUM'
newspaper.
"'2] Subversive documents, pamphlets, leaflets, books, and other publications to promote the
objectives and purposes of the subversive organizations 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.
"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 542;
"'4] TOYOTA-TAMARAW, colored white with Plate No. NBS 542;
"'5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with marking 'Bagong
Silang.'
"In Stanford v. State of Texas (379 U.S. 476, 13 L ed 2nd 431),the search warrant which authorized the
search for 'books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other
written instruments concerning the Communist Parties of Texas, and the operations of the
Community 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 connection with 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
(68 Am. Jur. 2d., pp. 736-737). The description of the articles sought to be seized under the search
warrants in question cannot be characterized differently." (at pp. 814-815)
Undoubtedly, a similar conclusion can be deduced from the description of the articles sought to be confiscated under the
questioned search warrants.
Television sets, video cassette recorders, rewinders and tape cleaners are articles which can be found in a video tape store
engaged in the legitimate business of lending or renting out betamax tapes. In short, these articles and appliances are
generally connected with, or related to a legitimate business not necessarily involving piracy ofintellectual property or
infringement of copyright laws. Hence, including these articles without specification and/or particularity that they were
really instruments in violating an Anti-Piracy law makes the search warrant too general which could result in the
confiscation of all items found in any video store. In fact, this actually happened in the instant case. Thus, the lower court,
in its questioned order dated October 8, 1985 said:
"Although the applications and warrants themselves covered certain articles ofproperty usually found
in a video store, the Court believes that the search party should have confined themselves to articles
that are according to them, evidence constitutive of infringement of copyright laws or the
piracy of intellectual property, but not to other articles that are usually connected with, or related to, a
legitimate business, not involving piracy of intellectual property, or infringementof copyright laws. So
that a television set, a rewinder, and a whiteboard listing Betamax tapes, video cassette cleaners video
cassette recorders as reflected in the Returns of Search Warrants, are items of legitimate business
engaged in the video tape industry, and which could not be the subject of seizure. The applicant and
his agents therefore exceeded their authority in seizing perfectly legitimate personal property usually
found in a video cassette store or business establishment." (p. 33, Rollo)
All in all, we find no grave abuse of discretion on the part of the lower court when it lifted the search warrants it earlier
issued against the private respondents. We agree with the appellate court's findings to the effect that:
"An assiduous examination of the assailed orders reveal that the main ground upon which the
respondent Court anchored said orders was its subsequent findings that it was misled by the applicant
(NBI) and its witnesses 'that infringement of copyright or a piracy of a particular film have been
committed when it issued the questioned warrants.' Stated differently, the respondent Courtmerely
corrected its erroneous findings as to the existence of probable cause and declared the search and
seizure to be unreasonable. Certainly, such action is within the power and authority of the
respondent Court to perform, provided that it is not exercised in an oppressive or arbitrary manner.
Indeed, the order of the respondent Court declaring the existence of probable cause is not final and
does not constitute res judicata.
"A careful review of the record of the case shows that the respondent Court did not commit a grave
abuse of discretion when it issued the questioned orders. Grave abuse of discretion 'implies such
capricious and whimsical exercise ofjudgment as is equivalent to lack of jurisdiction, or, in other words,
where the power is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, and it must be so patent and gross as to amount to an evasionof positive duty or to a virtual
refusal to perform the duty enjoined or to act at all in contemplation of law.' But far from being
despotic or arbitrary, the assailed orders were motivated by a noble desire of rectifying an error, much
so when the erroneous findings collided with the constitutional rights of the private respondents. In
fact, the petitioner did not even contest the righteousness and legality of the questioned orders but
instead concentrated on the alleged denialof due process of law." (pp. 44-45, Rollo)
The proliferation of pirated tapes of films not only deprives the government of much needed revenues but is also an
indication of the widespread breakdown of national order and discipline. Courts should not impose any unnecessary
roadblocks in the wayof the anti-film piracy campaign. However, the campaign cannot ignore or violate constitutional
safeguards. To say that the problem of pirated films can be solved only by the use of unconstitutional shortcuts is to
denigrate the long history and experience behind the searches and seizures clause of the Bill of Rights. The trial court did
not commit reversible error. LLpr
WHEREFORE, the instant petition is DISMISSED. The questioned decision and resolutionof the Court of Appeals are
AFFIRMED.

EN BANC

[G.R. No. L-69803. October 8, 1985.]

CYNTHIA D. NOLASCO, MILA AGUILAR-ROQUE and WILLIE C. TOLENTINO,petitioners, vs. HON. ERNANI CRUZ PAÑO, Executive Judge, Regional Trial Court of
Quezon City; HON. ANTONIO P. SANTOS, Presiding Judge, Branch XLII, Metropolitan Trial Court of Quezon City; HON. SERGIO F. APOSTOL, City Fiscal Quezon
City; HON. JUAN PONCE ENRILE, LT. GEN. FIDEL RAMOS and COL. JESUS ALTUNA, respondents.

Jose W. Diokno, Joker P. Arroyo, Rene A.V. Sarmiento, Dan Malabonga and Cesar Maravilla for petitioners.

DECISION

MELENCIO-HERRERA, J p:

The facts before the Court in these Certiorari, Prohibition, and Mandamus proceedings will be briefly stated.
The three petitioners will be referred to through their surnames ofNOLASCO, AGUILAR-ROQUE and
TOLENTINO. LLpr
1. Prior to August 6, 1984 (hereinafter to be referred to without the year), AGUILAR-ROQUE was one of the
accused of Rebellion in Criminal Case No. SMC-1-1 before Special Military Commission No. 1, and also one of
the accused of Subversion in Criminal Case No. MC-25-113 of Military Commission No. 25, both cases being
entitled "People of the Philippines vs. Jose Ma. Sison, et al." She was then still at large.
2. At 11:30 A.M. on August 6th, AGUILAR-ROQUE and NOLASCO were arrested by a Constabulary Security
Group (CSG) at the intersection of Mayon Street and P. Margall Street, Quezon City. The stated time is an
allegation of petitioners, not denied by respondents. The record does not disclose that a warrant of arrest had
previously been issued against NOLASCO.
3. At 12:00 N. on August 6th, elements of the CSG searched the premises at 239-B Mayon Street, Quezon City.
The stated time is an allegation of petitioners, not specifically denied by respondents. In their COMMENT,
however, respondents have alleged that the search was conducted "late on the same day"; that is late on
August 6th.
4. On August 6th, at around 9:00 A.M., Lt. Col. Virgilio G. Saldajeno of the CSG, applied for a Search Warrant
from respondent Hon. Ernani Cruz Paño, Executive Judge of the Regional Trial Court in Quezon City, to be
served at No. 239-B Mayon Street, Quezon City, determined to be the leased residence of AGUILAR-ROQUE,
after almost a month of "round the clock surveillance" of the premises as a "suspected underground house of
the CPP/NPA." AGUILAR-ROQUE has been long wanted by the military for being a high ranking officer of the
Communist Party of the Philippines, particularly connected with the MV Karagatan/Doña Andrea cases.
In connection with the Search Warrant issued, the following may be stated:
(a) The Search Warrant was issued in proceedings entitled "People of the Philippinesvs. Mila Aguilar-Roque,
Accused, Search Warrant No. 80-84 for Rebellion" (the SEARCH WARRANT CASE). Judge Paño's Court was
Branch 88.
(b) It does not appear from the records before us that an application in writing was submitted by Lt. Col.
Saldajeno to Judge Paño.
(c) According to the record, Lt. Col. Saldajeno and his witness S/A Dionicio A. Lapus, were examined under oath
by Judge Paño, but only the deposition of S/A Lapus has been submitted to us. The latter deposed that to his
personal knowledge, there were kept in the premises to be searched records, documents and other papers of
the CPP/NPA and the National Democratic Front, including support money from foreign and local sources
intended to be used for rebellion. 1
5. In connection with the search made at 12:00 N. of August 6th, the following may be stated:
(a) TOLENTINO was a person then in charge of the premises. He was arrested by the searching party
presumably without a warrant of arrest.
(b) The searching party seized 428 documents and written materials, 2 and additionally a portable typewriter,
and 2 wooden boxes, making 431 items in all. 3
(c) According to the Return, submitted in the SEARCH WARRANT CASE on August 10th, 4 the search was made
in the presence of Dra. Marciana Galang, owner of the premises, and of two (2) Barangay Tanods. No mention
was made that TOLENTINO was present. The list of the 428 articles and documents attached to the Return
was signed by the two Barangay Tanods, but not by Dra. Galang.
6. (a) On August 10th, the three petitioners, AGUILAR-ROQUE, NOLASCO and TOLENTINO, were charged
before the Quezon City Fiscal's Office (the CITY FISCAL, for short) upon complaint filed by the CSG against
petitioners for "Subversion/Rebellion and/or Conspiracy to Commit Rebellion/Subversion.
"(b) On August 13th, the CITY FISCAL filed an Information for Violation of Presidential Decree No. 33 (Illegal
Possession of Subversive Documents) against petitioners before Branch 42 of the Metropolitan Trial Court of
Quezon City (the SUBVERSIVE DOCUMENTS CASE), respondent Judge Antonio P. Santos, presiding.
(c) On August 16th, CSG filed a Motion for Reconsideration with the CITY FISCAL, praying that AGUILAR-
ROQUE and NOLASCO be charged with Subversion. The Motion was denied on November 16th.
7. (a) On September 10th, the CSG submitted an Amended Return in the SEARCH WARRANT CASE
praying, inter alia, that the CSG be allowed to retain the seized 431 documents and articles, "in connection with
cases that are presently pending against Mila Aguilar Roque before the Quezon City Fiscal's Office and the
court." 5
(b) On September 28th, petitioners were required by Judge Paño to comment on the Amended Return, which
AGUILAR-ROQUE did on October 18th, raising the issue of the inadmissibility of any evidence obtained
pursuant to the Search Warrant.
(c) On December 13, 1984, Judge Paño admitted the Amended Return and ruled that the seized documents
"shall be subject to disposition of the tribunal trying the case against respondent."
8. (a) On December 12th, petitioners filed a Motion to Suppress in the SUBVERSIVE DOCUMENTS CASE,
praying that such of the 431 items belonging to them be returned to them. It was claimed that the proceedings
under the Search Warrant were unlawful. Judge Santos denied the Motion on January 7, 1985 on the ground
that the validity of the Search Warrant has to be litigated in the SEARCH WARRANT CASE. He was apparently
not aware of the Order of Judge Paño of December 13th issued in the SEARCH WARRANT CASE.
Hence, this Petition for Certiorari, Prohibition and Mandamus to annul and set aside the (1) Search Warrant
issued by respondent RTC Judge Paño; (2) his Order admitting the Amended Return and granting the Motion
to Retain Seized Items; and (3) Order of respondent MTC Judge Santos denying petitioners' Motion to
Suppress.
This Court, on February 12, 1985, issued a Temporary Restraining Order enjoining the respondents or their duly
authorized representatives from introducing evidence obtained under the Search Warrant. prcd
The PETITIONERS principally assert that the Search Warrant is void because it is a general warrant since it does
not sufficiently describe with particularity the things subject of the search and seizure, and that probable cause
has not been properly established for lack of searching questions propounded to the applicant's witness. The
respondents, represented by the Solicitor General, contend otherwise, adding that the questions raised cannot
be entertained in this present petition without petitioners first moving for the quashal of the disputed Search
Warrant with the issuing Judge.
We find merit in the Petition.
Section 3, Article IV of the Constitution, guarantees 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. It also
specifically provides that no Search Warrant 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 things to be seized.
The disputed Search Warrant (No. 80-84) describes the personalities to be seized as follows:
"Documents, papers and other records of the Communist Party of the Philippines/New
Peoples Army and/or the National Democratic Front, such as Minutes of the Party Meetings,
Plans of these groups, Programs, List of possible supporters, subversive books and
instructions, manuals not otherwise available to the public, and support money from foreign
or local sources."
It is at once evident that the foregoing Search Warrant authorizes the seizure of personal properties vaguely
described and not particularized. It is an all-embracing description which includes everything conceivable
regarding the Communist Party of the Philippines and the National Democratic Front. It does not specify what
the subversive books and instructions are; what the manuals not otherwise available to the public contain to
make them subversive or to enable them to be used for the crime of rebellion. There is absent a definite
guideline to the searching team as to what items might be lawfully seized thus giving the officers of the law
discretion regarding what articles they should seize as, in fact, taken also were a portable typewriter and 2
wooden boxes. It is thus in the nature of a general warrant and infringes on the constitutional mandate
requiring particular description of the things to be seized. In the recent rulings of this Court, search warrants of
similar description were considered null and void for being too general. Thus:
"Subversive documents, pamphlets, leaflets, books, and other publications to promote the
objectives and purposes of the subversive organizations known as Movement for Free
Philippines. Light-a-Fire Movement and April 6 Movement." 6
"The things to be seized under the warrant issued by respondent judge were described as
`subversive documents, propaganda materials, FAs, printing paraphernalia and all other
subversive materials.' Such description hardly provided a definite guideline to the search team
as to what articles might be lawfully seized thereunder. Said description is no different from if
not worse than, the description found in the search warrants in `Burgos, et al. v. the Chief of
Staff' which this Court declared null and void for being too general." 7

"In the case at bar, the search warrant issued by respondent judge allowed the seizure of
printed copies of the Philippine Times, manuscripts/drafts of articles for publication,
newspaper dummies, subversive documents, articles, etc., and even typewriters, duplicating
machines, mimeographing and tape recording machines. Thus, the language used is so all
embracing as to include all conceivable records and equipment of petitioner regardless of
whether they are legal or illegal. The search warrant under consideration was in the nature of
a general warrant which is constitutionally objectionable." 8
The lack of particularization is also evident in the examination of the witness presented by the applicant for
Search Warrant.
"Q Mr. Dionicio Lapus, there is an application for search warrant filed by Lt. Col. Virgilio
Saldajeno, and the Court would like to know if you affirm the truth of your answer
in this deposition?
(The deposition is read) —
A Yes, sir.
Q How long did it take you for the surveillance?
A Almost a month, sir.
Q Are you a lawyer, Mr. Lapus?
A No, Your Honor, but I was a student of law.
Q So, you are more or less familiar with the requisites of the application for search
warrant?
A Yes, Your Honor.
Q How did you come to know of the person of Mila Aguilar-Roque?
A Because of our day and night surveillance, Your Honor, there were so many suspicious
persons with documents.
Q What kind of documents do you refer to?
A Documents related to the Communist Party of Philippines and New People's Army.
Q What else?
A Conferences of the top ranking officials from the National Democratic Front,
Organization of the Communist Party of the Philippines . . .
Q And may include what else?
A Other papers and documents like Minutes of the Party Meetings, Plans of these
groups, Programs, List of possible supporters, subversive books and instructions,
manuals not otherwise available to the public and support money from foreign
and local sources." 9
The foregoing questions propounded by respondent Executive Judge to the applicant's witness are not
sufficiently searching to establish probable cause. The "probable cause" required to justify the issuance of a
search warrant comprehends such facts and circumstances as will induce a cautious man to rely upon them and
act in pursuant thereof. 10 Of the 8 questions asked, the 1st, 2nd and 4th pertain to identity. The 3rd and 5th
are leading not searching questions. The 6th, 7th and 8th refer to the description of the personalities to be
seized, which is identical to that in the Search Warrant and suffers from the same lack of particularity. The
examination conducted was general in nature and merely repetitious of the deposition of said witness. Mere
generalization will not suffice and does not satisfy the requirements of probable cause upon which a warrant
may issue, 11
Respondents claim, however, that the proper forum for questioning the illegality of a Search Warrant is with
the Court that issued it instead of this original, independent action to quash. The records show, however, that
petitioners did raise that issue in the SEARCH WARRANT CASE in their Comment, dated October 18, 1984. In
fact, they already questioned the admissibility of the evidence obtained under the Search Warrant, even during
the inquest investigation on August 10, 1984. And in the SUBVERSIVE DOCUMENTS CASE, they filed a Motion
to Suppress on December 12, 1984 claiming that the proceedings under the Search Warrant were unlawful.
Substantially, therefore, while not denominated as a motion to quash, petitioners had questioned the legality
of the Search Warrant.
Parenthetically, it strikes the Court that the pendency of the SEARCH WARRANT CASE and of the
SUBVERSIVE DOCUMENTS CASE before two different Courts is not conducive to an orderly administration of
justice. It should be advisable that, whenever a Search Warrant has been issued by one Court, or Branch, and a
criminal prosecution is initiated in another Court, or Branch, as a result of the service of the Search Warrant,
the SEARCH WARRANT CASE should be consolidated with the criminal case for orderly procedure. The later
criminal case is more substantial than the Search Warrant proceeding, and the Presiding Judge in the criminal
case should have the right to act on petitions to exclude evidence unlawfully obtained. LexLib
Notwithstanding the irregular issuance of the Search Warrant and although, ordinarily, the articles seized
under an invalid search warrant should be returned, they cannot be ordered returned in the case at bar to
AGUILAR-ROQUE. Some searches may be made without a warrant. Thus, Section 12, Rule 126, Rules of Court,
explicitly provides:
"Section 12. Search without warrant of person arrested. — A person charged with an offense
may be searched for dangerous weapons or anything which may be used as proof of the
commission of the offense."
The provision is declaratory in the sense that it is confined to the search, without a search warrant, of a person
who had been arrested. It is also a general rule that, as an incident of an arrest, the place or premises where the
arrest was made can also be search without a search warrant. In this latter case, "the extent and reasonableness
of the search must be decided on its own facts and circumstances, and it has been stated that, in the application
of general rules, there is some confusion in the decisions as to what constitutes the extent of the place or
premises which may be searched". 12 "What must be considered is the balancing of the individual's right to
privacy and the public's interest in the prevention of crime and the apprehension of criminals." 13
Considering that AGUILAR-ROQUE has been charged with Rebellion, which is a crime against public order;
that the warrant for her arrest has not been served for a considerable period of time; that she was arrested
within the general vicinity of her dwelling; and that the search of her dwelling was made within a half hour of
her arrest, we are of the opinion that, in her respect, the search at No. 239-B Mayon Street, Quezon City, did
not need a search warrant; this, for possible effective results in the interest of public order.
Such being the case, the personalities seized may be retained by CSG, for possible introduction as evidence in
the Rebellion Case, leaving it to AGUILAR-ROQUE to object to their relevance and to ask Special Military
Commission No. 1 to return to her any all irrelevant documents and articles.
WHEREFORE, while Search Warrant No. 80-84 issued on August 6, 1984 by respondent Executive Judge
Ernani Cruz Paño is hereby annulled and set aside, and the Temporary Restraining Order enjoining respondents
from introducing evidence obtained pursuant to the Search Warrant in the Subversive Documents Case hereby
made permanent, the personalities seized may be retained by the Constabulary Security Group for possible
introduction as evidence in Criminal Case No. SMC-1-l, pending before Special Military Commission No. 1,
without prejudice to petitioner Mila Aguilar-Roque objecting to their relevance and asking said Commission to
return to her any and all irrelevant documents and articles.
SO ORDERED.
Plana, Escolin, Relova, Gutierrez, Jr., De la Fuente, Alampay and Patajo, JJ., concur.
Makasiar, C.J., concurs in the result.
Aquino, J., took no part.
Concepcion, Jr., J., reserves his vote.

EN BANC

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

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MIKAEL MALMSTEDT, * defendant-appellant.

The Solicitor General for plaintiff-appellee.

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


DECISION

PADILLA, J p:

In an information dated 15 June 1989, accused-appellant Mikael Malmstedt (hereinafter referred to as the
accused) was charged before the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch 10, in Criminal
Case No. 89-CR-0663, for violation of Section 4, Art. II of Republic Act 6425, as amended, otherwise known as
the Dangerous Drugs Act of 1972, as amended. The factual background of the case is as follows:
Accused Mikael Malmstedt, a Swedish national, entered the Philippines for the third time in December 1988 as
a tourist. He had visited the country sometime in 1982 and 1985.
In the evening of 7 May 1989, accused left for Baguio City. Upon his arrival thereat in the morning of the
following day, he took a bus to Sagada and stayed in that place for two (2) days.
At around 7:00 o'clock in the morning of 11 May 1989, accused went to the Nangonogan bus stop in Sagada to
catch the first available trip to Baguio City. From Baguio City, accused planned to take a late afternoon trip to
Angeles City, then proceed to Manila to catch his flight out of the country, scheduled on 13 May 1989. From
Sagada, accused took a Skyline bus with body number 8005 and Plate number AVC 902. 1
At about 8:00 o'clock in the morning of that same day (11 May 1989), Captain Alen Vasco, the Commanding
Officer of the First Regional Command (NARCOM) stationed at Camp Dangwa, ordered his men to set up a
temporary checkpoint at Kilometer 14, Acop, Tublay, Mountain Province, for the purpose of checking all
vehicles coming from the Cordillera Region. The order to establish a checkpoint in the said area was prompted
by persistent reports that vehicles coming from Sagada were transporting marijuana and other prohibited
drugs. Moreover, information was received by the Commanding Officer of NARCOM, that same morning, that
a Caucasian coming from Sagada had in his possession prohibited drugs. 2
The group composed of seven (7) NARCOM officers, in coordination with Tublay Police Station, set up a
checkpoint at the designated area at about 10:00 o'clock in the morning and inspected all vehicles coming from
the Cordillera Region.
At about 1:30 o'clock in the afternoon, the bus where accused was riding was stopped. Sgt. Fider and CIC
Galutan boarded the bus and announced that they were members of the NARCOM and that they would
conduct an inspection. The two (2) NARCOM officers started their inspection from the front going towards the
rear of the bus. Accused who was the sole foreigner riding the bus was seated at the rear thereof.
During the inspection, CIC Galutan noticed a bulge on accused's waist. Suspecting the bulge on accused's waist
to be a gun, the officer asked for accused's passport and other identification papers. When accused failed to
comply, the officer required him to bring out whatever it was that was bulging on his waist. The bulging object
turned out to be a pouch bag and when accused opened the same bag, as ordered, the officer noticed four (4)
suspicious-looking objects wrapped in brown packing tape, prompting the officer to open one of the wrapped
objects. The wrapped objects turned out to contain hashish, a derivative of marijuana.
Thereafter, accused was invited outside the bus for questioning. But before he alighted from the bus, accused
stopped to get two (2) travelling bags from the luggage carrier.
Upon stepping out of the bus, the officers got the bags and opened them. A teddy bear was found in each bag.
Feeling the teddy bears, the officer noticed that there were bulges inside the same which did not feel like foam
stuffing. It was only after the officers had opened the bags that accused finally presented his passport.
Accused was then brought to the headquarters of the NARCOM at Camp Dangwa, La Trinidad, Benguet for
further investigation. At the investigation room, the officers opened the teddy bears and they were found to
also contain hashish. Representative samples were taken from the hashish found among the personal effects
of accused and the same were brought to the PC Crime Laboratory for chemical analysis.
In the chemistry report, it was established that the objects examined were hashish, a prohibited drug which is
a derivative of marijuana. Thus, an information was filed against accused for violation of the Dangerous Drugs
Act.
During the arraignment, accused entered a plea of "not guilty." For his defense, he raised the issue of illegal
search of his personal effects. He also claimed that the hashish was planted by the NARCOM officers in his
pouch bag and that the two (2) travelling bags were not owned by him, but were merely entrusted to him by
an Australian couple whom he met in Sagada. He further claimed that the Australian couple intended to take
the same bus with him but because there were no more seats available in said bus, they decided to take the
next ride and asked accused to take charge of the bags, and that they would meet each other at the Dangwa
Station.
Likewise, accused alleged that when the NARCOM officers demanded for his passport and other identification
papers, he handed to one of the officers his pouch bag which was hanging on his neck containing, among
others, his passport, return ticket to Sweden and other papers. The officer in turn handed it to his companion
who brought the bag outside the bus. When said officer came back, he charged the accused that there was
hashish in the bag. He was told to get off the bus and his picture was taken with the pouch bag placed around
his neck. The trial court did not give credence to accused's defense. LibLex
The claim of the accused that the hashish was planted by the NARCOM officers, was belied by his failure to
raise such defense at the earliest opportunity. When accused was investigated at the Provincial Fiscal's Office,
he did not inform the Fiscal or his lawyer that the hashish was planted by the NARCOM officers in his bag. It
was only two (2) months after said investigation when he told his lawyer about said claim, denying ownership
of the two (2) travelling bags as well as having hashish in his pouch bag.
In a decision dated 12 October 1989, the trial court found accused guilty beyond reasonable doubt for violation
of the Dangerous Drugs Act, specifically Section 4, Art. II of RA 6425, as amended. 3 The dispositive portion of
the decision reads as follows:
"WHEREFORE, finding the guilt of the accused Mikael Malmstedt established beyond
reasonable doubt, this Court finds him GUILTY of violation of Section 4, Article II of Republic
Act 6425, as amended, and hereby sentences him to suffer the penalty of life imprisonment
and to pay a fine of Twenty Thousand Pesos (P20,000.00), with subsidiary imprisonment in
case of insolvency and to pay the costs.
Let the hashish subject of this case be turned over to the First Narcotics Regional Unit at Camp
Bado; Dangwa, La Trinidad, Benguet for proper disposition under Section 20, Article IV
of Republic Act 425, as amended.
SO ORDERED." 4
Seeking the reversal of the decision of the trial court finding him guilty of the crime charged, accused argues
that the search of his personal effects was illegal because it was made without a search warrant and, therefore,
the prohibited drugs which were discovered during the illegal search are not admissible as evidence against
him.
The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures. 5 However, where the search is made pursuant to a lawful arrest,
there is no need to obtain a search warrant. A lawful arrest without a warrant may be made by a peace officer
or a private person under the following circumstances. 6
"SEC. 5. Arrest without warrant; when lawful. — A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or
is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment
or place where he is serving final judgment or temporarily confined while his case is pending,
or has escaped while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall
be forthwith delivered to the nearest police station or jail, and he shall be proceeded against
in accordance with Rule 112, Section 7. (6a, 17a)."
Accused was searched and arrested while transporting prohibited drugs (hashish). A crime was actually being
committed by the accused and he was caught in flagrante delicto. Thus, the search made upon his personal
effects falls squarely under paragraph (1) of the foregoing provisions of law, which allow a warrantless search
incident to a lawful arrest. 7
While it is true that the NARCOM officers were not armed with a search warrant when the search was made
over the personal effects of accused, however, under the circumstances of the case, there was sufficient
probable cause for said officers to believe that accused was then and there committing a crime. LLphil
Probable cause has been defined as such facts and circumstances which could lead a reasonable, discreet and
prudent man to believe that an offense has been committed, and that the objects sought in connection with
the offense are in the place sought to be searched. 8 The required probable cause that will justify a warrantless
search and seizure is not determined by any fixed formula but is resolved according to the facts of each case. 9

Warrantless search of the personal effects of an accused has been declared by this Court as valid, because of
existence of probable cause, where the smell of marijuana emanated from a plastic bag owned by the
accused, 10 or where the accused was acting suspiciously, 11 and attempted to flee. 12
Aside from the persistent reports received by the NARCOM that vehicles coming from Sagada were
transporting marijuana and other prohibited drugs, their Commanding Officer also received information that
a Caucasian coming from Sagada on that particular day had prohibited drugs in his possession. Said
information was received by the Commanding Officer of NARCOM the very same morning that accused came
down by bus from Sagada on his way to Baguio City.
When NARCOM received the information, a few hours before the apprehension of herein accused, that a
Caucasian travelling from Sagada to Baguio City was carrying with him prohibited drugs, there was no time to
obtain a search warrant. In the Tangliben case, 13the 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 andDavide, Jr., JJ., concur.
Sarmiento, J., is on leave.

THIRD DIVISION

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

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARI MUSA y HANTATALU, accused-appellant.

The Solicitor General for plaintiff-appellee.

Pablo L. Murillo for accused-appellant.

SYLLABUS

1. CRIMINAL LAW; DANGEROUS DRUGS ACT (R.A. 6425); ILLEGAL SALE OF MARIJUANA DRUGS; FAMILIARITY BETWEEN BUYER AND SELLER, NOT MATERIAL. — The contention that
the appellant could not have transacted with Sgt. Ani because they do not know each other is without merit. The day before the buy-bust operation, Sgt. Ani conducted a test-buy and he
successfully bought a wrapper of marijuana from the appellant. Through this previous transaction, Sgt. Ani was able to gain the appellant's confidence for the latter to sell more marijuana to
Sgt. Ani the following day, during the buy-bust operation. Moreover, the Court has held that what matters is not an existing familiarity between the buyer and the seller, for quite often, the
parties to the transaction may be strangers, but their agreement and the acts constituting the sale and delivery of the marijuana.

2. ID.; ID.; ID.; PRESENCE OF OTHER PEOPLE, NOT CRUCIAL. — The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was impossible for the appellant to sell
marijuana while his wife, cousin and manicurist were present. But the place of the commission of the crime of selling prohibited drugs has been held to be not crucial and the presence of
other people apart from the buyer and seller will not necessarily prevent the consummation of the illegal sale. As the Court observed in People v. Paco, these factors may sometimes
camouflage the commission of the crime. In the instant case, the fact that the other people inside the appellant's house are known to the appellant may have given him some assurance that
these people will not report him to the authorities.

3. ID.; ID.; ID.; CASE OF PEOPLE VS. ALE, NOT APPLICABLE IN CASE AT BAR. — The case of People v. Ale does not apply here because the policeman in that case testified that he and his
companion were certain that the appellant therein handed marijuana cigarettes to the poseur-buyer based on the appearance of the cigarette sticks. The Court rejected this claim. In the case
at bar, however, T/Sgt. Belarga did not positively claim that he saw the appellant hand over marijuana to Sgt. Ani. What he said was that there was an exchange of certain articles between
the two. Contrary to the contention of the appellant, it was not impossible for T/Sgt. Belarga to have seen, from a distance of 90-100 meters, Sgt. Ani hand to the appellant "something" and
for the latter to give to the former "something."
4. REMEDIAL LAW; EVIDENCE; CORROBORATIVE EVIDENCE SUPPORTING DIRECT EVIDENCE; SUFFICIENT TO PROVE THE CRIME COMMITTED. — Notwithstanding the fact that T/Sgt.
Belarga could not have been certain that what Sgt. Ani received from the appellant was marijuana because of the distance, his testimony, nevertheless, corroborated the direct evidence,
which the Court earlier ruled to be convincing. The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence given by Sgt. Ani. Additionally, the Court has ruled that the fact
that the police officers who accompanied the poseur-buyer were unable to see exactly what the appellant gave the poseur-buyer because of their distance or position will not be fatal to the
prosecution's case provided there exists other evidence, direct or circumstantial, e.g., the testimony of the poseur-buyer, which is sufficient to prove the consummation of the sale of the
prohibited drug.

5. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM AGAINST UNREASONABLE SEARCH AND SEIZURE; EVIDENCE OBTAINED IN VIOLATION THEREOF. — Built into the Constitution
are guarantees on the freedom of every individual against unreasonable searches and seizures. Furthermore, the Constitution, in conformity with the doctrine laid down in Stonehill v. Diokno,
(G.R. No. L-19550, June 19, 1967, 20 SCRA 383) declares inadmissible, any evidence obtained in violation of the freedom from unreasonable searches and seizures.

6. REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH & SEIZURE; SEARCH INCIDENTAL TO LAWFUL ARREST. — While a valid search warrant is generally necessary before a search and
seizure may be effected, exceptions to this rule are recognized. Thus, inAlvero v. Dizon, the Court stated that "[t]he most important exception to the necessity for a search warrant is the right
of search and seizure as an incident to a lawful arrest." Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless search and seizure incident to a lawful arrest. There is no
doubt that the warrantless search incidental to a lawful arrest authorizes the arresting officer to make a search upon the person of the person arrested. As early as 1909, the Court has ruled
that "[a]n officer making an arrest may take from the person arrested and money or property found upon his person which was used in the commission of the crime or was the fruit of the
crime or which might furnish the prisoner with the means of committing violence or of escaping, or which may be used as evidence in the trial of the cause . . ." Hence, in a buy-bust operation
conducted to entrap a drug-pusher, the law enforcement agents may seize the marked money found on the person of the pusher immediately after the arrest even without arrest and search
warrants.

7. ID.; ID.; ID.; ID.; DOCTRINE OF "PLAIN VIEW". — The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend beyond the person of the one arrested to include
the premises or surroundings under his immediate control. Objects in the "plain view" of an officer who has the right to be in the position to have that view are subject to seizure and may be
presented as evidence.

8. ID.; ID.; ID.; ID.; ID.; LIMITATION. — The "plain view" doctrine may not, however, be used to launch unbridled searches and indiscriminate seizures nor to extend a general exploratory
search made solely to find evidence of defendant's guilt. The "plain view" doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless
inadvertently comes across an incriminating object. It has also been suggested that even if an object is observed in "plain view," the "plain view" doctrine will not justify the seizure of the
object where the incriminating nature of the object is not apparent from the "plain view" of the object. Stated differently, it must be immediately apparent to the police that the items that
they observe may be evidence of a crime, contraband, or otherwise subject to seizure.

9. ID.; ID.; ID.; ID.; ID.; NOT APPLICABLE IN CASE AT BAR. — In the instant case, the appellant was arrested and his person searched in the living room. Failing to retrieve the marked money
which they hoped to find, the NARCOM agents searched the whole house and found the plastic bag in the kitchen. The plastic bag was, therefore, not within their "plain view" when they
arrested the appellant as to justify its seizure. The NARCOM agents had to move from one portion of the house to another before they sighted the plastic bag. Moreover, when the NARCOM
agents saw the plastic bag hanging in one corner of the kitchen, they had no clue as to its contents. They had to ask the appellant what the bag contained. When the appellant refused to
respond, they opened it and found the marijuana. Unlike Ker v. California, where the marijuana was visible to the police officer's eyes, the NARCOM agents in this case could not have
discovered the inculpatory nature of the contents of the bag had they not forcibly opened it. Even assuming then, that the NARCOM agents inadvertently came across the plastic bag because
it was within their "plain view," what may be said to be the object in their "plain view" was just the plastic bag and not the marijuana. The incriminating nature of the contents of the plastic
bag was not immediately apparent from the "plain view" of said object. It cannot be claimed that the plastic bag clearly betrayed its contents, whether by its distinctive configuration, its
transparency, or otherwise, that its contents are obvious to an observer. We, therefore, hold that under the circumstances of the case, the "plain view" doctrine does not apply and the
marijuana contained in the plastic bag was seized illegally and cannot be presented in evidence pursuant to Article III, Section 3(2) of the Constitution.

10. REMEDIAL LAW; EVIDENCE; QUANTUM OF PROOF REQUIRED IN CRIMINAL; SATISFIED IN CASE AT BAR. — By virtue of the testimonies of Sgt. Ani and T/Sgt. Belarga and the two
wrappings of marijuana sold by the appellant to Sgt. Ani, among other pieces of evidence, the guilt of the appellant of the crime charged has been proved beyond reasonable doubt.

DECISION

ROMERO, J p:

The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision, dated August 31, 1990, 1 of the Regional Trial
Court (RTC) of Zamboanga City, Branch XII, finding him guilty of selling marijuana in violation of Article II, Section 4
of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972.
The information filed on December 15, 1989 against the appellant reads:
"That on or about December 14, 1989, in the City of Zamboanga, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, not being authorized by law, did then and there,
wilfully, unlawfully and feloniously sell to one SGT. AMADO ANI, two (2) wrappers containing dried
marijuana leaves, knowing the same to be a prohibited drug.
CONTRARY TO LAW." 2
Upon his arraignment on January 11, 1990, the appellant pleaded not guilty. 3
At the trial, the prosecution presented three (3) witnesses, namely: (1) Sgt. Amado Ani, Jr. of the 9th Narcotics Command
(NARCOM) of Zamboanga City, who acted as poseur-buyer in the buy-bust operation made against the appellant; (2)
T/Sgt. Jesus Belarga, also of the 9th Narcotics Command of Zamboanga City, who was the NARCOM team leader of the
buy-bust operation; and (3) Athena Elisa P. Anderson, the Document Examiner and Forensic Chemist of PC-INP Crime
Laboratory of Regional Command (RECOM) 9. The evidence of the prosecution was summarized by the trial court as
follows: LLjur
"Prosecution evidence shows that in the morning of December 13, 1989, T/Sgt. Jesus Belarga, leader
of a NARCOTICS COMMAND (NARCOM) team based at Calarian, Zamboanga City, instructed Sgt.
Amado Ani to conduct surveillance and test buy on a certain Mari Musa of Suterville, Zamboanga City.
Information received from civilian informer was that this Mari Musa was engaged in selling marijuana
in said place. So Sgt. Amado Ani, another NARCOM agent, proceeded to Suterville, in company with a
NARCOM civilian informer, to the house of Mari Musa to which house the civilian informer had guided
him. The same civilian informer had also described to him the appearance of Mari Musa. Amado Ani
was able to buy one newspaper-wrapped dried marijuana (Exh. 'E') for P10.00. Sgt. Ani returned to the
NARCOM office and turned over the newspaper-wrapped marijuana to T/Sgt. Jesus Belarga. Sgt.
Belarga inspected the stuff turned over to him and found it to be marijuana.
The next day, December 14, 1989, about 1:30 P.M., a buy-bust was planned. Sgt. Amado Ani was
assigned as the poseur buyer for which purpose he was given P20.00 (with SN GA955883) by Belarga.
The buy-bust money had been taken by T/Sgt. Jesus Belarga from M/Sgt. Noh Sali Mihasun, Chief of
Investigation Section, and for which Belarga signed a receipt (Exh. 'L' & 'L-1'). The team under Sgt.
Foncargas was assigned as back-up security. A pre-arranged signal was arranged consisting of Sgt.
Ani's raising his right hand, after he had succeeded to buy the marijuana. The two NARCOM teams
proceeded to the target site in two civilian vehicles. Belarga's team was composed of Sgt. Belarga,
team leader, Sgt. Amado Ani, poseur buyer, Sgt. Lego and Sgt. Biong.
Arriving at the target site, Sgt. Ani proceeded to the house of Mari Musa, while the rest of the NARCOM
group positioned themselves at strategic places about 90 to 100 meters from Mari Musa's house. T/Sgt.
Belarga could see what went on between Ani and suspect Mari Musa from where he was. Ani
approached Mari Musa, who came out of his house, and asked Ani what he wanted. Ani said he wanted
some more stuff. Ani gave Mari Musa the P20.00 marked money. After receiving the money, Mari Musa
went back to his house and came back and gave Amado Ani two newspaper wrappers containing dried
marijuana. Ani opened the two wrappers and inspected the contents. Convinced that the contents
were marijuana, Ani walked back towards his companions and raised his right hand. The two NARCOM
teams, riding the two civilian vehicles, sped towards Sgt. Ani. Ani joined Belarga's team and returned
to the house.
At the time Sgt. Ani first approached Mari Musa, there were four persons inside his house: Mari Musa,
another boy, and two women, one of whom Ani and Belarga later came to know to be Mari Musa's wife.
The second time, Ani with the NARCOM team returned to Mari Musa's house, the woman, who was
later known as Mari Musa's wife, slipped away from the house. Sgt. Belarga frisked Mari Musa but could
not find the P20.00 marked money with him. Mari Musa was then asked where the P20.00 was and he
told the NARCOM team he has given the money to his wife (who had slipped away). Sgt. Belarga also
found a plastic bag containing dried marijuana inside it somewhere in the kitchen. Mari Musa was then
placed under arrest and brought to the NARCOM office. At Suterville, Sgt. Ani turned over to Sgt.
Belarga the two newspaper-wrapped marijuana he had earlier bought from Mari Musa (Exhs. 'C' &
'D'). LexLib
In the NARCOM office, Mari Musa first gave his name as Hussin Musa. Later on, Mari Musa gave his
true name - Mari Musa. T/Sgt. Jesus Belarga turned over the two newspaper-wrapped marijuana
(bought at the buy-bust), the one newspaper-wrapped marijuana (bought at the test-buy) and the
plastic bag containing more marijuana (which had been taken by Sgt. Lego inside the kitchen of Mari
Musa) to the PC Crime Laboratory, Zamboanga City, for laboratory examination. The turnover of the
marijuana specimen to the PC Crime Laboratory was by way of a letter-request, dated December 14,
1989 (Exh. 'B'), which was stamped 'RECEIVED' by the PC Crime Laboratory (Exh. 'E-1') on the same
day.
Mrs. Athena Elisa P. Anderson, the Forensic Chemist of the PC Crime Laboratory, examined the
marijuana specimens subjecting the same to her three tests. All submitted specimens she examined
gave positive results for the presence of marijuana. Mrs. Anderson reported the results of her
examination in her Chemistry Report D-100-89, dated December 14, 1989, (Exh. 'J', 'J-1', 'J-2', 'J-3', 'J-4'
and 'J-5'). Mrs. Anderson identified in court the two newspaper wrapped marijuana bought at the buy-
bust on December 14, 1989, through her initial and the weight of each specimen written with red ink
on each wrapper (Exhs. 'C-1' and 'D-1'). She also identified the one newspaper-wrapped marijuana
bought at the test-buy on December 13, 1989, through her markings (Exh. 'E-1'). Mrs. Anderson also
identified her Chemistry Report (Exh. 'J' & sub-markings.)
T. Sgt. Belarga identified the two buy-bust newspaper wrapped marijuana through his initial, the words
'buy-bust' and the words 'December 14, 1989, 2:45 P.M.' (written on Exhs. 'C' and 'D'). Belarga also
identified the receipt of the P20 marked money (with SN GA955883) (Exh. 'L'), dated December 14,
1989, and his signature thereon (Exh. 'L-1'). He also identified the letter-request, dated December 14,
1989, addressed to the PC Crime Laboratory (Exh. 'B') and his signature thereon (Exh. 'B-2') and the
stamp of the PC Crime Laboratory marked 'RECEIVED' (Exh. 'B-1')." 4
For the defense, the following testified as witnesses: (1) the accused-appellant Mari H. Musa; and (2) Ahara R. Musa, his
wife. The trial court summarized the version of the defense, thus:
"[O]n December 14, 1989, at about 1:30 in the afternoon, Mari Musa was in his house at Suterville,
Zamboanga City. With him were his wife, Ahara Musa, known as Ara, his one-year old child, a woman
manicurist, and a male cousin named Abdul Musa. About 1:30 that afternoon, while he was being
manicured at one hand, his wife was inside the one room of their house, putting their child to sleep.
Three NARCOM agents, who introduced themselves as NARCOM agents, dressed in civilian clothes,
got inside Mari Musa's house whose door was open. The NARCOM agents did not ask permission to
enter the house but simply announced that they were NARCOM agents. The NARCOM agents
searched Mari Musa's house and Mari Musa asked them if they had a search warrant. The NARCOM
agents were just silent. The NARCOM agents found a red plastic bag whose contents, Mari Musa said,
he did not know. He also did not know if the plastic bag belonged to his brother, Faisal, who was living
with him, or his father, who was living in another house about ten arms-length away. Mari Musa, then,
was handcuffed and when Mari Musa asked why, the NARCOM agents told him for clarification.
Mari Musa was brought in a pick-up, his wife joining him to the NARCOM Office at Calarian,
Zamboanga City. Inside the NARCOM Office, Mari Musa was investigated by one NARCOM agent
which investigation was reduced into writing. The writing or document was interpreted to Mari Musa
in Tagalog. The document stated that the marijuana belonged to Mari Musa and Mari Musa was asked
to sign it. But Mari Musa refused to sign because the marijuana did not belong to him. Mari Musa said
he was not told that he was entitled to the assistance of counsel, although he himself told the NARCOM
agents he wanted to be assisted by counsel.
Mari Musa said four bullets were then placed between the fingers of his right hand and his fingers were
pressed which felt very painful. The NARCOM agents boxed him and Mari Musa lost consciousness.
While Mari Musa was maltreated, he said his wife was outside the NARCOM building. The very day he
was arrested (on cross-examination Mari Musa said it was on the next day), Mari Musa was brought to
the Fiscal's Office by three NARCOM agents. The fiscal asked him if the marijuana was owned by him
and he said "not." After that single question, Mari Musa was brought to the City Jail. Mari Musa said he
did not tell the fiscal that he had been maltreated by the NARCOM agents because he was afraid he
might be maltreated in the fiscal's office. cdll
Mari Musa denied the NARCOM agents' charge that he had sold two wrappers of marijuana to them;
that he had received from them a P20.00 bill which he had given to his wife. He did not sell marijuana
because he was afraid that was against the law and that the person selling marijuana was caught by
the authorities; and he had a wife and a very small child to support. Mari Musa said he had not been
arrested for selling marijuana before. 5
After trial, the trial court rendered the assailed decision with the following disposition:
"WHEREFORE, finding accused Mari Musa y Hantatalu guilty beyond reasonable doubt of selling
marijuana and pursuant to Sec. 4, Art II of Rep. Act No. 6425, he is sentenced to life imprisonment and
to pay the fine of P20,000.00, the latter imposed without subsidiary imprisonment." 6
In this appeal, the appellant contends that his guilt was not proved beyond reasonable doubt and impugns the credibility
of the prosecution witnesses.
The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not credible because: (1) prior to the buy-bust
operation, neither Sgt. Ani nor the other NARCOM agents were personally known by the appellant or vice-versa; and (2)
there was no witness to the alleged giving of the two wrappers of marijuana by the appellant to Sgt. Ani.
Sgt. Ani testified that on December 13, 1989, upon instruction by T/Sgt. Jesus Belarga, he conducted a test-buy operation
on the appellant whereby he bought one wrapper of marijuana for P15.00 from the latter. 7 He reported the successful
operation to T/Sgt. Belarga on the same day. 8 Whereupon, T/Sgt. Belarga conducted a conference to organize a buy-
bust operation for the following day. 9

On December 14, 1989, at 1:30 p.m., two NARCOM teams in separate vehicles headed by T/Sgt. Belarga and a certain
Sgt. Foncardas went to the place of operation, which was the appellant's house located in Laquian Compound, Suterville,
Zamboanga City. Sgt. Ani was with the team of T/Sgt. Belarga, whose other members were Sgts. Lego and Biong. 10Sgt.
Ani was given a marked P20.00 bill by T/Sgt. Belarga, which was to be used in the operation.
Upon reaching the place, the NARCOM agents positioned themselves at strategic places.11 Sgt. Ani approached the
house. Outside the house, the appellant asked Sgt. Ani what he wanted. Sgt. Ani asked him for some more
marijuana. 12 Sgt. Ani gave him the marked P20.00 bill and the appellant went inside the house and brought back two
paper wrappers containing marijuana which he handed to Sgt. Ani. 13 From his position, Sgt. Ani could see that there
were other people in the house. 14
After the exchange, Sgt. Ani approached the other NARCOM agents and made the pre-arranged signal of raising his right
hand. 15 The NARCOM agents, accompanied by Sgt. Ani, went inside the house and made the arrest. The agents
searched the appellant and unable to find the marked money, they asked him where it was. The appellant said that he
gave it to his wife. 16
The Court, after a careful reading of the record, finds the testimony of Sgt. Ani regarding the buy-bust operation, which
resulted in the apprehension, prosecution and subsequent conviction of the appellant, to be direct, lucid and forthright.
Being totally untainted by contradictions in any of the material points, it deserves credence.
The contention that the appellant could not have transacted with Sgt. Ani because they do not know each other is without
merit. The day before the buy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought a wrapper of
marijuana from the appellant. Through this previous transaction, Sgt. Ani was able to gain the appellant's confidence for
the latter to sell more marijuana to Sgt. Ani the following day, during the buy-bust operation. Moreover, the Court has
held that what matters is not an existing familiarity between the buyer and the seller, for quite often, the parties to the
transaction may be strangers, but their agreement and the acts constituting the sale and delivery of the marijuana. 17
The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was impossible for the appellant to sell
marijuana while his wife, cousin and manicurist were present. But the place of the commission of the crime of selling
prohibited drugs has been held to be not crucial 18 and the presence of other people apart from the buyer and seller will
not necessarily prevent the consummation of the illegal sale. As the Court observed in People v. Paco, 19 these factors
may sometimes camouflage the commission of the crime. In the instant case, the fact that the other people inside the
appellant's house are known to the appellant may have given him some assurance that these people will not report him
to the authorities. cdll
The appellant, besides assailing Sgt. Ani's credibility, also questions the credibility of T/Sgt. Belarga. The appellant
submits that since T/Sgt. Belarga admitted that he was about 90 meters away from Sgt. Ani and the appellant, he could
not have possibly witnessed the sale. The appellant invokes People v. Ale 20 where the Court observed that from a
distance of 10-15 meters, a policeman cannot distinguish between marijuana cigarette from ordinary ones by the type of
rolling done on the cigarette sticks. And since T/Sgt. Belarga allegedly did not see the sale, the appellant contends that
the uncorroborated testimony of Sgt. Ani can not stand as basis for his conviction.
People v. Ale does not apply here because the policeman in that case testified that he and his companion were certain
that the appellant therein handed marijuana cigarettes to the poseur-buyer based on the appearance of the cigarette
sticks. The Court rejected this claim, stating that:
"This Court cannot give full credit to the testimonies of the prosecution witnesses marked as they are
with contradictions and tainted with inaccuracies.
Biñan testified that they were able to tell that the four cigarettes were marijuana cigarettes because
according to him, the rolling of ordinary cigarettes are different from those of marijuana cigarettes.
(tsn, November 13, 1984, p. 10).
It is however, incredible to believe that they could discern the type of rolling done on those cigarettes
from the distance where they were observing the alleged sale of more or less 10 to 15 meters." 21
In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw the appellant hand over marijuana to Sgt.
Ani. What he said was that there was an exchange of certain articles between the two. The relevant portion of T/Sgt.
Belarga's testimony reads: 2 2
Q Now, do you remember whether Sgt. Ani was able to reach the house of Mari Musa?
A Yes, ma'am.
Q After reaching Mari Musa, did you see what happened (sic)?
A Yes, ma'am.
Q Could you please tell us?
A From our vehicle the stainless owner type jeep where Sgt. Lego, Sgt. Biong were boarded, I saw that
Sgt. Ani proceeded to the house near the road and he was met by one person and later known
as Mari Musa who was at the time wearing short pants and later on I saw that Sgt. Ani handed
something to him, thereafter received by Mari Musa and went inside the house and came back
later and handed something to Sgt. Ani.
Contrary to the contention of the appellant, it was not impossible for T/Sgt. Belarga to have seen, from a distance of
90-100 meters, Sgt. Ani hand to the appellant "something" and for the latter to give to the former "something."
Notwithstanding the fact that T/Sgt. Belarga could not have been certain that what Sgt. Ani received from the appellant
was marijuana because of the distance, his testimony, nevertheless, corroborated the direct evidence, which the Court
earlier ruled to be convincing, presented by Sgt. Ani on the following material points: (1) T/Sgt. Belarga instructed Sgt.
Ani to conduct a surveillance and test-buy operation on the appellant at Suterville, Zamboanga City on December 13,
1939; 23 (2) later that same day, Sgt. Ani went back to their office and reported a successful operation and turned over
to T/Sgt. Belarga one wrapper of marijuana; 24 (3) T/Sgt. Belarga then organized a team to conduct a buy-bust operation
the following day; 25 (4) on December 14, 1989, T/Sgt. Belarga led a team of NARCOM agents who went to Suterville,
Zamboanga City; 26 (5) T/Sgt. Belarga gave a P20.00 marked bill to Sgt. Ani which was to be used in the buy-bust
operation; 27 (6) upon the arrival of the NARCOM agents in Suterville, Zamboanga City, Sgt. Ani proceeded to the house
of the appellant while some agents stayed in the vehicles and others positioned themselves in strategic places; 28 the
appellant met Sgt. Ani and an exchange of articles took place. 29
The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence given by Sgt. Ani. Additionally, the Court
has ruled that the fact that the police officers who accompanied the poseur-buyer were unable to see exactly what the
appellant gave the poseur-buyer because of their distance or position will not be fatal to the prosecution's
case 30 provided there exists other evidence, direct or circumstantial, e.g., the testimony of the poseur-buyer, which is
sufficient to prove the consummation of the sale of the prohibited drug. cdll
The appellant next assails the seizure and admission as evidence of a plastic bag containing marijuana which the
NARCOM agents found in the appellant's kitchen. It appears that after Sgt. Ani gave the pre-arranged signal to the other
NARCOM agents, the latter moved in and arrested the appellant inside the house. They searched him to retrieve the
marked money but didn't find it. Upon being questioned, the appellant said that he gave the marked money to his
wife. 31 Thereafter, T/Sgt. Belarga and Sgt. Lego went to the kitchen and noticed what T/Sgt. Belarga described as a
"cellophane colored white and stripe hanging at the corner of the kitchen." 32 They asked the appellant about its contents
but failing to get a response, they opened it and found dried marijuana leaves. At the trial, the appellant questioned the
admissibility of the plastic bag and the marijuana it contains but the trial court issued an Order ruling that these are
admissible in evidence. 33
Built into the Constitution are guarantees on the freedom of every individual against unreasonable searches and seizures
by providing in Article III, Section 2, the following:
"The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant
or warrant of arrest shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witness he may produce, and
particularly describing the place to be searched and the persons or things to be seized."
Furthermore, the Constitution, in conformity with the doctrine laid down in Stonehill v. Diokno, 34 declares inadmissible,
any evidence obtained in violation of the freedom from unreasonable searches and seizures. 35
While a valid search warrant is generally necessary before a search and seizure may be effected, exceptions to this rule
are recognized. Thus, in Alvero v. Dizon, 36 the Court stated that "[t]he most important exception to the necessity for a
search warrant is the right of search and seizure as an incident to a lawful arrest." 37

Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless search and seizure incident to a lawful arrest,
thus:
SECTION 12. Search incident to lawful arrest. — A person lawfully arrested may be searched for
dangerous weapons or anything which may be used as proof of the commission of an offense, without
a search warrant.
There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting officer to make a search
upon the person of the person arrested. As early as 1909, the Court has ruled that "[a]n officer making an arrest may take
from the person arrested and money or property found upon his person which was used in the commission of the crime
or was the fruit of the crime or which might furnish the prisoner with the means of committing violence or of escaping,
or which may be used as evidence in the trial of the cause." 38 Hence, in a buy-bust operation conducted to entrap a drug-
pusher, the law enforcement agents may seize the marked money found on the person of the pusher immediately after
the arrest even without arrest and search warrants. 39
In the case at bar, the NARCOM agents searched the person of the appellant after arresting him in his house but found
nothing. They then searched the entire house and, in the kitchen, found and seized a plastic bag hanging in a corner. LLjur
The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend beyond the person of the one
arrested to include the premises or surroundings under his immediate control. 40 Objects in the "plain view" of an officer
who has the right to be in the position to have that view are subject to seizure and may be presented as evidence. 41
In Ker v. California, 42 police officers, without securing a search warrant but having information that the defendant
husband was selling marijuana from his apartment, obtained from the building manager a passkey to defendants'
apartment, and entered it. There they found the defendant husband in the living room. The defendant wife emerged
from the kitchen, and one of the officers, after identifying himself, observed through the open doorway of the kitchen, a
small scale atop the kitchen sink, upon which lay a brick-shaped package containing green leafy substance which he
recognized as marijuana. The package of marijuana was used as evidence in prosecuting defendants for violation of the
Narcotic Law. The admissibility of the package was challenged before the U.S. Supreme Court, which held, after
observing that it was not unreasonable for the officer to walk to the doorway of the adjacent kitchen on seeing the
defendant wife emerge therefrom, that "the discovery of the brick of marijuana did not constitute a search, since the
officer merely saw what was placed before him in full view." 43 The U.S. Supreme Court ruled that the warrantless seizure
of the marijuana was legal on the basis of the "plain view" doctrine and upheld the admissibility of the seized drugs as
part of the prosecution's evidence. 44
The "plain view" doctrine may not, however, be used to launch unbridled searches and indiscriminate seizures nor to
extend a general exploratory search made solely to find evidence of defendant's guilt. The "plain view" doctrine is usually
applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes
across an incriminating object. 45 Furthermore, the U.S. Supreme Court stated the following limitations on the
application of the doctrine:
"What the 'plain view' cases have in common is that the police officer in each of them had a prior
justification for an intrusion in the course of which he came inadvertently across a piece of evidence
incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a
warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate
reason for being present unconnected with a search directed against the accused — and permits the
warrantless seizure. Of course, the extension of the original justification is legitimate only where it is
immediately apparent to the police that they have evidence before them; the 'plain view' doctrine may
not be used to extend a general exploratory search from one object to another until something
incriminating at last emerges." 46
It has also been suggested that even if an object is observed in "plain view," the "plain view" doctrine will not justify the
seizure of the object where the incriminating nature of the object is not apparent from the "plain view" of the
object. 47 Stated differently, it must be immediately apparent to the police that the items that they observe may be
evidence of a crime, contraband, or otherwise subject to seizure.
In the instant case, the appellant was arrested and his person searched in the living room. Failing to retrieve the marked
money which they hoped to find, the NARCOM agents searched the whole house and found the plastic bag in the kitchen.
The plastic bag was, therefore, not within their "plain view" when they arrested the appellant as to justify its seizure. The
NARCOM agents had to move from one portion of the house to another before they sighted the plastic bag. Unlike Ker
v. California, where the police officer had reason to walk to the doorway of the adjacent kitchen and from which position
he saw the marijuana, the NARCOM agents in this case went from room to room with the obvious intention of fishing for
more evidence.
Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen, they had no clue as to its
contents. They had to ask the appellant what the bag contained. When the appellant refused to respond, they opened it
and found the marijuana. Unlike Ker v. California, where the marijuana was visible to the police officer's eyes, the
NARCOM agents in this case could not have discovered the inculpatory nature of the contents of the bag had they not
forcibly opened it. Even assuming then, that the NARCOM agents inadvertently came across the plastic bag because it
was within their "plain view," what may be said to be the object in their "plain view" was just the plastic bag and not the
marijuana. The incriminating nature of the contents of the plastic bag was not immediately apparent from the "plain
view" of said object. It cannot be claimed that the plastic bag clearly betrayed its contents, whether by its distinctive
configuration, its transparency, or otherwise, that its contents are obvious to an observer. 48
We, therefore, hold that under the circumstances of the case, the "plain view" doctrine does not apply and the marijuana
contained in the plastic bag was seized illegally and cannot be presented in evidence pursuant to Article III, Section 3(2)
of the Constitution. cdrep
The exclusion of this particular evidence does not, however, diminish, in any way, the damaging effect of the other pieces
of evidence presented by the prosecution to prove that the appellant sold marijuana, in violation of Article II, Section 4
of the Dangerous Drugs Act of 1972. We hold that by virtue of the testimonies of Sgt. Ani and T/Sgt. Belarga and the two
wrappings of marijuana sold by the appellant to Sgt. Ani, among other pieces of evidence, the guilt of the appellant of
the crime charged has been proved beyond reasonable doubt.
WHEREFORE, the appeal is DISMISSED and the judgment of the Regional Trial Court AFFIRMED.
SO ORDERED.
Gutierrez, Jr., Bidin, Davide, Jr. and Melo, JJ ., concur.
United States Supreme Court
TERRY v. OHIO(1968)
No. 67
Argued: December 12, 1967 Decided: June 10, 1968
A Cleveland detective (McFadden), on a downtown beat which he had been patrolling for many years,
observed two strangers (petitioner and another man, Chilton) on a street corner. He saw them proceed
alternately back and forth along an identical route, pausing to stare in the same store window, which they
did for a total of about 24 times. Each completion of the route was followed by a conference between the
two on a corner, at one of which they were joined by a third man (Katz) who left swiftly. Suspecting the two
men of "casing a job, a stick-up," the officer followed them and saw them rejoin the third man a couple of
blocks away in front of a store. The officer approached the three, identified himself as a policeman, and
asked their names. The men "mumbled something," whereupon McFadden spun petitioner around, patted
down his outside clothing, and found in his overcoat pocket, but was unable to remove, a pistol. The officer
ordered the three into the store. He removed petitioner's overcoat, took out a revolver, and ordered the three
to face the wall with their hands raised. He patted down the outer clothing of Chilton and Katz and seized a
revolver from Chilton's outside overcoat pocket. He did not put his hands under the outer garments of Katz
(since he discovered nothing in his pat-down which might have been a weapon), or under petitioner's or
Chilton's outer garments until he felt the guns. The three were taken to the police station. Petitioner and
Chilton were charged with carrying [392 U.S. 1, 2] concealed weapons. The defense moved to suppress the
weapons. Though the trial court rejected the prosecution theory that the guns had been seized during a
search incident to a lawful arrest, the court denied the motion to suppress and admitted the weapons into
evidence on the ground that the officer had cause to believe that petitioner and Chilton were acting
suspiciously, that their interrogation was warranted, and that the officer for his own protection had the right
to pat down their outer clothing having reasonable cause to believe that they might be armed. The court
distinguished between an investigatory "stop" and an arrest, and between a "frisk" of the outer clothing for
weapons and a full-blown search for evidence of crime. Petitioner and Chilton were found guilty, an
intermediate appellate court affirmed, and the State Supreme Court dismissed the appeal on the ground
that "no substantial constitutional question" was involved. Held:

1. The Fourth Amendment right against unreasonable searches and seizures, made applicable to the States
by the Fourteenth Amendment, "protects people, not places," and therefore applies as much to the citizen
on the streets as well as at home or elsewhere. Pp. 8-9.
2. The issue in this case is not the abstract propriety of the police conduct but the admissibility against
petitioner of the evidence uncovered by the search and seizure. P. 12.
3. The exclusionary rule cannot properly be invoked to exclude the products of legitimate and restrained
police investigative techniques; and this Court's approval of such techniques should not discourage
remedies other than the exclusionary rule to curtail police abuses for which that is not an effective sanction.
Pp. 13-15.
4. The Fourth Amendment applies to "stop and frisk" procedures such as those followed here. Pp. 16-20.
(a) Whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized"
that person within the meaning of the Fourth Amendment. P. 16.
(b) A careful exploration of the outer surfaces of a person's clothing in an attempt to find weapons is a
"search" under that Amendment. P. 16.
5. Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his
safety or that of others is endangered, he may make a reasonable search for weapons of the person believed
by him to be armed and dangerous [392 U.S. 1, 3] regardless of whether he has probable cause to arrest
that individual for crime or the absolute certainty that the individual is armed. Pp. 20-27.
(a) Though the police must whenever practicable secure a warrant to make a search and seizure, that
procedure cannot be followed where swift action based upon on-the-spot observations of the officer on the
beat is required. P. 20.
(b) The reasonableness of any particular search and seizure must be assessed in light of the particular
circumstances against the standard of whether a man of reasonable caution is warranted in believing that
the action taken was appropriate. Pp. 21-22.
(c) The officer here was performing a legitimate function of investigating suspicious conduct when he
decided to approach petitioner and his companions. P. 22.
(d) An officer justified in believing that an individual whose suspicious behavior he is investigating at close
range is armed may, to neutralize the threat of physical harm, take necessary measures to determine
whether that person is carrying a weapon. P. 24.
(e) A search for weapons in the absence of probable cause to arrest must be strictly circumscribed by the
exigencies of the situation. Pp. 25-26.
(f) An officer may make an intrusion short of arrest where he has reasonable apprehension of danger before
being possessed of information justifying arrest. Pp. 26-27.
6. The officer's protective seizure of petitioner and his companions and the limited search which he made
were reasonable, both at their inception and as conducted. Pp. 27-30.
(a) The actions of petitioner and his companions were consistent with the officer's hypothesis that they were
contemplating a daylight robbery and were armed. P. 28.
(b) The officer's search was confined to what was minimally necessary to determine whether the men were
armed, and the intrusion, which was made for the sole purpose of protecting himself and others nearby, was
confined to ascertaining the presence of weapons. Pp. 29-30.
7. The revolver seized from petitioner was properly admitted into evidence against him, since the search
which led to its seizure was reasonable under the Fourth Amendment. Pp. 30-31.
Affirmed. [392 U.S. 1, 4]
Louis Stokes argued the cause for petitioner. With him on the brief was Jack G. Day.

Reuben M. Payne argued the cause for respondent. With him on the brief was John T. Corrigan.

Briefs of amici curiae, urging reversal, were filed by Jack Greenberg, James M. Nabrit III, Michael Meltsner,
Melvyn Zarr, and Anthony G. Amsterdam for the NAACP Legal Defense and Educational Fund, Inc., and by
Bernard A. Berkman, Melvin L. Wulf, and Alan H. Levine for the American Civil Liberties Union et al.

Briefs of amici curiae, urging affirmance, were filed by Solicitor General Griswold, Assistant Attorney
General Vinson, Ralph S. Spritzer, Beatrice Rosenberg, and Mervyn Hamburg for the United States; by
Louis J. Lefkowitz, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Maria L. Marcus
and Brenda Soloff, Assistant Attorneys General, for the Attorney General of New York; by Charles Moylan,
Jr., Evelle J. Younger, and Harry Wood for the National District Attorneys' Assn., and by James R.
Thompson for Americans for Effective Law Enforcement.

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

This case presents serious questions concerning the role of the Fourth Amendment in the confrontation on
the street between the citizen and the policeman investigating suspicious circumstances.

Petitioner Terry was convicted of carrying a concealed weapon and sentenced to the statutorily prescribed
term of one to three years in the penitentiary. 1 Following [392 U.S. 1, 5] the denial of a pretrial motion to
suppress, the prosecution introduced in evidence two revolvers and a number of bullets seized from Terry
and a codefendant, Richard Chilton, 2 by Cleveland Police Detective Martin McFadden. At the hearing on
the motion to suppress this evidence, Officer McFadden testified that while he was patrolling in plain clothes
in downtown Cleveland at approximately 2:30 in the afternoon of October 31, 1963, his attention was
attracted by two men, Chilton and Terry, standing on the corner of Huron Road and Euclid Avenue. He had
never seen the two men before, and he was unable to say precisely what first drew his eye to them. However,
he testified that he had been a policeman for 39 years and a detective for 35 and that he had been assigned
to patrol this vicinity of downtown Cleveland for shoplifters and pickpockets for 30 years. He explained that
he had developed routine habits of observation over the years and that he would "stand and watch people
or walk and watch people at many intervals of the day." He added: "Now, in this case when I looked over
they didn't look right to me at the time."

His interest aroused, Officer McFadden took up a post of observation in the entrance to a store 300 to 400
feet[392 U.S. 1, 6] away from the two men. "I get more purpose to watch them when I seen their
movements," he testified. He saw one of the men leave the other one and walk southwest on Huron Road,
past some stores. The man paused for a moment and looked in a store window, then walked on a short
distance, turned around and walked back toward the corner, pausing once again to look in the same store
window. He rejoined his companion at the corner, and the two conferred briefly. Then the second man went
through the same series of motions, strolling down Huron Road, looking in the same window, walking on a
short distance, turning back, peering in the store window again, and returning to confer with the first man
at the corner. The two men repeated this ritual alternately between five and six times apiece - in all, roughly
a dozen trips. At one point, while the two were standing together on the corner, a third man approached
them and engaged them briefly in conversation. This man then left the two others and walked west on Euclid
Avenue. Chilton and Terry resumed their measured pacing, peering, and conferring. After this had gone on
for 10 to 12 minutes, the two men walked off together, heading west on Euclid Avenue, following the path
taken earlier by the third man.

By this time Officer McFadden had become thoroughly suspicious. He testified that after observing their
elaborately casual and oft-repeated reconnaissance of the store window on Huron Road, he suspected the
two men of "casing a job, a stick-up," and that he considered it his duty as a police officer to investigate
further. He added that he feared "they may have a gun." Thus, Officer McFadden followed Chilton and Terry
and saw them stop in front of Zucker's store to talk to the same man who had conferred with them earlier
on the street corner. Deciding that the situation was ripe for direct action. Officer McFadden approached
the three men, identified [392 U.S. 1, 7] himself as a police officer and asked for their names. At this point
his knowledge was confined to what he had observed. He was not acquainted with any of the three men by
name or by sight, and he had received no information concerning them from any other source. When the
men "mumbled something" in response to his inquiries, Officer McFadden grabbed petitioner Terry, spun
him around so that they were facing the other two, with Terry between McFadden and the others, and patted
down the outside of his clothing. In the left breast pocket of Terry's overcoat Officer McFadden felt a pistol.
He reached inside the overcoat pocket, but was unable to remove the gun. At this point, keeping Terry
between himself and the others, the officer ordered all three men to enter Zucker's store. As they went in,
he removed Terry's overcoat completely, removed a .38-caliber revolver from the pocket and ordered all
three men to face the wall with their hands raised. Officer McFadden proceeded to pat down the outer
clothing of Chilton and the third man, Katz. He discovered another revolver in the outer pocket of Chilton's
overcoat, but no weapons were found on Katz. The officer testified that he only patted the men down to see
whether they had weapons, and that he did not put his hands beneath the outer garments of either Terry or
Chilton until he felt their guns. So far as appears from the record, he never placed his hands beneath Katz'
outer garments. Officer McFadden seized Chilton's gun, asked the proprietor of the store to call a police
wagon, and took all three men to the station, where Chilton and Terry were formally charged with carrying
concealed weapons.

On the motion to suppress the guns the prosecution took the position that they had been seized following a
search incident to a lawful arrest. The trial court rejected this theory, stating that it "would be stretching the
facts beyond reasonable comprehension" to find that Officer [392 U.S. 1, 8] McFadden had had probable
cause to arrest the men before he patted them down for weapons. However, the court denied the defendants'
motion on the ground that Officer McFadden, on the basis of his experience, "had reasonable cause to
believe . . . that the defendants were conducting themselves suspiciously, and some interrogation should be
made of their action." Purely for his own protection, the court held, the officer had the right to pat down the
outer clothing of these men, who he had reasonable cause to believe might be armed. The court
distinguished between an investigatory "stop" and an arrest, and between a "frisk" of the outer clothing for
weapons and a full-blown search for evidence of crime. The frisk, it held, was essential to the proper
performance of the officer's investigatory duties, for without it "the answer to the police officer may be a
bullet, and a loaded pistol discovered during the frisk is admissible."

After the court denied their motion to suppress, Chilton and Terry waived jury trial and pleaded not guilty.
The court adjudged them guilty, and the Court of Appeals for the Eighth Judicial District, Cuyahoga County,
affirmed. State v. Terry, 5 Ohio App. 2d 122, 214 N. E. 2d 114 (1966). The Supreme Court of Ohio dismissed
their appeal on the ground that no "substantial constitutional question" was involved. We granted certiorari,
387 U.S. 929 (1967), to determine whether the admission of the revolvers in evidence violated petitioner's
rights under the Fourth Amendment, made applicable to the States by the Fourteenth. Mapp v. Ohio, 367
U.S. 643 (1961). We affirm the conviction.

I.
The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated . . . ." This inestimable right
of[392 U.S. 1, 9] personal security belongs as much to the citizen on the streets of our cities as to the
homeowner closeted in his study to dispose of his secret affairs. For, as this Court has always recognized,
"No right is held more sacred, or is more carefully guarded, by the common law, than the right of every
individual to the possession and control of his own person, free from all restraint or interference of others,
unless by clear and unquestionable authority of law." Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891).
We have recently held that "the Fourth Amendment protects people, not places," Katz v. United States, 389
U.S. 347, 351 (1967), and wherever an individual may harbor a reasonable "expectation of privacy," id., at
361 (MR. JUSTICE HARLAN, concurring), he is entitled to be free from unreasonable governmental
intrusion. Of course, the specific content and incidents of this right must be shaped by the context in which
it is asserted. For "what the Constitution forbids is not all searches and seizures, but unreasonable searches
and seizures." Elkins v. United States, 364 U.S. 206, 222 (1960). Unquestionably petitioner was entitled to
the protection of the Fourth Amendment as he walked down the street in Cleveland. Beck v. Ohio, 379 U.S.
89 (1964); Rios v. United States, 364 U.S. 253 (1960); Henry v. United States, 361 U.S. 98 (1959); United
States v. Di Re, 332 U.S. 581 (1948); Carroll v. United States, 267 U.S. 132 (1925). The question is whether
in all the circumstances of this on-the-street encounter, his right to personal security was violated by an
unreasonable search and seizure.
We would be less than candid if we did not acknowledge that this question thrusts to the fore difficult and
troublesome issues regarding a sensitive area of police activity - issues which have never before been
squarely[392 U.S. 1, 10] presented to this Court. Reflective of the tensions involved are the practical and
constitutional arguments pressed with great vigor on both sides of the public debate over the power of the
police to "stop and frisk" - as it is sometimes euphemistically termed - suspicious persons.

On the one hand, it is frequently argued that in dealing with the rapidly unfolding and often dangerous
situations on city streets the police are in need of an escalating set of flexible responses, graduated in relation
to the amount of information they possess. For this purpose it is urged that distinctions should be made
between a "stop" and an "arrest" (or a "seizure" of a person), and between a "frisk" and a "search." 3 Thus,
it is argued, the police should be allowed to "stop" a person and detain him briefly for questioning upon
suspicion that he may be connected with criminal activity. Upon suspicion that the person may be armed,
the police should have the power to "frisk" him for weapons. If the "stop" and the "frisk" give rise to probable
cause to believe that the suspect has committed a crime, then the police should be empowered to make a
formal "arrest," and a full incident "search" of the person. This scheme is justified in part upon the notion
that a "stop" and a "frisk" amount to a mere "minor inconvenience and petty indignity," 4 which can
properly be imposed upon the [392 U.S. 1, 11] citizen in the interest of effective law enforcement on the
basis of a police officer's suspicion. 5
On the other side the argument is made that the authority of the police must be strictly circumscribed by
the law of arrest and search as it has developed to date in the traditional jurisprudence of the Fourth
Amendment.6 It is contended with some force that there is not - and cannot be - a variety of police activity
which does not depend solely upon the voluntary cooperation of the citizen and yet which stops short of an
arrest based upon probable cause to make such an arrest. The heart of the Fourth Amendment, the argument
runs, is a severe requirement of specific justification for any intrusion upon protected personal security,
coupled with a highly developed system of judicial controls to enforce upon the agents of the State the
commands of the Constitution. Acquiescence by the courts in the compulsion inherent [392 U.S. 1, 12] in
the field interrogation practices at issue here, it is urged, would constitute an abdication of judicial control
over, and indeed an encouragement of, substantial interference with liberty and personal security by police
officers whose judgment is necessarily colored by their primary involvement in "the often competitive
enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 14 (1948). This, it is argued, can
only serve to exacerbate police-community tensions in the crowded centers of our Nation's cities. 7

In this context we approach the issues in this case mindful of the limitations of the judicial function in
controlling the myriad daily situations in which policemen and citizens confront each other on the street.
The State has characterized the issue here as "the right of a police officer . . . to make an on-the-street stop,
interrogate and pat down for weapons (known in street vernacular as `stop and frisk')." 8 But this is only
partly accurate. For the issue is not the abstract propriety of the police conduct, but the admissibility against
petitioner of the evidence uncovered by the search and seizure. Ever since its inception, the rule excluding
evidence seized in violation of the Fourth Amendment has been recognized as a principal mode of
discouraging lawless police conduct. See Weeks v. United States, 232 U.S. 383, 391 -393 (1914). Thus its
major thrust is a deterrent one, see Linkletter v. Walker, 381 U.S. 618, 629 -635 (1965), and experience has
taught that it is the only effective deterrent to police misconduct in the criminal context, and that without it
the constitutional guarantee against unreasonable searches and seizures would be a mere "form of words."
Mapp v. Ohio, 367 U.S. 643, 655 (1961). The rule also serves another vital function - "the imperative of
judicial integrity." Elkins[392 U.S. 1, 13] v. United States, 364 U.S. 206, 222 (1960). Courts which sit under
our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of
citizens by permitting unhindered governmental use of the fruits of such invasions. Thus in our system
evidentiary rulings provide the context in which the judicial process of inclusion and exclusion approves
some conduct as comporting with constitutional guarantees and disapproves other actions by state agents.
A ruling admitting evidence in a criminal trial, we recognize, has the necessary effect of legitimizing the
conduct which produced the evidence, while an application of the exclusionary rule withholds the
constitutional imprimatur.

The exclusionary rule has its limitations, however, as a tool of judicial control. It cannot properly be invoked
to exclude the products of legitimate police investigative techniques on the ground that much conduct which
is closely similar involves unwarranted intrusions upon constitutional protections. Moreover, in some
contexts the rule is ineffective as a deterrent. Street encounters between citizens and police officers are
incredibly rich in diversity. They range from wholly friendly exchanges of pleasantries or mutually useful
information to hostile confrontations of armed men involving arrests, or injuries, or loss of life. Moreover,
hostile confrontations are not all of a piece. Some of them begin in a friendly enough manner, only to take
a different turn upon the injection of some unexpected element into the conversation. Encounters are
initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to
prosecute for crime. 9 Doubtless some[392 U.S. 1, 14] police "field interrogation" conduct violates the
Fourth Amendment. But a stern refusal by this Court to condone such activity does not necessarily render
it responsive to the exclusionary rule. Regardless of how effective the rule may be where obtaining
convictions is an important objective of the police,10 it is powerless to deter invasions of constitutionally
guaranteed rights where the police either have no interest in prosecuting or are willing to forgo successful
prosecution in the interest of serving some other goal.

Proper adjudication of cases in which the exclusionary rule is invoked demands a constant awareness of
these limitations. The wholesale harassment by certain elements of the police community, of which minority
groups, particularly Negroes, frequently complain, 11 will not be [392 U.S. 1, 15] stopped by the exclusion
of any evidence from any criminal trial. Yet a rigid and unthinking application of the exclusionary rule, in
futile protest against practices which it can never be used effectively to control, may exact a high toll in
human injury and frustration of efforts to prevent crime. No judicial opinion can comprehend the protean
variety of the street encounter, and we can only judge the facts of the case before us. Nothing we say today
is to be taken as indicating approval of police conduct outside the legitimate investigative sphere. Under our
decision, courts still retain their traditional responsibility to guard against police conduct which is
overbearing or harassing, or which trenches upon personal security without the objective evidentiary
justification which the Constitution requires. When such conduct is identified, it must be condemned by the
judiciary and its fruits must be excluded from evidence in criminal trials. And, of course, our approval of
legitimate and restrained investigative conduct undertaken on the basis of ample factual justification should
in no way discourage the employment of other remedies than the exclusionary rule to curtail abuses for
which that sanction may prove inappropriate.

Having thus roughly sketched the perimeters of the constitutional debate over the limits on police
investigative conduct in general and the background against which this case presents itself, we turn our
attention to the quite narrow question posed by the facts before us: whether it is always unreasonable for a
policeman to seize a person and subject him to a limited search for weapons unless there is probable cause
for an arrest. [392 U.S. 1, 16] Given the narrowness of this question, we have no occasion to canvass in
detail the constitutional limitations upon the scope of a policeman's power when he confronts a citizen
without probable cause to arrest him.

II.
Our first task is to establish at what point in this encounter the Fourth Amendment becomes relevant. That
is, we must decide whether and when Officer McFadden "seized" Terry and whether and when he conducted
a "search." There is some suggestion in the use of such terms as "stop" and "frisk" that such police conduct
is outside the purview of the Fourth Amendment because neither action rises to the level of a "search" or
"seizure" within the meaning of the Constitution. 12 We emphatically reject this notion. It is quite plain that
the Fourth Amendment governs "seizures" of the person which do not eventuate in a trip to the station
house and prosecution for crime - "arrests" in traditional terminology. It must be recognized that whenever
a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person.
And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the
outer surfaces of a person's clothing all over his or her body in an attempt to find weapons is not a "search."
Moreover, it is simply fantastic to urge that such a procedure [392 U.S. 1, 17] performed in public by a
policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a "petty
indignity."13 It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and
arouse strong resentment, and it is not to be undertaken lightly. 14
The danger in the logic which proceeds upon distinctions between a "stop" and an "arrest," or "seizure" of
the person, and between a "frisk" and a "search" is two-fold. It seeks to isolate from constitutional scrutiny
the initial stages of the contact between the policeman and the citizen. And by suggesting a rigid all-or-
nothing model of justification and regulation under the Amendment, it obscures the utility of limitations
upon the scope, as well as the initiation, of police action as a means of constitutional regulation. 15 This
Court has held in [392 U.S. 1, 18] the past that a search which is reasonable at its inception may violate the
Fourth Amendment by virtue of its intolerable intensity and scope. Kremen v. United States, 353 U.S. 346
(1957); Go-Bart Importing Co. v. [392 U.S. 1, 19] United States, 282 U.S. 344, 356 -358 (1931); see United
States v. Di Re, 332 U.S. 581, 586 -587 (1948). The scope of the search must be "strictly tied to and justified
by" the circumstances which rendered its initiation permissible. Warden v. Hayden, 387 U.S. 294, 310
(1967) (MR. JUSTICE FORTAS, concurring); see, e. g., Preston v. United States, 376 U.S. 364, 367 -368
(1964); Agnello v. United States, 269 U.S. 20, 30 -31 (1925).

The distinctions of classical "stop-and-frisk" theory thus serve to divert attention from the central inquiry
under the Fourth Amendment - the reasonableness in all the circumstances of the particular governmental
invasion of a citizen's personal security. "Search" and "seizure" are not talismans. We therefore reject the
notions that the Fourth Amendment does not come into play at all as a limitation upon police conduct if the
officers stop short of something called a "technical arrest" or a "full-blown search."
In this case there can be no question, then, that Officer McFadden "seized" petitioner and subjected him to
a "search" when he took hold of him and patted down the outer surfaces of his clothing. We must decide
whether at that point it was reasonable for Officer McFadden to have interfered with petitioner's personal
security as he did. 16 And in determining whether the seizure and search were "unreasonable" our
inquiry [392 U.S. 1, 20] is a dual one - whether the officer's action was justified at its inception, and whether
it was reasonably related in scope to the circumstances which justified the interference in the first place.

III.
If this case involved police conduct subject to the Warrant Clause of the Fourth Amendment, we would have
to ascertain whether "probable cause" existed to justify the search and seizure which took place. However,
that is not the case. We do not retreat from our holdings that the police must, whenever practicable, obtain
advance judicial approval of searches and seizures through the warrant procedure, see, e. g., Katz v. United
States, 389 U.S. 347 (1967); Beck v. Ohio, 379 U.S. 89, 96 (1964); Chapman v. United States, 365 U.S. 610
(1961), or that in most instances failure to comply with the warrant requirement can only be excused by
exigent circumstances, see, e. g., Warden v. Hayden, 387 U.S. 294 (1967) (hot pursuit); cf. Preston v. United
States, 376 U.S. 364, 367 -368 (1964). But we deal here with an entire rubric of police conduct - necessarily
swift action predicated upon the on-the-spot observations of the officer on the beat - which historically has
not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct
involved in this case must be tested by the Fourth Amendment's general proscription against unreasonable
searches and seizures. 17
Nonetheless, the notions which underlie both the warrant procedure and the requirement of probable cause
remain fully relevant in this context. In order to assess the reasonableness of Officer McFadden's conduct
as a general proposition, it is necessary "first to focus upon [392 U.S. 1, 21] the governmental interest which
allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen," for
there is "no ready test for determining reasonableness other than by balancing the need to search [or seize]
against the invasion which the search [or seizure] entails." Camara v. Municipal Court, 387 U.S. 523, 534 -
535, 536-537 (1967). And in justifying the particular intrusion the police officer must be able to point to
specific and articulable facts which, taken together with rational inferences from those facts, reasonably
warrant that intrusion. 18 The scheme of the Fourth Amendment becomes meaningful only when it is
assured that at some point the conduct of those charged with enforcing the laws can be subjected to the
more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or
seizure in light of the particular circumstances. 19 And in making that assessment it is imperative that the
facts be judged against an objective standard: would the facts [392 U.S. 1, 22] available to the officer at the
moment of the seizure or the search "warrant a man of reasonable caution in the belief" that the action taken
was appropriate? Cf. Carroll v. United States, 267 U.S. 132 (1925); Beck v. Ohio, 379 U.S. 89, 96 -97
(1964). 20 Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing
more substantial than inarticulate hunches, a result this Court has consistently refused to sanction. See, e.
g., Beck v. Ohio, supra; Rios v. United States, 364 U.S. 253 (1960); Henry v. United States, 361 U.S. 98
(1959). And simple "`good faith on the part of the arresting officer is not enough.' . . . If subjective good faith
alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be
`secure in their persons, houses, papers, and effects,' only in the discretion of the police." Beck v. Ohio,
supra, at 97.

Applying these principles to this case, we consider first the nature and extent of the governmental interests
involved. One general interest is of course that of effective crime prevention and detection; it is this interest
which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate
manner approach a person for purposes of investigating possibly criminal behavior even though there is no
probable cause to make an arrest. It was this legitimate investigative function Officer McFadden was
discharging when he decided to approach petitioner and his companions. He had observed Terry, Chilton,
and Katz go through a series of acts, each of them perhaps innocent in itself, but which taken together
warranted further investigation. There is nothing unusual in two men standing together on a street corner,
perhaps waiting for someone. Nor is there anything suspicious about people [392 U.S. 1, 23] in such
circumstances strolling up and down the street, singly or in pairs. Store windows, moreover, are made to be
looked in. But the story in quite different where, as here, two men hover about a street corner for an extended
period of time, at the end of which it becomes apparent that they are not waiting for anyone or anything;
where these men pace alternately along an identical route, pausing to stare in the same store window
roughly 24 times; where each completion of this route is followed immediately by a conference between the
two men on the corner; where they are joined in one of these conferences by a third man who leaves swiftly;
and where the two men finally follow the third and rejoin him a couple of blocks away. It would have been
poor police work indeed for an officer of 30 years' experience in the detection of thievery from stores in this
same neighborhood to have failed to investigate this behavior further.

The crux of this case, however, is not the propriety of Officer McFadden's taking steps to investigate
petitioner's suspicious behavior, but rather, whether there was justification for McFadden's invasion of
Terry's personal security by searching him for weapons in the course of that investigation. We are now
concerned with more than the governmental interest in investigating crime; in addition, there is the more
immediate interest of the police officer in taking steps to assure himself that the person with whom he is
dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it
would be unreasonable to require that police officers take unnecessary risks in the performance of their
duties. American criminals have a long tradition of armed violence, and every year in this country many law
enforcement officers are killed in the line of duty, and thousands more are wounded. [392 U.S. 1,
24] Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and
knives. 21

In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect
themselves and other prospective victims of violence in situations where they may lack probable cause for
an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is
investigating at close range is armed and presently dangerous to the officer or to others, it would appear to
be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the
person is in fact carrying a weapon and to neutralize the threat of physical harm.

We must still consider, however, the nature and quality of the intrusion on individual rights which must be
accepted if police officers are to be conceded the right to search for weapons in situations where probable
cause to arrest for crime is lacking. Even a limited search of the outer clothing for weapons constitutes a
severe, [392 U.S. 1, 25] though brief, intrusion upon cherished personal security, and it must surely be an
annoying, frightening, and perhaps humiliating experience. Petitioner contends that such an intrusion is
permissible only incident to a lawful arrest, either for a crime involving the possession of weapons or for a
crime the commission of which led the officer to investigate in the first place. However, this argument must
be closely examined.

Petitioner does not argue that a police officer should refrain from making any investigation of suspicious
circumstances until such time as he has probable cause to make an arrest; nor does he deny that police
officers in properly discharging their investigative function may find themselves confronting persons who
might well be armed and dangerous. Moreover, he does not say that an officer is always unjustified in
searching a suspect to discover weapons. Rather, he says it is unreasonable for the policeman to take that
step until such time as the situation evolves to a point where there is probable cause to make an arrest.
When that point has been reached, petitioner would concede the officer's right to conduct a search of the
suspect for weapons, fruits or instrumentalities of the crime, or "mere" evidence, incident to the arrest.

There are two weaknesses in this line of reasoning, however. First, it fails to take account of traditional
limitations upon the scope of searches, and thus recognizes no distinction in purpose, character, and extent
between a search incident to an arrest and a limited search for weapons. The former, although justified in
part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon,
Preston v. United States, 376 U.S. 364, 367 (1964), is also justified on other grounds, ibid., and can therefore
involve a relatively extensive exploration of the person. A search for weapons in the absence of probable
cause to [392 U.S. 1, 26] arrest, however, must, like any other search, be strictly circumscribed by the
exigencies which justify its initiation. Warden v. Hayden, 387 U.S. 294, 310 (1967) (MR. JUSTICE FORTAS,
concurring). Thus it must be limited to that which is necessary for the discovery of weapons which might be
used to harm the officer or others nearby, and may realistically be characterized as something less than a
"full" search, even though it remains a serious intrusion.
A second, and related, objection to petitioner's argument is that it assumes that the law of arrest has already
worked out the balance between the particular interests involved here - the neutralization of danger to the
policeman in the investigative circumstance and the sanctity of the individual. But this is not so. An arrest
is a wholly different kind of intrusion upon individual freedom from a limited search for weapons, and the
interests each is designed to serve are likewise quite different. An arrest is the initial stage of a criminal
prosecution. It is intended to vindicate society's interest in having its laws obeyed, and it is inevitably
accompanied by future interference with the individual's freedom of movement, whether or not trial or
conviction ultimately follows. 22 The protective search for weapons, on the other hand, constitutes a brief,
though far from inconsiderable, intrusion upon the sanctity of the person. It does not follow that because
an officer may lawfully arrest a person only when he is apprised of facts sufficient to warrant a belief that
the person has committed or is committing a crime, the officer is equally unjustified, absent that kind of
evidence, in making any intrusions short of an arrest. Moreover, a perfectly reasonable apprehension of
danger may arise long before the officer is possessed of adequate information to justify taking a person into
custody for [392 U.S. 1, 27] the purpose of prosecuting him for a crime. Petitioner's reliance on cases which
have worked out standards of reasonableness with regard to "seizures" constituting arrests and searches
incident thereto is thus misplaced. It assumes that the interests sought to be vindicated and the invasions
of personal security may be equated in the two cases, and thereby ignores a vital aspect of the analysis of the
reasonableness of particular types of conduct under the Fourth Amendment. See Camara v. Municipal
Court, supra.

Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there
must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the
police officer, where he has reason to believe that he is dealing with an armed and dangerous individual,
regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be
absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or that of others was in danger. Cf. Beck v.
Ohio, 379 U.S. 89, 91 (1964); Brinegar v. United States, 338 U.S. 160, 174 -176 (1949); Stacey v. Emery, 97
U.S. 642, 645 (1878). 23 And in determining whether the officer acted reasonably in such circumstances,
due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific
reasonable inferences which he is entitled to draw from the facts in light of his experience. Cf. Brinegar v.
United States supra.

IV.
We must now examine the conduct of Officer McFadden in this case to determine whether his search and
seizure of petitioner were reasonable, both at their inception [392 U.S. 1, 28] and as conducted. He had
observed Terry, together with Chilton and another man, acting in a manner he took to be preface to a "stick-
up." We think on the facts and circumstances Officer McFadden detailed before the trial judge a reasonably
prudent man would have been warranted in believing petitioner was armed and thus presented a threat to
the officer's safety while he was investigating his suspicious behavior. The actions of Terry and Chilton were
consistent with McFadden's hypothesis that these men were contemplating a daylight robbery - which, it is
reasonable to assume, would be likely to involve the use of weapons - and nothing in their conduct from the
time he first noticed them until the time he confronted them and identified himself as a police officer gave
him sufficient reason to negate that hypothesis. Although the trio had departed the original scene, there was
nothing to indicate abandonment of an intent to commit a robbery at some point. Thus, when Officer
McFadden approached the three men gathered before the display window at Zucker's store he had observed
enough to make it quite reasonable to fear that they were armed; and nothing in their response to his hailing
them, identifying himself as a police officer, and asking their names served to dispel that reasonable belief.
We cannot say his decision at that point to seize Terry and pat his clothing for weapons was the product of
a volatile or inventive imagination, or was undertaken simply as an act of harassment; the record evidences
the tempered act of a policeman who in the course of an investigation had to make a quick decision as to
how to protect himself and others from possible danger, and took limited steps to do so.
The manner in which the seizure and search were conducted is, of course, as vital a part of the inquiry as
whether they were warranted at all. The Fourth Amendment proceeds as much by limitations upon the [392
U.S. 1, 29] scope of governmental action as by imposing preconditions upon its initiation. Compare Katz v.
United States, 389 U.S. 347, 354 -356 (1967). The entire deterrent purpose of the rule excluding evidence
seized in violation of the Fourth Amendment rests on the assumption that "limitations upon the fruit to be
gathered tend to limit the quest itself." United States v. Poller, 43 F.2d 911, 914 (C. A. 2d Cir. 1930); see, e.
g., Linkletter v. Walker, 381 U.S. 618, 629 -635 (1965); Mapp v. Ohio, 367 U.S. 643 (1961); Elkins v. United
States, 364 U.S. 206, 216 -221 (1960). Thus, evidence may not be introduced if it was discovered by means
of a seizure and search which were not reasonably related in scope to the justification for their initiation.
Warden v. Hayden, 387 U.S. 294, 310 (1967) (MR. JUSTICE FORTAS, concurring).

We need not develop at length in this case, however, the limitations which the Fourth Amendment places
upon a protective seizure and search for weapons. These limitations will have to be developed in the concrete
factual circumstances of individual cases. See Sibron v. New York, post, p. 40, decided today. Suffice it to
note that such a search, unlike a search without a warrant incident to a lawful arrest, is not justified by any
need to prevent the disappearance or destruction of evidence of crime. See Preston v. United States, 376
U.S. 364, 367 (1964). The sole justification of the search in the present situation is the protection of the
police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably
designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.

The scope of the search in this case presents no serious problem in light of these standards. Officer
McFadden patted down the outer clothing of petitioner and his two companions. He did not place his hands
in their pockets or under the outer surface of their garments until he had [392 U.S. 1, 30] felt weapons, and
then he merely reached for and removed the guns. He never did invade Katz' person beyond the outer
surfaces of his clothes, since he discovered nothing in his pat-down which might have been a weapon. Officer
McFadden confined his search strictly to what was minimally necessary to learn whether the men were
armed and to disarm them once he discovered the weapons. He did not conduct a general exploratory search
for whatever evidence of criminal activity he might find.

V.
We conclude that the revolver seized from Terry was properly admitted in evidence against him. At the time
he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe
that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to
take swift measures to discover the true facts and neutralize the threat of harm if it materialized. The
policeman carefully restricted his search to what was appropriate to the discovery of the particular items
which he sought. Each case of this sort will, of course, have to be decided on its own facts. We merely hold
today that where a police officer observes unusual conduct which leads him reasonably to conclude in light
of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be
armed and presently dangerous, where in the course of investigating this behavior he identifies himself as
a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves
to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and
others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt
to discover weapons which might be used to assault him. [392 U.S. 1, 31] Such a search is a reasonable
search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence
against the person from whom they were taken.
Affirmed.
MR. JUSTICE BLACK concurs in the judgment and the opinion except where the opinion quotes from and
relies upon this Court's opinion in Katz v. United States and the concurring opinion in Warden v. Hayden.
SECOND DIVISION

[G.R. No. 119220. September 20, 1996.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NILO SOLAYAO,accused-appellant.

The Solicitor General for plaintiff-appellee.

Violeta M. Pareña for accused-appellant.

SYLLABUS

1. CRIMINAL LAW; P.D. NO. 1866; ILLEGAL POSSESSION OF FIREARM AND AMMUNITION; ELEMENTS THEREOF. — This Court, in the case of People v. Lualhati ruled that in
crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz: (a) the existence of the subject firearm and (b) the fact that the accused
who owned or possessed it does not have the corresponding license or permit to possess the same.

2. POLITICAL LAW; CONSTITUTIONAL LAW; RIGHTS OF THE ACCUSED; RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES; WARRANTLESS SEARCH BEFORE
MAKING AN ARREST JUSTIFIED BY SUSPICIOUS CONDUCT OF ACCUSED; CASE AT BENCH. — Accused appellant argued that the trial court erred in admitting the subject firearm in
evidence as it was the product of an unlawful warrantless search. He maintained that the search made on his person violated his constitutional right to be secure in his person and effects
against unreasonable searches and seizures. Not only was the search made without a warrant but it did not fall under any of the circumstances enumerated under Section 5, Rule 113 of the
1985 Rules on Criminal Procedure. . . . Under the circumstances obtaining in this case, however, accused-appellant's arguments are hardly tenable. He and his companions' drunken actuations
aroused the suspicion of SPO3 Niño's group. After SPO3 Niño told accused-appellant not to run away, the former identified himself as a government agent. The peace officers did not know
that he had committed, or was actually committing, the offense of illegal possession of firearm. Tasked with verifying the report that there were armed men roaming in the barangays
surrounding Caibiran, their attention was understandably drawn to the group that had aroused their suspicion. They could not have known that the object wrapped in coconut leaves which
accused-appellant was carrying hid a firearm. As with Posadas, where this Court ruled that the search and seizure brought about by the suspicious conduct of Posadas himself can be likened
to a "stop and frisk" situation. There was probable cause to conduct a search even before an arrest could be made. . . ., the case at bar constitutes an instance where a search and seizure may
be effected without first making an arrest. There was justifiable cause to "stop and frisk" accused-appellant when his companions fled upon seeing the government agents. Under the
circumstances, the government agents could not possibly have procured a search warrant first. Thus, there was no violation of the constitutional guarantee against unreasonable searches
and seizures. Nor was there error on the part of the trial court when it admitted the homemade firearm as evidence.

3. REMEDIAL LAW; EVIDENCE; PROSECUTION MUST RELY ON STRENGTH OF ITS OWN EVIDENCE; LACK OF LICENSE TO POSSESS FIREARM NOT SUFFICIENTLY
ESTABLISHED IN CASE AT BENCH. — As to the question of whether or not the prosecution was able to prove the second element, that is, the absence of a license or permit to possess the
subject firearm, this Court agrees with the Office of the Solicitor General which pointed out that the prosecution failed to prove that accused-appellant lacked the necessary permit or license
to possess the subject firearm. . . . This Court agrees with the argument of the Solicitor General that "while the prosecution was able to establish the fact that the subject firearm was seized
by the police from the possession of appellant, without the latter being able to present any license or permit to possess the same, such fact alone is not conclusive proof that he was not
lawfully authorized to carry such firearm. In other words, such fact does not relieve the prosecution from its duty to establish the lack of a license or permit to carry the firearm by clear and
convincing evidence, like a certification from the government agency concerned." Putting it differently, "when a negative is averred in a pleading, or a plaintiff's case depends upon the
establishment of a negative, and the means of proving the fact are equally within the control of each party, then the burden of proof is upon the party averring the negative." In this case, a
certification from the Firearms and Explosives Unit of the Philippine National Police that accused-appellant was not a licensee of a firearm of any kind or caliber would have sufficed for the
prosecution to prove beyond reasonable doubt the second element of the crime of illegal possession of firearm.

4. ID.; ID.; EXTRAJUDICIAL ADMISSION BY ACCUSED NOT SUFFICIENT TO PROVE LACK OF A LICENSE; CASE AT BENCH. — In the case at bar, the prosecution was only able
to prove by testimonial evidence that accused-appellant admitted before Police Officer Niño at the time that he was accosted that he did not have any authority or license to carry the subject
firearm when he was asked if he had one. In other words, the prosecution relied on accused-appellant's admission to prove the second element. . . . By its very nature, an "admission is the
mere acknowledgment of a fact or of circumstances from which guilt may be inferred tending to incriminate the speaker, but not sufficient of itself to establish his guilt." In other words, it is
a "statement by defendant of fact or facts pertinent to issues pending, in connection with proof of other facts or circumstances, to prove guilt, but which is, of itself, insufficient to authorize
conviction." From the above principles, this Court can infer that an admission in criminal cases is insufficient to prove beyond reasonable doubt the commission of the crime charged.
Moreover, said admission is extra-judicial in nature. As such, it does not fall under Section 4 of Rule 129 of the Revised Rules of Court . . . . Not being a judicial admission, said statement by
accused-appellant does not prove beyond reasonable doubt the second element of illegal possession of firearm. It does not even establish a prima facie case. It merely bolsters the case for
the prosecution but does not stand as proof of the fact of absence or lack of a license.

DECISION
ROMERO, J p:

Accused-appellant Nilo Solayao was charged before the Regional Trial Court of Naval, Biliran, Branch
16, with the crime of illegal possession of firearm and ammunition1 defined and penalized under Presidential
Decree No. 1866.
The lone prosecution witness, SPO3 Jose Niño, narrated that at about 9:00 o'clock in the evening of
July 9, 1992, with CAFGU members Teofilo Llorad, Jr. and Cecilio Cenining, he went to Barangay
Caulangohan, Caibiran, Biliran. They were to conduct an intelligence patrol as required of them by their
intelligence officer to verify reports on the presence of armed persons roaming around the barangays of
Caibiran. 2
From Barangay Caulangohan, the team of Police Officer Niño proceeded to Barangay Onion where
they met the group of accused-appellant Nilo Solayao numbering five. The former became suspicious when
they observed that the latter were drunk and that accused-appellant himself was wearing a camouflage
uniform or a jungle suit. Accused-appellant's companions, upon seeing the government agents, fled. 3
Police Officer Niño told accused-appellant not to run away and introduced himself as "PC," after
which he seized the dried coconut leaves which the latter was carrying and found wrapped in it a 49-inch
long homemade firearm locally known as "latong." When he asked accused-appellant who issued him a
license to carry said firearm or whether he was connected with the military or any intelligence group, the
latter answered that he had no permission to possess the same. Thereupon, SPO3 Niño confiscated the
firearm and turned him over to the custody of the policemen of Caibiran who subsequently investigated
him and charged him with illegal possession of firearm. 4
Accused-appellant, in his defense, did not contest the confiscation of the shotgun but averred that
this was only given to him by one of his companions, Hermogenes Cenining, when it was still wrapped in
coconut leaves. He claimed that he was not aware that there was a shotgun concealed inside the coconut
leaves since they were using the coconut leaves as a torch. He further claimed that this was the third torch
handed to him after the others had been used up. 5 Accused-appellant's claim was corroborated by one
Pedro Balano that he indeed received a torch from Hermogenes Cenining which turned out to be a shotgun
wrapped in coconut leaves. 6
On August 25, 1994, the trial court found accused-appellant guilty of illegal possession of firearm
under Section 1 of Presidential Decree No. 1866 and imposed upon him the penalty of imprisonment
ranging from reclusion temporalmaximum toreclusion perpetua. The trial court, having found no mitigating
but one aggravating circumstance of nighttime, sentenced accused-appellant to suffer the prison term
ofreclusion perpetua with the accessory penalties provided by law. 7 It found that accused-appellant did not
contest the fact that SPO3 Niño confiscated the firearm from him and that he had no permit or license to
possess the same. It hardly found credible accused-appellant's submission that he was in possession of the
firearm only by accident and that upon reaching Barangay Onion, he followed four persons, namely,
Hermogenes Cenining, Antonio Sevillano, Willie Regir and Jovenito Jaro when he earlier claimed that he
did not know his companions. 8
Accused-appellant comes to this Court on appeal and assigns the following errors:
"I. The trial court erred in admitting in evidence the homemade firearm.
II. The trial court erred in appreciating the aggravating circumstance of nighttime in the
imposition of the maximum penalty against the accused-appellant." 9
This Court, in the case of People v. Lualhati 10 ruled that in crimes involving illegal possession of firearm,
the prosecution has the burden of proving the elements thereof,viz: (a) the existence of the subject firearm and
(b) the fact that the accused who owned or possessed it does not have the corresponding license or permit to
possess the same.
In assigning the first error, accused-appellant argued that the trial court erred in admitting the
subject firearm in evidence as it was the product of an unlawful warrantless search. He maintained that the
search made on his person violated his constitutional right to be secure in his person and effects against
unreasonable searches and seizures. Not only was the search made without a warrant but it did not fall
under any of the circumstances enumerated under Section 5, Rule 113 of the 1985 Rules on Criminal
Procedure which provides, inter alia:
"A peace officer or a private person may, without a warrant, arrest a person when in his
presence, the person to be arrested has committed, is actually committing, or is attempting
to commit an offense."
Hence, the search being unlawful, the homemade firearm confiscated from him is inadmissible in
evidence for being "the fruit of the poisonous tree." 11 As such, the prosecution's case must necessarily fail and
the accused-appellant acquitted.
Accused-appellant's arguments follow the line of reasoning in People v. Cuizon, et al. 12 where this
Court declared: ". . . emphasis is to be laid on the fact that the law requires that the search be incident to a
lawful arrest, in order that the search itself may likewise be considered legal. Therefore, it is beyond cavil
that a lawful arrest must precede the search of a person and his belongings. Were a search first undertaken,
then an arrest effected based on evidence produced by the search, both such search and arrest would be
unlawful, for being contrary to law."
Under the circumstances obtaining in this case, however, accused-appellant's arguments are hardly
tenable. He and his companions' drunken actuations aroused the suspicion of SPO3 Niño's group, as well
as the fact that he himself was attired in a camouflage uniform or a jungle suit 13 and that upon espying the
peace officers, his companions fled. It should be noted that the peace officers were precisely on an
intelligence mission to verify reports that armed persons were roaming around the barangays of
Caibiran. 14
The circumstances in this case are similar to those obtaining in Posadas v. Court of Appeals 15 where
this Court held that "at the time the peace officers identified themselves and apprehended the petitioner
as he attempted to flee, they did not know that he had committed, or was actually committing the offense
of illegal possession of firearm and ammunitions. They just suspected that he was hiding something in the
buri bag. They did not know what its contents were. The said circumstances did not justify an arrest without
a warrant."
This Court, nevertheless, ruled that the search and seizure in the Posadas case brought about by the
suspicious conduct of Posadas himself can be likened to a "stop and frisk" situation. There was probable
cause to conduct a search even before an arrest could be made.
In the present case, after SPO3 Niño told accused-appellant not to run away, the former identified
himself as a government agent. 16 The peace officers did not know that he had committed, or was actually
committing, the offense of illegal possession of firearm. Tasked with verifying the report that there were
armed men roaming in the barangays surrounding Caibiran, their attention was understandably drawn to
the group that had aroused their suspicion. They could not have known that the object wrapped in coconut
leaves which accused-appellant was carrying hid a firearm.
As with Posadas, the case at bar constitutes an instance where a search and seizure may be effected
without first making an arrest. There was justifiable cause to "stop and frisk" accused-appellant when his
companions fled upon seeing the government agents. Under the circumstances, the government agents
could not possibly have procured a search warrant first.
Thus, there was no violation of the constitutional guarantee against unreasonable searches and
seizures. Nor was there error on the part of the trial court when it admitted the homemade firearm as
evidence.
As to the question of whether or not the prosecution was able to prove the second element, that is,
the absence of a license or permit to possess the subject firearm, this Court agrees with the Office of the
Solicitor General which pointed out that the prosecution failed to prove that accused-appellant lacked the
necessary permit or license to possess the subject firearm. 17
Undoubtedly, it is the constitutional presumption of innocence that lays such burden upon the
prosecution. The absence of such license and legal authority constitutes an essential ingredient of the
offense of illegal possession of firearm, and every ingredient or essential element of an offense must be
shown by the prosecution by proof beyond reasonable doubt. 18
In People v. Tiozon, 19 this Court said:
"It is true that People vs. Lubo, 101 Phil. 179 and People vs. Ramos, 8 SCRA 758 could be
invoked to support the view that it is incumbent upon a person charged with illegal possession
of a firearm to prove the issuance to him of a license to possess the firearm, but we are of the
considered opinion that under the provisions of Section 2, Rule 131 of the Rules of Court which
provide that in criminal cases the burden of proof as to the offense charged lies on the
prosecution and that a negative fact alleged by the prosecution must be proven if 'it is an
essential ingredient of the offense charged,' the burden of proof was with the prosecution in
this case to prove that the firearm used by appellant in committing the offense charged was
not properly licensed.
It cannot be denied that the lack or absence of a license is an essential ingredient of the
offense of illegal possession of a firearm. The information filed against appellant in Criminal
Case No. 3558 of the lower court (now G.R. No. 27681) specifically alleged that he had no
'license or permit to possess' the .45 caliber pistol mentioned therein. Thus it seems clear that
it was the prosecution's duty not merely to allege that negative fact but to prove it. This view
is supported by similar adjudicated cases. In U.S. vs. Tria, 17 Phil. 303, the accused was charged
with 'having criminally inscribed himself as a voter knowing that he had none of the
qualifications required to be a voter. It was there held that the negative fact of lack of
qualification to be a voter was an essential element of the crime charged and should be proved
by the prosecution. In another case (People vs. Quebral, 68 Phil. 564) where the accused was
charged with illegal practice of medicine because he had diagnosed, treated and prescribed
for certain diseases suffered by certain patients from whom he received monetary
compensation, without having previously obtained the proper certificate of registration from
the Board of Medical Examiners, as provided in Section 770 of the Administrative Code, this
Court held that if the subject of the negative averment like, for instance, the act of voting
without the qualifications provided by law is an essential ingredient of the offense charged,
the prosecution has the burden of proving the same, although in view of the difficulty of
proving a negative allegation, the prosecution, under such circumstance, need only establish
a prima facie case from the best evidence obtainable. In the case before Us, both appellant and
the Solicitor General agree that there was not even aprima faciecase upon which to hold
appellant guilty of the illegal possession of a firearm. Former Chief Justice Moran upholds this
view as follows:
'The mere fact that the adverse party has the control of the better means of
proof of the fact alleged, should not relieve the party making the averment of the
burden of proving it. This is so, because a party who alleges a fact must be assumed to
have acquired some knowledge thereof, otherwise he could not have alleged it.
Familiar instance of this is the case of a person prosecuted for doing an act or carrying
on a business, such as, the sale of liquor without a license. How could the prosecution
aver the want of a license if it had acquired no knowledge of that fact? Accordingly,
although proof of the existence or non-existence of such license can, with more facility,
be adduced by the defendant, it is nevertheless, incumbent upon the party alleging the
want of the license to prove the allegation. Naturally, as the subject matter of the
averment is one which lies peculiarly within the control or knowledge of the
accused prima facie evidence thereof on the part of the prosecution shall suffice to cast
the onus upon him.' (6 Moran, Comments on the Rules of Court, 1963 edition, p. 8)."
Finally, the precedents cited above have been crystallized as the present governing case law on this
question. As this Court summed up the doctrine in People v. Macagaling:20
"We cannot see how the rule can be otherwise since it is the inescapable duty of the
prosecution to prove all the ingredients of the offense as alleged against the accused in an
information, which allegations must perforce include any negative element provided by the
law to integrate that offense. We have reiterated quite recently the fundamental mandate that
since the prosecution must allege all the elements of the offense charged, then it must prove
by the requisite quantum of evidence all the elements it has thus alleged."
In the case at bar, the prosecution was only able to prove by testimonial evidence that accused-
appellant admitted before Police Officer Niño at the time that he was accosted that he did not have any
authority or license to carry the subject firearm when he was asked if he had one. 21 In other words, the
prosecution relied on accused-appellant's admission to prove the second element.
Is this admission sufficient to prove beyond reasonable doubt the second element of illegal
possession of firearm which is that accused-appellant does not have the corresponding license? Corollary
to the above question is whether an admission by the accused-appellant can take the place of any
evidentiary means establishing beyond reasonable doubt the fact averred in the negative in the pleading
and which forms an essential ingredient of the crime charged.
This Court answers both questions in the negative. By its very nature, an "admission is the mere
acknowledgment of a fact or of circumstances from which guilt may be inferred, tending to incriminate the
speaker, but not sufficient of itself to establish his guilt." 22 In other words, it is a "statement by defendant
of fact or facts pertinent to issues pending, in connection with proof of other facts or circumstances, to
prove guilt, but which is, of itself, insufficient to authorize conviction." 23 From the above principles, this
Court can infer that an admission in criminal cases is insufficient to prove beyond reasonable doubt the
commission of the crime charged.
Moreover, said admission is extra-judicial in nature. As such, it does not fall under Section 4 of Rule
129 of the Revised Rules of Court which states:
"An admission, verbal or written, made by a party in the course of the trial or other
proceedings in the same case does not require proof."
Not being a judicial admission, said statement by accused-appellant does not prove beyond reasonable
doubt the second element of illegal possession of firearm. It does not even establish a prima facie case. It merely
bolsters the case for the prosecution but does not stand as proof of the fact of absence or lack of a license.
This Court agrees with the argument of the Solicitor General that "while the prosecution was able
to establish the fact that the subject firearm was seized by the police from the possession of appellant,
without the latter being able to present any license or permit to possess the same, such fact alone is not
conclusive proof that he was not lawfully authorized to carry such firearm. In other words, such fact does
not relieve the prosecution from its duty to establish the lack of a license or permit to carry the firearm by
clear and convincing evidence, like a certification from the government agency concerned." 24
Putting it differently, "when a negative is averred in a pleading, or a plaintiff's case depends upon
the establishment of a negative, and the means of proving the fact are equally within the control of each
party, then the burden of proof is upon the party averring the negative." 25
In this case, a certification from the Firearms and Explosives Unit of the Philippine National Police
that accused-appellant was not a licensee of a firearm of any kind or caliber would have sufficed for the
prosecution to prove beyond reasonable doubt the second element of the crime of illegal possession of
firearm.
In view of the foregoing, this Court sees no need to discuss the second assigned error.
WHEREFORE, the assailed judgment of the court a quo is REVERSED and SET ASIDE. Accused-
appellant Nilo Solayao is hereby ACQUITTED for insufficiency of evidence and ordered immediately
released unless there are other legal grounds for his continued detention, with costs de oficio.
SO ORDERED.
Regalado, Puno and Torres, Jr., JJ ., concur.
Mendoza, J ., is on leave.
EN BANC

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

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

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

SYNOPSIS

In an information filed before the Regional Trial Court (RTC) of Manila, petitioner was charged with violating Section 3 of Presidential Decree No. 1866 for keeping, possessing
and/or acquiring a hand grenade, without first securing the necessary license and permit from the proper authorities. On arraignment, petitioner, assisted by counsel de officio, entered a
plea of not guilty. After trial on the merits, the court a quo found petitioner guilty of the crime of illegal possession of explosives under the said law and sentenced him to suffer the penalty
of not less than seventeen years, four months and one day of reclusion temporal as minimum and not more than thirty years of reclusion perpetua, as maximum. Petitioner filed a notice of
appeal indicating that he was appealing to the Supreme Court. However, the record of the case was forwarded to the Court of Appeals. In its decision, the Court of Appeals affirmed the trial
court's decision. Unable to accept conviction, petitioner filed the instant petition alleging that the respondent court erred in affirming the findings of the trial court that the warrantless arrest
of petitioner was valid and legal.

The Supreme Court finds the petition impressed with merit. For purposes of determining appellate jurisdiction in criminal cases, the maximum of the penalty, and not the
minimum, is taken into account. Since the maximum of the penalty is reclusion perpetua, the appeal therefrom should have been to the Court and not the Court of Appeals. Hence, the
challenged decision immediately fall in jurisdictional grounds. Additionally, the Court is convinced that the prosecution failed to establish petitioner's guilt with moral certainty. First, serious
doubts surrounds the story of police office Yu that a grenade was found in and seized from petitioner's possession. Notably, Yu did not identify in court the grenade he allegedly seized.
Second, if indeed petitioner had a grenade with him and that two days earlier he was with the group about to detonate an explosive at Plaza Miranda, it was then unnatural and against
common experience that petitioner simply stood in Plaza Miranda in proximity to the police officers. Lastly, even assuming that petitioner admitted possession of the grenade during his
custodial investigation police officer Serapio, such admission is inadmissible in evidence for it was taken in palpable violation of Section 12(1) and (3) of Article III of the Constitution. Verily,
the search conducted on petitioner could not have been one incidental to a lawful arrest. In view thereof, the challenged decision of the Court of Appeals is set aside for lack of jurisdiction
and on ground of reasonable doubt.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; APPEAL TO THE SUPREME COURT; FOR PURPOSES OF DETERMINING APPELLATE JURISDICTION OF THE SUPREME COURT
IN CRIMINAL CASES, THE MAXIMUM OF THE PENALTY IMPOSABLE BY LAW IS TAKEN INTO ACCOUNT AND NOT THE MINIMUM. — For purposes of determining appellate jurisdiction
in criminal cases, the maximum of the penalty, and not the minimum, is taken into account. Since the maximum of the penalty is reclusion perpetua, the appeal therefrom should have been
to Supreme Court, and not the Court of Appeals, pursuant to Section 9(3) of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129), in relation to Section 17 of the Judiciary Act of 1948,
Section 5(2) of Article VIII of the Constitution and Section 3(c) of Rule 122 of the Rules of Court. The term life imprisonment as used in Section 9 of B.P. Blg. 129, the Judiciary Act of 1948, and
Section 3 of Rule 122 must be deemed to include reclusion perpetua in view of Section 5(2) of Article VIII of the Constitution.

2. ID.; ID.; RIGHTS OF THE ACCUSED; PETITIONER'S ADMISSION OF POSSESSION OF THE GRENADE DURING CUSTODIAL INVESTIGATION, WITHOUT THE ASSISTANCE
OF COUNSEL, INADMISSIBLE IN EVIDENCE. — Even assuming that petitioner admitted possession of the grenade during his custodial investigation by police officer Serapio, such admission
was inadmissible in evidence for it was taken in palpable violation of Section 12(1) and (3) of Article III of the Constitution. Serapio conducted the custodial investigation on petitioner the day
following his arrest. No lawyer was present and Serapio could not have requested a lawyer to assist petitioner as no PAO lawyer was then available. Thus, even if petitioner consented to the
investigation and waived his rights to remain silent and to counsel, the waiver was invalid as it was not in writing, neither was it executed in the presence of counsel.

3. ID.; ID.; WARRANTLESS ARREST; LACK OF PERSONAL KNOWLEDGE ON THE PART OF THE ARRESTING OFFICER OR AN OVERT PHYSICAL ACT ON THE PART OF THE
ACCUSED, INDICATING THAT THE CRIME HAD JUST BEEN COMMITTED, OR WAS GOING TO BE COMMITTED, MAKES THE SEARCH CONDUCTED ON THE ACCUSED NOT ONE
INCIDENTAL TO A LAWFUL ARREST; CASE AT BAR. — In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search, the legality of the
arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used as a pretext for conducting a search. In this instance, the law requires that there first be a lawful
arrest before a search can be made — the process cannot be reversed. At bottom, assuming a valid arrest, the arresting officer may search the person of the arrestee and the area within
which the latter may reach for a weapon or for evidence to destroy, and seize any money or property found which was used in the commission of the crime, or the fruit of the crime, or that
which may be used as evidence, or which might furnish the arrestee with the means of escaping or committing violence. Here, there could have been no valid in flagrante delicto or hot pursuit
arrest preceding the search in light of the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on the part of petitioner, indicating that a crime had just
been committed, was being committed or was going to be committed. Having thus shown the invalidity of the warrantless arrest in this case, plainly, the search conducted on petitioner
could not have been one incidental to a lawful arrest.

4. ID.; ID.; ID.; "STOP AND FRISK" AS A "LIMITED PROTECTIVE SEARCH OF OUTER CLOTHING FOR WEAPONS"; JUSTIFICATION FOR AND ALLOWABLE SCOPE THEREOF.
— We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited protective search of outer clothing for weapons," as laid down in Terry, thus: We merely hold
today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with
whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where
nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a
carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth
Amendment . . . Other notable points of Terry are that while probable cause is not required to conduct a "stop and frisk," it nevertheless holds that mere suspicion or a hunch will not validate
a "stop and frisk." A genuine reason must exist, in light of the police officer's experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed
about him. Finally, a "stop-and-frisk" serves a two-fold interest: the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may,
under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more
pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that
could unexpectedly and fatally be used against the police officer.

PANGANIBAN, J., separate opinion:

1. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARRESTS AND SEARCHES; PROBABLE CAUSE, NEEDED FOR THEIR VALIDITY. — After reviewing previous
decisions on valid warrantless arrests and searches, the Court underscored in sum that there was need for facts providing probable cause, such as "the distinct odor of marijuana, reports
about drug transporting or positive identification by informers, suspicious behavior, attempt to flee, [or] failure to produce identification papers" to justify warrantless arrests and searches.
Likewise, urgency must attend such arrests and searches, as where motor vehicles are used and there is great probability that the suspect would get away before a warrant can be procured.
Most important is that the law enforcers must act immediately on the information received, suspicions raised or probable cause established, and should effect the arrests and searches without
any delay.

2. ID.; ID.; ID.; ID.; THE STOP-AND-FRISK CONDUCTED BY ORDINARY POLICEMEN AGAINST THE ACCUSED ON THE BASIS THAT HIS EYES WERE MOVING VERY FAST AND
THERE IS NO INDICATION THAT HE IS HIDING EXPLOSIVE PARAPHERNALIA, IS ILLEGAL; CASE AT BAR. — As in Manalili, lawmen were on surveillance in response to information that a
criminal activity could be in the offing at a specified place. The stark difference, however, is that in Manalili, the reported activity involved drug use and the lawmen belonged to the anti-
narcotics group, while in the instant case, the police on patrol were ordinary law enforcers on the lookout for possible bombers. In the former, the law enforcers concerned may be presumed
to possess special knowledge and skill to detect the physical features exhibited by a current drug user. Thus, when these specially trained enforcers saw Manalili with reddish eyes and walking
in a wobbly manner characteristic of a person "high" on drugs per their experience, and in a known hangout of drug users, there was sufficient genuine reason to stop and frisk the suspect. It
is well to emphasize that under different circumstances such as where the policemen are not specially-trained, and in common places where people ordinarily converge, the same features
displayed by a person will not normally justify a warrantless arrest or search on him. The case before us presents such a situation. The policemen merely observed that Malacat's eyes were
moving very fast. They did not notice any bulges or packets about the bodies of these men indicating that they might be hiding explosive paraphernalia. From their outward look, nothing
suggested that they were at the time armed and dangerous. Hence, there was no justification for a stop-and-frisk.

3. ID.; ID.; ID.; ID.; ID.; DOCTRINE LAID DOWN IN PEOPLE VS. MENGOTE, SQUARELY APPLICABLE IN CASE AT BAR. — Bolstering the invalidity of the arrest and search of
Malacat is People vs. Mengote, another classic on the right against unreasonable searches and seizures. Upon receiving a telephone call shortly before noon from an informer that there were
suspicious looking persons at a certain street corner in Tondo, Manila, the Western Police District dispatched a surveillance team to said place. There they saw two men "looking from side to
side" with one "holding his abdomen." The police approached them and identified themselves, whereupon the two tried to flee but failed as other lawmen surrounded them. The suspects
were searched, and recovered from Mengote was a fully loaded pistol; from his companion, a fan knife. The Court ruled that the situation was not one calling for a lawful warrantless search
and arrest. As the Court, through Mr. Justice Isagani A. Cruz, succinctly put it: "What offense could possibly have been suggested by a person 'looking from side to side and 'holding his
abdomen' and in a place not exactly forsaken? Under our rule in Mengote, petitioner's dubious act of moving his eyes swiftly from side to side can in no way justify a stop-and-frisk. To convict
a person on the basis only of his queer behavior and to sentence him to practically a lifetime in prison would simply be unfathomable. Nothing can be more wrong, unjust and inhuman.

DECISION

DAVIDE, JR., J p:

In an Information 1 filed on 30 August 1990, in Criminal Case No. 90-86748 before the Regional Trial Court (RTC)
of Manila, Branch 5, petitioner Sammy Malacat y Mandar was charged with violating Section 3 of Presidential Decree No.
1866, 2 as follows: LLjur
That on or about August 27, 1990, in the City of Manila, Philippines, the said accused did then
and there willfully, unlawfully and knowingly keep, possess and/or acquire a hand grenade, without
first securing the necessary license and/or permit therefor from the proper authorities.
At arraignment 3 on 9 October 1990, petitioner, assisted by counsel de officio, entered a plea of not guilty.
At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits "A," "A-1," and "A-2," 4 while the
prosecution admitted that the police authorities were not armed with a search warrant nor warrant of arrest at the time
they arrested petitioner. 5
At trial on the merits, the prosecution presented the following police officers as its witnesses: Rodolfo Yu, the
arresting officer; Josefino C. Serapio, the investigating officer; and Orlando Ramilo, who examined the grenade.
Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated National Police, Police
Station No. 3, Quiapo, Manila, testified that on 27 August 1990, at about 6:30 p.m., in response to bomb threats reported
seven days earlier, he was on foot patrol with three other police officers (all of them in uniform) along Quezon Boulevard,
Quiapo, Manila, near the Mercury Drug store at Plaza Miranda. They chanced upon two groups of Muslim-looking men,
with each group, comprised of three to four men, posted at opposite sides of the corner of Quezon Boulevard near the
Mercury Drug Store. These men were acting suspiciously with "[t]their eyes . . . moving very fast." 6
Yu and his companions positioned themselves at strategic points and observed both groups for about thirty
minutes. The police officers then approached one group of men, who then fled in different directions. As the policemen
gave chase, Yu caught up with and apprehended petitioner. Upon searching petitioner, Yu found a fragmentation
grenade tucked inside petitioner's "front waist line." 7 Yu's companion, police officer Rogelio Malibiran, apprehended
Abdul Casan from whom a .38 caliber revolver was recovered. Petitioner and Casan were then brought to Police Station
No. 3 where Yu placed an "X" mark at the bottom of the grenade and thereafter gave it to his commander. 8
On cross-examination, Yu declared that they conducted the foot patrol due to a report that a group of Muslims
was going to explode a grenade somewhere in the vicinity of Plaza Miranda. Yu recognized petitioner as the previous
Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw petitioner and 2 others attempt to detonate a grenade. The
attempt was aborted when Yu and other policemen chased petitioner and his companions; however, the former were
unable to catch any of the latter. Yu further admitted that petitioner and Casan were merely standing on the corner of
Quezon Boulevard when Yu saw them on 27 August 1990. Although they were not creating a commotion, since they were
supposedly acting suspiciously, Yu and his companions approached them. Yu did not issue any receipt for the grenade
he allegedly recovered from petitioner. 9
Josefino C. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner and a certain Abdul Casan were
brought in by Sgt. Saquilla 10 for investigation. Forthwith, Serapio conducted the inquest of the two suspects, informing
them of their rights to remain silent and to be assisted by competent and independent counsel. Despite Serapio's advice,
petitioner and Casan manifested their willingness to answer questions even without the assistance of a lawyer. Serapio
then took petitioner's uncounselled confession (Exh. "E"), there being no PAO lawyer available, wherein petitioner
admitted possession of the grenade. Thereafter, Serapio prepared the affidavit of arrest and booking sheet of petitioner
and Casan. Later, Serapio turned over the grenade to the Intelligence and Special Action Division (ISAD) of the Explosive
Ordinance Disposal Unit for examination. 11
On cross-examination, Serapio admitted that he took petitioner's confession knowing it was inadmissible in
evidence. 12
Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties included, among other things, the
examination of explosive devices, testified that on 22 March 1991, he received a request dated 19 March 1991 from Lt.
Eduardo Cabrera and PO Diosdado Diotoy for examination of a grenade. Ramilo then affixed an orange tag on the subject
grenade detailing his name, the date and time he received the specimen. During the preliminary examination of the
grenade, he "found that [the] major components consisting of [a] high filler and fuse assembly [were] all present," and
concluded that the grenade was "[l]ive and capable of exploding." On even date, he issued a certification stating his
findings, a copy of which he forwarded to Diotoy on 11 August 1991. 13
Petitioner was the lone defense witness. He declared that he arrived in Manila on 22 July 1990 and resided at the
Muslim Center in Quiapo, Manila. At around 6:30 in the evening of 27 August 1990, he went to Plaza Miranda to catch a
breath of fresh air. Shortly after, several policemen arrived and ordered all males to stand aside. The policemen searched
petitioner and two other men, but found nothing in their possession. However, he was arrested with two others, brought
to and detained at Precinct No. 3, where he was accused of having shot a police officer. The officer showed the gunshot
wounds he allegedly sustained and shouted at petitioner "[i]to ang tama mo sa akin." This officer then inserted the muzzle
of his gun into petitioner's mouth and said, "[y]ou are the one who shot me."
Petitioner denied the charges and explained that he only recently arrived in Manila. However, several other police
officers mauled him, hitting him with benches and guns. Petitioner was once again searched, but nothing was found on
him. He saw the grenade only in court when it was presented. 14
The trial court ruled that the warrantless search and seizure of petitioner was akin to a "stop and frisk," where a
"warrant and seizure can be effected without necessarily being preceded by an arrest" and "whose object is either to
maintain the status quomomentarily while the police officer seeks to obtain more information." 15 Probable cause was
not required as it was not certain that a crime had been committed, however, the situation called for an investigation,
hence to require probable cause would have been "premature." 16 The RTC emphasized that Yu and his companions
were "[c]onfronted with an emergency, in which the delay necessary to obtain a warrant, threatens the destruction of
evidence" 17 and the officers "[h]ad to act in haste," as petitioner and his companions were acting suspiciously,
considering the time, place and "reported cases of bombing." Further, petitioner's group suddenly ran away in different
directions as they saw the arresting officers approach, thus "[i]t is reasonable for an officer to conduct a limited search,
the purpose of which is not necessarily to discover evidence of a crime, but to allow the officer to pursue his investigation
without fear of violence." 18
The trial court then ruled that the seizure of the grenade from petitioner was incidental to a lawful arrest, and
since petitioner "[l]ater voluntarily admitted such fact to the police investigator for the purpose of bombing the Mercury
Drug Store," concluded that sufficient evidence existed to establish petitioner's guilt beyond reasonable doubt.
In its decision 19 dated 10 February 1994 but promulgated on 15 February 1994, the trial court thus found
petitioner guilty of the crime of illegal possession of explosives under Section 3 of P.D. No. 1866, and sentenced him to
suffer:
[T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY
OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION
PERPETUA, as maximum.
On 18 February 1994, petitioner filed a notice of appeal 20 indicating that he was appealing to this Court.
However, the record of the case was forwarded to the Court of Appeals which docketed it as CA-G.R. CR No. 15988 and
issued a notice to file briefs. 21
In his Appellant's Brief 22 filed with the Court of Appeals, petitioner asserted that:
1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH UPON THE PERSON OF ACCUSED-
APPELLANT AND THE SEIZURE OF THE ALLEGED HANDGRENADE FROM HIM "WAS AN
APPROPRIATE INCIDENT TO HIS ARREST."
2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE AGAINST ACCUSED-APPELLANT THE
HANDGRENADE ALLEGEDLY SEIZED FROM HIM AS IT WAS A PRODUCT OF AN
UNREASONABLE AND ILLEGAL SEARCH.
In sum, petitioner argued that the warrantless arrest was invalid due to absence of any of the conditions provided
for in Section 5 of Rule 113 of the Rules of Court, citingPeople vs. Mengote. 23 As such, the search was illegal, and the hand
grenade seized, inadmissible in evidence.
In its Brief for the Appellee, the Office of the Solicitor General agreed with the trial court and prayed that its
decision be affirmed in toto. 24
In its decision of 24 January 1996, 25 the Court of Appeals affirmed the trial court, noting, first, that petitioner
abandoned his original theory before the court a quo that the grenade was "planted" by the police officers; and second,
the factual finding of the trial court that the grenade was seized from petitioner's possession was not raised as an issue.
Further, respondent court focused on the admissibility in evidence of Exhibit "D," the hand grenade seized from
petitioner. Meeting the issue squarely, the Court of Appeals ruled that the arrest was lawful on the ground that there was
probable cause for the arrest as petitioner was "attempting to commit an offense," thus:
We are at a loss to understand how a man, who was in possession of a live grenade and in the
company of other suspicious character[s] with unlicensed firearm[s] lurking in Plaza Miranda at a time
when political tension ha[d] been enkindling a series of terroristic activities, [can] claim that he was not
attempting to commit an offense. We need not mention that Plaza Miranda is historically notorious for
being a favorite bomb site especially during times of political upheaval. As the mere possession of an
unlicensed grenade is by itself an offense, Malacat's posture is simply too preposterous to inspire belief.
In so doing, the Court of Appeals took into account petitioner's failure to rebut the testimony of the prosecution
witnesses that they received intelligence reports of a bomb threat at Plaza Miranda; the fact that PO Yu chased petitioner
two days prior to the latter's arrest, or on 27 August 1990; and that petitioner and his companions acted suspiciously, the
"accumulation" of which was more than sufficient to convince a reasonable man that an offense was about to be
committed. Moreover, the Court of Appeals observed:
The police officers in such a volatile situation would be guilty of gross negligence and
dereliction of duty, not to mention of gross incompetence, if they [would] first wait for Malacat to hurl
the grenade, and kill several innocent persons while maiming numerous others, before arriving at what
would then be an assured but moot conclusion that there was indeed probable cause for an arrest. We
are in agreement with the lower court in saying that the probable cause in such a situation should not
be the kind of proof necessary to convict, but rather the practical considerations of everyday life on
which a reasonable and prudent mind, and not legal technicians, will ordinarily act.
Finally, the Court of Appeals held that the rule laid down in People v. Mengote, 26which petitioner relied upon,
was inapplicable in light of "[c]rucial differences," to wit:
[In Mengote] the police officers never received any intelligence report that someone [at] the
corner of a busy street [would] be in possession of a prohibited article. Here the police officers were
responding to a [sic] public clamor to put a check on the series of terroristic bombings in the Metropolis,
and, after receiving intelligence reports about a bomb threat aimed at the vicinity of the historically
notorious Plaza Miranda, they conducted foot patrols for about seven days to observe suspicious
movements in the area. Furthermore, in Mengote, the police officers [had] no personal knowledge that
the person arrested has committed, is actually committing, or is attempting to commit an offense.
Here, PO3 Yu [had] personal knowledge of the fact that he chased Malacat in Plaza Miranda two days
before he finally succeeded in apprehending him.
Unable to accept his conviction, petitioner forthwith filed the instant petition and assigns the following errors:
1. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF THE TRIAL COURT THAT THE
WARRANTLESS ARREST OF PETITIONER WAS VALID AND LEGAL.
2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING INPEOPLE
VS. MENGOTE DOES NOT FIND APPLICATION IN THE INSTANT CASE.
In support thereof, petitioner merely restates his arguments below regarding the validity of the warrantless arrest
and search, then disagrees with the finding of the Court of Appeals that he was "attempting to commit a crime," as the
evidence for the prosecution merely disclosed that he was "standing at the corner of Plaza Miranda and Quezon
Boulevard" with his eyes "moving very fast" and "looking at every person that come (sic) nearer (sic) to them." Finally,
petitioner points out the factual similarities between his case and that of People v. Mengote to demonstrate that the
Court of Appeals miscomprehended the latter.
In its Comment, the Office of the Solicitor General prays that we affirm the challenged decision.
For being impressed with merit, we resolved to give due course to the petition.
The challenged decision must immediately fall on jurisdictional grounds. To repeat, the penalty imposed by the
trial court was:
[N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY
OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION
PERPETUA, as maximum.
The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall unlawfully possess grenades
is reclusion temporal in its maximum period to reclusion perpetua.
For purposes of determining appellate jurisdiction in criminal cases, the maximum of the penalty, and not the
minimum, is taken into account. Since the maximum of the penalty is reclusion perpetua, the appeal therefrom should
have been to us, and not the Court of Appeals, pursuant to Section 9(3) of the Judiciary Reorganization Act of 1980 (B.P.
Blg. 129), 27 in relation to Section 17 of the Judiciary Act of 1948, 28 Section 5(2) of Article VIII of the Constitution 29 and
Section 3(c) of Rule 122 of the Rules of Court. 30 The term "life imprisonment" as used in Section 9 of B.P. Blg. 129, the
Judiciary Act of 1948, and Section 3 of Rule 122 must be deemed to include reclusion perpetua in view of Section 5(2) of
Article VIII of the Constitution.
Petitioner's Notice of Appeal indicated that he was appealing from the trial court's decision to this Court, yet the
trial court transmitted the record to the Court of Appeals and the latter proceeded to resolve the appeal.
We then set aside the decision of the Court of Appeals for having been rendered without jurisdiction, and consider
the appeal as having been directly brought to us, with the petition for review as petitioner's Brief for the Appellant, the
comment thereon by the Office of the Solicitor General as the Brief for the Appellee and the memoranda of the parties
as their Supplemental Briefs.
Deliberating on the foregoing pleadings, we find ourselves convinced that the prosecution failed to establish
petitioner's guilt with moral certainty.
First, serious doubt surrounds the story of police officer Yu that a grenade was found in and seized from
petitioner's possession. Notably, Yu did not identify, in court, the grenade he allegedly seized. According to him, he
turned it over to his commander after putting an "X" mark at its bottom; however, the commander was not presented to
corroborate this claim. On the other hand, the grenade presented in court and identified by police officer Ramilo referred
to what the latter received from Lt. Eduardo Cabrera and police officer Diotoy not immediately after petitioner's arrest,
but nearly seven (7) months later or on 19 March 1991; further, there was no evidence whatsoever that what Ramilo
received was the very same grenade seized from petitioner. In his testimony, Yu never declared that the grenade passed
on to Ramilo was the grenade the former confiscated from petitioner. Yu did not, and was not made to, identify the
grenade examined by Ramilo, and the latter did not claim that the grenade he examined was that seized from petitioner.
Plainly, the law enforcement authorities failed to safeguard and preserve the chain of evidence so crucial in cases such as
these.
Second, if indeed petitioner had a grenade with him, and that two days earlier he was with a group about to
detonate an explosive at Plaza Miranda, and Yu and his fellow officers chased, but failed to arrest them, then considering
that Yu and his three fellow officers were in uniform and therefore easily cognizable as police officers, it was then
unnatural and against common experience that petitioner simply stood there in proximity to the police officers. Note
that Yu observed petitioner for thirty minutes and must have been close enough to petitioner in order to discern
petitioner's eyes "moving very fast."
Finally, even assuming that petitioner admitted possession of the grenade during his custodial investigation by
police officer Serapio, such admission was inadmissible in evidence for it was taken in palpable violation of Section 12(1)
and (3) of Article III of the Constitution, which provide as follows:
SEC. 12 (1). Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be provided
with one. These rights cannot be waived except in writing and in the presence of counsel.
xxx xxx xxx
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
Serapio conducted the custodial investigation on petitioner the day following his arrest. No lawyer was present
and Serapio could not have requested a lawyer to assist petitioner as no PAO lawyer was then available. Thus, even if
petitioner consented to the investigation and waived his rights to remain silent and to counsel, the waiver was invalid as
it was not in writing, neither was it executed in the presence of counsel.
Even granting ex gratia that petitioner was in possession of a grenade, the arrest and search of petitioner were
invalid, as will be discussed below.
The general rule as regards arrests, searches and seizures is that a warrant is needed in order to validly effect the
same. 31 The Constitutional prohibition against unreasonable arrests, searches and seizures refers to those effected
without a validly issued warrant, 32 subject to certain exceptions. As regards valid warrantless arrests, these are found
in Section 5, Rule 113 of the Rules of Court, which reads, in part:
Sec. 5. Arrest, without warrant; when lawful. — A peace officer or a private person may, without
a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or
is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped . . .
A warrantless arrest under the circumstances contemplated under Section 5(a) has been denominated as one "in
flagrante delicto," while that under Section 5(b) has been described as a "hot pursuit" arrest.
Turning to valid warrantless searches, they are limited to the following: (1) customs searches; (2) search of
moving vehicles; (3) seizure of evidence in plain view; (4) consent searches; 33 (5) a search incidental to a lawful
arrest; 34 and (6) a "stop and frisk." 35
In the instant petition, the trial court validated the warrantless search as a "stop and frisk" with "the seizure of
the grenade from the accused [as] an appropriate incident to his arrest," hence necessitating a brief discussion on the
nature of these exceptions to the warrant requirement.
At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a search incidental
to a lawful arrest. These two types of warrantless searches differ in terms of the requisite quantum of proof before they
may be validly effected and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search,
the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used as a
pretext for conducting a search. 36 In this instance, the law requires that there first be a lawful arrest before a search can
be made — the process cannot be reversed. 37 At bottom, assuming a valid arrest, the arresting officer may search the
person of the arrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and seize
any money or property found which was used in the commission of the crime, or the fruit of the crime, or that which may
be used as evidence, or which might furnish the arrestee with the means of escaping or committing violence. 38
Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in light of the
lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on the part of petitioner,
indicating that a crime had just been committed, was being committed or was going to be committed.
Having thus shown the invalidity of the warrantless arrest in this case, plainly, the search conducted on petitioner
could not have been one incidental to a lawful arrest.
We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited protective search
of outer clothing for weapons," as laid down in Terry; thus:
We merely hold today that where a police officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may be afoot and that the
persons with whom he is dealing may be armed and presently dangerous, where in the course of
investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and
where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or
others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully
limited search of the outer clothing of such persons in an attempt to discover weapons which might be
used to assault him. Such a search is a reasonable search under the Fourth Amendment . . . 39
Other notable points of Terry are that while probable cause is not required to conduct a "stop and frisk," 40 it
nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A genuine reason must exist, in light
of the police officer's experience and surrounding conditions, to warrant the belief that the person detained has weapons
concealed about him. 41 Finally, a "stop-and-frisk" serves a two-fold interest: (1) the general interest of effective crime
prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances
and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without
probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take
steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly
and fatally be used against the police officer.
Here, there are at least three (3) reasons why the "stop-and-frisk" was invalid:
First, we harbor grave doubts as to Yu's claim that petitioner was a member of the group which attempted to
bomb Plaza Miranda two days earlier. This claim is neither supported by any police report or record nor corroborated by
any other police officer who allegedly chased that group. Aside from impairing Yu's credibility as a witness, this likewise
diminishes the probability that a genuine reason existed so as to arrest and search petitioner. If only to further tarnish
the credibility of Yu's testimony, contrary to his claim that petitioner and his companions had to be chased before being
apprehended, the affidavit of arrest (Exh. "A") expressly declares otherwise, i.e., upon arrival of five (5) other police
officers, petitioner and his companions were "immediately collared."
Second, there was nothing in petitioner's behavior or conduct which could have reasonably elicited even mere
suspicion other than that his eyes were "moving very fast" — an observation which leaves us incredulous since Yu and his
teammates were nowhere near petitioner and it was already 6:30 p.m., thus presumably dusk. Petitioner and his
companions were merely standing at the corner and were not creating any commotion or trouble, as Yu explicitly
declared on cross-examination: cdrep
Q And what were they doing?
A They were merely standing.
Q You are sure of that?
A Yes, sir.
Q And when you saw them standing, there were nothing or they did not create any commotion?
A None, sir.
Q Neither did you see them create commotion?
A None, sir. 42
Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly
weapon. None was visible to Yu, for as he admitted, the alleged grenade was "discovered" "inside the front waistline" of
petitioner, and from all indications as to the distance between Yu and petitioner, any telltale bulge, assuming that
petitioner was indeed hiding a grenade, could not have been visible to Yu. In fact, as noted by the trial court:
When the policemen approached the accused and his companions, they were not yet aware that a handgrenade
was tucked inside his waistline. They did not see any bulging object in [sic] his person. 43
What is unequivocal then in this case are blatant violations of petitioner's rights solemnly guaranteed in Sections
2 and 12(1) of Article III of the Constitution.
WHEREFORE, the challenged decision of the Seventeenth Division of the Court of Appeals in CA-G.R. CR No.
15988 is SET ASIDE for lack of jurisdiction on the part of said Court and, on ground of reasonable doubt, the decision of
10 February 1994 of Branch 5 of the Regional Trial Court of Manila is REVERSED and petitioner SAMMY MALACAT y
MANDAR is hereby ACQUITTED and ORDERED immediately released from detention, unless his further detention is
justified for any other lawful cause.

EN BANC

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

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

Solicitor General for petitioners.

Juan T . David for respondents.

SYLLABUS

1. CUSTOMS BUREAU; POWERS AND DUTIES OF BUREAU OF CUSTOMS. — Among others, the Bureau of Customs has the duties, powers and the jurisdiction to assess
and collect all lawful revenues from imported articles and all other dues, fees, charges, fines and penalties accruing under the tariff and customs laws; to prevent and suppress smuggling
and other frauds upon the customs; and to enforce tariff and customs laws.

2. ID.; JURISDICTION; CUSTOMS BUREAU HAS JURISDICTION OVER IMPORTED GOODS; "IMPORTATION", MEANING OF. — Where the goods in question were
imported from Hongkong as shown in the statement and receipts of duties collected on informal entry and where the importation has not been terminated, the imported goods remain
under the jurisdiction of the Bureau of Customs. Importation is terminated only upon the payment of duties, taxes and other charges upon the articles, or secured to be paid, at the
port of entry and the legal permit for withdrawal shall have been granted. Payment of the duties, taxes, fees and other charges must be in full.
3. ID; ID; BUREAU OF CUSTOMS, NOT THE COURT OF FIRST INSTANCE, HAS JURISDICTION OVER THE CASE WHERE GOODS ARE UNDER CUSTODY OF SAID
BUREAU, EVEN IF NO WARRANT OF SEIZURE AND DETENTION IS YET ISSUED ON GOODS. — Since the goods were under the custody and at the disposal of the Bureau of Customs
when the petition for mandamus was filed in the Court of First Instance, the latter could not exercise jurisdiction over said goods even if the warrant of seizure and detention of goods
for purposes of seizure and forfeiture proceedings had not yet been issued by the Collector. It is settled that the Bureau of Customs acquires exclusive jurisdiction over imported goods
for purposes of enforcing the Customs laws, from the moment the goods are actually in possession and control of said Bureau even in the absence on any warrant of seizure or detention.

4. ID.; ID.; SEIZURE OF GOODS BY MPD, DEPUTIZED BY BUREAU OF CUSTOMS GAVE THE LATTER EXCLUSIVE JURISDICTION OVER CASE; ISSUANCE OF WARRANT
OF SEIZURE BY CUSTOMS BUREAU AFTER FILLING OF MANDAMUS SUIT IN CFI, DID NOT DIVEST THE LATTER OF JURISDICTION IT DID NOT ACQUIRE. — Where the Bureau of
Customs, through the Manila Police Department acting under petitioner police chief Papa who was formally deputized by the Commissioner of Customs seized the goods on November
4, 1966, the Bureau from that date acquired jurisdiction over the goods to the exclusion of the regular courts. The issuance of the warrant of seizure and detention by the Customs
Collector after the filing of the mandamus suit in the regular court, did not deprive the latter of its jurisdiction which it never acquired in the first place, as the Bureau of Customs had
already previously acquired jurisdiction on the case to the exclusion of regular courts for purposes of enforcement of customs and tariff laws.

5. ID.; ID.; GOODS, EVEN IF BROUGHT OUT OF CUSTOMS AREA, STILL FALL WITHIN JURISDICTION OF BUREAU OF CUSTOMS; JURISDICTION OF CUSTOMS BUREAU
IS REGAINED. — Even if it be conceded, arguendo, that after the goods have been brought out of the customs area, the Bureau of Customs lost jurisdiction over the same, still when
said goods were intercepted at the Agrifina Circle by members of the MPD acting under directions and orders of petitioner Papa who had been formally deputized by the Commissioner
of Customs, such jurisdiction was regained by the Bureau of Customs. Sec. 1206 of the Tariff and Customs Code imposes upon the Collector of Customs the duty to hold possession of
all imported articles upon which duties, taxes and other charges have not been paid or secured to be paid and to dispose of the same according to law.

6. ID.; IMPORTATIONS MADE CONTRARY TO LAW ARE SUBJECT TO FORFEITURE. — Where from the record, the duties, taxes and other charges on the imported articles
have not been paid in full, such articles are subject to forfeiture under Section 2530 pars. e and m, (1), (4) and (5) of the Tariff and Customs Code; for well settled is the rule that
merchandise imported contrary to law is subject to forfeiture and goods released contrary to law are likewise subject to seizure and forfeiture.

7. ID.; ID.; SEARCH WARRANT; LAWFUL SEARCH WITHOUT SEARCH WARRANT CAN BE EFFECTED. — The Tariff and Customs Code does not require a search warrant
for purposes of enforcing customs and tariff laws. Under Sec. 2203 thereof, persons having police authority may enter, pass through or search any land, inclosure, warehouse, store or
building not being a dwelling house and also, to inspect, search and examine any vehicle or aircraft and any trunk, package, box or envelope or any person on board or stop and search
and examine any vehicle, beast or person suspected of holding or conveying any dutiable or prohibited article introduced into the Philippines contrary to law, without mentioning the
need of a search warrant in said cases. Except in the search of a dwelling house, therefore, persons exercising police authority under the customs law may effect search and seizure
without search warrant in the enforcement of customs laws.

DECISION

ZALDIVAR, J p:

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

Even if it be granted, arguendo, that after the goods in question had been brought out of the customs area
the Bureau of Customs had lost jurisdiction over the same, nevertheless, when said goods were intercepted at the
Agrifina Circle on November 4, 1966 by members of the Manila Police Department, acting under directions and
orders of their Chief, Ricardo G. Papa, who had been formally deputized by the Commissioner of Customs, 9 the
Bureau of Customs had regained jurisdiction and custody of the goods. Section 1206 of the Tariff and Customs
Codeimposes upon the Collector of Customs the duty to hold possession of all imported articles upon which duties,
taxes, and other charges have not been paid or secured to be paid, and to dispose of the same according to law. The
goods in question, therefore, were under the custody and at the disposal of the Bureau of Customs at the time the
petition for mandamus, docketed as Civil Case No. 67496, was filed in the Court of First Instance of Manila on
November 9, 1966. The Court of First Instance of Manila, therefore, could not exercise jurisdiction over said goods
even if the warrant of seizure and detention of the goods for the purposes of the seizure and forfeiture proceedings
had not yet been issued by the Collector of Customs.
The ruling in the case of "Alberto de Joya, et al. v. Hon. Gregorio Lantin, et al.," G. R. No. L-24037, decided by
this Court on April 27, 1967, is squarely applicable to the instant case. In the De Joya case, it appears that Francindy
Commercial of Manila bought from Ernerose Commercial of Cebu City 90 bales of assorted textiles and rags, valued
at P117,731.00, which had been imported and entered thru the port of Cebu. Ernerose Commercial shipped the goods
to Manila on board an inter-island vessel. When the goods were about to leave the customs premises in Manila, on
October 6, 1964, the customs authorities held them for further verification, and upon examination the goods were
found to be different from the declaration in the cargo manifest of the carrying vessel. Francindy Commercial
subsequently demanded from the customs authorities the release of the goods, asserting that it is a purchaser in
good faith of those goods; that a local purchase was involved so the Bureau of Customs had no right to examine the
goods; and that the goods came from a coastwise port. On October 26, 1964, Francindy Commercial filed in the Court
of First Instance of Manila a petition for mandamus against the Commissioner of Customs and the Collector of
Customs of the port of Manila to compel said customs authorities to release the goods.
Francindy Commercial alleged in its petition for mandamus that the Bureau of Customs had no jurisdiction
over the goods because the same were not imported to the port of Manila; that it was not liable for duties and taxes
because the transaction was not an original importation; that the goods were not in the hands of the importer nor
subject to said importer's control, nor were the goods imported contrary to law with its (Francindy Commercial's)
knowledge; and that the importation had been terminated. On November 12, 1964, the Collector of Customs of
Manila issued a warrant of seizure and identification against the goods. On December 3, 1964, the Commissioner of
Customs and the Collector of Customs, as respondents in the mandamus case, filed a motion to dismiss the petition
on the grounds of lack of jurisdiction, lack of cause of action, and in view of the pending seizure and forfeiture
proceedings. The court of first instance held resolution on the motion to dismiss in abeyance pending decision on the
merits. On December 14, 1964, the Court of First Instance of Manila issued a writ of preventive and mandatory
injunction, on prayer by Francindy Commercial, upon a bond of P20,000.00. The Commissioner of Customs and the
Collector of Customs sought the lifting of the preliminary and mandatory injunction, and the resolution of their
motion to dismiss. The Court of First Instance of Manila, however, on January 12, 1965, ordered them to comply with
the preliminary and mandatory injunction, upon the filing by Francindy Commercial of an additional bond of
P50,000.00. Said customs authorities thereupon filed with this Court, on January 14, 1965, a petition for certiorari
and prohibition with preliminary injunction. In resolving the question raised in that case, this Court held:
"This petition raises two related issues: first, has the Customs bureau jurisdiction to seize the
goods and institute forfeiture proceeding against them? and (2) has the Court of First Instance
jurisdiction to entertain the petition for mandamus to compel the Customs authorities to release the
goods?
"Francindy Commercial contends that since the petition in the Court of First Instance was filed
(on October 26, 1964) ahead of the issuance of the Customs warrant of seizure and forfeiture (on
November 12, 1964), the Customs bureau should yield to the jurisdiction of the said court.
"The record shows, however, that the goods in question were actually seized on October 6, 1964,
i.e., before Francindy Commercial sued in court. The purpose of the seizure by the Customs bureau was
to verify whether or not Custom duties and taxes were paid for their importation. Hence, on December
23, 1964, Customs released 22 bales thereof, for the same were found to have been released regularly
from the Cebu Port (Petition Annex 'L'). As to goods imported illegally or released irregularly from
Customs custody, these are subject to seizure under Section 2530 m. of the Tariff and Customs
Code (RA 1957).
"The Bureau of Customs has jurisdiction and power, among others, to collect revenues from
imported articles, fines and penalties and suppress smuggling and other frauds on customs; and to
enforce tariff and customs laws(Sec. 602, Republic Act 1957).
"The goods in question are imported articles entered at the Port of Cebu. Should they be found
to have been released irregularly from Customs custody in Cebu City, they are subject to seizure and
forfeiture, the proceedings for which comes within the jurisdiction of the Bureau of Customs pursuant
to Republic Act 1937.
"Said proceedings should be followed; the owner of the goods may set up defenses therein
(Pacis v. Averia, L-22526, Nov. 20, 1966). From the decision of the Commissioner of Customs appeal
lies to the Court of Tax Appeals, as provided in Sec. 2402 of Republic Act 1937 and Sec. 11 of Republic
Act 1125. To permit recourse to the Court of First Instance in cases of seizure of imported goods would
in effect render ineffective the power of the Customs authorities under the Tariff Code and deprive the
Court of Tax Appeals of one of its exclusive appellate jurisdictions. As this Court has ruled in Pacis v.
Averia, supra, Republic Acts 1937 and 1125 vest jurisdiction over seizure and forfeiture proceedings
exclusively upon the Bureau of Customs and the Court of Tax Appeals. Such law being special in nature,
while the Judiciary Act defining the jurisdiction of Courts of First Instance is a general legislation, not
to mention that the former are later enactments, the Court of First Instance should yield to the
jurisdiction of the Customs authorities."
It is the settled rule, therefore, that the Bureau of Customs acquires exclusive jurisdiction over imported
goods, for the purposes of enforcement of the customs laws, from the moment the goods are actually in its
possession or control, even if no warrant of seizure or detention had previously been issued by the Collector of
Customs in connection with seizure and forfeiture proceedings. In the present case, the Bureau of Customs actually
seized the goods in question on November 4, 1966, and so from that date the Bureau of Customs acquired jurisdiction
over the goods for the purposes of the enforcement of the tariff and customs laws, to the exclusion of the regular
courts. Much less then would the Court of First Instance of Manila have jurisdiction over the goods in question after
the Collector of Customs had issued the warrant of seizure and detention on January 12, 1967. 10 And so, it cannot
be said, as respondents contend, that the issuance of said warrant was only an attempt to divest the respondent
Judge of jurisdiction over the subject matter of the case. The court presided by respondent Judge did not acquire
jurisdiction over the goods in question when the petition for mandamus was filed before it, and so there was no need
of divesting it of jurisdiction. Not having acquired jurisdiction over the goods, it follows that the Court of First Instance
of Manila had no jurisdiction to issue the questioned order of March 7, 1967 releasing said goods.
Respondents also aver that petitioner Martin Alagao, an officer of the Manila Police Department, could not
seize the goods in question without a search warrant. This contention cannot be sustained. The Chief of the Manila
Police Department, Ricardo G. Papa, having been deputized in writing by the Commissioner of Customs, could, for
the purposes of the enforcement of the customs and tariff laws, effect searches, seizures, and arrests, 11 and it was
his duty to make seizure, among others, of any cargo, articles or other movable property when the same may be
subject to forfeiture or liable for any fine imposed under customs and tariff laws. 12 He could lawfully open and
examine any box, trunk, envelope or other container wherever found when he had reasonable cause to suspect the
presence therein of dutiable articles introduced into the Philippines contrary to law; and likewise to stop, search and
examine any vehicle, beast or person reasonably suspected of holding or conveying such article as aforesaid. 13 It
cannot be doubted, therefore, that petitioner Ricardo G. Papa, Chief of Police of Manila, could lawfully effect the
search and seizure of the goods in question. The Tariff and Customs Code authorizes him to demand assistance of
any police officer to effect said search and seizure, and the latter has the legal duty to render said assistance. 14 This
was what happened precisely in the case of Lt. Martin Alagao who, with his unit, made the search and seizure of the
two trucks loaded with the nine bales of goods in question at the Agrifina Circle. He was given authority by the Chief
of Police to make the interception of the cargo. 15
Petitioner Martin Alagao and his companion policemen had authority to effect the seizure without any search
warrant issued by a competent court. The Tariff and Customs Code does not require said warrant in the instant case.
The Code authorizes persons having police authority under Section 2203 of the Tariff and Customs Code to enter,
pass through or search any land, inclosure, warehouse, store or building, not being a dwelling house; and also to
inspect, search and examine any vessel or aircraft and any trunk, package, box or envelope or any person on board,
or stop and search and examine any vehicle, beast or person suspected of holding or conveying any dutiable or
prohibited article introduced into the Philippines contrary to law, without mentioning the need of a search warrant
in said cases. 16 But in the search of a dwelling house, the Code provides that said "dwelling house may be entered
and searched only upon warrant issued by a judge or justice of the peace . . ." 17 It is our considered view, therefore,
that except in the case of the search of a dwelling house, persons exercising police authority under the customs law
may effect search and seizure without a search warrant in the enforcement of customs laws.
Our conclusion finds support in the case of Carroll v. United States, 39 A.L.R., 790, 799, wherein the court,
considering a legal provision similar to Section 2211 of the Philippine Tariff and Customs Code,said as follows:
"Thus, contemporaneously with the adoption of the 4th Amendment, we find in the first
Congress, and in the following second and fourth Congresses, a difference made as to the necessity for
a search warrant between goods subject to forfeiture, when concealed in a dwelling house or similar
place, and like goods in course of transportation and concealed in a movable vessel, where they readily
could be put out of reach of a search warrant . . ."
"Again, by the 2d section of the Act of March 3, 1815 (3 Stat. at L. 231, 232, chap. 94), it was
made lawful for customs officers not only to board and search vessels within their own and adjoining
districts, but also to stop, search, and examine any vehicle, beast, or person on which or whom they
should suspect there was merchandise which was subject to duty or had been introduced into the
United States in any manner contrary to law, whether by the person in charge of the vehicle or beast
or otherwise, and if they should find any goods, wares, or merchandise thereon, which they had
probable cause to believe had been so unlawfully brought into the country, to seize and secure the
same, and the vehicle or beast as well, for trial and forfeiture. This Act was renewed April 27, 1816 (3
Stat. at L. 315, chap. 100), for a year and expired. The Act of February 28, 1865, revived § 2 of the Act of
1815, above described, chap. 67, 13 Stat. at L. 441. The substance of this section was re-enacted in the
3d section of the Act of July 18, 1866, chap. 201, 14 Stat. at L. 178, and was thereafter embodied in the
Revised Statutes as § 3061, Comp. Stat. § 5763, 2 Fed. Stat. Anno. 2d ed. p. 1161. Neither § 3061 nor any
of its earlier counterparts has ever been attacked as unconstitutional. Indeed, that section was referred
to and treated as operative by this court in Von Cotzhausen v. Nazro, 107 U. S. 215, 219, 27 L. ed. 540,
541, 2 Sup. Ct. Rep. 503 . . ."
In the instant case, we note that petitioner Martin Alagao and his companion policemen did not have to make
any search before they seized the two trucks and their cargo. In their original petition, and amended petition, in the
court below Remedios Mago and Valentin Lanopa did not even allege that there was a search. 18All that they
complained of was,
"That while the trucks were on their way, they were intercepted without any search warrant
near the Agrifina Circle and taken to the Manila Police, where they were detained."
But even if there was a search, there is still authority to the effect that no search warrant would be needed
under the circumstances obtaining in the instant case. Thus, it has been held that:
"The guaranty of freedom from unreasonable searches and seizures is construed as recognizing
a necessary difference between a search of a dwelling house or other structure in respect of which a
search warrant may readily be obtained and a search of a ship, motorboat, wagon, or automobile for
contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly
moved out of the locality or jurisdiction in which the warrant must be sought." (47 Am. Jur., pp. 513-
514, citing Carroll v. United States, 267 U.S., 132, 69 L. ed., 543, 45 S. Ct., 280, 39 A.L.R., 790; People v.
Case, 320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686.)
In the case of People v. Case (320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686), the question raised by
defendant's counsel was whether an automobile truck or an automobile could be searched without search warrant
or other process and the goods therein seized used afterwards as evidence in a trial for violation of the prohibition
laws of the State. Same counsel contended the negative, urging the constitutional provision forbidding unreasonable
searches and seizures. The Court said:
". . . Neither our state nor the Federal Constitution directly prohibits search and seizure without
a warrant, as is sometimes asserted. Only 'unreasonable' search and seizure is forbidden. . . .
". . . The question whether a seizure or a search is unreasonable in the language of the
Constitution is a judicial and not a legislative question; but in determining whether a seizure is or is not
unreasonable, all of the circumstances under which it is made must be looked to.
"The automobile is a swift and powerful vehicle of recent development, which has multiplied
by quantity production and taken possession of our highways in battalions, until the slower, animal-
drawn vehicles, with their easily noted individuality, are rare. Constructed as covered vehicles to
standard form in immense quantities, and with a capacity for speed rivaling express trains, they furnish
for successful commission of crime a disguising means of silent approach and swift escape unknown in
the history of the world before their advent. The question of their police control and reasonable search
on highways or other public places is a serious question far deeper and broader than their use in so-
called "bootlegging' or 'rum running,' which is itself is no small matter. While a possession in the sense
of private ownership, they are but a vehicle constructed for travel and transportation on highways.
Their active use is not in homes or on private premises, the privacy of which the law especially guards
from search and seizure without process. The baffling extent to which they are successfully utilized to
facilitate commission of crime of all degrees, from those against morality, chastity, and decency, to
robbery, rape, burglary, and murder, is a matter of common knowledge. Upon that problem a
condition, and not a theory, confronts proper administration of our criminal laws. Whether search of
and seizure from an automobile upon a highway or other public place without a search warrant is
unreasonable is in its final analysis to be determined as a judicial question in view of all the
circumstances under which it is made."
Having declared that the seizure by the members of the Manila Police Department of the goods in question
was in accordance with law and by that seizure the Bureau of Customs had acquired jurisdiction over the goods for
the purposes of the enforcement of the customs and tariff laws, to the exclusion of the Court of First Instance of
Manila, We have thus resolved the principal and decisive issue in the present case. We do not consider it necessary,
for the purposes of this decision, to discuss the incidental issues raised by the parties in their pleadings.
WHEREFORE, judgment is hereby rendered, as follows:
(a) Granting the writ of certiorari and prohibition prayed for by petitioners;
(b) Declaring null and void, for having been issued without jurisdiction, the order of respondent Judge
Hilarion U. Jarencio, dated March 7, 1967, in Civil Case No. 67496 of the Court of First Instance of Manila;
(c) Declaring permanent the preliminary injunction issued by this Court on March 31, 1967 restraining
respondent Judge from executing, enforcing and/or implementing his order of March 7, 1967 in Civil Case No. 67496
of the Court of First Instance of Manila, and from proceeding in any manner in said case;
(d) Ordering the dismissal of Civil Case No. 67496 of the Court of First Instance of Manila; and
(e) Ordering the private respondent, Remedios Mago, to pay the costs.
It is so ordered.
Concepcion, C . J ., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Sanchez, Castro, Angeles and Fernando,
JJ ., concur.

SECOND DIVISION

[G.R. Nos. 102009-10. July 6, 1994.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO DE GRACIA, CHITO HENSON and JOHN DOES, accused. ROLANDO DE GRACIA, accused-
appellant.

DECISION

REGALADO, J p:

The incidents involved in this case took place at the height of the coup d'etatstaged in December, 1989 by
ultra-rightist elements headed by the Reform the Armed Forces Movement-Soldiers of the Filipino People (RAM-
SFP) against the Government. At that time, various government establishments and military camps in Metro Manila
were being bombarded by the rightist group with their "tora-tora" planes. At around midnight of November 30,
1989, the 4th Marine Battalion of the Philippine Marines occupied Villamor Air Base, while the Scout Rangers took
over the Headquarters of the Philippine Army, the Army Operations Center, and Channel 4, the government
television station. Also, some elements of the Philippine Army coming from Fort Magsaysay occupied the Greenhills
Shopping Center in San Juan, Metro Manila. 1
Accused-appellant Rolando de Gracia was charged in two separate informations for illegal possession of
ammunition and explosives in furtherance of rebellion, and for attempted homicide, docketed as Criminal Cases
Nos. Q-90-11755 and Q-90-11756, respectively, which were tried jointly by the Regional Trial Court of Quezon City,
Branch 103. prcd
In Criminal Case No. Q-90-11755, Rolando de Gracia, Chito Henson and several John Does whose true names
and identities have not as yet been ascertained, were charged with the crime of illegal possession of ammunition
and explosives in the furtherance of rebellion, penalized under Section 1, paragraph 3, of Presidential Decree No.
1866, allegedly committed as follows:
"That on or about the 5th day of DECEMBER, 1989, in QUEZON CITY, METRO MANILA,
PHILIPPINES, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together and mutually helping one another, and without authority
of law, did then and there willfully, unlawfully, feloniously and knowingly have in their possession,
custody and control, the following to wit:
Five (5) bundles of C-4 or dynamites
Six (6) cartoons of M-16 ammunition at 20 each
One hundred (100) bottles of MOLOTOV bombs.
without first securing the necessary license and/or permit to possess the same from the proper
authorities, and armed with said dynamites, ammunition and explosives and pursuant to their
conspiracy heretofore agreed upon by them and prompted by common designs, come to an
agreement and decision to commit the crime of rebellion, by then and there participating therein
and publicly taking arms against the duly constituted authorities, for the purpose of overthrowing
the Government of the Republic of the Philippines, disrupting and jeopardizing its activities and
removing from its allegiance the territory of the Philippines or parts thereof." 2
In Criminal Case No. Q-90-11756, Rolando de Gracia, Chito Henson, Lamberto Bicus, Rodolfo Tor and several
John Does were charged with attempted homicide allegedly committed on December 1, 1989 in Quezon city upon
the person of Crispin Sagario who was shot and hit on the right thigh.
Appellant was convicted for illegal possession of firearms in furtherance of rebellion, but was acquitted of
attempted homicide.
During the arraignment, appellant pleaded not guilty to both charges. However, he admitted that he is not
authorized to posses any firearms, ammunition and/or explosive.3 The parties likewise stipulated that there was a
rebellion during the period from November 30 up to December 9, 1989. 4
The records show that in the early morning of December 1, 1989, Maj. Efren Soria of the Intelligence
Division, National Capital Region Defense Command, was on board a brown Toyota car conducting a surveillance
of the Eurocar Sales Office located at Epifanio de los Santos Avenue in Quezon City, together with his team
composed of Sgt. Crispin Sagario, M/Sgt. Ramon Briones, S/Sgt. Henry Aquino, one S/Sgt. Simon and a Sgt. Ramos.
The surveillance, which actually started on the night of November 30, 1989 at around 10:00 P.M., was conducted
pursuant to an intelligence report received by the division that said establishment was being occupied by elements
of the RAM-SFP as a communication command post. LLpr
Sgt. Crispin Sagario, the driver of the car, parked the vehicle around ten to fifteen meters away from the
Eurocar building near P. Tuazon Street, S/Sgt. Henry Aquino had earlier alighted from the car to conduct his
surveillance on foot. A crowd was then gathered near the Eurocar office watching the on-going bombardment near
Camp Aguinaldo. After a while a group of five men disengaged themselves from the crowd and walked towards the
car of the surveillance team. At that moment, Maj. Soria, who was then seated in front, saw the approaching group
and immediately ordered Sgt. Sagario to start the car and leave the area. As they passed by the group, then only six
meters away, the latter pointed to them, drew their guns and fired at the team, which attack resulted in the
wounding of Sgt. Sagario on the right thigh. Nobody in the surveillance team was able to retaliate because they
sought cover inside the car and they were afraid that civilians or bystanders might be caught in the cross-fire.
As a consequence, at around 6:30 A.M. of December 5, 1989, searching them composed of F/Lt. Virgilio
Babao as team leader, M/Sgt. Lacdao, Sgt. Magallion, Sgt. Patricio Pacatang, and elements of the 16th Infantry
Battalion under one Col. delos Santos raided the Eurocar Sales Office. They were able to find and confiscate six
cartons of M-16 ammunition, five bundles of C-4 dynamites, M-shells of different calibers, and "molotov" bombs
inside one of the rooms belonging to a certain Col. Matillano which is located at the right portion of the building.
Sgt. Oscar Obenia, the first one to enter the Eurocar building, saw appellant De Gracia inside the office of Col.
Matillano, holding a C-4 and suspiciously peeping through a door. De Gracia was the only person then present
through a door. De Gracia was the only person then present inside the room. A uniform with the nametag of Col.
Matillano was also found. As a result of the raid, the team arrested appellant, as well as Soprieso Verbo and Roberto
Jimena who were janitors at the Eurocar building. They were then made to sign an inventory, written in Tagalog, of
the explosives and ammunition confiscated by the raiding team. No search warrant was secured by the raiding team.
No search warrant was secured by the raiding team because, according to them, at that time there was so much
disorder considering that the nearby Camp Aguinaldo was being mopped up by the rebel forces and there was
simultaneous firing within the vicinity of the Eurocar office, aside from the fact that the courts were consequently
closed. The group was able to confirm later that the owner of Eurocar office is a certain Mr. Gutierrez and that
appellant is supposedly a "boy" therein.llcd
Appellant Rolando de Gracia gave another version of the incident. First, he claims that on November 30,
1989, he was in Antipolo to help in the birthday party of Col. Matillano. He denies that he was at the Eurocar Sales
Office on December 1, 1989. Second, he contends that when the raiding team arrived at the Eurocar Sales Office on
December 5, 1989, he was inside his house, a small nipa hut which is adjacent to the building. According to him, he
was tasked to guard the office of Col. Matillano which is located at the right side of the building. He denies, however,
that he was inside the room of Col. Matillano when the raiding team barged in and that he had explosives in his
possession. He testified that when the military raided the office, he was ordered to get out of his house and made
to lie on the ground face down, together with "Obet" and "Dong" who were janitors of the building. He avers that
he does not know anything about the explosives and insists that when they were asked to stand up, the explosives
were already there.
Appellants stated that he visited Col. Matillano in 1987 at the stockade of the Philippine Constabulary-
Integrated National Police (PC-INP), and that he knew Matillano was detained because of the latter's involvement
in the 1987 coup d'etat. In July, 1989, appellant again went to see Matillano because he had no job. Col. Matillano
then told him that he could stay in the PC-INP stockade and do the marketing for them. From that time until his
arrest at the Eurocar office, appellant worked for Matillano.
De Gracia believes that the prosecution witnesses were moved to testify against him because "bata raw ako
ni Col. Matillano eh may atraso daw sa kanila si Col. Matillano kaya sabi nila ito na lang bata niya ang ipitin natin."
On February 22, 1991, the trial court rendered judgment 5 acquitting appellant Rolando de Gracia of
attempted homicide, but found him guilty beyond reasonable doubt of the offense of illegal possession of firearms
in furtherance of rebellion and sentenced him to serve the penalty of reclusion perpetua. Moreover, it made a
recommendation that "(i)nasmuch as Rolando de Gracia appears to be merely executing or obeying orders and
pursuant to the spirit contained in the 2nd paragraph of Art. 135, R.P.C., the court recommends that Rolando de
Gracia be extended executive clemency after serving a jail term of five (5) years of good behavior."
That judgment of conviction is now challenged before us in this appeal.
Appellant principally contends that he cannot be held guilty of illegal possession of firearms for the reason
that he did not have either physical or constructive possession thereof considering that he had no intent to possess
the same; he is neither the owner nor a tenant of the building where the ammunition and explosives were found; he
was merely employed by Col. Matillano as an errand boy; he was guarding the explosives for and in behalf of Col.
Matillano; and he did not have actual possession of the explosives. He claims that intent to possess, which is
necessary before one can be convicted underPresidential Decree No. 1866, was not present in the case at bar. cdll
Presidential Decree No. 1866 provides as follows:
"SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of
Firearms or Ammunition or Instruments Used or intended to be used in the Manufacture of
Firearms or Ammunition. — The Penalty of reclusion temporal in its maximum period to reclusion
perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire,
dispose, or possess any firearms, part of firearms, ammunition or machinery, took or instrument
used or intended to be used in the manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of
death shall be imposed.
If the violation of this Section is in furtherance of, or incident to, or in connection with the
crimes of rebellion, insurrection or supervision, the penalty of death shall be imposed."
Presidential Decree No. 1866 was passed because of an upsurge of crimes vitally affecting public order and
safety due to the proliferation of illegally possessed and manufactured firearms, ammunition and explosives, and
which criminal acts have resulted in loss of human lives, damage to property and destruction of valuable resources
of the country. The series of coup d' etats unleashed in the country during the first few years of the transitional
government under then President Corazon P. Aquino attest to the ever-growing importance of laws such
as Presidential Decree No. 1866which seek to nip in the bud and preempt the commission of any act or acts which
tend to disturb public peace and order.
I. The first issue to be resolved is whether or not intent to possess is an essential element of the offense
punishable under Presidential Decree No. 1866 and, if so, whether appellant De Gracia did intend to illegally possess
firearms and ammunition.
The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. what
the law requires is merely possession which includes not only actual physical possession but also constructive
possession or the subjection of the thing to one's control and management. 6 This has to be so if the manifest intent
of the law is to be effective. The same evils, the same perils to public security, which the law penalizes exist whether
the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this law the
proprietary concept of the possession can have no bearing whatsoever. 7
But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful
possession of firearms or must there be an intent to possess to constitute a violation of the law? This query assumes
significance since the offense of illegal possession of firearms is a malum prohibitum punished by a special law, 8 in
which case good faith and absence of criminal intent are not valid defenses. 9
When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is
sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the
crime and intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to
perpetrate the act must be distinguished. A person may not have consciously intended to commit a crime; but he
did intend to commit an act, and that act is, by the very nature of things, the crime itself. In the first (intent to commit
the crime), there must be criminal intent; in the second (intent to perpetrate the act) it is enough that the prohibited
act is done freely and consciously. 10
In the present case, a distinction should be made between criminal intent and intent to possess. While mere
possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still be
shown that there was animus possidendi or an intent to possess on the part of the accused. 11 Such intent to possess
is, however, without regard to any other criminal or felonious intent which the accused may have harbored in
possessing the firearm. Criminal intent here refers to the intention of the accused to commit an offense with the
use of an unlicensed firearm. This is not important in convicting a person under Presidential Decree No. 1866. Hence,
in order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority
or licensed to possess a firearm, and that he intended to possess the same, even if such possession was in good faith
and without criminal intent.LibLex
Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot be
considered a violation of a statute prohibiting the possession of this kind of weapon, 12 such as Presidential Decree
No. 1866. Thus, although there is physical or constructive possession, for as long as the animus possidendi is absent,
there is no offense committed.
Coming now to the case before us, there is no doubt in our minds that appellant De Gracia is indeed guilty
of having intentionally possessed several firearms, explosives and ammunition without the requisite license or
authority therefor. Prosecution witness Sgt. Oscar Abenia categorically testified that he was the first one to enter
the Eurocar Sales Office when the military operatives raided the same, and he saw De Gracia standing in the room
and holding the several explosives marked in evidence as Exhibits D to D-4. 13 At first, appellant denied any
knowledge about the explosives. Then, he alternatively contended that his act of guarding the explosives for and in
behalf of Col. Matillano does not constitute for and in behalf of Col. Matillano does not constitute illegal possession
thereof because there was no intent on his part to possess the same, since he was merely employed as an errand by
Col. Matillano. His pretension of impersonal or indifferent material possession does not and cannot inspire
credence.
Animus possidendi is a state of mind which may be determined on a case to case basis, taking into
consideration the prior and coetaneous acts of the accused and the surrounding circumstances. What exists in the
realm of thought is often disclosed in the range of action. It is not controverted that appellant De Gracia is a former
soldier, having served with the Philippine Constabulary prior to his separation from the service for going on absence
without leave (AWOL). 14 We do not hesitate, therefore, to believe and conclude that he is familiar with and
knowledgeable about the dynamites, "molotov" bombs, and various kinds of ammunition which were confiscated
by the military from his possession. As a former soldier, it would be absurd for him not to know anything about the
dangerous uses and power of these weapons. A fortiori, he cannot feign ignorance on the import of having in his
possession such a large quantity of explosives and ammunition. Furthermore, the place where the explosives were
found is not a military camp or office, nor one where such items can ordinarily but lawfully be stored, as in a gun
store, a arsenal or armory. Even an ordinarily prudent man would be put on guard and be suspicious if he finds
articles of this nature in a place intended to carry out the business of selling cars and which has nothing to do at all,
directly or indirectly, with the trade of firearms and ammunition. llcd
On the basis of the foregoing disquisition, it is apparent, and we sold hold, that appellant De Gracia actually
intended to possess the articles confiscated from his person.
II. The next question that may be asked is whether or not there was a valid search and seizure in this case.
While the matter has not been squarely put in issue, we deem it our bounden duty, in light of advertence thereto by
the parties, to delve into the legality of the warrantless search conducted by the raiding them, considering the
gravity of the offense for which herein appellant stands to be convicted and the penalty sought to be imposed.
It is admitted that the military operatives who raided the Eurocar Sales Office were not armed with a search
warrant at that time. 15 The raid was actually precipitated by intelligence reports that said office was being used as
headquarters by the RAM. 16 Prior to the raid, there was a surveillance conducted on the premises wherein the
surveillance team was fired at by a group of men coming from the Eurocar building. When the military operatives
raided the place, the occupants thereof refused to open the door despite the requests for them to do so, thereby
compelling the former to break into the office. 17 The Eurocar Sales Office is obviously not a gun store and it is
definitely not an armory or arsenal which are the usual depositories for explosives and ammunition. It is primarily
and solely engaged in the sale of automobiles. The presence of an unusual quantity of high-powered firearms and
explosives could not be justifiably or even colorably explained. In addition, there was general chaos and disorder at
that time because of simultaneous and intense firing within the vicinity of the office and in the nearby Camp
Aguinaldo which was under attack by rebel forces. 18 The courts in the surrounding areas were obviously closed
and, for that matter, the building and houses therein were deserted.
Under the foregoing circumstances, it is out considered opinion that the instant case falls under one of the
exceptions to the prohibition against a warrantless search. In the first place, the military operatives, taking into
account the facts obtaining in this case, had reasonable ground to believe that a crime was being committed. There
was consequently more than sufficient probable cause to warrant their action. Furthermore, under the situation
then prevailing, the raiding team had no opportunity to apply for and secure a search warrant from the courts. The
trial judge himself manifested that on December 5, 1989 when the raid was conducted, his court was
closed. 19 Under such urgency and exigency of the moment, a search warrant could lawfully be dispensed
with.LexLib
The view that we here take is in consonance with our doctrinal ruling which was amply explained in People
vs. Malmsted 20 and bears reiteration:
"While it is true that the NARCOM officers were not alarmed with a 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 would 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. 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.
"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, or where the accused was acting suspiciously, and attempted
to flee.
"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.llcd
"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, 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
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 Causasian 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) teddy bears with hashish stuffed inside the, 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 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."
In addition, we find the principles enunciated in Umil, et al. vs. Ramos, et al., 21applicable, by analogy, to the
present case:
"The arrest of persons involved in the rebellion whether as its fighting armed elements, or
for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing
them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately
prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual
procedure in the prosecution of offenses which requires the determination by a judge of the
existence of probable cause before the issuance of a judicial warrant of arrest and the granting of
bail if the offense is bailable. Obviously the absence of a judicial warrant is no legal impediment to
arresting or capturing persons committing overt acts of violence against government forces, or
any other milder acts but really in pursuance of the rebellious movement. The arrest or capture is
thus impelled by the exigencies of the situation that involves the very survival of society and its
government and duly constituted authorities. If killing and other acts of violence against the rebels
find justification in the exigencies of armed hostilities which (are) of the essence of waging a
rebellion or insurrection, most assuredly so in case of invasion, merely seizing their persons and
detaining them while any of these contigencies continues cannot be less justified."
III. As earlier stated, it was stipulated and admitted by both parties that from November 30, 1989 up to and
until December 9, 1989, there was a rebellion. Ergo, our next inquiry is whether or not appellant's possession of the
firearms, explosives and ammunition seized and recovered from him was for the purpose and in furtherance of
rebellion.
The trial court found accused guilty of illegal possession of firearms in furtherance of rebellion pursuant to
paragraph 2 of Article 135 of the Revised Penal Code which states that "any person merely participating or executing
the command of others in a rebellion shall suffer the penalty of prision mayor in its minimum period." The court
below held that appellant De Gracia, who has been servicing the personal needs of Co. Matillano (whose active
armed opposition against the Government, particularly at the Camelot Hotel, was well known), is guilty of the act
of guarding the explosives and "molotov" bombs for and in behalf of the latter. We accept this finding of the lower
court. LexLib
The above provision of the law was, however, erroneously and improperly used by the court below as a basis
in determining the degree of liability of appellant and the penalty to be imposed on him. It must be made clear that
appellant is charged with the qualified offense of illegal possession of firearms in furtherance of rebellion
underPresidential Decree No. 1866 which, in law, is distinct from the crime of rebellion punished under Articles 134
and 135 of the Revised Penal Code. These are two separate statutes penalizing different offenses with discrete
penalties. The Revised Penal Code treats rebellion as a crime apart from murder, homicide, arson, or other offenses,
such as illegal possession of firearms, that might conceivably be committed in the course of a rebellion. Presidential
Decree No. 1866 defines and punishes, as a specific offense, the crime of illegal possession of firearms committed
in the course or as part of a rebellion.22
As a matter of fact, in one case involving the constitutionality of Section 1 ofPresidential Decree No. 1866,
the Court has explained that said provision of the law will not be invalidated by the mere fact that the same act is
penalized under two different statutes with different penalties, even if considered highly advantageous to the
prosecution and onerous to the accused. 23 It follows that, subject to the presence of the requisite elements in each
case, unlawful possession of an unlicensed firearm in furtherance of rebellion may give rise to separate prosecutions
for a violation of Section 1 of Presidential Decree No. 1866, and also a violation of Articles 134 and 135 of the Revised
Penal Code on rebellion. Double jeopardy in this case cannot be invoked because the first is an offense punished by
a special law while the second is a felony punished by the Revised Penal Code, 24 with variant elements.
It was a legal malapropism for the lower court to interject the aforestated provision of the Revised Penal
Code in this prosecution for a crime under a special law. Consequently, there is no basis for its recommendation for
executive clemency in favor of appellant De Gracia after he shall have served a jail term of five years with good
behavior. In any event, this is a matter within the exclusive prerogative of the President whose decision thereon
should be insulated against any tenuous importunity. Withal, we are duly convinced that the firearms, explosives
and ammunition confiscated from appellant De Gracia were illegally possessed by him in furtherance of the
rebellion then admittedly existing at that time. In the words of the court a quo:
"2. the nature and quantity of the items — 5 bundles of C-4 dynamites, 6 cartons of M-16
ammo and 100 bottles of molotov bombs indicate that the reports received by the military that
the Eurocar Sales Building was being used by the rebels was not without basis. Those items are
clearly not for one's personal defense. They are for offensive operations. De Gracia admitted that
per instruction of Col. Matillano he went down to Eurocar Sales Building from Antipolo to stay
guard there.
"His manifestation of innocence of those items and what he had been guarding in that
office is not credible for: (a) he was a former military personnel; (b) at the birthday party of Col.
Matillano on November 30, 1989 may soldiers and ex-soldiers were present which self-evidently
discloses that De Gracia, in the company of his boss, was till very much at home and constantly in
touch with soldiers and the armed rebellion of November 30, 1989 to December 8 or 9, 1989 was a
military coup d'etat; (c) it appears that he is the only person tasked with caretaking (sic) there in
the Matillano office, which shows that he is a highly trusted right-hand man of Col. Matillano; and
(d) as heretofore discussed, de Gracia was earlier seen with some who fired upon a car of the AFP
intelligence agents." 25
Presidential Decree No. 1866 imposes the death penalty where the illegal possession of firearms and
ammunition is committed in furtherance of rebellion. At the time the offense charged in this case was committed
under the governance of that law, the imposition of the death penalty was prescribed by the Constitution.
Consequently, appellant De Gracia could only sentenced to serve the penalty of reclusion perpetuawhich was
correctly meted out by the trial court, albeit with an erroneous recommendation in connection therewith. cdrep
WHEREFORE, the impugned judgment of the trial court is hereby AFFIRMED, but its recommendation
therein for executive clemency and the supposed basis thereof are hereby DELETED, with cots against accused-
appellant.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Puno and Mendoza, JJ., concur.
EN BANC

[G.R. No. 104961. October 7, 1994.]

CONGRESSMAN FRANCISCO B. ANIAG, JR., petitioner, vs. COMMISSION ON ELECTIONS and DEPARTMENT OF JUSTICE SPECIAL TASK
FORCE,respondents.

DECISION

BELLOSILLO,J p:

PETITIONER assails in this petition (for declaratory relief, certiorari and prohibition) the
following resolutions of the Commission on Elections: Resolution No. 2327 dated 26 December 1991
for being unconstitutional, and Resolution No. 92-0829 dated 6 April 1992 and Resolution No. 92-
0999 dated 23 April 1992, for want of legal and factual bases. cdrep
The factual backdrop: In preparation for the synchronized national and local elections
scheduled on 11 May 1992, the Commission on Elections (COMELEC) issued on 11 December
1991 Resolution No. 2323 otherwise referred to as the "Gun Ban," promulgating rules and regulations
on bearing, carrying and transporting of firearms or other deadly weapons, on security personnel or
bodyguards, on bearing arms by members of security agencies or police organizations, and
organization or maintenance of reaction forces during the election period. 1 Subsequently, on 26
December 1991 COMELEC issued Resolution No. 2327 providing for the summary disqualification of
candidates engaged in gunrunning, using and transporting of firearms, organizing special strike
forces, and establishing spot checkpoints. 2
On 10 January 1992, pursuant to the "Gun Ban," Mr. Serapio P. Taccad, Sergeant-at-Arms,
House of Representatives, wrote petitioner who was then Congressman of the 1st District of Bulacan
requesting the return of the two (2) firearms 3 issued to him by the House of Representatives. Upon
being advised of the request on 13 January 1992 by his staff, petitioner immediately instructed his
driver, Ernesto Arellano, to pick up the firearms from petitioner's house at Valle Verde and return
them to Congress.
Meanwhile, at about five o'clock in the afternoon of the same day, the Philippine National
Police (PNP) headed by Senior Superintendent Danilo Cordero set up a checkpoint outside the
Batasan Complex some twenty (20) meters away from its entrance. About thirty minutes later, the
policemen manning the outpost flagged down the car driven by Arellano as it approached the
checkpoint. They searched the car and found the firearms neatly packed in their gun cases and placed
in a bag in the trunk of the car. Arellano was then apprehended and detained. He explained that he
was ordered by petitioner to get the firearms from the house and return them to Sergeant-at Arms
Taccad of the House of Representatives.
Thereafter, the police referred Arellano's case to the Office of the City Prosecutor for inquest.
The referral did not include petitioner as among those charged with an election offense. On 15
January 1992, the City Prosecutor ordered the release of Arellano after finding the latter's sworn
explanation meritorious. 4
On 28 January 1992, the City Prosecutor invited petitioner to shed light on the circumstances
mentioned in Arellano's sworn explanation. Petitioner not only appeared at the preliminary
investigation to confirm Arellano's statement but also wrote the City Prosecutor urging him to
exonerate Arellano. He explained that Arellano did not violate the firearms ban as he in fact was
complying with it when apprehended by returning the firearms to Congress; and, that he was
petitioner's driver, not a security officer nor a bodyguard. 5
On 6 March 1992, the Office of the City Prosecutor issued a resolution which, among other
matters, recommended that the case against Arellano be dismissed and that the "unofficial" charge
against petitioner be also dismissed. 6
Nevertheless, on 6 April 1992, upon recommendation of its Law Department, COMELEC
issued Resolution No. 92-0829 directing the filing of information against petitioner and Arellano for
violation of Sec. 261, par. (q), ofB.P. Blg. 881 otherwise known as the Omnibus Election Code, in
relation to Sec. 32 of R.A. No. 7166; 7 and petitioner to show cause why he should not be disqualified
from running for an elective position, pursuant to COMELEC Resolution No. 2327, in relation to Secs.
32, 33 and 35 of R.A. 7166, and Sec. 52, par. (c), of B.P. Blg. 881. 8
On 13 April 1992, petitioner moved for reconsideration and to hold in abeyance the
administrative proceedings as well as the filing of the information in court. 9 On 23 April 1992, the
COMELEC denied petitioner's motion for reconsideration. 10 Hence, this recourse.
Petitioner questions the constitutionality of Resolution No. 2327. He argues that the rules and
regulations of an administrative body must respect the limits defined by law; that the Omnibus
Election Code provides for the disqualification of any person/candidate from running for or holding a
public office, i.e., any person who has either been declared by competent authority as insane or
incompetent or has been sentenced by final judgment for subversion, insurrection, rebellion or for
any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime
involving moral turpitude; that gunrunning, using or transporting firearms or similar weapons and
other acts mentioned in the resolution are not within the letter or spirit of the provisions of the Code;
that the resolution did away with the requirement of final conviction before the commission of certain
offenses; that instead, it created a presumption of guilt as a candidate may be disqualified from office
in situations (a) where the criminal charge is still pending, (b) where there is no pending criminal case,
and (c) where the accused has already been acquitted, all contrary to the requisite quantum of proof
for one to be disqualified from running or holding public office under the Omnibus Election Code, i.e.,
proof beyond reasonable doubt. As a result, petitioner concludes, Resolution No. 2327 violates the
fundamental law thus rendering it fatally defective.
But the issue on the disqualification of petitioner from running in the 11 May 1992
synchronized elections was rendered moot when he lost his bid for a seat in Congress in the elections
that ensued. Consequently, it is now futile to discuss the implications of the charge against him on his
qualification to run for public office. LibLex
However, there still remains an important question to be resolved, i.e.,whether he can be
validly prosecuted for instructing his driver to return to the Sergeant-at-Arms of the House of
Representatives the two firearms issued to him on the basis of the evidence gathered from the
warrantless search of his car.
Petitioner strongly protests against the manner by which the PNP conducted the search.
According to him, without a warrant and without informing the driver of his fundamental rights the
policemen searched his car. The firearms were not tucked in the waist nor within the immediate reach
of Arellano but were neatly packed in their gun cases and wrapped in a bag kept in the trunk of the
car. Thus, the search of his car that yielded the evidence for the prosecution was clearly violative
of Secs. 2 and 3, par. (2), Art. III, of theConstitution. 11
Petitioner further maintains that he was neither impleaded as party respondent in the
preliminary investigation before the Office of the City Prosecutor nor included in the charge sheet.
Consequently, making him a respondent in the criminal information would violate his constitutional
right to due process.
Petitioner disputes the charge that he violated Sec. 33 of R.A. 7166, which prohibits any
candidate for public office during the election period from employing or availing himself or engaging
the services of security personnel or bodyguards since, admittedly, Arellano was not a security officer
or bodyguard but a civilian employee assigned to him as driver by the House of Representatives.
Specifically, petitioner further argues, Arellano was instructed to return to Congress, as he did, the
firearms in compliance with the directive of its Sergeant-at-Arms pursuant to the "Gun Ban," thus, no
law was in fact violated. 12
On 25 June 1992, we required COMELEC to file its own comment on the petition 13 upon
manifestation of the Solicitor General that it could not take the position of COMELEC and prayed
instead to be excused from filing the required comment. 14
COMELEC claims that petitioner is charged with violation of Sec. 261, par. (q),in relation
to Sec. 263, of B.P. Blg. 881 which provides that "the principals, accomplices and accessories, as
defined in the Revised Penal Code, shall be criminally liable for election offenses." It points out that it
was upon petitioner's instruction that Arellano brought the firearms in question outside petitioner's
residence, submitting that his right to be heard was not violated as he was invited by the City
Prosecutor to explain the circumstances regarding Arellano's possession of the firearms. Petitioner
also filed a sworn written explanation about the incident. Finally, COMELEC claims that violation of
the "Gun Ban" is mala prohibita, hence, the intention of the offender is immaterial. 15
Be that as it may, we find no need to delve into the alleged constitutional infirmity of
Resolution No. 2327 since this petition may be resolved without passing upon this particular issue. 16
As a rule, a valid search must be authorized by a search warrant duly issued by an appropriate
authority. However, this is not absolute. Aside from a search incident to a lawful arrest, a warrantless
search had been upheld in cases of moving vehicles and the seizure of evidence in plain view, 17 as
well as the search conducted at police or military checkpoints which we declared are not illegal per
se, and stressed that the warrantless search is not violative of theConstitution for as long as the vehicle
is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is
merely limited to a visual search. 18
Petitioner contends that the guns were not tucked in Arellano's waist nor placed within his
reach, and that they were neatly packed in gun cases and placed inside a bag at the back of the car.
Significantly, COMELEC did not rebut this claim. The records do not show that the manner by which
the package was bundled led the PNP to suspect that it contained firearms. There was not mention
either of any report regarding any nervous, suspicious or unnatural reaction from Arellano when the
car was stopped and searched. Given these circumstances and relying on its visual observation, the
PNP could not thoroughly search the car lawfully as well as the package without violating the
constitutional injunction.
An extensive search without warrant could only be resorted to if the officers conducting the
search had reasonable or probable cause to believebefore the search that either the motorist was a
law offender or that they would find the instrumentality or evidence pertaining to the commission of
a crime in the vehicle to be searched. 19 The existence of probable cause justifying the warrantless
search is determined by the facts of each case. 20 Thus, we upheld the validity of the warrantless
search in situations where the smell of marijuana emanated from a plastic bag owned by the accused,
or where the accused was acting suspiciously, and attempted to flee. 21
We also recognize the stop-and-search without warrant conducted by police officers on the
basis of prior confidential information which were reasonably corroborated by other attendant
matters, e.g., where a confidential report that a sizeable volume of marijuana would be transported
along the route where the search was conducted and appellants were caught in flagrante delicto
transporting drugs at the time of their arrest; 22 where apart from the intelligence information, there
were reports by an undercover "deep penetration" agent that appellants were bringing prohibited
drugs into the country; 23 where the information that a Caucasian coming from Sagada bringing
prohibited drugs was strengthened by the conspicuous bulge in accused's waistline and his suspicious
failure to produce his passport and other identification papers; 24 where the physical appearance of
the accused fitted the description given in the confidential information about a woman transporting
marijuana; 25 where the accused carrying a bulging black leather bag were suspiciously quiet and
nervous when queried about its contents; 26 or where the identity of the drug courier was already
established by police authorities who received confidential information about the probable arrival of
accused on board one of the vessels arriving in Dumaguete City. 27
In the case at bench, we find that the checkpoint was set up twenty (20) meters from the
entrance to the Batasan Complex to enforce Resolution No. 2327. There was no evidence to show that
the policemen were impelled to do so because of a confidential report leading them to reasonably
believe that certain motorists matching the description furnished by their informant were engaged in
gunrunning, transporting firearms or in organizing special strike forces. Nor, as adverted to earlier,
was there any indication from the package or behavior of Arellano that could have triggered the
suspicion of the policemen. Absent such justifying circumstances specifically pointing to the
culpability of petitioner and Arellano, the search could not be valid. The action then of the policemen
unreasonably intruded into petitioner's privacy and the security of his property, in violation of Sec. 2,
Art. III, of the Constitution. Consequently, the firearms obtained in violation of petitioner's right
against warrantless search cannot be admitted for any purpose in any proceeding.
It may be argued that the seeming acquiescence of Arellano to the search constitutes an
implied waiver of petitioner's right to question the reasonableness of the search of the vehicle and
the seizure of the firearms.
While Resolution No. 2327 authorized the setting up of checkpoints, it however stressed that
"guidelines shall be made to ensure that no infringement of civil and political rights results from the
implementation of this authority," and that "the places and manner of setting up of checkpoints shall
be determined in consultation with the Committee on Firearms Ban and Security Personnel created
under Sec. 5, Resolution No. 2323." 28 The facts show that PNP installed the checkpoint at about five
o'clock in the afternoon of 13 January 1992. The search was made soon thereafter, or thirty minutes
later. It was not shown that news of impending checkpoints without necessarily giving their locations,
and the reason for the same have been announced in the media to forewarn the citizens. Nor did the
informal checkpoint that afternoon carry signs informing the public of the purpose of its operation.
As a result, motorists passing that place did not have any inkling whatsoever about the reason behind
the instant exercise. With the authorities in control to stop and search passing vehicles, the motorists
did not have any choice but to submit to the PNP's scrutiny. Otherwise, any attempt to turnabout
albeit innocent would raise suspicion and provide probable cause for the police to arrest the motorist
and to conduct an extensive search of his vehicle.
In the case of petitioner, only his driver was at the car at that time it was stopped for
inspection. As conceded by COMELEC, driver Arellano did not know the purpose of the checkpoint.
In the face of fourteen (14) armed policemen conducting the operation, 29 driver Arellano being alone
and a mere employee of petitioner could not have marshalled the strength and the courage to protest
against the extensive search conducted in the vehicle. In such scenario, the "implied acquiescence," if
there was any, could not be more than a mere passive conformity on Arellano's part to the search,
and "consent" given under intimidating or coercive circumstances is no consent within the purview of
the constitutional guaranty.
Moreover, the manner by which COMELEC proceeded against petitioner runs counter to the
due process clause of the Constitution. The facts show that petitioner was not among those charged
by the PNP with violation of theOmnibus Election Code. Nor was he subjected by the City Prosecutor
to a preliminary investigation for such offense. The non-disclosure by the City Prosecutor to the
petitioner that he was a respondent in the preliminary investigation is violative of due process which
requires that the procedure established by law should be obeyed. 30
COMELEC argues that petitioner was given the chance to be heard because he was invited to
enlighten the City Prosecutor regarding the circumstances leading to the arrest of his driver, and that
petitioner in fact submitted a sworn letter of explanation regarding the incident. This does not satisfy
the requirement of due process the essence of which is the reasonable opportunity to be heard and
to submit any evidence one may have in support of his defense.31 Due process guarantees the
observance of both substantive and procedural rights, whatever the source of such rights, be it
the Constitution itself or only a statute or a rule of court. 32 In Go v. Court of Appeals, 33 we held that

While the right to preliminary investigation is statutory rather than constitutional
in its fundamental, since it has in fact been established by statute, it is a component part
of due process in criminal justice.The right to have a preliminary investigation conducted
before being bound over to trial for a criminal offense and hence formally at risk of
incarceration or some other penalty is not a mere formal or technical right; it is a
substantive right ....[T]he right to an opportunity to avoid a process painful to anyone
save, perhaps, to hardened criminals is a valuable right. To deny petitioner's claim to a
preliminary investigation would be to deprive him of the full measure of his right to due
process.
Apparently, petitioner was merely invited during the preliminary investigation of Arellano to
corroborate the latter's explanation. Petitioner then was made to believe that he was not a party
respondent in the case, so that his written explanation on the incident was only intended to exculpate
Arellano, not petitioner himself. Hence, it cannot be seriously contended that petitioner was fully
given the opportunity to meet the accusation against him as he was not apprised that he was himself
a respondent when he appeared before the City Prosecutor. cdll
Finally, it must be pointed out too that petitioner's filing of a motion for reconsideration with
COMELEC cannot be considered as a waiver of his claim to a separate preliminary investigation for
himself. The motion itself expresses petitioner's vigorous insistence on his right. Petitioner's
protestation started as soon as he learned of his inclusion in the charge, and did not ease up even after
COMELEC's denial of his motion for reconsideration. This is understandably so since the prohibition
against carrying firearms bears the penalty of imprisonment of not less than one (1) year nor more
than six (6) years without probation and with disqualification from holding public office, and
deprivation of the right to suffrage. Against such strong stance, petitioner clearly did not waive his
right to a preliminary investigation.
WHEREFORE, the instant petition is GRANTED. The warrantless search conducted by the
Philippine National Police on 13 January 1992 is declared illegal and the firearms seized during the
warrantless search cannot be used as evidence in an proceeding against petitioner. Consequently,
COMELEC Resolution No. 92-0829 dated 6 April 1992 being violative of the Constitution is SET
ASIDE.
The temporary restraining order we issued on 5 May 1992 is made permanent.
SO ORDERED.
Narvasa, C.J.,Romero, Quiason, Puno, Kapunan and Mendoza, JJ., concur.
Feliciano, Padilla and Bidin, JJ., are on leave.

THIRD DIVISION

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

RODOLFO ESPANO, accused-petitioner,vs.COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

Ceferino Padua Law Office for petitioner.


The Solicitor General for respondents.

SYNOPSIS

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

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

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; FINDINGS OF TRIAL COURTS ON THE CREDIBILITY OF WITNESSES DESERVE A HIGH DEGREE OF RESPECT;
CASE AT BAR. — It is a well-settled doctrine that findings of trial courts on the credibility of witness deserve a high degree of respect. Having observed the deportment of witnesses during
the trial, the trial judge is in a better position to determine the issue of credibility and, thus, his findings will not be disturbed during appeal in the absence of any clear and showing that he
had overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which could have altered the conviction of the appellants. In this case, the findings of the
trial court that the prosecution witnesses were more credible that those of the defense must stand. Petitioner failed to show that Pat. Pagilagan, in testifying against him, was motivated by
reasons other than his duty to curb drug abuse and had any intent to falsely impute to him such a serious crime as possession of prohibited drugs. In the absence of such ill motive, the
presumption of regularity in the performance of his official duty must prevail.

2. ID.; ID.; ID.; CLAIM OF FRAME-UP, LIKE ALIBI, IS A DEFENSE THAT HAS BEEN INVARIABLY VIEWED BY THE COURT WITH DISFAVOR; CASE AT BAR. — The defense set up
by petitioner does not deserve any consideration. He simply contended that he was in his house sleeping at the time of the incident. This court has consistently held that alibi is the weakest
of all defenses; and for it to prosper, the accused has the burden of proving that he was not at the scene of the crime at the time of its commission and that it was physically impossible for
him to be there. Moreover, the "claim of 'frame-up,' like alibi, is a defense that has been invariably viewed by the Court with disfavor for it can just as easily be concocted but difficult to prove,
and is a common and standard line of defense in most prosecutions arising from violations of the Dangerous Drugs Act." No clear and convincing evidence was presented by petitioner to
prove his defense of alibi.

3. ID.; CRIMINAL PROCEDURE; WARRANTLESS ARREST; THE MARIJUANA SEIZED FROM PETITIONER'S HOUSE AFTER HIS ARREST IS INADMISSIBLE IN EVIDENCE; CASE
AT BAR. — The 1987 Constitution guarantees freedom against unreasonable searches and seizures under Article III, Section 2 which provides: "The right of the people to be secure in their
persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized." An exception to the said rule is a warrantless search incidental to a lawful arrest of dangerous weapons or anything
which may be used as proof of the commission of an offense. It may extend beyond the person of the one arrested to include the premises or surroundings under his immediate control. In
this case, the ten cellophane bags of marijuana seized at petitioner's house after his arrest at Pandacan and Zamora Streets do not fall under the said exceptions. . . . The articles seized from
petitioner during his arrest were valid under the doctrine of search made incidental to a lawful arrest. The warrantless search made in his house, however, which yielded ten cellophane bags
of marijuana became unlawful since the police officers were not armed with a search warrant at the time. Moreover, it was beyond the reach and control of petitioner. HTScEI

4. CRIMINAL LAW; REPUBLIC ACT NO. 6425 AS AMENDED BY REPUBLIC ACT 7659; IF THE QUANTITY OF MARIJUANA INVOLVED IS LESS THAN 750 GRAMS, THE
IMPOSABLE PENALTY RANGES FROM PRISION CORRECTIONAL TO RECLUSION TEMPORAL; CASE AT BAR. — This Court finds petitioner Rodolfo Espano guilty beyond reasonable doubt
of violating Article II, Section 8, in relation to Section 2 (e-L)(I) ofRepublic Act No. 6425, as amended. Under the said provision, the penalty imposed is six years and one day to twelve years
and a fine ranging from six thousand to twelve thousand pesos. With the passage of Republic Act No. 7659, which took effect on December 31, 1993, the imposable penalty shall now depend
on the quantity of drugs recovered. Under the provisions of Republic Act No. 7659, Section 20, and as interpreted in People v. Simon (234 SCRA 555 [1994]) and People v. Lara,(236 SCRA 291
[1994]) if the quantity of marijuana involved is less than 750 grams, the imposable penalty ranges from prision correccional to reclusion temporal. Taking into consideration that petitioner is
not a habitual delinquent, the amendatory provision is favorable to him and the quantity of marijuana involved is less than 750 grams, the penalty imposed underRepublic Act No. 7659 should
be applied.

5. ID.;ID.;PROPER PENALTY THEREOF; CASE AT BAR. — There being no mitigating nor aggravating circumstances, the imposable penalty shall be prision correccional in its
medium period. Applying the Indeterminate Sentence Law, the maximum penalty shall be taken from the medium period of prision correccional, which is two (2) years, four (4) months and
one (1) day to four (4) years and two (2) months, while the minimum shall be taken from the penalty next lower in degree, which is one (1) month and one (1) day to six (6) months of arresto
mayor. cSDHEC

DECISION

ROMERO, J p:

This is a petition for review of the decision of the Court of Appeals in CA-G.R. CR No. 13976 dated
January 16, 1995, 1 which affirmed in toto the judgment of the Regional Trial Court of Manila, Branch 1,
convicting petitioner Rodolfo Espano for violation ofArticle II, Section 8 of Republic Act No. 6425, as amended,
otherwise known as the Dangerous Drugs Act. aisadc
Petitioner was charged under the following information:
"That on or about July 14, 1991, in the City of Manila, Philippines the said accused, not
being authorized by law to possess or use any prohibited drug, did then and there wilfully,
unlawfully and knowingly have in his possession and under his custody and control twelve (12)
plastic cellophane (bags) containing crushed flowering tops, marijuana weighing 5.5 grams
which is prohibited drug.
Contrary to law." 2
The evidence for the prosecution, based on the testimony of Pat. Romeo Pagilagan, shows that on July
14, 1991, at about 12:30 a.m., he and other police officers, namely, Pat. Wilfredo Aquilino, Simplicio Rivera, and
Erlindo Lumboy of the Western Police District (WPD), Narcotics Division went to Zamora and Pandacan
Streets, Manila to confirm reports of drug pushing in the area. They saw petitioner selling "something" to
another person. After the alleged buyer left, they approached petitioner, identified themselves as policemen,
and frisked him. The search yielded two plastic cellophane tea bags of marijuana . When asked if he had more
marijuana, he replied that there was more in his house. The policemen went to his residence where they found
ten more cellophane tea bags of marijuana. Petitioner was brought to the police headquarters where he was
charged with possession of prohibited drugs. On July 24, 1991, petitioner posted bail 3 and the trial court issued
his order of release on July 29, 1991. 4
Annabelle Alip, forensic chemist of the WPD Criminal Investigation Laboratory Section, testified that
the articles sent to her by Pat. Wilfredo Aquino regarding the apprehension of a certain Rodolfo Espano for
examination tested positive for marijuana, with total weight of 5.5 grams.
By way of defense, petitioner that on said evening, he was sleeping in house and was awakened only
when the policemen handcuffed him. He alleged that the policemen were looking for his brother-in-law Lauro,
and when they could not find the latter, he was brought to the police station for investigation and later indicted
for possession of prohibited drugs. His wife Myrna corroborated his story.
The trial court rejected petitioner's defense as a "mere afterthought" and found the version of the
prosecution "more credible and trustworthy."
Thus, on August 14, 1992, the trial court rendered a decision, convicting petitioner of the crime charged,
the dispositive portion of which reads:
"WHEREFORE there being proof beyond reasonable doubt, the court finds the accused
Rodolfo Espano y Valeria guilty of the crime of violation of Section 8, Article II, in relation to
Section 2 (e-L) (I) of Republic Act No. 6425 as amended byBatas Pambansa Blg. 179, and
pursuant to law hereby sentences him to suffer imprisonment of six (6) years and one (1) day
to twelve (12) years and to pay a fine of P6,000.00 with subsidiary imprisonment in case of
default plus costs.
The marijuana is declared fortified in favor of government and shall be turned over to
the Dangerous Drugs Board without delay.
SO ORDERED." 5
Petitioner appealed the decision to the Court of Appeals. The appellate court, however, affirmed the
decision of the trial court in toto.
Hence, this petition.
Petitioner contends that the trial and appellate courts erred in convicting him on the basis of the
following: (a) the pieces of evidence seized were inadmissible; (b) the superiority of his constitutional right to
be presumed innocent over the doctrine of presumption of regularity; (c) he was denied the constitutional right
of confrontation and to compulsory process; and (d) his conviction was based on evidence which was irrelevant
and not properly identified.
After a careful examination of the records of the case, this Court finds no compelling reason sufficient
to reverse the decisions of the trial and appellate courts.
First, it is a well settled doctrine that findings of trial courts on the credibility of witnesses deserve a high
degree of respect. Having observed the deportment of witnesses during the trial, the trial judge is in a better
position to determine the issue of credibility and, thus, his findings will not be disturbed during appeal in the
absence of any clear showing that he had overlooked, misunderstood or misapplied some facts or
circumstances of weight and substance which could have altered the conviction of the appellants. 6
In this case, the findings of the trial court that the prosecution witnesses were more credible than those
of the defense must stand. Petitioner failed to show that Pat. Pagilagan, in testifying against him, was
motivated by reasons other than his duty to curb drug abuse and had any intent to falsely impute to him such
a serious crime as possession of prohibited drugs. In the absence of such ill motive, the presumption of
regularity of his official duty must prevail.
In People v. Velasco, 7 this Court reiterated the doctrine of presumption of regularity in the performance
of official duty which provides:
"...Appellant failed to establish that Pat. Godoy and the other members of the buy-bust
team are policemen engaged in mulcting or other unscrupulous activities who where
motivated either by the desire to extort money or exact personal vengeance, or by sheer whim
and caprice, when they entrapped her. And in the absence of proof of any intent on the part of
the police authorities to falsely impute such a serious crime against appellant, as in this case,
the presumption of regularity in the performance of official duty, ...,must prevail over the self-
serving and uncorroborated claim of appellant that she had been framed." 8
Furthermore, the defense set up by petitioner does not deserve any consideration. He simply contended
that he was in his house sleeping at the time of the incident. This Court has consistently held that alibi is the
weakest of all defenses; and for it to prosper, the accused has the burden of proving that he was not at the
scene of the crime of its commission and that it was physically impossible for him to be there. Moreover, the
"claim of a 'frame-up', like alibi, is a defense that has been invariably viewed by the Court with disfavor for it
can just as easily be concocted but difficult to prove, and is a common and standard line of defense in most
prosecutions arising from violations of the Dangerous Drugs Act." 9 No clear and convincing evidence was
presented by petitioner to prove his defense of alibi.
Second, petitioner contends that the prosecution's failure to present the alleged informant in court cast
a reasonable doubt which warrants his acquittal. This is again without merit, since failure of the prosecution to
produce the informant in court is of no moment especially when he is not even the best witness to establish the
fact that a buy-bust operation had indeed been conducted. In this case, Pat. Pagilagan, one of the policemen
who apprehended petitioner, testified on the actual incident of July 14, 1991, and identified him as the one they
caught in possession of prohibited drugs. Thus,
"We find that the prosecution had satisfactorily proved its case against appellants.
There is no compelling reason for us to overturn the finding of the trial court that the testimony
of Sgt. Gamboa, the lone witness for the prosecution, was straightforward, spontaneous and
convincing. The testimony of a sole witness, if credible and positive and satisfies the court
beyond reasonable doubt, is sufficient to convict." 10
Thus on the basis of Pat. Pagilagan's testimony, the prosecution was able to prove that petitioner
indeed committed the crime charged; consequently, the finding of conviction was proper.
Lastly, the issue on the admissibility of the marijuana seized should likewise be ruled upon. Rule 113
Section 5(a) of the Rules of Court provides:
"A peace officer or a private person may, without a warrant, arrest a person:
a. when, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
xxx xxx xxx."
Petitioner's arrest falls squarely under the aforecited rule. He was caught in flagranti as a result of a buy-
bust operation conducted by police officers on the basis of information received regarding the illegal trade of
drugs within the area of Zamora and Pandacan Streets, Manila. The police officer saw petitioner handing over
something to an alleged buyer. After the buyer left, they searched him and discovered two cellophanes of
marijuana. His arrest was, therefore, lawful and the two cellophane bags of marijuana seized were admissible
in evidence, being the fruits of the crime.
As for the ten cellophane bags of marijuana found at petitioner's residence, however, the same
inadmissible in evidence.
The 1987 Constitution guarantees freedom against unreasonable searches and seizures under Article
III, Section 2 which provides:
"The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever nature and for any purposes shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized."
An exception to the said rule is a warrantless search incidental to a lawful arrest for dangerous weapons
or anything which may be used as proof of the commission of an offense. 11 It may extend beyond the person
of the one arrested to include the premises or surroundings under his immediate control. In this case, the ten
cellophane bags of marijuana seized at petitioner's house after his arrest at Pandacan and Zamora Streets do
not fall under the said exceptions.
In the case of People v. Lua, 12 this Court held:
"As regards the brick of marijuana found inside the appellant's house, the trial court
correctly ignored it apparently in view of its inadmissibility. While initially the arrest as well as
the body search was lawful, the warrantless search made inside the appellant's house became
unlawful since the police operatives were not armed with a search warrant. Such search cannot
fall under "search made incidental to a lawful arrest," the same being limited to body search
and to that point within reach or control of the person arrested, or that which may furnish him
with the means of committing violence or of escaping. In the case at bar, appellant was
admittedly outside his house when he was arrested. Hence, it can hardly be said that the inner
portion of his house was within his reach or control."
The articles seized from petitioner during his arrest were valid under the doctrine of search made
incidental to a lawful arrest. The warrantless search made in his house, however, which yielded ten cellophane
bags of marijuana became unlawful since the police officers were not armed with a search warrant at the time.
Moreover, it was beyond the reach and control of petitioner.
In sum, this Court finds petitioner Rodolfo Espano guilty beyond reasonable doubt of violating Article
II, Section 8, in relation to Section 2 (e-L) (I) of Republic Act No. 6425, as amended. Under the said provision,
the penalty imposed is six years and one day to twelve years and a fine ranging from six thousand to twelve
thousands pesos. With the passage of Republic Act No. 7659, with took effect on December 31, 1993, the
imposable penalty shall now depend on the quantity of drugs recovered. Under the provisions ofRepublic Act
No. 7659, Section 20, and as interpreted in People v. Simon 13 and People v.Lara, 14 if the quantity of marijuana
involved is less than 750 grams, the imposable penalty ranges from prision correccional to reclusion temporal.
Taking into consideration that petitioner is not a habitual delinquent, the amendatory provision is favorable to
him and the quantity of marijuana involved is less than 750 grams, the penalty imposed under Republic Act No.
7659 should be applied. There being no mitigating nor aggravating circumstances, the imposable penalty shall
be prision correccional in its medium period. Applying the Indeterminate Sentence Law, the maximum penalty
shall be taken from the medium period of prision correccional,which is two (2) years, four (4) months and one
(1) day to four (4) years and two (2) months, while the minimum shall be taken from the penalty next lower in
degree, which is one (1) month and one (1) day six (6) months of arresto mayor.
WHEREFORE, the instant petition is hereby DENIED. The decision of the Court of Appeals in C.A.-G.R.
CR No. 13976 dated January 16, 1995 is AFFIRMED with the MODIFICATION that petitioner Rodolfo Espano is
sentenced to suffer an indeterminate penalty of TWO (2) months and ONE (1) day of arresto mayor,as minimum
of TWO (2) years, FOUR (4) months and ONE (1) day of prision correccional,as minimum.
SO ORDERED.
Narvasa, C .J .,Kapunan and Purisima, JJ ., concur. aisadc

Footnotes

1.Penned by Associate Justice Ramon Mabutas, Jr.;De Pano and Luna, JJ.,concurring.

2.Records, p. 1.

3.Ibid.,p. 7.

4.Id.,p. 16.

5.Id.,pp. 79-81.

6.People v. Atad,266 SCRA 262, (1997).

7.252 SCRA 135 (1996).

8.Citing People v. Ponsica,230 SCRA 87 (1994).

9.Velasco, supra.,citing People v. Angeles,218 SCRA 352 (1993);People v. Gireng,241 SCRA 11 (1995);People v. de los Reyes,229 SCRA 439 (1994).

10.Ibid.,citing People v. Javier,170 SCRA 763 (1989).

11.Rule 126, Section 12 of the Rules of Court.

12.256 SCRA 539 (1996).

13.234 SCRA 555 (1994).

14.236 SCRA 291 (1994).

||| (Espano v. Court of Appeals, G.R. No. 120431, [April 1, 1998], 351 PHIL 798-809)
THIRD DIVISION

[G.R. No. 109633. July 20, 1994.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NORMANDO DEL ROSARIO Y LOPEZ, accused-appellant.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; IN CASE AT BAR; FAILURE TO PRESENT POSEUR-BUYER FATAL TO PROSECUTION'S CASE. — Foremost among the inadequacies of the
prosecution is its failure to call to the witness stand PO1 Verando Luna, the alleged poseur-buyer. There is, thus, a total absence of evidence to establish the purported sale of shabu by
accused-appellant to Venerando Luna, the supposed poseur-buyer. The omission to present the poseur-buyer casts serious doubts that an illegal sale of a dangerous drug actually took place.
The trial court gave much weight to the testimonies of the police members of the buy-bust operation. However, the prosecution did not present as witness the supposed poseur-buyer. Such
omission casts serious doubt on appellant's guilt because without the testimony of the poseur-buyer, there is not convincing evidence to show that appellant sold marijuana. The testimonies
of the rest of the buy-bust operation are hearsay in view of the fact that the poseur-buyer was never presented at the trial. There was even no testimony that when the accused-appellant
handed the stuff to the poseur-buyer that the latter in turn handed the marked money. The failure of the prosecution to present the alleged buyer of the marijuana was a fatal flaw in the case
against the accused.(People vs. Fulgarillas, 212 SCRA 76, 80 [1992]) The testimony of prosecution witness PO3 Rogelio Francisco that Veneracion Luna, the alleged poseur-buyer, bought
shabu from accused-appellant was derived solely from what Luna supposedly told him (pp. 19-20, tsn., December 11, 1991) and, therefore, is patently hearsay evidence, without any
evidentiary weight whatsoever. Likewise, the statements of prosecution witnesses Policemen Reynaldo de la Cruz, Raymundo Untiveros, and Eduardo Novera, Jr. as to the alleged sale of
shabu are hearsay, without weight, as all of them were not present during the alleged sale.

2. ID.; ID.; CREDIBILITY OF WITNESSES; IN CASE AT BAR, PROSECUTION'S VERSION OF "BUY-BUST" OPERATION HIGHLY INCREDIBLE. — According to the version of the
prosecution, during the alleged buy-bust operation, accused-appellant handed over to Veneracion Luna, the alleged poseur-buyer, a quantity of shabu, and Luna in turn paid accused-
appellant a marked 100 bill and then returned to the police station and informed the raiding team that he had already bought the shabu from accused-appellant. Thereupon, the raiding team
proceeded to the house of accused-appellant to implement the search warrant. The version of the prosecution is highly incredible. The record is devoid of any reason why the police officers
did not make any attempt to arrest accused-appellant at the time he allegedly sold the shabu to Veneracion Luna who was accompanied by another police officer. That was the opportune
moment to arrest accused-appellant. The version foisted by the prosecution upon this Court is contrary to human experience in the ordinary course of human conduct. The usual procedure
in a buy-bust operation is for the police officers to arrest the pusher of drugs at the very moment he hands over the dangerous drug to the poseur-buyer. That is the every reason why such a
police operation is called a "buy-bust" operation. The police poseur-buyer "buys" dangerous drugs from the pusher and "bust" (arrests) him the moment the pusher hands over the drug to
the police officer.

3. ID.; ID.; WEIGHT AND SUFFICIENCY OF EVIDENCE; IN CASE AT BAR, PRESUMPTION OF INNOCENCE IN FAVOR OF ACCUSED NOT OVERTHROWN. — The manner the
police officers conducted the subsequent and much-delayed search is highly irregular. Upon barging into the residence of accused-appellant, the police officers found him lying down and
they immediately arrested and detained him in the living room while they searched the other parts of the house. Although they fetched two persons to witness the search, the witnesses were
called in only after the policemen had already entered accused-appellant's residence (pp. 22-23, tsn, December 11, 1991), and, therefore, the policemen had more than ample time to plant
the shabu. Corollary to the constitutional precept that, in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved (Sec. 14(2), Article III, Constitution of
the Republic of the Philippines) is the rule that in order to convict an accused the circumstances of the case must exclude all and each and every hypothesis consistent with his innocence
(People vs. Tanchoco; 76 Phil. 463 [1946]; People vs. Constante, 12 SCRA 653 [1964];People vs. Jara, 144 SCRA 516 [1986]). The facts of the case do not rule out the hypothesis that accused-
appellant is innocent.

4. ID.; CRIMINAL PROCEDURE; JUDGMENT; ACCUSED CANNOT BE CONVICTED OF CRIME NOT CHARGED IN THE INFORMATION. — Accused-appellant cannot be convicted
of possession of the shabu contained in a canister and allegedly seized at his house, for the charge against him was for selling shabu with the information alleging that the "accused, without
legal authority did Hydrocholoride." Sale is totally different from possession. Article 1458 of the Civil Code defines sale as a contract whereby "one of the contracting parties obligates himself
to transfer the ownership of and to deliver a determinate thing, and the other to pay therefor a price certain in money or its equivalent", while "possession is the holding of a thing or the
enjoyment of a right" as defined by Article 523 of the Civil Code. Accused-appellant cannot be convicted of a crime which is not charged in the information for to do so would deny him the
due process of law (People vs. Despavellador, 2 SCRA 205 [1961]; People vs. Mori, 55 SCRA 382 [1974]).

5. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES; EXCLUSION IN EVIDENCE OF ILLEGALLY SEIZED ARTICLES. —
The search warrant implemented by the raiding party authorized only the search and seizure of ".. the described quantity of Methamphetamine Hydrochloride commonly known as shabu
and its paraphernalia" (Exh. O, p. 50, original record). Thus, the raiding party was authorized to seize only shabu and paraphernalia for the use thereof and no other. A search warrant is not a
sweeping authority empowering a raiding party to undertake a fishing expedition to seize and confiscate any and all kinds of evidence or articles relating to a crime. The Constitution itself
(Section 2, Article III) and the Rules of Court (Section 3, Rule 126) specifically mandate that the search warrant must particularly describe the things to be seized. Thus, the search warrant was
no authority for the police officers to seize the firearm which was not mentioned, much less described with particularly, in the search warrant. Neither may it be maintained that the gun was
seized in the course of an arrest, for as earlier observed, accused-appellant's arrest was far from regular and legal. Said firearm, having been illegally seized, the same is not admissible in
evidence (Stonehill vs. Diokno, 20 SCRA 383 [1967]). The Constitution expressly ordains the exclusion in evidence of illegally seized articles. Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any purpose in any proceeding.(Section 3 [2], Article III, Constitution of the Republic of the Philippines).With the exclusion in evidence of the
illegally seized firearm, there is, therefore, a total absence of evidence to support the charge of illegal possession of firearm, against accused-appellant. The same way may be said of the
charge of illegal possession of ammunition.

DECISION

MELO, J p:

Normando del Rosario was charged before Branch 17 of the Regional Trial Court of the Fourth Judicial
Region stationed in Cavite City with Illegal Possession of Firearm and Ammunitions in Criminal Case No. 236-
91 and Illegal Sale of Regulated Drugs in Criminal Case No. 237-91, under two informations reading,
respectively, as follows:
Criminal Case No. 236-91
That on or about September 4, 1991, in the City of Cavite, Republic of the Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, without legal
authority, did, then and there, willfully, unlawfully, feloniously and knowingly have in his
possession and control a homemade (paltik) caliber 22 revolver with three (3) live
ammunition. cdrep
Contrary to law.
Criminal Case No. 237-91
That on or about September 4, 1991, in the City of Cavite, Republic of the Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, without legal
authority, did, then and there, willfully, unlawfully, feloniously and knowingly sell to a poseur
buyer and aluminum foil containing Methamphetamine Hydrochloride also known as "Shabu",
a regulated drug.
Contrary to law.
(pp. 20-21, Rollo.)
Upon arraignment, accused-appellant pleaded not guilty to both charges, and after joint trial of the two
cases, the court a quo rendered a decision, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the Court finds the accused Normando del
Rosario y Lopez guilty beyond reasonable doubt in the above-entitled cases and he is hereby
sentenced to undergo imprisonment: in Crim. Case No. 236-91 for Violation of P.D. 1866 of
Seventeen (17) years, Four (4) months and One (1) day of reclusion temporal, as minimum to
Twenty (20) years of reclusion temporal, as maximum and in Crim. Case No. 237-91 for a
Violation of Section 15, Article III of Republic Act 6425, as amended of life imprisonment and
to pay a fine of P30,000.00, without subsidiary imprisonment in case of insolvency and to pay
the costs in both cases.
The shabu, the One Hundred Peso bill and other paraphernalia are hereby ordered
confiscated in favor of the government.
(pp. 28-29, Rollo.)
From said decision, the instant appeal has been interposed.
The prosecution's version of the case, as set forth in appellee's brief, is as follows:
Upon application of SPO3 Raymundo Untiveros of the Philippine National Police (PNP)
of Cavite City, Regional Trial Court Judge Arturo de Guia issued in the morning of September
4, 1991 a search warrant (Exh. T, p. 50, Rec. Crim. Case No. 237-91) authorizing the search and
seizure of an "undetermined quantity of Methamphetamine Hydrocholoride commonly
known as shabu and its paraphernalias" in the premises of appellant's house located at 828 R.
Basa St., San Roque, Cavite City. However, the search warrant was not implemented
immediately due to the lack of police personnel to form the raiding team (pp. 4, 7, tsn., Feb. 4,
1992). cdrep
At about 9 o'clock in the evening of that day, a raiding team was finally organized.
SPO3 Untiveros headed the raiding team with PO3 Rogelio Francisco, SPO1 Eduardo Novero,
SPO3 Reynaldo de la Cruz, PO1 Carlito Barbuco, PO3 Onrubio and SPO2 Villegas as members
(pp. 5, 10, tsn., Feb. 4, 1992; p. 7, tsn., Dec. 11, 1991).
In the final briefing of the raiding team at the police station, it was agreed upon that
PO1 Venerando Luna will buy shabu from appellant and after his return from appellant's
house, the raiding team will implement the search warrant (p. 10, tsn., Feb. 4, 1992; p. 17-18,
tsn., Dec. 11, 1991). A marked money consisting of a P100 bill bearing serial no. PQ 329406
(Exh. P, p. 51, Rec.) was given by the Station Commander to PO1 Luna and entered in the police
logbook (p. 12, Feb. 4, 1992). PO1 Luna with a companion proceeded to appellant's house to
implement the search warrant. Barangay Capt. Maigue, Norma del Rosario and appellant
witnessed the search at appellant's house (p. 10, tsn., Dec. 11, 1991). SPO3 de la Cruz and PO3
Francisco found a black canister containing shabu, an aluminum foil, plastik .22 caliber (Exh.
O) atop the TV set, three used ammunition in a cup and three wallets (Exhs. Q, R, S), one
containing the marked money (Exh. P; pp. 11-12, tsn., Dec. 11, 1991). SPO1 Novero found
inside a show box aluminum foils, napkins and a burner (p. 9, tsn., March 11, 1992). SPO3 de la
Cruz turned over the wallet containing the marked money to PO3 Onrubio (p. 8, tsn., Jan. 7,
1992). The seized items were photographed thereat by Fred Agana and then turned over to
PO3 Onrubio (pp. 8, 32, tsn., Jan. 7, 1992). SPO3 Untiveros issued receipts (Exhs. V, V-1, pp. 53-
54, Rc.) for the seized items with Barangay Capt. Maigue and appellant's sister Norma as
signing witnesses. He also made a return (Exh. U, p. 52, Rec.) of the seized items to the court
(pp. 11-155, tsn., Feb. 18, 1992).
At police station, the seized items were taped and initialed by SPO3 de la Cruz (p. 33,
tsn., Jan. 7, 1992). The next day, SPO4 Pilapil, through PO1 Barbuco, forwarded to NBI
Forensic Chemist Mary Ann Aranas for laboratory analysis the aluminum foil (Exhs. A, J, pp.
37, 46, Rec.) containing suspected shabu bought by PO1 Luna from appellant in the buy-bus
operation as well as the aluminum foils (Exhs. G, K, pp. 43, 47, Rec.) containing suspected
marijuana which were confiscated by virtue of the search warrant.
The findings of NBI Forensic Chemist Aranas disclosed that all the specimen submitted
to her for laboratory analysis by SPO1 Pilapil, thru PO1 Barbuco, gave positive results for
Methamphetamine Hydrocholoride (pp. 2-9, tsn., Dec. 3, 1991; Exh. B, C, H, I, pp. 38, 39, 44,
45, Rec.).
(pp. 102-105, Rollo.)
Carefully evaluation the evidence on record, we believe that the prosecution has failed to prove the guilt
of accused-appellant. Much is to be desired in the manner the police authorities effected the arrest of accused-
appellant and the same observation may be made with regard to the way the prosecution conducted its
case. Cdpr
Foremost among the inadequacies of the prosecution is its failure to call to the witness stand PO1
Verando Luna, the alleged poseur-buyer. There is, thus, a total absence of evidence to establish the purported
sale of shabu by accused-appellant to Venerando Luna, the supposed poseur-buyer. The omission to present
the poseur-buyer casts serious doubts that an illegal sale of a dangerous drug actually took place.
The trial court gave much weight to the testimonies of the police members of the buy-
bust operation. However, the prosecution did not present as witness the supposed poseur-
buyer. Such omission casts serious doubt on appellant's guilt because without the testimony
of the poseur-buyer, there is not convincing evidence to show that appellant sold marijuana.
The testimonies of the rest of the buy-bust operation are hearsay in view of the fact that the
poseur-buyer was never presented at the trial. There was even no testimony that when the
accused-appellant handed the stuff to the poseur-buyer that the latter in turn handed the
marked money. The failure of the prosecution to present the alleged buyer of the marijuana
was a fatal flaw in the case against the accused.
(People vs. Fulgarillas, 212 SCRA 76, 80 [1992])
The testimony of prosecution witness PO3 Rogelio Francisco that Veneracion Luna, the alleged poseur-
buyer, bought shabu from accused-appellant was derived solely from what Luna supposedly told him (pp. 19-
20, tsn., December 11, 1991) and, therefore, is patently hearsay evidence, without any evidentiary weight
whatsoever. Likewise, the statements of prosecution witnesses Policemen Reynaldo de la Cruz, Raymundo
Untiveros, and Eduardo Novera, Jr. as to the alleged sale of shabu are hearsay, without weight, as all of them
were not present during the alleged sale.
According to the version of the prosecution, during the alleged buy-bust operation, accused-appellant
handed over to Veneracion Luna, the alleged poseur-buyer, a quantity of shabu, and Luna in turn paid accused-
appellant a marked 100 bill and then returned to the police station and informed the raiding team that he had
already bought the shabu from accused-appellant. Thereupon, the raiding team proceeded to the house of
accused-appellant to implement the search warrant. The version of the prosecution is highly incredible. The
record is devoid of any reason why the police officers did not make any attempt to arrest accused-appellant at
the time he allegedly sold the shabu to Veneracion Luna who was accompanied by another police officer. That
was the opportune moment to arrest accused-appellant. The version foisted by the prosecution upon this Court
is contrary to human experience in the ordinary course of human conduct. The usual procedure in a buy-bust
operation is for the police officers to arrest the pusher of drugs at the very moment he hands over the
dangerous drug to the poseur-buyer. That is the every reason why such a police operation is called a "buy-bust"
operation. The police poseur-buyer "buys" dangerous drugs from the pusher and "bust" (arrests) him the
moment the pusher hands over the drug to the police officer.
We thus entertain serious doubts that the shabu contained in a small canister was actually seized or
confiscated at the residence of accused-appellant. in consequence, the manner the police officers conducted
the subsequent and much-delayed search is highly irregular. Upon barging into the residence of accused-
appellant, the police officers found him lying down and they immediately arrested and detained him in the
living room while they searched the other parts of the house. Although they fetched two persons to witness
the search, the witnesses were called in only after the policemen had already entered accused-appellant's
residence (pp. 22-23, tsn, December 11, 1991), and, therefore, the policemen had more than ample time to
plant the shabu. Corollary to the constitutional precept that, in all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved (Sec. 14(2), Article III, Constitution of the Republic of the
Philippines) is the rule that in order to convict an accused the circumstances of the case must exclude all and
each and every hypothesis consistent with his innocence (People vs. Tanchoco; 76 Phil. 463 [1946]; People vs.
Constante, 12 SCRA 653 [1964];People vs. Jara, 144 SCRA 516 [1986]). The facts of the case do not rule out the
hypothesis that accused-appellant is innocent.
At any rate, accused-appellant cannot be convicted of possession of the shabu contained in a canister
and allegedly seized at his house, for the charge against him was for selling shabu with the information alleging
that the "accused, without legal authority did . . . sell to a poseur buyer an aluminum foil containing
Methamphetamine Hydrocholoride . . .". Sale is totally different from possession. Article 1458 of the Civil Code
defines sale as a contract whereby "one of the contracting parties obligates himself to transfer the ownership
of and to deliver a determinate thing, and the other to pay therefor a price certain in money or its equivalent",
while "possession is the holding of a thing or the enjoyment of a right" as defined by Article 523 of the Civil
Code. Accused-appellant cannot be convicted of a crime which is not charged in the information for to do so
would deny him the due process of law (People vs. Despavellador, 2 SCRA 205 [1961]; People vs. Mori, 55 SCRA
382 [1974]). LLpr
Neither can accused-appellant be convicted of illegal possession of firearm and ammunition. The search
warrant implemented by the raiding party authorized only the search and seizure of ". . . the described quantity
of Methamphetamine Hydrochloride commonly known as shabu and its paraphernalia" (Exh. O, p. 50, original
record). Thus, the raiding party was authorized to seize only shabu and paraphernalia for the use thereof and
no other. A search warrant is not a sweeping authority empowering a raiding party to undertake a fishing
expedition to seize and confiscate any and all kinds of evidence or articles relating to a crime. The Constitution
itself (Section 2, Article III) and the Rules of Court (Section 3, Rule 126) specifically mandate that the search
warrant must particularly describe the things to be seized. Thus, the search warrant was no authority for the
police officers to seize the firearm which was not mentioned, much less described with particularly, in the
search warrant. Neither may it be maintained that the gun was seized in the course of an arrest, for as earlier
observed, accused-appellant's arrest was far from regular and legal. Said firearm, having been illegally seized,
the same is not admissible in evidence (Stonehill vs. Diokno, 20 SCRA 383 [1967]). The Constitution expressly
ordains the exclusion in evidence of illegally seized articles.
Any evidence obtained in violation of this or the preceding section shall be inadmissible
for any purpose in any proceeding.
(Section 3 [2], Article III, Constitution of the Republic of the Philippines).
With the exclusion in evidence of the illegally seized firearm, there is, therefore, a total absence of
evidence to support the charge of illegal possession of firearm, against accused-appellant. Cdpr
The same way may be said of the charge of illegal possession of ammunition.
WHEREFORE, the decision appealed from is hereby REVERSED and accused-appellant is hereby
ACQUITTED in Criminal Case No. 236-91 and Criminal Case No. 237-91.
The immediate release of accused-appellant is hereby ordered unless there exists of pending valid cause
against him. Cdpr
The shabu, the marked P100 bill, firearm, and ammunition are hereby ordered confiscated in favor of
the government.
SO ORDERED.
Feliciano, Bidin, Romero and Vitug, JJ., concur.
||| (People v. Del Rosario y Lopez, G.R. No. 109633, [July 20, 1994], 304 PHIL 418-428)
EN BANC

[G.R. No. 81567. July 9, 1990.]

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA. MANOLITA O. UMIL, and
NICANOR P. DURAL, FELICITAS V. SESE, petitioners, vs. FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO, BRIG. GEN.
ALEXANDER AGUIRRE, respondents.

[G.R. Nos. 84581-82. July 9, 1990.]

AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners, vs. GEN. RENATO DE VILLA and GEN. RAMON MONTANO, respondents.

[G.R. Nos. 84583-84. July 9, 1990.]

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T. ANONUEVO and RAMON CASIPLE. DOMINGO T. ANONUEVO and RAMON
CASIPLE, petitioners, vs. HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARINO, LT. COL. REX D. PIAD, T/ SGT. CONRADO DE TORRES,
S/SGT. ARNOLD DURIAN, and Commanding Officer, PC-INP Detention Center, Camp Crame, Quezon City, respondents.

[G.R. No. 83162. July 9, 1990.]

IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A. OCAYA AND DANNY RIVERA. VIRGILIO A. OCAYA, petitioner, vs. BRIG. GEN.
ALEXANDER AGUIRRE, COL., HERCULES CATALUNA, COL. NESTOR MARIANO,respondents.
[G.R. No. 85727. July 9, 1990.]

IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF: DEOGRACIAS ESPIRITU, petitioner, vs. BRIG. GEN. ALFREDO S. LIM, COL. RICARDO
REYES,respondents.

[G.R. No. 86332. July 9, 1990.]

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B. NAZARENO, ALFREDO NAZARENO, petitioner, vs. THE STATION COMMANDER OF
THE MUNTINGLUPA POLICE STATION, Muntinglupa, Metro Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and P/SGT.
MAURO AROJADO, respondents.

Efren H. Mercado for petitioners in G.R. No. 81567.

Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82.

Ramon S. Esguerra Barbara Anne C. Migallos and Agripino G. Morga for petitioners in G.R. Nos. 84583-84.

Efren H. Mercado for petitioner in G.R. No. 83162.

Banzuela, Flores, Miralles, Raneses, Sy, Taquio & Associates for petitioner in G.R. No. 85727.

Josefina G. Campbell-Castillo for petitioners in G.R. No. 86332.

The Solicitor General for the respondents.

DECISION

PER CURIAM p:

These are eight (8) petitions for habeas corpus filed before the Court, which have been consolidated because
of the similarity of issues raised, praying for the issuance of the writ of habeas corpus, ordering the respective
respondents to produce the bodies of the persons named therein and to explain why they should not be set at
liberty without further delay.
In their respective Returns, the respondents uniformly assert that the privilege of the writ of habeas corpus is
not available to the petitioners as they have been legally arrested and are detained by virtue of valid
informations filed in court against them. LexLib
The petitioners counter that their detention is unlawful as their arrests were madewithout warrant and, that no
preliminary investigation was first conducted, so that the informations filed against them are null and void.
The Court has carefully reviewed the contentions of the parties in their respective pleadings, and it finds that
the persons detained have not been illegally arrested nor arbitrarily deprived of their constitutional right to
liberty, and that the circumstances attending these cases do not warrant their release on habeas corpus.
The arrest of a person without a warrant of arrest or previous complaint is recognized in law. The occasions or
instances when such an arrest may be effected are clearly spelled out in Section 5, Rule 113 of the Rules of
Court, as amended, which provides:
"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 en 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."
An arrest without a warrant of arrest, under Section 5 paragraphs (a) and (b) of Rule 113 of the Rules of Court,
as amended, is justified when the person arrested is caught inflagranti delicto, viz., in the act of committing an
offense; or when an offense has just been committed and the person making the arrest has personal knowledge
of the facts indicating that the person arrested has committed it. The rationale behind lawful arrests, without
warrant, was stated by this Court in the case of People vs. Kagui Malasugui 1thus:
"To hold that no criminal can, in any case, be arrested and searched for the evidence and
tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy
of the shrewdest, the most expert, and the most depraved of criminals, facilitating their
escape in many instances."
The record of the instant cases would show that the persons in whose behalf these petitions for habeas corpus
have been filed, had freshly committed or were actually committing an offense, when apprehended, so that
their arrests without a warrant were clearly justified, and that they are, further, detained by virtue of valid
informations filed against them in court.
A brief narration of the facts and events surrounding each of the eight (8) petitions is in order.
I
In G.R. No. 81567 (Umil vs. Ramos), the record shows that, on 1 February 1988, the Regional Intelligence
Operations Unit of the Capital Command (RIOU-CAPCOM) received confidential information about a member of
the NPA Sparrow Unit (liquidation squad) being treated for a gunshot wound at the St. Agnes Hospital in Roosevelt
Avenue, Quezon City. Upon verification, it was found that the wounded person, who was listed in the hospital
records as Ronnie Javelon, is actually Rolando Dural, a member of the NPA liquidation squad, responsible for the
killing of two (2) CAPCOM soldiers the day before, or on 31 January 1988, in Macanining Street, Bagong Barrio,
Caloocan City. In view of this verification, Rolando Dural was transferred to the Regional Medical Services of the
CAPCOM, for security reasons. While confined thereat, or on 4 February 1988, Rolando Dural was positively
identified by eyewitnesses as the gunman who went on top of the hood of the CAPCOM mobile patrol car, and fired
at the two (2) CAPCOM soldiers seated inside the car identified as T/Sgt. Carlos Pabon and CIC Renato Manligot.
As a consequence of this positive identification, Rolando Dural was referred to the Caloocan City Fiscal who
conducted an inquest and thereafter filed with the Regional Trial Court of Caloocan City an information
charging Rolando Dural alias Ronnie Javelon with the crime of "Double Murder with Assault Upon Agents of
Persons in Authority." The case was docketed therein as Criminal Case No. C-30112 and no bail was
recommended. On 15 February 1988, the information was amended to include, as defendant, Bernardo Itucal,
Jr. who, at the filing of the original information, was still unidentified. cdphil
Meanwhile, on 6 February 1988, a petition for habeas corpus was filed with this Court on behalf of Roberto Umil,
Rolando Dural, and Renato Villanueva. The Court issued the writ of habeas corpus on 9 February 1988 and the
respondents filed a Return of the Writ on 12 February 1988. Thereafter, the parties were heard on 15 February
1988.
On 26 February 1988, however, Roberto Umil and Renato Villanueva posted bail before the Regional Trial Court
of Pasay City where charges for violation of the Anti-Subversion Act had been filed against them, and they
were accordingly released. The petition for habeas corpus, insofar as Umil and Villanueva are concerned, is now
moot and academic and is accordingly dismissed, since the writ of habeas corpus does not lie in favor of an
accused in a criminal case who has been released on bail. 2
As to Rolando Dural,it clearly appears that he was not arrested while in the act of shooting the two (2) CAPCOM
soldiers aforementioned. Nor was he arrested just after the commission of the said offense for his arrest came a
day after the said shooting incident. Seemingly, his arrest without warrant is unjustified.
However, Rolando Dural was arrested for being a member of the New Peoples Army (NPA), an outlawed
subversive organization. Subversion being a continuing offense, the arrest of Rolando Dural without warrant is
justified as it can be said that he was committing an offense when arrested. The crimes of rebellion, subversion,
conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in
connection therewith constitute direct assaults against the State and are in the nature of continuing crimes. As
stated by the Court in an earlier case:
"From the facts as above-narrated, the claim of the petitioners that they were initially arrested
illegally is, therefore, without basis in law and in fact. The crimes of insurrection or rebellion,
subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses
committed in the furtherance, on the occasion thereof, or incident thereto, or in connection
therewith underPresidential Proclamation No. 2045, are all in the nature of continuing
offenses which set them apart from the common offenses, aside from their essentially
involving a massive conspiracy of nationwide magnitude. Clearly then, the arrest of the herein
detainees was well within the bounds of the law and existing jurisprudence in our jurisdiction.

2. The arrest of persons involved in the rebellion whether as its fighting armed elements, or for
committing non-violent acts but in furtherance of the rebellion, is more an act of capturing
them in the course of an armed conflict, to quell the rebellion, than for the purpose of
immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not
follow the usual procedure in the prosecution of offenses which requires the determination by
a judge of the existence of probable cause before the issuance of a judicial warrant of arrest
and the granting of bail if the offense is bailable. Obviously, the absence of a judicial warrant
is no legal impediment to arresting or capturing persons committing overt acts of violence
against government forces, or any other milder acts but equally in pursuance of the rebellious
movement. The arrest or capture is thus impelled by the exigencies of the situation that
involves the very survival of society and its government and duly constituted authorities. If
killing and other acts of violence against the rebels find justification in the exigencies of armed
hostilities which is of the essence of waging a rebellion or insurrection, most assuredly so in
case of invasion, merely seizing their persons and detaining them while any of these
contingencies continue cannot be less justified. . . ." 3
The record, moreover, shows that the criminal case filed against Rolando Dural andBernardo Itucal, Jr. for
"Double Murder, etc." was tried in the court below and at the conclusion thereof, or on 17 August 1988, Rolando
Dural and Bernardo Itucal, Jr. were found guilty of the charge and sentenced accordingly. Rolando Dural is now
serving the sentence imposed upon him by the trial court. Thus, the writ of habeas corpus is no longer available
to him. For, as held in the early case of U.S. vs. Wilson: 4
"In this case, whatever may be said about the manner of his arrest, the fact remains that the
defendant was actually in court in the custody of the law on March 29, when a complaint
sufficient in form and substance was read to him. To this he pleaded not guilty. The trial
followed, in which, and in the judgment of guilty pronounced by the court, we find no error.
Whether, if there were irregularities in bringing him personally before the court, he could have
been released on a writ of habeas corpus or now has a civil action for damages against the
person who arrested him we need not inquire. It is enough to say that such irregularities are
not sufficient to set aside a valid judgment rendered upon a sufficient complaint and after a
trial free from error."
II
In G.R. Nos. 84581-82 (Roque vs. De Villa), the arrest of Amelia Roque and Wilfredo Buenaobra, without warrant,
is also justified. When apprehended at the house of Renato Constantino in Marikina Heights, Marikina, Metro
Manila, Wilfredo Buenaobra admittedthat he was an NPA courier and he had with him letters to Renato
Constantino and other members of the rebel group. Amelia Roque, upon the other hand, was a member of the
National United Front Commission, in charge of finance, and admitted ownership of subversive documents
found in the house of her sister in Caloocan City. She was also in possession of ammunition and a fragmentation
grenade for which she had no permit or authority to possess. LLpr
The record of these two (2) cases shows that on 27 June 1988, one Rogelio Ramos y Ibanes, a member of the
NPA, who had surrendered to the military authorities, told military agents about the operations of the
Communist Party of the Philippines (CPP) and the New Peoples Army (NPA) in Metro Manila. He identified
some of his former comrades as "Ka Mong", a staff member of the Communications and Transportation
Bureau; "Ka Nelia" a staff member in charge of finance; "Ka Miller", an NPA courier from Sorsogon and Lopez,
Quezon; "Ka Ted", and "Ka Totoy". He also pointed to a certain house occupied by Renato Constantino located
in the Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro Manila, which is used as a safehouse
of the National United Front Commission (NUFC) of the CPP-NPA.
In view of these revelations, the Constantino house was placed under military surveillance and on 12 August
1988, pursuant to a search warrant issued by Judge Eutropio Migrino of the Regional Trial Court of Pasig, a
search of the house was conducted at about 5:00 o'clock in the afternoon, by a combined team of the Criminal
Investigation Service, National Capital District (CIS-NCD) and the Constabulary Security Group (CSG). In the
course of the search, the following articles were found and taken under proper receipt:
a) One (1 ) Colt M1 6A1 long rifle with defaced serial number;
b) One (1) Cal. .380 ACT/9mm Model PPK 8 SN: 260577 & 2605778;
c) Two (2) fragmentation hand grenades;
d) Fifty-six (56) live ammunition for Cal. 5.56mm;
e) Five (5) live ammunition for Cal. .380;
f) One (1) ICOM VHF FM Radio Transceiver SN: 14903
g) One (1) Regulated power supply 220V AC;
h) One (1) Antennae (adjustable);
i) One (1 ) Speaker with cord ALEXAR;
j) Voluminous Subversive documents.
When confronted, Renato Constantino could not produce any permit or authority to possess the firearms,
ammunition, radio and other communications equipment. Hence, he was brought to the CIS Headquarters for
investigation. When questioned, he refused to give a written statement, although he admitted that he was a
staff member of the executive committee of the NUFC and a ranking member of the International Department
of the Communist Party of the Philippines (CPP).
At about 8:00 o'clock in the evening of the same day (12 August 1988), Wilfredo Buenaobra arrived at the house
of Renato Constantino in the Villaluz Compound. When accosted, he readily admitted to the military agents
that he is a regular member of the CPP/NPA and that he went to the place to deliver letters to "Ka Mong",
referring to Renato Constantino, and other members of the rebel group. On further questioning, he also
admitted that he is known as "Ka Miller" and that he was from Barangay San Pedro, Lopez, Quezon. Among
the items taken from him were the following:
(1) Handwritten letter addressed to "Ka Bing & Co. from A & Co." dated August 11, 1988;
(2) Handwritten letter addressed to "ROD from VIC (Schell datre)" dated August 11, 1988;
(3) Handwritten letter addressed to "Suzie" from "Vic", dated August 11, 1988.
Also found in Buenaobra's possession was a piece of paper containing a written but jumbled telephone number
of Florida M. Roque, sister of Amelia Roque alias "Ka Nelia", at 69 Geronimo St., Caloocan City. Acting on the
lead provided as to the whereabouts ofAmelia Roque, the military agents went to the given address the next
day (13 August 1988). They arrived at the place at about 11:00 o'clock in the morning. After identifying
themselves as military agents and after seeking permission to search the place, which was granted, the military
agents conducted a search in the presence of the occupants of the house and the barangay captain of the place,
one Jesus D. Olba.
The military agents found the place to be another safehouse of the NUFC/CPP. They found ledgers, journals,
vouchers, bank deposit books, folders, computer diskettes, and subversive documents as well as live
ammunition for a .38 SPL Winchester, 11 rounds of live ammunition for a cal. .45, 19 rounds of live ammunition
for an M16 Rifle, and a fragmentation grenade. As a result, Amelia Roque and the other occupants of the house
were brought to the PC-CIS Headquarters at Camp Crame, Quezon City, for investigation. Amelia
Roque admitted to the investigators that the voluminous documents belonged to her and that the other
occupants of the house had no knowledge of them. As a result, the said other occupants of the house were
released from custody.
On 15 August 1988, Amelia Roque was brought to the Caloocan City Fiscal for inquest after which an
information charging her with violation of PD 1866 was filed with the Regional Trial Court of Caloocan City. The
case is docketed therein as Criminal Case No. C-1196. Another information for violation of the Anti-Subversion
Act was filed against Amelia Roque before the Metropolitan Trial Court of Caloocan City, which is docketed
therein as Criminal Case No. C-150458.
An information for violation of the Anti-Subversion Act was filed against Wilfredo Buenaobra before the
Metropolitan Trial Court of Marikina, Metro Manila. The case is docketed therein as Criminal Case No. 23715.
Bail was set at P4,000.00.
On 24 August 1988, a petition for habeas corpus was filed before this Court on behalf of Amelia Roque and
Wilfredo Buenaobra. At the hearing of the case, however, Wilfredo Buenaobra manifested his desire to stay in
the PC-INP Stockade at Camp Crame, Quezon City. Accordingly, the petition for habeas corpus filed on his
behalf is now moot and academic. Only the petition of Amelia Roque remains for resolution. LLjur
The contention of respondents that petitioners Roque and Buenaobra are officers and or members of the
National United Front Commission (NUFC) of the CPP was not controverted or traversed by said petitioners.
The contention must be deemed admitted.5 As officers and/ or members of the NUFC-CPP, their arrest,
without warrant, was justified for the same reasons earlier stated vis-a-vis Rolando Dural. The arrest without
warrant of Roque was additionally justified as she was, at the time of apprehension, in possession of
ammunitions without license to possess them.
III
In G.R. Nos. 84583-84 (Anonuevo vs. Ramos), the arrest of Domingo Anonuevo andRamon Casiple, without
warrant, is also justified under the rules. Both are admittedly members of the standing committee of the NUFC
and, when apprehended in the house of Renato Constantino, they had a bag containing subversive materials,
and both carried firearms and ammunition for which they had no license to possess or carry.
The record of these two (2) cases shows that at about 7:30 o'clock in the evening of 13 August 1988, Domingo
T. Anonuevo and Ramon Casiple arrived at the house of Renato Constantino at Marikina Heights, Marikina,
which was still under surveillance by military agents. The military agents noticed bulging objects on their waist
lines. When frisked, the agents found them to be loaded guns. Anonuevo and Casiple were asked to show their
permit or license to possess or carry firearms and ammunition, but they could not produce any. Hence, they
were brought to PC Headquarters for investigation. Found in their possession were the following articles:

a) Voluminous subversive documents


b) One (1) Cal. 7.65 MOD 83 2C Pistol SN: 001412 with one (1) magazine for Cal. 7.65 containing
ten (10) live ammunition of same caliber;
c) One (1) Cal. 7.65 Pietro Barreta SN; A18868 last digit tampered with one (1) magazine
containing five (5) live ammunition of same caliber.
At the PC Stockade, Domingo Anonuevo was identified as "KaTed", and Ramon Casiple as "Ka Totoy" of the
CPP, by their comrades who had previously surrendered to the military.
On 15 August 1988, the record of the investigation and other documentary evidence were forwarded to the
Provincial Fiscal at Pasig, Metro Manila, who conducted an inquest, after which Domingo Anonuevo and
Ramon Casiple were charged with violation of Presidential Decree No. 1866 before the Regional Trial Court of
Pasig, Metro Manila. The cases are docketed therein as Criminal Cases Nos. 74386 and 74387, respectively. No
bail was recommended.
On 24 August 1988, a petition for habeas corpus was filed with this Court on behalf of Domingo Anonuevo and
Ramon Casiple, alleging that the said Anonuevo and Casiple were unlawfully arrested without a warrant and
that the informations filed against them are null and void for having been filed without prior hearing and
preliminary investigation. On 30 August 1988, the Court issued the writ of habeas corpus, and after the
respondents had filed a Return of the Writ, the parties were heard.
The petitioners' (Anonuevo and Casiple) claim that they were unlawfully arrested because there was no
previous warrant of arrest, is without merit. The record shows that Domingo Anonuevo and Ramon Casiple
were carrying unlicensed firearms and ammunition in their person when they were apprehended.
There is also no merit in the contention that the informations filed against them are null and void for want of a
preliminary investigation. The filing of an information, without a preliminary investigation having been first
conducted, is sanctioned by the Rules. Sec. 7, Rule 112 of the Rules of Court, as amended, reads:
"Sec. 7. When accused lawfully arrested without a warrant. — When a person is lawfully arrested
without a warrant for an offense cognizable by the Regional Trial Court the complaint or
information may be filed by the offended party, peace officer or fiscal without a preliminary
investigation having been first conducted, on the basis of the affidavit of the offended party
or arresting officer or person.
However, before the filing of such complaint or information, the person arrested may ask for
a preliminary investigation by a proper officer in accordance with this Rule, but he must sign a
waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the
assistance of a lawyer and in case of non-availability of a lawyer, a responsible person of his
choice. Notwithstanding such waiver, he may apply for bail as provided in the corresponding
rule and the investigation must be terminated within fifteen (15) days from its inception.
If the case has been filed in court without a preliminary investigation having been first
conducted, the accused may within five (5) days from the time he learns of the filing of the
information, ask for a preliminary investigation with the same right to adduce evidence in his
favor in the manner prescribed in this Rule."
The petitioners Domingo Anonuevo and Ramon Casiple, however, refused to sign a waiver of the provisions
of Article 125 of the Revised Penal Code, as amended. In the informations filed against them, the prosecutor
made identical certifications, as follows:
"This is to certify that the accused has been charged in accordance with Sec. 7, Rule 112 of the
1985 Rules on Criminal Procedure, that no preliminary investigation was conducted because
the accused has not made and signed a waiver of the provisions of Art. 125 of the Revised Penal
Code, as amended; that based on the evidence presented, there is reasonable ground to
believe that the crime has been committed, and that the accused is probably guilty thereof."
Nor did petitioners ask for a preliminary investigation after the informations had been filed against them in
court. Petitioners cannot now claim that they have been deprived of their constitutional right to due process.
IV
In G.R. No. 83162 (Ocaya vs. Aguirre), the arrest without warrant, of Vicky Ocaya is justified under the Rules,
since she had with her an unlicensed ammunition when she was arrested. The record of this case shows that on
12 May 1988, agents of the PC Intelligence and Investigation of the Rizal PC-INP Command, armed with a
search warrant issued by Judge Eutropio Migrino of the Regional Trial Court of Pasig, Metro Manila, conducted
a search of a house located at Block 19, Phase II, Marikina Green Heights, Marikina, Metro Manila, believed to
be occupied by Benito Tiamson, head of the CPP-NPA. In the course of the search, Vicky Ocaya armed in a car
driven by Danny Rivera. Subversive documents and several rounds of ammunition for a .45 cal. pistol were
found in the car of Vicky Ocaya. As a result, Vicky Ocaya and Danny Rivera were brought to the PC
Headquarters for investigation. When Vicky Ocaya could not produce any permit or authorization to possess
the ammunition, an information charging her with violation ofPD 1866 was filed with the Regional Trial Court
of Pasig, Metro Manila. The case is docketed therein as Criminal Case No. 73447. Danny Rivera, on the other
hand, was released from custody.
On 17 May 1988, a petition for habeas corpus was filed, with this Court on behalf of Vicky Ocaya and Danny
Rivera. It was alleged therein that Vicky Ocaya was illegally arrested and detained, and denied the right to a
preliminary investigation.
It would appear, however, that Vicky Ocaya was arrested in flagranti delicto so that her arrest without a warrant
is justified. No preliminary investigation was conducted because she was arrested without a warrant and she
refused to waive the provisions of Article 125 of the Revised Penal Code, pursuant to Sec. 7, Rule 112 of the
Rules of Court, as amended.
V
The petitioners Vicky Ocaya, Domingo Anonuevo, Ramon Casiple, and Amelia Roque claim that the firearms,
ammunition and subversive documents alleged to have been found in their possession when they were
arrested, did not belong to them, but were "planted" by the military agents to justify their illegal arrest.
The petitioners, however, have not introduced any evidence to support their aforesaid claim. On the other
hand, no evil motive or ill-will on the part of the arresting officers that would cause the said arresting officers
in these cases to accuse the petitioners falsely, has been shown. Besides, the arresting officers in these cases
do not appear to be seekers of glory and bounty hunters for, as counsel for the petitioners Anonuevo and
Casiple say, "there is absolutely nothing in the evidence submitted during the inquest that petitioners are on
the 'AFP Order of Battle with a reward of P15,000.00 on each on their heads.' " 6 On the other hand, as pointed
out by the Solicitor General, the arrest of the petitioners is not a product of a witch hunt or a fishing expedition,
but the result of an in-depth surveillance of NPA safehouses pointed to by no less than former comrades of the
petitioners in the rebel movement. LexLib
The Solicitor General, in his Consolidated Memorandum, aptly observes:
". . . To reiterate, the focal point in the case of petitioners Roque, Buenaobra, Anonuevo and
Casiple, was the lawful search and seizure conducted by the military at the residence of Renato
Constantino at Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro Manila. The
raid at Constantino's residence, was not a witch hunting or fishing expedition on the part of
the military. It was a result of an in-depth military surveillance coupled with the leads provided
by former members of the underground subversive organizations. That raid produced positive
results. To date, nobody has disputed the fact that the residence of Constantino when raided
yielded communication equipment, firearms and ammunitions, as well as subversive
documents.
The military agents working on the information provided by Constantino that other members
of his group were coming to his place, reasonably conducted a 'stake-out' operation whereby
some members of the raiding team were left behind the place. True enough, barely two hours
after the raid and Constantino's arrest, petitioner Buenaobra arrived at Constantino's
residence. He acted suspiciously and when frisked and searched by the military authorities,
found in his person were letters. They are no ordinary letters, as even a cursory reading would
show. Not only that, Buenaobra admitted that he is a NPA courier and was there to deliver the
letters to Constantino.
Subsequently, less than twenty four hours after the arrest of Constantino and Buenaobra,
petitioners Anonuevo and Casiple arrived at Constantino's place. Would it be unreasonable for
the military agents to believe that petitioners Anonuevo and Casiple are among those
expected to visit Constantino's residence considering that Constantino's information was true,
in that Buenaobra did come to that place? Was it unreasonable under the circumstances, on
the part of the military agents, not to frisk and search anyone who should visit the residence
of Constantino, such as petitioners Anonuevo and Casiple? Must this Honorable Court yield to
Anonuevo and Casiple's flimsy and bare assertion that they went to visit Constantino, who was
to leave for Saudi Arabia on the day they were arrested thereat?.
As to petitioner Roque, was it unreasonable for the military authorities to effect her arrest
without warrant considering that it was Buenaobra who provided the leads on her identity? It
cannot be denied that Buenaobra had connection with Roque. Because the former has the
phone number of the latter. Why the necessity of jumbling Roque's telephone number as
written on a piece of paper taken from Buenaobra's possession? Petitioners Roque and
Buenaobra have not offered any plausible reason so far.

In all the above incidents, respondents maintain that they acted reasonably, under the time,
place and circumstances of the events in question, especially considering that at the time of
petitioners' arrest, incriminatory evidence, i.e, firearms, ammunitions and/or subversive
documents were found in their possession.
Petitioners, when arrested, were neither taking their snacks nor innocently visiting a camp,
but were arrested in such time, place and circumstances, from which one can reasonably
conclude that they were up to a sinister plot, involving utmost secrecy and comprehensive
conspiracy.".
VI
In G.R. No. 85727 (Espiritu vs. Lim), the release on habeas corpus of the petitioner Deogracias Espiritu, who is
detained by virtue of an Information for Violation of Article 142 of the Revised Penal Code (Inciting to Sedition)
filed with the Regional Trial Court of Manila, is similarly not warranted.
The record of the case shows that the said petitioner is the General Secretary of the Pinagkaisahang Samahan
ng Tsuper at Operators Nationwide (PISTON), an association of drivers and operators of public service vehicles
in the Philippines, organized for their mutual aid and protection. cdll
Petitioner claims that at about 5:00 o'clock in the morning of 23 November 1988, while he was sleeping in his
home located at 363 Valencia St., Sta. Mesa, Manila, he was awakened by his sister Maria Paz Lalic who told
him that a group of persons wanted to hire his jeepney. When he went down to talk to them, he was
immediately put under arrest. When he asked for the warrant of arrest arrest, the men, headed by Col. Ricardo
Reyes, bodily lifted him and placed him in their owner-type jeepney. He demanded that his sister, Maria Paz
Lalic, be allowed to accompany him, but the men did not accede to his request and hurriedly sped away.
He was brought to Police Station No. 8 of the Western Police District at Blumentritt, Manila where he was
interrogated and detained. Then, at about 9:00 o'clock of the same morning, he was brought before the
respondent Lim and, there and then, the said respondent ordered his arrest and detention. He was thereafter
brought to the General Assignment Section, Investigation Division of the Western Police District under Police
Capt. Cresenciano A. Cabasal where he was detained, restrained and deprived of his liberty. 7
The respondents claim however, that the detention of the petitioner is justified in view of the Information filed
against him before the Regional Trial Court of Manila, docketed therein as Criminal Case No. 88-683-85,
charging him with violation of Art. 142 of the Revised Penal Code (Inciting to Sedition).
The respondents also claim that the petitioner was lawfully arrested without a judicial warrant of arrest since
petitioner when arrested had in fact just committed an offense in that in the afternoon of 22 November 1988,
during a press conference at the National Press Club.
"Deogracias Espiritu through tri-media was heard urging all drivers and operators to go on
nationwide strike on November 23, 1988, to force the government to give in to their demands
to lower the prices of spare parts, commodities, water and the immediate release from
detention of the president of the PISTON (Pinag-isang Samahan ng Tsuper Operators
Nationwide). Further, we heard Deogracias Espiritu taking the place of PISTON president
Medardo Roda and also announced the formation of the Alliance Drivers Association to go on
nationwide strike on November 23, 1988." 8
Policemen waited for petitioner outside the National Press Club in order to investigate him, but he gave the
lawmen the slip. 9 He was next seen at about 5:00 o'clock that afternoon at a gathering of drivers and
sympathizers at the corner of Magsaysay Blvd. and Valencia Street, Sta. Mesa, Manila where he was heard to
say:
"Bukas tuloy ang welga natin, sumagot na ang Cebu at Bicol na kasali sila, at hindi tayo titigil
hanggang hindi binibigay ng gobyerno ni Cory ang gusto nating pagbaba ng halaga ng spare
parts, bilihin at ang pagpapalaya sa ating pinuno na si Ka Roda hanggang sa magkagulo
na." 10 (emphasis supplied).
The police finally caught up with the petitioner on 23 November 1988. He was invited for questioning and
brought to police headquarters after which an Information for violation of Art. 142 of the Revised Penal Code
was filed against him before the Regional Trial Court of Manila. 11
Since the arrest of the petitioner without a warrant was in accordance with the provisions of Rule 113, Sec. 5(b)
of the Rules of Court and that the petitioner is detained by virtue of a valid information filed with the competent
court, he may not be released on habeas corpus. He may, however be released upon posting bail as
recommended. However, we find the amount of the recommended bail (P60,000.00) excessive and we reduce
it to P10,000.00 only.
VII
In G.R. No. 86332 (Nazareno vs. Station Commander), we also find no merit in the submission of Narciso
Nazareno that he was illegally arrested and is unlawfully detained. The record of this case shows that at about
8:30 o'clock in the morning of 14 December 1988, one Romulo Bunye II was killed by a group of men near the
corner of T. Molina and Mendiola Streets in Alabang, Muntinglupa, Metro Manila. One of the suspects in the
killing was Ramil Regala who was arrested by the police on 28 December 1988. Upon questioning, Regala
pointed to Narciso Nazareno as one of his companions in the killing of the said Romulo Bunye II. In view thereof,
the police officers, without warrant, picked up Narciso Nazareno and brought him to the police headquarters
for questioning. Obviously, the evidence of petitioner's guilt is strong because on 3 January 1989, an
information charging Narciso Nazareno, Ramil Regala, and two (2) others, with the killing of Romulo Bunye II
was filed with the Regional Trial Court of Makati, Metro Manila. The case is docketed therein as Criminal Case
No. 731. cdphil
On 7 January 1989, Narciso Nazareno filed a motion to post bail, but the motion was denied by the trial court
in an order dated 10 January 1989, even as the motion to post bail, earlier filed by his co-accused, Manuel
Laureaga, was granted by the same trial court.
On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of Narciso Nazareno and
on 13 January 1989, the Court issued the writ of habeas corpus, returnable to the Presiding Judge of the
Regional Trial Court of Biñan, Laguna, Branch 24, ordering said court to hear the case on 30 January 1989 and
thereafter resolve the petition.
At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the Regional Trial Court of Biñan,
Laguna issued a resolution denying the petition for habeas corpus, it appearing that the said Narciso Nazareno
is in the custody of the respondents by reason of an information filed against him with the Regional Trial Court
of Makati, Metro Manila which had taken cognizance of said case and had, in fact, denied the motion for bail
filed by said Narciso Nazareno (presumably because of the strength of the evidence against him).
The findings of the Presiding Judge of the Regional Trial Court of Biñan, Laguna are based upon the facts and
the law. Consequently, we will not disturb the same. Evidently, the arrest of Nazareno was effected by the
police without warrant pursuant to Sec. 5 (b), Rule 113, Rules of Court after he was positively implicated by his
co-accused Ramil Regala in the killing of Romulo Bunye II; and after investigation by the police authorities. As
held in People vs. Ancheta: 12
"The obligation of an agent of authority to make an arrest by reason of a crime, does not
presuppose as a necessary requisite for the fulfillment thereof, the indubitable existence of a
crime. For the detention to be perfectly legal, it is sufficient that the agent or person in
authority making the arrest has reasonably sufficient grounds to believe the existence of an
act having the characteristics of a crime and that the same grounds exist to believe that the
person sought to be detained participated therein."
VIII
It is to be noted that, in all the petitions here considered, criminal charges have been filed in the proper courts
against the petitioners. The rule is, that if a person alleged to be restrained of his liberty is in the custody of an
officer under process issued by a court or judge, and that the court or judge had jurisdiction to issue the process
or make the order, or if such person is charged before any court, the writ of habeas corpus will not be
allowed. Section 4, Rule 102, Rules of Court, as amended is quite explicit in providing that:
"Sec. 4. When writ is not allowed or discharge authorized. - If it appears that the person alleged
to be restrained of his liberty is in the custody of an officer under process issued by a court or
judge or by virtue of a judgment or order of a court of record, and that the court or judge had
jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be
allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be
discharged by reason of any informality or defect in the process, judgment, or order. Nor shall
anything in this rule be held to authorize the discharge of a person charged with or convicted of
an offense in the Philippines or of a person suffering imprisonment under lawful judgment."
(emphasis supplied)
At this point, we refer to petitioners' plea for the Court to re-examine and, thereafter, abandon its
pronouncement in Ilagan vs. Enrile, 13 that a writ of habeas corpus is no longer available after an information
is filed against the person detained and a warrant of arrest or an order of commitment is issued by the court
where said information has been filed. 14 The petitioners claim that the said ruling, which was handed down
during the past dictatorial regime to enforce and strengthen said regime, has no place under the present
democratic dispensation and collides with the basic, fundamental, and constitutional rights of the people.
Petitioners point out that the said doctrine makes possible the arrest and detention of innocent persons despite
lack of evidence against them, and, most often, it is only after a petition for habeas corpus is filed before the
court that the military authorities file the criminal information in the courts of law to be able to hide behind the
protective mantle of the said doctrine. This, petitioners assert, stands as an obstacle to the freedom and liberty
of the people and permits lawless and arbitrary State action.

We find, however, no compelling reason to abandon the said doctrine. It is based upon express provision of the
Rules of Court and the exigencies served by the law. The fears expressed by the petitioners are not really
unremediable. As the Court sees it, re-examination or reappraisal, with a view to its abandonment, of the Ilagan
case doctrine is not the answer. The answer and the better practice would be, not to limit the function of habeas
corpus to a mere inquiry as to whether or not the court which issued the process, judgment or order of
commitment or before whom the detained person is charged, had jurisdiction or not to issue the process,
judgment or order or to take cognizance of the case, but rather, as the Court itself states in Morales, Jr. vs.
Enrile, 15 "in all petitions for habeas corpus the court must inquire into every phase and aspect of petitioner's
detention — from the moment petitioner was taken into custody up to the moment the court passes upon the
merits of the petition;" and "only after such a scrutiny can the court satisfy itself that the due process clause of
our Constitution has in fact been satisfied." This is exactly what the Court has done in the petitions at bar. This is
what should henceforth be done in all future cases of habeas corpus. In short, all cases involving deprivation of
individual liberty should be promptly brought to the courts for their immediate scrutiny and disposition. LLpr
WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No. 85727 (Espiritu vs. Lim), the bail
bond for petitioner's provisional liberty is hereby ordered reduced from P60,000.00 to P10,000.00. No costs.
SO ORDERED.
Fernan, C.J, Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Gancayco, Padilla, Bidin, Griño-Aquino,
Medialdea and Regalado, JJ., concur.
SECOND DIVISION

[G.R. No. 121234. August 23, 1995.]

HUBERT J. P. WEBB, petitioner,vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 258,
HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L.
DE GUIA, JOVENCITO ZUÑO, LEONARDO GUIYAB, JR.,ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and
HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 274,respondents, LAURO
VIZCONDE,intervenor.

[G.R. No. 121245. August 23, 1995.]

MICHAEL A. GATCHALIAN, petitioner,vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 258,
HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L.
DE GUIA, JOVENCITO ZUÑO, LEONARDO GUIYAB, JR.,ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and
HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 274,respondents.

[G.R. No. 121297. August 23, 1995.]

ANTONIO L. LEJANO, petitioner,vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 258,
HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L.
DE GUIA, JOVENCITO ZUÑO, LEONARDO GUIYAB, JR.,ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and
HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch 274,respondents.

Perlas, Mendoza, Chan & Garciano Law Office for petitioner in G.R. No. 121297.

R.A.V. Saguisag and Robles, Ricafrente & Aguirre Law Firm for petitioner in G.R. No. 121234.

Renato L. Cayetano and Ma. Larrie B. Alinsunurin for Lauro Vizconde.

Florante A. Bautista and Manuel M. Sunga and Rene S. Gorospe for petitioner in G.R. No. 121245.

The Solicitor General for respondents.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION; PURPOSE. — We start with a restatement of the purpose of a preliminary investigation. Section
1 of Rule 112 provides that a preliminary investigation should determine "...whether there is a sufficient ground to engender a well-grounded belief that a crime cognizable by the Regional
Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial."

2. ID.;ID.;ARREST; PROBABLE CAUSE; CONSTRUED. — The need to find probable cause is dictated by the Bill of Rights which protects "the right of the people to be secure in
their persons ...against unreasonable searches and seizures of whatever nature ..." An arrest without a probable cause is an unreasonable seizure of a person, and violates the privacy of
persons which ought not to be intruded by the State. Probable cause to warrant arrest is not an opaque concept in our jurisdiction. Continuing accretions of case law reiterate that they are
facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. Other jurisdictions utilize
the term man of reasonable caution or the term ordinarily prudent and cautious man.The terms are legally synonymous and their reference is not to a person with training in the law such as a
prosecutor or a judge but to the average man on the street.It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances without resorting
to the calibrations of our technical rules of evidence of which his knowledge is nil. Rather, he relies on the calculus of common sense of which all reasonable men have an abundance.

3. ID.;SPECIAL CIVIL ACTIONS; CERTIORARI; FINDING OF PROBABLE CAUSE BY THE DOJ PANEL AGAINST PETITIONERS, NOT A GRAVE ABUSE OF DISCRETION. — Given
the conflicting pieces of evidence of the NBI and the petitioners, we hold that the DOJ Panel did not gravely abuse its discretion when it found probable cause against the petitioners. A finding
of probable cause needs only to rest on evidence showing thatmore likely than not a crime has been committed and was committed by the suspects. Probable cause need not be based on
clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put
in Brinegar v. United States,while probable cause demands more than "bare suspicion," it requires "less than evidence which would justify ...conviction." A finding of probable cause merely
binds over the suspect to stand trial. It is not a pronouncement of guilt.

4. ID.;ID.;ID.;REFUSAL OF THE NBI TO CALL WITNESSES FOR CLARIFICATORY QUESTIONS, NOT A GRAVE ABUSE OF DISCRETION. — Considering the low quantum and
quality of evidence needed to support a finding of probable cause, we also hold that the DOJ Panel did not gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory
questions. The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. If the evidence on hand already yields
a probable cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should be determined in a summary manner.
Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers
to establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable cause and clarificatory hearing was unnecessary.

5. ID.; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION; PROBABLE CAUSE IN ISSUING WARRANTS. — The issuance of a warrant of arrest interferes with individual
liberty and is regulated by no less than Section 2 of Article III of the Constitution. The aforequoted provision deals with the requirements of probable cause both with respect to issuance of
warrants of arrest and search warrants. In search cases, two conclusions must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected
with criminal activity, and that the items will be found in the place to be searched. It is not also necessary that a particular person be implicated. By comparison, in arrest cases there must be
probable cause that a crime has been committed and that the person to be arrested committed it, which of course can exist without any showing that evidence of the crime will be found at
premises under the person's control." Worthy to note, our Rules of Court do not provide for a similar procedure to be followed in the issuance of warrants of arrest and search warrants. With
respect to warrants of arrest, Section 6 of Rule 112 simply provides that "upon filing of an information, the Regional Trial Court may issue a warrant for the arrest of the accused." In contrast,
the procedure to be followed in issuing search warrants is more defined.

6. ID.;ID.;ID.;ID.;ISSUING JUDGE NEED NOT PERSONALLY EXAMINE COMPLAINANT AND HIS WITNESSES. — What the Constitution underscores is the exclusive and personal
responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not
required to personally examine the complainant and his witnesses.Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents
submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard
the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. (Soliven v. Makasiar, 167 SCRA
397) Clearly then, the Constitution, the Rules of Court, and our case law repudiate the submission of petitioners that respondent judges should have conducted "searching examination of
witnesses" before issuing warrant of arrest against them. In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn statements of Alfaro and the
sworn statements of Carlos Cristobal and Lolita Birrer as well as the counter-affidavits of the petitioners. Apparently, the painstaking recital and analysis of the parties' evidence made in the
DOJ Panel Report satisfied both judges that there is probable cause to issue warrants of arrest against petitioners. Again, we stress that before issuing warrants of arrest, judges merely
determine personally the probability, not the certainty of guilt of an accused. In doing so, judges do not conduct ade novo hearing to determine the existence of probable cause. They
just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence.The sufficiency of the review process cannot be
measured by merely counting minutes and hours. The fact that it took the respondent judges a few hours to review and affirm the probable cause determination of the DOJ Panel does not
mean they made no personal evaluation of the evidence attached to the records of the case.

7. ID.;ID.;ID.;ID.;NO RULE REQUIRING ISSUANCE OF ORDER OF ARREST PRIOR TO WARRANT OF ARREST. — They also reject petitioners' contention that a judge must first
issue an order of arrest before issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest.

8. ID.;ID.;ID.;ID.;ALLADO DOCTRINE NOT APPLICABLE TO CASE AT BAR. — Petitioners' reliance on the case of Allado vs. Diokno is misplaced. Our Allado ruling is predicated
on the utter failure of the evidence to show the existence of probable cause. Not even the corpus delicti of the crime was established by the evidence of the prosecution in that case. Given the
clear insufficiency of the evidence on record, we stressed the necessity for the trial judge to make a further personal examination of the complainant and his witnesses to reach a correct
assessment of the existence or non-existence of probable cause before issuing warrants of arrest against the accused. The case at bar, however, rests on a different factual setting. As priorly
discussed, the various types of evidence extant in the records of the case provide substantial basis for a finding of probable cause against the petitioner. The corpus delicti of the crime is a
given fact. There is an eyewitness account of the imputed crime given by Alfaro. The alibi defense of petitioner Webb is also disputed by sworn statements of their former maids. It was
therefore unnecessary for the respondent judges to take the further step of examiningex parte the complainant and their witnesses with searching questions.

9. ID.;ID.;ID.;ID.;FILING OF INFORMATION IN COURT EVEN IF ACCUSED CAN APPEAL PROSECUTOR'S RECOMMENDATION WITH THE SECRETARY OF JUSTICE, NOT A
DENIAL OF DUE PROCESS. — The records will show that the DOJ Panel did not conduct the preliminary investigation with indecent haste. Petitioners were given fair opportunity to prove
lack of probable cause against them. The fairness of this opportunity is well stressed in the Consolidated Comment of the Solicitor General. Petitioners cannot also assail as premature the
filing of the Information in court against them for rape with homicide on the ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the Secretary of Justice.
The filing of said Information is in accord with Department of Justice Order No. 223, series of 1993, dated June 25, 1993. Without doubt then, the said DOJ Order No. 223 allows the filing of
an Information in court after the consummation of the preliminary investigation even if the accused can still exercise the right to seek a review of the prosecutor's recommendation with the
Secretary of Justice.

10. ID.; ID.; POWER TO DISCHARGE A WITNESS TO BE A STATE WITNESS, NOT A JUDICIAL PREROGATIVE. — Petitioners fault the DOJ Panel for not including Alfaro in the
Information considering her alleged conspiratorial participation in the crime of rape with homicide. The non-inclusion of Alfaro is anchored on Republic Act No. 6981, entitled "An Act Providing
for A Witness Protection, Security And Benefit Program And For Other Purposes" enacted on April 24, 1991. Alfaro qualified under its Section 10. Upon qualification of Alfaro to the program,
Section 12 of the said law mandates her non-inclusion in the criminal Complaint or Information. The validity of these provisions is challenged by petitioner Webb. It is urged that they constitute
". . . an intrusion into judicial prerogative for it is only the court which has the power under the Rules on Criminal Procedure to discharge an accused as a state witness." The argument is based
on Section 9, Rule 119 which gives the court the prerogative to approve the discharge of an accused to be a state witness. Petitioner's argument lacks appeal for it lies on the faulty assumption
that the decision whom to prosecute is a judicial function, the sole prerogative of courts and beyond executive and legislative interference. In truth, the prosecution of crimes appertains to
the executive department of government whose principal power and responsibility is to see that our laws are faithfully executed. A necessary component of this power to execute our laws is
the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide range of discretion — the discretion of whether, what and whom to charge, the exercise of which
depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the
Department of Justice the power to determine who can qualify as a witness in the program and who shall be granted immunity from prosecution. Section 9 of Rule 119 does not support the
proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. Under this provision, the court is given the power to discharge a state witness only
because it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial
function. Moreover, the Rules of Court have never been interpreted to be beyond change by legislation designed to improve the administration of our justice system. R.A. No. 6981 is one of
the much sought penal reform laws to help government in its uphill fight against crime, one certain cause of which is the reticence of witnesses to testify. The rationale for the law is well put
by the Department of Justice, viz: "Witnesses, for fear of reprisal and economic dislocation, usually refuse to appear and testify in the investigation/prosecution of criminal complaints/cases.
Because of such refusal, criminal complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a more effective administration of criminal justice, there was a necessity
to pass a law protecting witnesses and granting them certain rights and benefits to ensure their appearance in investigative bodies/courts." Petitioner Webb's challenge to the validity of R.A.
No. 6981 cannot therefore succeed.

11. ID.;ID.;ID.;DISCOVERY PROCEEDINGS, NOT EXPRESSLY PROVIDED THEREIN. — Petitioners charge the NBI with violating their right to discovery proceedings during their
preliminary investigation by suppressing the April 28, 1995 original copy of the sworn statement of Alfaro and the FBI Report. The argument is novel in this jurisdiction and as it urges an
expansive reading of the rights of persons under preliminary investigation it deserves serious consideration. To start with, our Rules on Criminal Procedure do not expressly provide for
discovery proceedings during the preliminary investigation stage of a criminal proceeding. Sections 10 and 11 of Rule 117 do provide an accused the right to move for a bill of particulars and
for production or inspection of material evidence in possession of the prosecution. But these provisions apply after the filing of the Complaint or Information in court and the rights are
accorded to the accused to assist them to make an intelligent plea at arraignment and to prepare for trial.

12. ID.;ID.;ID.;ID.;MAY STILL BE AVAILED OF. — This failure to provide discovery procedure during preliminary investigation does not, however, negate its use by a person under
investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is not too early a stage to guard against any significant erosion of
the constitutional right to due process of a potential accused. As aforediscussed, the object of a preliminary investigation is to determine the probability that the suspect committed a crime.
We hold that the finding of a probable cause by itself subjects the suspect's life, liberty and property to real risk of loss or diminution. In the case at bar, the risk to the liberty of petitioners
cannot be understated for they are charged with the crime of rape with homicide, a non-bailable offense when the evidence of guilt is strong.

13. ID.;ID.;ID.;A SUBSTANTIVE RIGHT. — As this Court emphasized in Rolito Go v. Court of Appeals,"the right to have a preliminary investigation conducted before being bound
over for trial for a criminal offense, and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right." A preliminary investigation
should therefore be scrupulously conducted so that the constitutional right to liberty of a potential accused can be protected from any material damage.

14. ID.;ID.;ID.;ID.;ACCUSED HAVE THE RIGHT TO DEMAND FROM THEIR PROSECUTOR ORIGINAL COPY OF SWORN STATEMENTS OF ITS STAR WITNESS AND THE FBI
REPORT WHICH IS EXCULPATORY TO THE DEFENSE. — We uphold the legal basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the April 28,
1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation considering their exculpatory character, and hence, unquestionable materiality to the issue of their
probable guilt. The right is rooted on the constitutional protection of due process which we rule to be operational even during the preliminary investigation of a potential accused. It is also
implicit in Section (3) (a) of Rule 112 which requires during the preliminary investigation the filing of a sworn complaint which shall "...state the known address of the respondent and be
accompanied by affidavits of the complainant and his witnesses as well as other supporting documents ..." In laying down this rule, the Court is not without enlightened precedents from
other jurisdictions. In the 1963 watershed case of Brady v.Maryland the United States Supreme Court held that "suppression of evidence favorable to an accused upon request violates due
process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935 case of Mooney v. Holohan which laid
down the proposition that a prosecutor's intentional use of perjured testimony to procure conviction violates due process. Thus, involved jurisprudence firming up the prosecutor's duty to
disclose to the defense exculpatory evidence in its possession.

15. ID.;ID.;ID.;ID.;ID.;RATIONALE. — The rationale is well put by Justice Brennan in Brady — "society wins not only when the guilty are convicted but when criminal trials are fair."
Indeed, prosecutors should not treat litigation like a game of poker where surprises can be sprung and where gain by guile is not punished.

16. ID.;ID.;ID.;PREJUDICIAL PUBLICITY; WHEN PRESENT. — We recognized that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his
due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al,we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been
unduly influenced, not simply that they might be, by the barrage of publicity.
17. ID.;ID.;ID.;ID.;NOT PRESENT IN CASE AT BENCH. — In the case at bar, we find nothing in the records that will prove that the tone and content of the publicity that attended
the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the
DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long
experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no
indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was
conducted despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did
petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity.

18. JUDICIAL ETHICS; JUDGES; DUTY OF TRIAL JUDGE IN HIGH PROFILE CRIMINAL CASES TO CONTROL PUBLICITY PREJUDICIAL TO THE FAIR ADMINISTRATION OF
JUSTICE. — We stress that probable cause is not synonymous with guilt and while the light of publicity may be a good disinfectant of unfairness, too much of its heat can bring to flame an
accused's right to fair trial. Without imposing on the trial judge the difficult task of supervising every specie of speech relating to the case at bar, it behooves her to be reminded of the duty
of a trial judge in high profile criminal cases to control publicity prejudicial to the fair administration of justice. The Court reminds judges that our ability to dispense impartial justice is an
issue in every trial and in every criminal prosecution, the judiciary always stands as a silent accused. More than convicting the guilty and acquitting the innocent, the business of the judiciary
is to assure fulfillment of the promise that justice shall be done and is done — and that is the only way for the judiciary to get an acquittal from the bar of public opinion.

FRANCISCO, J.,concurring opinion:

1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION; PURPOSE. — Preliminary investigation, unlike trial, is summary in nature, the purpose of which is
merely to determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof (Paderanga v. Drilon,196 SCRA 86, 92 [1991]).It is
not intended to find guilt beyond reasonable doubt. Courts should give deference, in the absence of a clear showing of arbitrariness, as in this case, to the finding and determination of
probable cause by prosecutors in preliminary investigations. If not, the functions of the courts will be unduly hampered by innumerable petitions compelling the review of the exercise of
discretion on the part of fiscals or prosecuting attorneys if each time they decide to file an information in court their finding can be immediately brushed aside at the instance of those charged
(Ocampo IV v. Ombudsman,225 SCRA 725, 730 [1993]).The Court, therefore, must look askance at unmeritorious moves that could give a dent in the efficient and effective administration of
justice.

2. ID.;ID.;TRIAL; WHERE WEIGHT AND SUFFICIENCY OF EVIDENCE IS BEST ASSAYED. — Petitioners characterize the evidence against them to be inherently weak and
uncorroborated vis-a-vis their defenses. The weight or sufficiency of evidence, to my mind, is best assayed in the trial proper. In the search for truth, a trial has distinct merits over a preliminary
investigation. We have had occasion to stress that trial is to be preferred to ferret out the truth (Abugotal v. Tiro,66 SCRA 196, 201 [1975]).The validity and merits of a party's defense or
accusation as well as the admissibility or inadmissibility of testimonies and evidence are better ventilated during the trial stage than in the preliminary investigation level. The ineluctable
media attention notwithstanding, truth as to their innocence or guilt is still best determined at the trial.

3. ID.; ID.; WARRANT OF ARREST; EXISTENCE OF PROBABLE CAUSE; JUDGE NEED NOT PERSONALLY EXAMINE COMPLAINANT AND THE WITNESSES IN ORDER TO ISSUE
WARRANT; CAN RELY ON CERTIFICATION OF PROSECUTOR. — With respect to petitioners' contention that public respondent judge failed to personally examine and determine the
existence of probable cause for the issuance of a warrant, suffice it to say that the judge does not have to personally examine the complainant and his witnesses in order to issue a warrant of
arrest as he can rely on the certification of the prosecutor/s (Circular No. 12-Guidelines on Issuance of Warrants of Arrests [June 30,1987]; Soliven v. Makasiar,167 SCRA 393, 398 [1988].There
is ample evidence and sufficient basis on record that support the trial court's issuance of the warrant as petitioners themselves do not contend that the prosecutors' certification was
unaccompanied by the records of the preliminary investigation to take their case outside the ambit of the rule. Moreover, contrary to what the petitioners imply, the Court may not determine
how cursory or exhaustive the judge's examination of the certification, report and findings of the preliminary investigation and its annexes should be as this depends not only upon the sound
exercise of the judge's discretion in personally determining the existence of probable cause, but also from the circumstances of each case (Lim, Sr. v. Felix, 194 SCRA 292, 306 [1991]).Besides,
respondent judge, being a public officer, enjoys the presumption of regularity in the performance of his duties (Rule 131, Sec. 3[m],Rules of Court).The issuance of the warrants of arrest
against petitioners thus can not be said to be whimsical or arbitrary.

DECISION

PUNO,J p:

Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition and
mandamus with application for temporary restraining order and preliminary injunction to: (1) annul and set aside
the Warrants of Arrest issued against petitioners by respondent Judges Raul E. de Leon and Amelita Tolentino
in Criminal Case No. 95-404; (2) enjoin the respondents from conducting any proceeding in the aforementioned
criminal case; and (3) dismiss said criminal case or include Jessica Alfaro as one of the accused therein. 1
From the records of the case, it appears that on June 19, 1984, the National Bureau of Investigation (NBI)
filed with the Department of Justice a letter-complaint charging petitioners Hubert Webb, Michael Gatchalian,
Antonio J. Lejano and six (6) other persons, 2 with the crime of Rape with Homicide. Forthwith, the Department
of Justice formed a panel of prosecutors headed by Assistant Chief State Prosecutor Jovencito R. Zuño to
conduct the preliminary investigation 3 of those charged with the rape and killing on June 30, 1991 of Carmela
N. Vizconde, 4 her mother Estrellita Nicolas-Vizconde, 5 and sister Anne Marie Jennifer 6 in their home at
Number 80 W. Vinzons, St., BF Homes, Parañaque, Metro Manila.
During the preliminary investigation, the NBI presented the following: (1) the sworn statement dated
May 22, 1995 of their principal witness, Maria Jessica M. Alfarowho allegedly saw the commission of the
crime; 7 (2) the sworn statements of two (2) of the former housemaids of the Webb family in the persons
of Nerissa E. Rosales and Mila S. Gaviola; 8 (3) the sworn-statement of Carlos J. Cristobal who alleged that on
March 9, 1991 he was a passenger of United Airlines Flight No. 808 bound for New York and who expressed
doubt on whether petitioner Webb was his co-passenger in the trip; (4) the sworn statement of Lolita Birrer, a
former live-in partner of Gerardo Biong, who narrated the manner of how Biong investigated and tried to cover
up the crime at bar; 9 (5) the sworn statements of Belen Dometita and Teofilo Minoza,two of the Vizconde maids,
and the sworn statements of Normal White,a security guard andManciano Gatmaitan,an engineer. The autopsy
reports of the victims were also submitted and they showed that Carmela had nine (9) stab wounds, Estrellita
twelve (12) and Jennifer nineteen (19) 10 The genital examination of Carmela confirmed the presence of
spermatozoa. 11
Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion for
Production and Examination of Evidence and Documents for the NBI to produce the following:
"(a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to
and stay of Hubert Webb in the United States from March 9, 1991 to October 22, 1992;
(b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A.
Cabanayan, M.D.;
(c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October
7, 1991);
(d) Photographs of fingerprints lifted from the Vizconde residence taken during the
investigation;
(e) Investigation records of NBI on Engr. Danilo Aguas, et al.;
(f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated
September 2, 1991 submitted by Atty. Arlis Vela, Supervising Agent;
(g) Records of arrest, interview, investigation and other written statements of Jessica
Alfaro (other than the May 22, 1995 Sworn Statement) conducted by the NBI and other police
agencies;
(h) Transmittal letter to the NBI, including the report of the investigation conducted by
Superintendent Rodolfo C. Sison, Regional Deputy Director, NCRC;
(i) The names of NBI officials/agents composing the Task Force Jecares, including their
respective positions and duties;
(j) Statements made by other persons in connection with the crime charged."
The motion was granted by the DOJ Panel and the NBI submitted photocopies of the documents. It alleged it
lost the original of the April 28, 1995 sworn statement of Alfaro. This compelled petitioner Webb to file Civil
Case No. 951099 in the Regional Trial Court (RTC) of Makati, Br. 63, for the purpose, among others, of obtaining
the original of said sworn statement. He succeeded, for in the course of its proceedings, Atty. Arturo L.
Mercader, Jr.,produced a copy of said original in compliance with a subpoena duces tecum.The original was then
submitted by petitioner Webb to the DOJ Panel together with his other evidence. It appears, however, that
petitioner Webb failed to obtain from the NBI the copy of the Federal Bureau of Investigation (FBI) Report
despite his request for its production.
Petitioner Webb claimed during the preliminary investigation that he did not commit the crime at bar as
he went to the United States on March 1, 1991 and returned to the Philippines on October 27,
1992. 12 His alibi was corroborated by Honesto Aragon, Lecinia Edrosolano, Sylvia Climaco, Gina Roque, Sonia
Rodriguez, Edgardo Ventura and Pamela Francisco. 13 To further support his defense, he submitted
documentary evidence that he bought a bicycle and a 1986 Toyota car while in the United States on said
dates 14 and that he was issued by the State of California Driver's License No. A8818707 on June 14,
1991. 15 Petitioner Webb likewise submitted the letter dated July 25, 1995 of Mr. Robert Heafner, Legal Attache
of the US Embassy, citing certain records tending to confirm, among others, his arrival at San Francisco,
California on March 9, 1991 as a passenger in United Airlines Flight No. 808.
The other respondents — Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony Boy" Lejano,
Peter Estrada, Miguel Rodriguez and Gerardo Biong — submitted sworn statements, responses, and a motion
to dismiss denying their complicity in the rape-killing of the Vizcondes. 16 Only the respondents Joey Filart and
Artemio "Dong" Ventura failed to file their counter-affidavits though they were served with subpoena in their
last known address. 17 In his sworn statement, petitionerGatchalian alleged that from 11 o'clock in the evening
of June 29, 1991 until 3 o'clock in the morning of the following day, he was at the residence of his friends, Carlos
and Andrew Syyap, at New Alabang Village, Muntinlupa watching video tapes. He claimed that his co-
petitioner Lejano was with him.
On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause to hold
respondents for trial" and recommending that an Information for rape with homicide be filed against petitioners
and their co-respondents. 18 On the same date, it filed the corresponding Information 19 against petitioners
and their co-accused with the Regional Trial Court of Parañaque. The case was docketed as Criminal Case No.
95-404 and raffled to Branch 258 presided by respondent Judge Zosimo V. Escano. It was, however, the
respondent Judge Raul de Leon, pairing judge of Judge Escano, who issued the warrants of arrest against the
petitioners. On August 11, 1995, Judge Escano voluntarily inhibited himself from the case to avoid any suspicion
about his impartiality considering his employment with the NBI before his appointment to the bench. The case
was re-raffled to Branch 274, presided by Judge Amelita Tolentino who issued new warrants of arrest against
the petitioners and their co-accused. On August 11, 1995, petitioner Webb voluntarily surrendered to the police
authorities at Camp Ricardo Papa Sr., in Bicutan, Taguig. Petitioners Gatchalian and Lejano likewise gave
themselves up to the authorities after filing their petitions before us.
In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino gravely
abused their discretion when they failed to conduct a preliminary examination before issuing warrants of arrest
against them; (2) the DOJ Panel likewise gravely abused its discretion in holding that there is probable cause to
charge them with the crime of rape with homicide; (3) the DOJ Panel denied them their constitutional right to
due process during their preliminary investigation; and (4) the DOJ Panel unlawfully intruded into judicial
prerogative when it failed to charge Jessica Alfaro in the Information as an accused.
We find the petitions bereft of merit.
I
Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May 22, 1995 sworn
statement of Jessica Alfaro is inherently weak and uncorroborated. They hammer on alleged material
inconsistencies between her April 28, 1995 and May 22, 1995 sworn statements. They assail her credibility for
her misdescription of petitioner Webb's hair as semi-blonde. They also criticize the procedure followed by the
DOJ Panel when it did not examine witnesses to clarify the alleged incredulities and inconsistencies in the sworn
statements of the witnesses for the NBI.
We start with a restatement of the purpose of a preliminary investigation.Section 1 of Rule 112 provides
that a preliminary investigation should determine "...whether there is a sufficient ground to engender a well-
grounded belief that a crime cognizable by the Regional Trial Court has been committed and that the
respondent is probably guilty thereof, and should be held for trial." Section 3 of the same Rule outlines the
procedure in conducting a preliminary investigation, thus:
"SECTION 3. Procedure.— Except as provided for in Section 7 hereof, no complaint or
information for an offense cognizable by the Regional Trial Court shall be filed without a
preliminary investigation having been first conducted in the following manner:
(a) The complaint shall state the known address of the respondent and be accompanied by
affidavits of the complainant and his witnesses as well as other supporting documents, in such
number of copies as there are respondents, plus two (2) copies for the official file. The said
affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized to
administer oath, or, in their absence or unavailability, a notary public, who must certify that he
personally examined the affiants and that he is satisfied that they voluntarily executed and
understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall
either dismiss the same if he finds no ground to continue with the inquiry, or issue a subpoena to
the respondent, attaching thereto a copy of the complaint, affidavits and other supporting
documents. Within ten (10) days from receipt thereof, the respondent shall submit counter-
affidavits and other supporting documents. He shall have the right to examine all other evidence
submitted by the complainant.
(c) Such counter-affidavits and other supporting evidence submitted by the respondent
shall also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall
be furnished by him to the complainant.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-
affidavits within the ten (10) day period, the investigating officer shall base his resolution on the
evidence presented by the complainant.
(e) If the investigating officer believes that there are matters to be clarified, he may set a
hearing to propound clarificatory questions to the parties or their witnesses, during which the
parties shall be afforded an opportunity to be present but without the right to examine or cross-
examine. If the parties so desire, they may submit questions to the investigating officer which the
latter may propound to the parties or witnesses concerned.
(f) Thereafter, the investigation shall be deemed concluded, and the investigating officer
shall resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the
investigating officer shall determine whether or not there is sufficient ground to hold the
respondent for trial."
Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the respondent for trial, he
shall prepare the resolution and corresponding information. He shall certify under oath that he, or as shown by
the record, an authorized officer, has personally examined the complainant and his witnesses, that there is
reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof
...."
The need to find probable cause is dictated by the Bill of Rights which protects "the right of the people
to be secure in their persons . . . against unreasonable searches and seizures of whatever nature . . ." 20 An arrest
without a probable cause is an unreasonable seizure of a person, and violates the privacy of persons which ought
not to be intruded by the State. 21 Probable cause to warrant arrest is not an opaque concept in our jurisdiction.
Continuing accretions of case law reiterate that they are facts and circumstances which would lead a reasonably
discreet and prudent man to believe that an offense has been committed by the person sought to be
arrested. 22 Other jurisdictions utilize the term man of reasonable caution 23 or the term ordinarily prudent and
cautious man. 24 The terms are legally synonymous and their reference is not to a person with training in the
law such as a prosecutor or a judge but to the average man on the street. 25 It ought to be emphasized that in
determining probable cause, the average man weighs facts and circumstances without resorting to the
calibrations of our technical rules of evidence of which his knowledge is nil. Rather, he relies on the calculus of
common sense of which all reasonable men have an abundance.
Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely abused its discretion
when it found probable cause against the petitioners. Petitioners belittle the truthfulness of Alfaro on two (2)
grounds: (a) she allegedly erroneously described petitioner Webb's hair as semi-blond and (b) she committed
material inconsistencies in her two (2) sworn statements, thus: 26
"xxx xxx xxx
"To illustrate, the following are some examples of inconsistencies in the two sworn
statements of Alfaro:
On whether Alfaro knew Carmela before the incident in question
First Affidavit: She had NOT met Carmela before June 29, 1991.
Second Affidavit: 'I met her in a party sometime in February, 1991.'
On whether Alfaro saw the dead bodies
First Affidavit: She did not see the three dead persons on that night. She just said
'on the following day I read in the newspaper that there were three persons who were killed
....'
Second Affidavit: 'I peeped through the first door on the left. I saw two bodies on
top of the bed, bloodied, and in the floor, I saw Hubert on top of Carmela.'
On the alleged rape of Carmela Vizconde
First Affidavit: She did not see the act of rape.
Second Affidavit: She saw Hubert Webb 'with bare buttocks, on top of Carmela and
pumping, her mouth gagged and she was moaning and I saw tears on her eyes.'
On how Webb, Lejano, and Ventura entered the Vizconde house
First Affidavit: 'by jumping over the fence, which was only a little more than a meter
high.'
Second Affidavit: They 'entered the gate which was already open.'
On whether Alfaro entered the Vizconde house
First Affidavit: She never entered the house.
Second Affidavit: 'I proceeded to the iron grill gate leading to the dirty kitchen."
In its Resolution, the DOJ Panel ruled that these alleged misdescription and inconsistencies did not erode the
credibility of Alfaro. We quote the pertinent ruling,viz.: 27

"xxx xxx xxx


"As regards the admissibility of Alfaro's statements, granting for purposes of argument
merely that she is a co-conspirator, it is well to note that confessions of a co-conspirator may be
taken as evidence to show the probability of the co-conspirator's participation in the commission
of the crime (see People vs. Lumahang, 94 Phil. 1084).
Furthermore, it is a well-established doctrine that conspiracy need not be proved by direct
evidence of prior agreement to commit the crime. Indeed, 'only rarely would such a prior
agreement be demonstrable since, in the nature of things, criminal undertakings are only rarely
documented by agreements in writing. Thus, conspiracy may be inferred from the conduct of the
accused before, during and after the commission of the crime, showing that the several accused
had acted in concert or in unison with each other, evincing a common purpose or design.' (Angelo
vs. Court of Appeals,210 SCRA 402 [1992],citations omitted; People vs. Molleda,86 SCRA 699).
Neither can we discredit Alfaro merely because of the inconsistencies in her two sworn
statements. In Angelo,the Court refused to discredit the testimony of a witness accusing therein
petitioner for the slaying of one Gaviano Samaniego even though said witness failed to name
Angelo in his affidavit which was executed five (5) months earlier. Granting, the Court continued,
that a part of the witness' testimony is untrue, such circumstance is not sufficient to discredit the
entire testimony of the witness.
On August 7, 1995, another counsel for respondent Webb submitted his memorandum
suggesting that the instant complaint 'should not be decided within the month to give time to the
NBI to coordinate with FBI on the latter's inquiry into the whereabouts of Hubert Webb ...and to
check on our U.S.-based witnesses.'
In said memorandum, counsel for respondent Webb calls for the application of the
maxim falsus in uno, falsus in omnibus arising from the inconsistencies of Alfaro's statements,
among others. This is untenable. As held inAngelo:
'There is no rule of law which prohibits a court from crediting part of the testimony
of a witness as worthy of belief and from simultaneously rejecting other parts which the
court may find incredible or dubious. The maxim falsus in uno, falsus in omnibus is not a rule
of law, let alone a general rule of law which is universally applicable. It is not a legal
presumption either. It is merely a latinism describing the conclusion reached by a court in
a particular case after ascribing to the evidence such weight or lack of weight that the court
deemed proper.'
In the case before us, complainant reasoned out that Alfaro was then having reservations
when she first executed the first statement and held back vital information due to her natural
reaction of mistrust. This being so, the panel believes that the inconsistencies in Alfaro's two sworn
statements have been sufficiently explained especially so where there is no showing that the
inconsistencies were deliberately made to distort the truth. Consequently, the probative value of
Alfaro's testimony deserves full faith and credit. As it has been often noted, ex parte statements
are generally incomplete because they are usually executed when the affiant's state of mind does
not give her sufficient and fair opportunity to comprehend the import of her statement and to
narrate in full the incidents which transpired (People vs. Sarellana, 233 SCRA 31 [1994];Angelo vs.
Court of Appeals, supra).In the case of bar, there is no dispute that a crime has been committed and
what is clear before us is that the totality of the evidence submitted by the complainant indicate
a prima facie case that respondents conspired in the perpetration of the imputed offense."
We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of counsel 28 and consists
of six (6) pages, in single space reciting in rich details how the crime was planned and then executed by the
petitioners. In addition, the DOJ Panel evaluated the supporting sworn statements of Nerissa Rosales and Mila
Gaviola, former housemaids of the Webbs, Carlos J. Cristobal, a passenger in United Airlines Flight No. 808 and
Lolita Birrer, a paramour of Gerardo Biong. The Panel assayed their statements as follows: 29
"xxx xxx xxx
"According to Nerissa E. Rosales, a former housemaid of the Webb family, on June 29,
1991, between 7:00 o'clock and 8:00 o'clock in the evening, Hubert was at home inside his room
with two male visitors. She knew it because she and her co-housemaid, Loany, were instructed by
Hubert to bring them three glasses of juice. It was the last time she saw Hubert and was later told
by then Congressman Webb that Hubert was in the United States.
While Mila S. Gaviola, another former housemaid of the Webb family and who served as a
laundry woman, claims, aside from corroborating the statement of Nerissa Rosales, that on June
30, 1991, she woke up at around 4:00 in the morning and as what she used to do, she entered the
rooms of the Webbs to get their clothes to be washed. As a matter of fact, in that early morning,
she entered Hubert's room and saw Hubert, who was only wearing his pants, already awake and
smoking while he was sitting on his bed. She picked up Hubert's scattered clothes and brought
them together with the clothes of the other members of the family to the laundry area. After
taking her breakfast, she began washing the clothes of the Webbs. As she was washing the clothes
of Hubert Webb, she noticed fresh bloodstains in his shirt. After she finished the laundry, she went
to the servant's quarters. But feeling uneasy, she decided to go up to the stockroom near Hubert's
room to see what he was doing. In the said stockroom, there is a small door going to Hubert's room
and in that door there is a small opening where she used to see Hubert and his friends sniffing on
something. She observed Hubert was quite irritated, uneasy, and walked to and from inside his
room.
On that day, she noticed Hubert left the house at around 1:00 in the afternoon and came
back at around 4:00 in the same afternoon and went inside his room using the secret door of the
house. It was the last time that she saw Hubert until she left the Webb family.
On the other hand, Carlos J. Cristobal, alleged that on March 9, 1991, at about 10:00 in the
morning, he was at the Ninoy Aquino International Airport as he was then scheduled to take the
United Airlines Flight No. 808 at 2:00 in the afternoon for New York. At the airport's lobby, he saw
then Congressman Freddie Webb with a male companion. He greeted him and Webb answered:
'Mabuti naman, at ito, ihahatid ko ang anak ko papuntang Florida.' He knew Freddie Webb because
he often watched him then in a television show 'Chicks to Chicks.' He observed that the man whom
Freddie Webb referred to as his son, was of the same height as Freddie. The son referred to has
fair complexion with no distinguishing marks on his face. He (son of Webb) was then wearing a
striped white jacket. When he and his children were already inside the plane, he did not see Freddie
anymore, but he noticed his son was seated at the front portion of the economy class. He never
noticed Freddie Webb's son upon their arrival in San Francisco. He claims that while watching the
television program 'DONG PUNO LIVE' lately, he saw the wife of Freddie Webb with her lawyer
being interviewed, and when she described Hubert as 'moreno' and small built, with a height of
five feet and seven inches tall, and who was the one who left for United States on March 9, 1991,
he nurtured doubts because such description does not fit the physical traits of the son of Freddie,
who left with him for United States on the same flight and date.
Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with him for
almost three (3) years and in fact, she had a child with him who is now four (4) years old. Their
relationship started in February, 1991 until she broke up with him in September 1993. She recalls
that on June 29, 1991, at around 6:00 p.m.,Biong invited her to play mahjong at the canteen of a
certain Aling Glo located at the back of the Parañaque Municipal Hall.
At about 2:30 in the early morning of June 30, 1991, the radio operator of the Parañaque
police told Biong that he has a phone call. Before Biong went to the radio room, she was instructed
to take him over and after somebody won the game, she followed Biong at the radio room where
she overheard him uttering, 'Ano?,Saan?,Mahirap yan, Paano, o sige, aantayin kita, O ano?,dilaw
na taxi, o sige.' When he put the phone down, Biong told her, 'Mayroon lang akong rerespondehan,
ikaw muna ang maupo' and then, he went outside the canteen apparently waiting for somebody.
Twenty minutes later, a taxi, colored yellow, arrived with a male passenger sitting at the backseat
and parked near the canteen. After it made some signals by blinking its headlight, Biong rode
thereat at the front seat beside the driver and then, they left. She was not able to recognize the
male passenger because the window of the taxi was tinted. Biong came back at around 7:00 of the
same morning and when he arrived, he immediately washed his hands and face, and took his
handkerchief from his pocket which he threw at the trash can. She asked him why he threw his
handkerchief and he answered, 'Hmp ... amoy tae.' She inquired what happened in BF Homes and
he replied, 'Putang inang mga batang iyon, pinahirapan nila ako.'
Biong later invited her for breakfast, but they first went to his office where she observed
him doing something in his steel cabinet while he appeared to be uneasy. Moments later, Galvan,
another policeman of Parañaque, arrived and said, 'Oy Biong, may tatlong patay sa BF,
imbestigahan mo' to which Biong answered, 'Oo susunod na ako.' Biong went to the office of Capt.
Don Bartolome who offered to accompany him and with whom she asked permission to go with
them. Before they proceeded to the place where the killings happened, she asked Biong if he knew
the exact address and the latter immediately responded, 'Alam ko na yon.' She was surprised
because Galvan never told him the place of the incident.
As soon as they arrived at the Vizconde's residence, Biong instructed the housemaids to
contact the victim's relatives, while the security guard fetched the barangay chairman and the
president of the Homeowners Association. When all these persons were already in the house,
Biong started recording the wounds of the victim. Inside the master's bedroom, she saw Biong
took a watch from the jewelry box. Because she could not tolerate the foul odor, she and Capt.
Bartolome went out of the room and proceeded to the dining area. On top of the dining table, she
saw the scattered contents of a shoulder bag. Moments later, Biong came out from the room and
proceeded to the front door to remove the chain lock; asked the keys from the housemaid and it
was only then that the main door was opened. Biong noticed a stone in front of the broken glass
of the door and requested Capt. Bartolome to go inside the servant's quarters as he doubted the
housemaids' claim that they heard nothing unusual. Using the handle of his gun, Biong broke the
remaining glass of the door panel. Bartolome then came out of the room and told Biong that he
can hear the sound of the glass being broken. At the garage, Biong also noticed same marks on
the hood of the car.
On the following day, at around 12:00 noon, Biong arrived in her house together with the
Vizconde housemaids. When Biong was preparing to take a bath, she saw him remove from his
pocket the things she also saw from Vizconde's residence, to wit: calling cards, driver's license,
ATM card, a crossed check worth P80,000.00, earrings, a ring, bracelet, necklace, and the watch
he took from the jewelry box inside the room of the Vizcondes. These jewelry items were later
pawned by Biong for P20,000.00 at a pawnshop in front of Chow-Chow restaurant in Santos
Avenue, Parañaque. The next day, she saw Biong took from his locker at the Parañaque Police
Station an imported brown leather jacket, which the latter claimed to have been given to him by
the person who called him up in the early morning of June 30, 1991.
Since then, Biong has been wearing said jacket until they broke up sometime in 1993. She
observed that Biong seemed not interested in pursuing the investigation of the Vizconde case. In
fact, when Biong and this group picked up Mike Gatchalian and brought him to the Parañaque
Police Station, she was surprised that Biong halted the investigation when Gatchalian was
profusely sweating while being interrogated. After the father of Gatchalian talked to Colonel
Pureza, the latter called up and instructed Biong to bring Gatchalian to him (Colonel Pureza) and
that was the last thing she remembered regarding this case.
The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of petitioners. It
ruled: 30
"xxx xxx xxx
"The voluminous number of exhibits submitted by respondent Webb to support his defense
of denial and alibi notwithstanding, the panel, after a careful and thorough evaluation of the
records, believes that they cannot outweigh the evidence submitted by the complainant. Alibi
cannot prevail over the positive identification made by a prosecution witness. Verily, alibi deserves
scant consideration in the face of positive identification especially so where the claim of alibi is
supported mainly by friends and relatives (People vs. Apolonia,235 SCRA 124 [1994];People vs.
Lucas,181 SCRA 316 and a long line of cases).
Similarly, denial is a self-serving negative which cannot be given greater evidentiary
weight than the declaration of a credible witness who testified on affirmative matters. (People vs.
Carizo, 233 SCRA 687 [1994].Indeed, denial, like alibi, is weak and becomes even more weaker
when arrayed against the positive identification by the witness for the prosecution (People vs.
Onpaid, 233 SCRA 62 [1994]).
Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano, whom he
claimed was with him watching video tapes at the Syyap residence. Other than claiming that he
"was not and could not have been at or near the area of the Vizconde residence at the time of the
alleged commission of the crime," respondent Lejano proffered no evidence to substantiate his
claim of alibi.
xxx xxx xxx
On the other hand, respondent Webb seeks to enhance the acceptability of his alibi in the
form of documents tending to show that he was thousands of miles away when the incident
occurred. We have carefully deliberated and argued on the evidence submitted by respondent
Webb in support of his absence from the country since March 9, 1991 to October 26, 1992 and
found the same wanting to exonerate him of the offense charged. The material dates in this case
are June 29 and 30, 1991. While respondent Webb may have submitted proof tending to show that
he was issued a California driver's license on June 14, 1991, there is no showing that he could not
have been in the country on the dates above mentioned. Neither do we find merit in the allegation
that respondent Webb personally bought a bicycle on June 30, 1991 in California in view of his
positive identification by Alfaro and the two (2) househelps of the Webb family who testified that
he was here in the country on said dates. Additionally, the issuance of receipt evidencing the
purchase of a bicycle in California is no conclusive proof that the name appearing thereon was the
actual buyer of the merchandise."
Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the DOJ Panel did
not gravely abuse its discretion when it found probable cause against the petitioners. A finding of probable cause
needs only to rest on evidence showing that more likely than not a crime has been committed and was
committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither
on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute
certainty of guilt. As well put in Brinegar v. United States, 31 while probable cause demands more than "bare
suspicion," it requires "less than evidence which would justify . . . conviction." A finding of probable cause merely
binds over the suspect to stand trial. It is not a pronouncement of guilt.
Considering the low quantum and quality of evidence needed to support a finding of probable cause, we
also hold that the DOJ Panel did not gravely abuse its discretion in refusing to call the NBI witnesses for
clarificatory questions. The decision to call witnesses for clarificatory questions is addressed to the sound
discretion of the investigator and the investigator alone. If the evidence on hand already yields a probable cause,
the investigator need not hold a clarificatory hearing. To repeat, probable cause merely implies probability of
guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial and it is only
in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-
examine his accusers to establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that
enough evidence had been adduced to establish probable cause and clarificatory hearing was unnecessary.
II
We now come to the charge of petitioner that respondent Judge Raul de Leon and, later, respondent
Judge Amelita Tolentino issued warrants of arrest against them without conducting the required preliminary
examination. Petitioners support their stance by highlighting the following facts: (1) the issuance of warrants of
arrest in a matter of few hours; (2) the failure of said judges to issue orders of arrest; (3) the records submitted
to the trial court were incomplete and insufficient from which to base a finding of probable cause; and (4) that
even Gerardo Biong who was included in the Information as a mere accessory had a "NO BAIL" recommendation
by the DOJ Panel. Petitioners postulate that it was impossible to conduct a "searching examination of witnesses
and evaluation of the documents" on the part of said judges.
The issuance of a warrant of arrest interferes with individual liberty and is regulated by no less than the
fundamental law of the land. Section 2 of Article III of the Constitution provides:
"SECTION 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce and particularly describing the place to be
searched and the persons or things to be seized."
The aforequoted provision deals with the requirements of probable cause both with respect to issuance of warrants
of arrest and search warrants. The similarities and differences of their requirements ought to be educational. Some
of them are pointed out by Professors LaFave and Israel, thus: 32 "It is generally assumed that the same quantum
of evidence is required whether one is concerned with probable cause to arrest or probable cause to search. But
each requires a showing of probabilities as to somewhat different facts and circumstances, and thus one can exist
without the other. In search cases, two conclusions must be supported by substantial evidence: that the items
sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the
place to be searched. It is not also necessary that a particular person be implicated. By comparison, in arrest cases
there must be probable cause that a crime has been committed and that the person to be arrested committed it,
which of course can exist without any showing that evidence of the crime will be found at premises under that
person's control." Worthy to note, our Rules of Court do not provide for a similar procedure to be followed in the
issuance of warrants of arrest and search warrants. With respect to warrants of arrest, Section 6 of Rule 112 simply
provides that "upon filing of an information, the Regional Trial Court may issue a warrant for the arrest of the
accused." In contrast, the procedure to be followed in issuing search warrants is more defined. Thus, Sections 3, 4
and 5 of Rule 126 provide:
"xxx xxx xxx
"SECTION 3. Requisites for issuing search warrant. — A search warrant shall not issue but
upon probable cause in connection with one specific offense to be determined personally by the
judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the things to be seized.
SECTION 4. Examination of complainant; record.— The judge must, before issuing the
warrant, personally examine in the form of searching questions and answers, in writing and under
oath the complainant and any witnesses he may produce on facts personally known to them and
attach to the record their sworn statements together with any affidavits submitted.
SECTION 5. Issuance and form of search warrant.— If the judge is thereupon satisfied of the
facts upon which the application is based, or that there is probable cause to believe that they exist,
he must issue the warrant, which must be substantially in the form prescribed by these Rules."
We discussed the difference in the procedure of issuing warrants of arrest and search warrants in Soliven vs.
Makasiar, 33 thus:
"xxx xxx xxx
"The second issue, raised by Beltran, calls for an interpretation of the constitutional
provision on the issuance of warrants of arrest. The pertinent provision reads:
'Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.'
The addition of the word 'personally' after the word 'determined' and the deletion of the
grant of authority by the 1973 Constitution to issue warrants to 'other responsible officers as may
be authorized by law,' has apparently convinced petitioner Beltran that the Constitution now
requires the judge to personally examine the complainant and his witnesses in his determination
of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation.
What the Constitution underscores is the exclusive and personal responsibility of the issuing
judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of
probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine
the complainant and his witnesses.Following established doctrine and procedure, he shall: (1)
personally evaluate the report and the supporting documents submitted by the fiscal regarding
the existence of probable cause and, on the basis hereof, issue a warrant of arrest; or (2) if on the
basis thereof he finds no probable cause, he may disregard the fiscal's report and require the
submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the
existence of probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden with the
preliminary examination and investigation of criminal complaints instead of concentrating on
hearing and deciding cases filed before their courts."
Clearly then, the Constitution, the Rules of Court, and our case law 34 repudiate the submission of petitioners
that respondent judges should have conducted "searching examination of witnesses" before issuing warrants
of arrest against them. They also reject petitioners' contention that a judge must first issue an order of arrest
before issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a
warrant of arrest.
In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn
statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer 35 as well as the counter-
affidavits of the petitioners. Apparently, the painstaking recital and analysis of the parties' evidence made in
the DOJ Panel Report satisfied both judges that there is probable cause to issue warrants of arrest against
petitioners. Again, we stress that before issuing warrants of arrest, judges merely determine personally the
probability, not the certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing to
determine the existence of probable cause. They just personally review the initial determination of the
prosecutor finding a probable cause to see if it is supported by substantial evidence. The sufficiency of the
review process cannot be measured by merely counting minutes and hours. The fact that it took the
respondent judges a few hours to review and affirm the probable cause determination of the DOJ Panel does
not mean they made no personal evaluation of the evidence attached to the records of the case. 36
Petitioners' reliance on the case of Allado vs. Diokno 37 is misplaced. Our Alladoruling is predicated on
the utter failure of the evidence to show the existence of probable cause. Not even the corpus delicti of the
crime was established by the evidence of the prosecution in that case. Given the clear insufficiency of the
evidence on record, we stressed the necessity for the trial judge to make a further personal examination of the
complainant and his witnesses to reach a correct assessment of the existence or non-existence of probable
cause before issuing warrants of arrest against the accused. The case at bar, however, rests on a different
factual setting. As priorly discussed, the various types of evidence extant in the records of the case provide
substantial basis for a finding of probable cause against the petitioner. Thecorpus delicti of the crime is a given
fact. There is an eyewitness account of the imputed crime given by Alfaro. The alibi defense of petitioner
Webb is also disputed by sworn statements of their former maids. It was therefore unnecessary for the
respondent judges to take the further step of examining ex parte the complainant and their witnesses with
searching questions.
III
Petitioners also complain about the denial of their constitutional right to due process and violation of their
right to an impartial investigation. They decry their alleged hasty and malicious prosecution by the NBI and the DOJ
Panel. They also assail the prejudicial publicity that attended their preliminary investigation.
We reject these contentions. The records will show that the DOJ Panel did not conduct the preliminary
investigation with indecent haste. Petitioners were given fair opportunity to prove lack of probable cause against
them. The fairness of this opportunity is well stressed in the Consolidated Comment of the Solicitor General, viz:
"Again, there is no merit in this contention. Petitioners were afforded all the opportunities
to be heard. Petitioner Webb actively participated in the preliminary investigation by appearing in
the initial hearing held on June 30, 1995 and in the second hearing on July 14, 1995; and by filing a
"Motion for Production and Examination of Evidence and Documents" on June 27, 1995 (p. 4,
Petition),a "Reply to the Compliance and Comment/Manifestation to the Motion for Production and
Examination of Evidence" on July 5, 1995, (p. 6, Petition),a "Comment and Manifestation" on July 7,
1995 (p. 6, Petition),his "Counter-Affidavit" on July 14, 1995 (pp. 6-7, Petition) and a "Motion to
Resolve" on August 1, 1995. Numerous letter-requests were also sent by the petitioner Webb's
counsel to the DOJ Panel requesting the latter to furnish him a copy of the reports prepared by the
FBI concerning the petitioner's whereabouts during the material period (Annexes "L","L-1" and "L-
2" of the Supplemental Petition dated August 14, 1995).In fact, not satisfied with the decision of
the DOJ Panel not to issue subpoena duces tecum to Atty. Arturo L. Mercader, Jr.,petitioner Webb
filed a "Petition for Injunction, Certiorari, Prohibition and Mandamus" with the Regional Trial Court,
Branch 63 of Makati in order to compel said Atty. Mercader, Jr. to produce the first sworn
statement of Alfaro for submission to the DOJ Panel. (p. 4, Petition) The said court dismissed the
petition after Mercader produced and submitted to the DOJ Panel the first sworn statement of
Alfaro, without ruling on the admissibility and credence of the two (2) conflicting and inconsistent
sworn statements of the principal witness, Alfaro. (Attached hereto is a copy of the order of Judge
Ruben A. Mendiola, RTC-Makati, Branch 63 dated July 28, 1995) marked as Annex "F."
It must also be pointed out that despite the declaration by the DOJ Panel that the
preliminary investigation was to be terminated after the hearing held on July 14, 1995, the panel
continued to conduct further proceedings, e.g.,comparison of the photo-copies of the submitted
documents with the originals on July 17, 1995. (p. 7, Petition) The panel even entertained the
"Response" submitted by accused Miguel Rodriguez on July 18, 1995. (p. 17, Resolution) In addition
to these, the panel even announced that any party may submit additional evidence before the
resolution of the case. (p. 8, Petition) From the time the panel declared the termination of the
preliminary investigation on July 14, 1995, twenty-seven (27) days elapsed before the resolution
was promulgated, and the information eventually filed in the Regional Trial Court of Parañaque on
August 10, 1995. This notwithstanding the directive of Section 3(f) Rule 112 of the Revised Rules of
Court that the investigating officer shall resolve the case within ten (10) days from the termination
of the preliminary investigation. The DOJ Panel precisely allowed the parties to adduce more
evidence in their behalf and for the panel to study the evidence submitted more fully. This directly
disputes the allegation of the petitioners that the resolution of the preliminary investigation was
done with indecent haste in violation of the rights of the petitioners. During the period of twenty-
seven (27) days, the petitioners were free to adduce and present additional evidence before the
DOJ Panel.
Verily, petitioners cannot now assert that they were denied due process during the conduct
of the preliminary investigation simply because the DOJ Panel promulgated the adverse resolution
and filed the Information in court against them."
Petitioners cannot also assail as premature the filing of the Information in court against them for rape with
homicide on the ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the
Secretary of Justice. The filing of said Information is in accord with Department of Justice Order No. 223, series of
1993, dated June 25, 1993. We quote its pertinent sections, viz:
"SECTION 4. Non-Appealable Cases; Exceptions. — No appeal may be taken from a
resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor
finding probable cause except upon showing of manifest error or grave abuse of discretion.
Notwithstanding the showing of manifest error or grave abuse of discretion no appeal shall be
entertained where the appellant had already been arraigned. If the appellant is arraigned during the
pendency of the appeal, said appeal shall be dismissedmotu proprio by the Secretary of Justice.
An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall
not hold the filing of the information in court.
SECTION 2. When to Appeal.— The appeal must be filed within a period of fifteen (15) days
from receipt of the questioned resolution by the party or his counsel. The period shall be
interrupted only by the filing of a motion for reconsideration within ten (10) days from receipt of
the resolution and shall continue to run from the time the resolution denying the motion shall have
been received by the movant or his counsel." (Emphasis supplied)
Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court after the
consummation of the preliminary investigation even if the accused can still exercise the right to seek a review
of the prosecutor's recommendation with the Secretary of Justice.
Next, petitioners fault the DOJ Panel for not including Alfaro in the Information considering her alleged
conspiratorial participation in the crime of rape with homicide. The non-inclusion of Alfaro is anchored
on Republic Act No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit Program And
For Other Purposes" enacted on April 24, 1991. Alfaro qualified under its Section 10, which provides:
"xxx xxx xxx
"SECTION 10. State Witness.— Any person who has participated in the commission of a
crime and desires to be a witness for the State, can apply and, if qualified as determined in this Act
and by the Department, shall be admitted into the Program whenever the following circumstances
are present:
(a) the offense in which his testimony will be used is a grave felony as defined under the
R.P.C. or its equivalent under special laws;
(b) there is absolute necessity for his testimony;
(c) there is no other direct evidence available for the proper prosecution of the offense
committed;
(d) his testimony can be substantially corroborated on its material points;
(e) he does not appear to be most guilty; and
(f) he has not at anytime been convicted of any crime involving moral turpitude.
An accused discharged from an information or criminal complaint by the court in order that
he may be a State Witness pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules of Court
may upon his petition be admitted to the Program if he complies with the other requirements of
this Act. Nothing in this Act shall prevent the discharge of an accused so that he can be used as a
Witness under Rule 119 of the Revised Rules of Court."
Upon qualification of Alfaro to the program, Section 12 of the said law mandates her non-inclusion in the
criminal Complaint or Information, thus:
"xxx xxx xxx
SECTION 12. Effect of Admission of a State Witness into the Program.— The certification of
admission into the Program by the Department shall be given full faith and credit by the provincial
or city prosecutor who is required NOT TO INCLUDE THE WITNESS IN THE CRIMINAL COMPLAINT
OR INFORMATION and if included therein, to petition the court for his discharge in order that he
can be utilized as a State Witness. The court shall order the discharge and exclusion of the said
accused from the information.
Admission into the Program shall entitle such State Witness to immunity from criminal
prosecution for the offense or offenses in which his testimony will be given or used and all the
rights and benefits provided under Section 8 hereof.
The validity of these provisions is challenged by petitioner Webb. It is urged that they constitute ". . . an
intrusion into judicial prerogative for it is only the court which has the power under the Rules on Criminal
Procedure to discharge an accused as a state witness." The argument is based on Section 9, Rule 119 38 which
gives the court the prerogative to approve the discharge of an accused to be a state witness. Petitioner's
argument lacks appeal for it lies on the faulty assumption that the decision whom to prosecute is a judicial
function, the sole prerogative of courts and beyond executive and legislative interference. In truth, the
prosecution of crimes appertains to the executive department of government whose principal power and
responsibility is to see that our laws are faithfully executed. A necessary component of this power to execute
our laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide range
of discretion — the discretion of whether, what and whom to charge, the exercise of which depends on a
smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally
impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to determine
who can qualify as a witness in the program and who shall be granted immunity from prosecution. 39 Section 9
of Rule 119 does not support the proposition that the power to choose who shall be a state witness is an inherent
judicial prerogative. Under this provision, the court is given the power to discharge a state witness only because
it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the
exercise of jurisdiction but is not a recognition of an inherent judicial function. Moreover, the Rules of Court have
never been interpreted to be beyond change by legislation designed to improve the administration of our justice
system. R.A. No. 6981 is one of the much sought penal reform laws to help government in its uphill fight against
crime, one certain cause of which is the reticence of witnesses to testify. The rationale for the law is well put by
the Department of Justice, viz: "Witnesses, for fear of reprisal and economic dislocation, usually refuse to appear
and testify in the investigation/prosecution of criminal complaints/cases. Because of such refusal, criminal
complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a more effective
administration of criminal justice, there was a necessity to pass a law protecting witnesses and granting them
certain rights and benefits to ensure their appearance in investigative bodies/courts." 40 Petitioner Webb's
challenge to the validity of R.A. No. 6981 cannot therefore succeed.
Further, petitioners charge the NBI with violating their right to discovery proceedings during their
preliminary investigation by suppressing the April 28, 1995 original copy of the sworn statement of Alfaro and the
FBI Report. The argument is novel in this jurisdiction and as it urges an expansive reading of the rights of persons
under preliminary investigation it deserves serious consideration. To start with, our Rules on Criminal Procedure do
not expressly provide for discovery proceedings during the preliminary investigation stage of a criminal
proceeding. 41 Sections 10 and 11 of Rule 117 do provide an accused the right to move for a bill of particulars and
for production or inspection of material evidence in possession of the prosecution. 42 But these provisions
apply after the filing of the Complaint or Information in court and the rights are accorded to the accused to assist
them to make an intelligent plea at arraignment and to prepare for trial. 43
This failure to provide discovery procedure during preliminary investigation does not, however, negate its
use by a person under investigation when indispensable to protect his constitutional right to life, liberty and
property. Preliminary investigation is not too early a stage to guard against any significant erosion of the
constitutional right to due process of a potential accused. As aforediscussed, the object of a preliminary
investigation is to determine the probability that the suspect committed a crime. We hold that the finding of a
probable cause by itself subjects the suspect's life, liberty and property to real risk of loss or diminution. In the case
at bar, the risk to the liberty of petitioners cannot be understated for they are charged with the crime of rape with
homicide, a non-bailable offense when the evidence of guilt is strong.
Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation.
Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high duty
is to be fair and impartial. 44 As this Court emphasized in Rolito Go vs. Court of Appeals, 45 "the right to have a
preliminary investigation conducted before being bound over for trial for a criminal offense, and hence formally
at risk of incarceration or some other penalty, is not a mere or technical right; it is a substantive right." A
preliminary investigation should therefore be scrupulously conducted so that the constitutional right to liberty
of a potential accused can be protected from any material damage. We uphold the legal basis of the right of
petitioners to demand from their prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement
of Alfaro and the FBI Report during their preliminary investigation considering their exculpatory character, and
hence, unquestionable materiality to the issue of their probable guilt. The right is rooted on the constitutional
protection of due process which we rule to be operational even during the preliminary investigation of a
potential accused. It is also implicit in Section (3) (a) of Rule 112 which requires during the preliminary
investigation the filing of a sworn complaint which shall "...state the known address of the respondent and be
accompanied by affidavits of the complainant and his witnesses as well as other supporting documents ...."
In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. In the
1963 watershed case of Brady v. Maryland 46 the United States Supreme Court held that "suppression of
evidence favorable to an accused upon request violates due process where the evidence is material to guilt or
punishment, irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935 case
of Mooney v. Holohan 47 which laid down the proposition that a prosecutor's intentional use of perjured
testimony to procure conviction violates due process. Thus, evolved jurisprudence firming up the prosecutor's
duty to disclose to the defense exculpatory evidence in its possession. 48 The rationale is well put by Justice
Brennan in Brady 49 — "society wins not only when the guilty are convicted but when criminal trials are fair."
Indeed, prosecutors should not treat litigation like a game of poker where surprises can be sprung and where
gain by guile is not punished.
But given the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor, we
are not prepared to rule that the initial non-production of the original sworn statement of Alfaro dated April 28,
1995 could have resulted in the reasonable likelihood that the DOJ Panel would not have found probable cause.
To be sure, the NBI, on July 4, 1995, upon request of petitioners, submitted a photocopy of Alfaro's April 28,
1995 sworn statement. It explained it cannot produce the original as it had been lost. Fortunately, petitioners,
on July 28, 1995, were able to obtain a copy of the original from Atty. Arturo Mercader in the course of the
proceedings in Civil Case No. 951099. 50 As petitioners admit, the DOJ Panel accepted the original of Alfaro's
April 28, 1995 sworn statement as a part of their evidence. 51 Petitioners thus had the fair chance to explain to
the DOJ Panel then still conducting their preliminary investigation the exculpatory aspects of this sworn
statement. Unfortunately for petitioners, the DOJ Panel still found probable cause to charge them despite the
alleged material discrepancies between the first and second sworn statements of Alfaro. For reasons we have
expounded, this finding of probable cause cannot be struck down as done with grave abuse of discretion. 52 On
the other hand, the FBI Report while corroborative of the alibi of petitioner Webb cannot by itself reverse the
probable cause finding of the DOJ Panel in light of the totality of evidence presented by the NBI.
Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due to the
prejudicial publicity waged in the press and broadcast media by the NBI.
Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing
preliminary investigation. We find no procedural impediment to its early invocation considering the substantial
risk to their liberty while undergoing a preliminary investigation.
In floating this issue, petitioners touch on some of the most problematic areas in constitutional law
where the conflicting demands of freedom of speech and of the press, the public's right to information, and an
accused's right to a fair and impartial trial collide and compete for prioritization. The process of pinpointing
where the balance should be struck has divided men of learning as the balance keeps moving either on the side
of liberty or on the side of order as the tumult of the time and the welfare of the people dictate. The dance of
the balance is a difficult act to follow.
In democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes,
its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure,
few cases can match the high volume and high velocity of publicity that attended the preliminary investigation
of the case at bar. Our daily diet of facts and fiction about the case continues unabated even today.
Commentators still bombard the public with views not too many of which are sober and sublime. Indeed, even
the principal actors in the case — the NBI, the respondents, their lawyers and their sympathizers — have
participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding,
criminal trials cannot be completely closed to the press and the public. In the seminal case of Richmond
Newspapers, Inc. v. Virginia, 53 it was wisely held:
"xxx xxx xxx
"(a) The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal trials
both here and in England had long been presumptively open, thus giving assurance that the
proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of
participants, or decisions based on secret bias or partiality. In addition, the significant community
therapeutic value of public trials was recognized: when a shocking crime occurs, a community
reaction of outrage and public protest often follows, and thereafter the open processes of justice
serve an important prophylactic purpose, providing an outlet for community concern, hostility,
and emotion. To work effectively, it is important that society's criminal process 'satisfy the
appearance of justice,' Offutt v. United States,348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best
be provided by allowing people to observe such process. From this unbroken, uncontradicted
history, supported by reasons as valid today as in centuries past, it must be concluded that a
presumption of openness inheres in the very nature of a criminal trial under this Nation's system
of justice, Cf.,e.g.,Levine v. United States,362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication on matters
relating to the functioning of government. In guaranteeing freedoms such as those of speech and
press, the First Amendment can be read as protecting the right of everyone to attend trials so as
to give meaning to those explicit guarantees; the First Amendment right to receive information
and ideas means, in the context of trials, that the guarantees of speech and press, standing alone,
prohibit government from summarily closing courtroom doors which had long been open to the
public at the time the First Amendment was adopted. Moreover, the right of assembly is also
relevant, having been regarded not only as an independent right but also as a catalyst to augment
the free exercise of the other First Amendment rights with which it was deliberately linked by the
draftsmen. A trial courtroom is a public place where the people generally — and representatives of
the media — have a right to be present, and where their presence historically has been thought to
enhance the integrity and quality of what takes place.
(c) Even though the Constitution contains no provision which by its terms guarantees to
the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed,
have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend
criminal trials is implicit in the guarantees of the First Amendment, without the freedom to attend
such trials, which people have exercised for centuries, important aspects of freedom of speech and
of the press could be eviscerated."
Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can
deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., 54 we held
that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been
unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing
in the records that will prove that the tone and content of the publicity that attended the investigation of
petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the
subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and
beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State
Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they
can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable
indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly
adduced by the parties. The length of time the investigation was conducted despite its summary nature and the
generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At
no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground
of bias resulting from their bombardment of prejudicial publicity.
It all remains to state that the Vizconde case will move to a more critical stage as petitioners will now
have to undergo trial on the merits. We stress that probable cause is not synonymous with guilt and while the
light of publicity may be a good disinfectant of unfairness, too much of its heat can bring to flame an accused's
right to fair trial. Without imposing on the trial judge the difficult task of supervising every specie of speech
relating to the case at bar, it behooves her to be reminded of the duty of a trial judge in high profile criminal
cases to control publicity prejudicial to the fair administration of justice. 55 The Court reminds judges that our
ability to dispense impartial justice is an issue in every trial and in every criminal prosecution, the judiciary always
stands as a silent accused. More than convicting the guilty and acquitting the innocent, the business of the
judiciary is to assure fulfillment of the promise that justice shall be done and is done — and that is the only way
for the judiciary to get an acquittal from the bar of public opinion.
IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of discretion on the
part of the respondents. Costs against petitioners.
SO ORDERED.
Regalado, Francisco, and Mendoza, JJ ., concur.
Narvasa, C.J.,on official leave.

THIRD DIVISION

[G.R. No. 93239. March 18, 1991.]


PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDISON SUCRO,accused-appellant.

The Solicitor General for plaintiff-appellee.

Fidencio S. Raz accused-appellant.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT A WARRANT; WHEN LAWFUL. — Section 5, Rule 113 of the Rules on Criminal Procedure provides for the instances where
arrest without warrant is considered lawful. The rules states: "Arrest without warrant, when lawful. — A peace officer or private person may, without warrant, arrest a person: (a) When in his
presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (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."

2. ID.; ID.; ID.; AN OFFENSE COMMITTED IN THE PRESENCE OR WITHIN THE VIEW OF AN OFFICER, CONSTRUED. — An offense is committed in the presence or within the view of an
officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or hears the disturbances created thereby and
proceeds at once to th