STOP AND FRISK
possession of firearm under Section 1 of Presidential Decree No. 1866 and imposed
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NILO
SOLAYAO accused-appellant.
DECISION
ROMERO, J.:
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
ammunition[1] defined and penalized under Presidential Decree No. 1866.
The lone prosecution witness, SPO3 Jose Nio, 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 Nio 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 Nio 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
Nio confiscated the firearm and turned him over to the custody of the policeman 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
upon him the penalty of imprisonment ranging from reclusion temporal maximum
to reclusion perpetua. The trial court, having found no mitigating but one aggravating
circumstance of nighttime, sentenced accused-appellant to suffer the prison term
of reclusion perpetua with the accessory penalties provided by law.[7] It found that
accused-appellant did not contest the fact that SPO3 Nino 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 Nio'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 a probable cause to conduct a search even
before an arrest could be made.
In the present case, after SPO3 Nino 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 around 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 commtting 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 is 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 alike,
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 a prima facie case 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 allegation 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 Nio 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 thecommission 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, (Chairman), Puno, and Torres, Jr., JJ., concur.
Mendoza, J., on leave.
ALAIN MANALILI y DIZON, petitioner, vs. COURT OF APPEALS and PEOPLE
OF THE PHILIPPINES, respondents.
 DECISION
PANGANIBAN, J.:
When dealing with a rapidly unfolding and potentially criminal situation in the city
streets where unarguably there is no time to secure an arrest or a search warrant,
policemen should employ limited, flexible responses -- like stop-and-frisk -- which are
graduated in relation to the amount of information they possess, the lawmen being
ever vigilant to respect and not to violate or to treat cavalierly the citizens
constitutional rights against unreasonable arrest, search and seizure.
The Case
This rule is reiterated as we resolve this petition for review on certiorari under
Rule 45 of the Rules of Court, seeking the reversal of the Decision of the Court of
Appeals dated April 19, 1993 and its Resolution dated January 20, 1994 in CA G.R.
CR No. 07266, entitled People of the Philippines vs. Alain Manalili y Dizon.
In an Information dated April 11, 1988,[1] Petitioner Alain Manalili y Dizon was
charged by Assistant Caloocan City Fiscal E. Juan R. Bautista with violation of
Section 8, Article II of Republic Act No. 6425, allegedly committed as follows: [2]
That on or about the 11th day of April 1988 in Caloocan City, MM, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused without any
authority of law, did then and there wilfully, unlawfully and feloniously have in his
custody, possession and control crushed marijuana residue, which is a prohibited
drug and knowing the same to be such.
Contrary to Law.
Upon his arraignment on April 21, 1988, appellant pleaded not guilty to the
charge.[3] With the agreement of the public prosecutor, appellant was released after
filing a P10,000.00 bail bond.[4] After trial in due course, the Regional Trial Court of
Caloocan City, Branch 124, acting as a Special Criminal Court, rendered on May 19,
1989 a decision[5] convicting appellant of illegal possession of marijuana residue. The
dispositive portion of the decision reads:[6]
WHEREFORE, in view of all the foregoing, this Court finds the accused ALAIN
MANALILI Y DIZON guilty beyond reasonable doubt of violation of Section 8, Article
II, of Republic Act No. 6425, as amended (Illegal Possession of Marijuana residue),
and hereby snetences (sic) said accused to suffer imprisonment of SIX (6) YEARS
and ONE (1) DAY; and to pay a fine of P6,000.00; and to pay the costs.
xxx xxx xxx.
Appellant remained on provisional liberty.[7] Atty. Benjamin Razon, counsel for
the defense, filed a Notice of Appeal[8] dated May 31, 1989. On April 19, 1993,
Respondent Court[9] promulgated its assailed Decision, denying the appeal and
affirming the trial court:[10]
ACCORDINGLY, the decision appealed from dated May 19, 1989 is hereby
AFFIRMED in all respects. Costs against appellant.
Respondent Court[11] denied reconsideration via its assailed Resolution dated
January 20, 1994, disposing:
ACCORDINGLY, accused-appellants motion for reconsideration is, as is hereby
DENIED.
The Facts
Version of the Prosecution
The facts, as found by the trial court, are as follows:[12]
At about 2:10 oclock in the afternoon of April 11, 1988, policemen from the Anti-
Narcotics Unit of the Kalookan City Police Station were conducting a surveillance
along A. Mabini street, Kalookan City, in front of the Kalookan City Cemetery. The
policemen were Pat. Romeo Espiritu and Pat. Anger Lumabas and a driver named
Arnold Enriquez was driving a Tamaraw vehicle which was the official car of the
Police Station of Kalookan City. The surveillance was being made because of
information that drug addicts were roaming the area in front of the Kalookan City
Cemetery.
Upon reaching the Kalookan City Cemetery, the policemen alighted from their
vehicle. They then chanced upon a male person in front of the cemetery who
appeared high on drugs. The male person was observed to have reddish eyes and to
be walking in a swaying manner. When this male person tried to avoid the policemen,
the latter approached him and introduced themselves as police officers. The
policemen then asked the male person what he was holding in his hands. The male
person tried to resist. Pat. Romeo Espiritu asked the male person if he could see
what said male person had in his hands. The latter showed the wallet and allowed
Pat. Romeo Espiritu to examine the same. Pat. Espiritu took the wallet and examined
it. He found suspected crushed marijuana residue inside. He kept the wallet and its
marijuana contents.
The male person was then brought to the Anti-Narcotics Unit of the Kalookan City
Police Headquarters and was turned over to Cpl. Wilfredo Tamondong for
investigation. Pat. Espiritu also turned over to Cpl. Tamondong the confiscated wallet
and its suspected marijuana contents. The man turned out to be the accused ALAIN
MANALILI y DIZON.
Upon receipt of the confiscated suspected marijuana residue from Pat. Espiritu, Cpl.
Tamondong wrapped the same with a white sheet of paper on which he wrote
Evidence A 4/11/88 Alain Manalili. The white sheet of paper was marked as Exhibit
E-3. The residue was originally wrapped in a smaller sheet of folded paper. (Exhibit
E-4).
Cpl. Tamondong next prepared a referral slip addressed to the NBI Forensic
Chemistry Section requesting a chemical analysis of the subject marijuana residue
(Exhibit D). Cpl. Tamondong thereafter prepared a Joint Affidavit of the apprehending
policemen (Exhibit A). Pat. Angel Lumabas handcarried the referral slip (Exhibit D) to
the National Bureau of Investigation (NBI), including the subject marijuana residue for
chemical analysis. The signature of Pat. Lumabas appears on the left bottom corner
of Exhibit D.
The Forensic Chemistry Section of the NBI received the aforesaid referral slip and
the subject marijuana residue at 7:40 oclock in the evening of April 11, 1988 as
shown on the stamped portion of Exhibit D.
It was NBI Aida Pascual who conducted the microscopic and chemical
examinations of the specimen which she identified. (Exhibit E)[13] Mrs. Pascual
referred to the subject specimen as crushed marijuana leaves in her Certification
dated April 11, 1988 (Exhibit F).[14] These crushed marijuana leaves gave positive
results for marijuana, according to the Certificate.
Mrs. Pascual also conducted a chromatographic examination of the specimen. In this
examination, she also found that the crushed marijuana leaves gave positive results
for marijuana. She then prepared a Final Report of her examinations (Exhibit G).
After conducting the examinations, Ms. Pascual placed the specimen in a white
letter-envelope and sealed it. (Exhibit E). She then wrote identification notes on this
letter-envelope. (Exhibit E-1).
Pat. Lumabas carried the Certification marked as Exhibit F from the NBI Forensic
Chemistry Section to Cpl. Tamondong. Upon receipt thereof, Cpl. Tamondong
prepared a referral slip addressed to the City Fiscal of Kalookan City.(Exhibit C)
On rebuttal, Pat. Espiritu testified that appellant was not riding a tricycle but was
walking in front of the cemetery when he was apprehended.[15]
Version of the Defense
The trial court summarized the testimonies of the defense witnesses as
follows:[16]
At about 2:00 oclock in the afternoon of April 11, 1988, the accused ALAIN
MANALILI was aboard a tricycle at A. Mabini street near the Kalookan City Cemetery
on the way to his boarding house. Three policemen ordered the driver of the tricycle
to stop because the tricycle driver and his lone passenger were under the influence
of marijuana. The policemen brought the accused and the tricycle driver inside the
Ford Fiera which the policemen were riding in. The policemen then bodily searched
the accused and the tricycle driver. At this point, the accused asked the policemen
why he was being searched and the policemen replied that he (accused) was
carrying marijuana. However, nothing was found on the persons of the accused and
the driver. The policemen allowed the tricycle driver to go while they brought the
accused to the police headquarters at Kalookan City where they said they would
again search the accused.
On the way to the police headquarters, the accused saw a neighbor and signaled the
latter to follow him. The neighbor thus followed the accused to the Kalookan City
Police Headquarters. Upon arrival thereat, the accused was asked to remove his
pants in the presence of said neighbor and another companion. The policemen
turned over the pants of the accused over a piece of bond paper trying to look for
marijuana. However, nothing was found, except for some dirt and dust. This
prompted the companion of the neighbor of the accused to tell the policemen to
release the accused. The accused was led to a cell. The policemen later told the
accused that they found marijuana inside the pockets of his pants.
At about 5:00 oclock in the afternoon on the same day, the accused was brought
outside the cell and was led to the Ford Fiera. The accused was told by the
policemen to call his parents in order to settle the case. The policemen who led the
accused to the Ford Fiera were Pat. Lumabas, Pat. Espiritu and Cpl.
Tamondong. Pat. Lumabas was the policeman who told the accused to call his
parents. The accused did not call his parents and he told the policemen that his
parents did not have any telephone.
At about 5:30 oclock in the afternoon of the same day, the accused was brought in
the office of an inquest Fiscal. There, the accused told the Fiscal that no marijuana
was found on his person but the Fiscal told the accused not to say anything. The
accused was then brought back to the Kalookan City Jail.
Loreto Medenilla, the tricycle driver who was allegedly with the accused when he and
the accused were stopped by policemen and then bodily searched on April 11, 1988,
testified. He said that the policemen found nothing either on his person or on the II
person of the accused when both were searched on April 11, 1988.
The Court of Appeals erred in upholding the conviction of (the) accused (and) in
Roberto Abes, a neighbor of the accused, testified that he followed the accused at ruling that the guilt of the accused had been proved (beyond) reasonable doubt.
the Kalookan City Police Headquarters on April 11, 1988. He said that the police
searched the accused who was made to take off his pants at the police headquarters III
but no marijuana was found on the body of the accused.
The Court of Appeals erred in not ruling that the inconsistencies in the
Appellant, who was recalled to the stand as sur-rebuttal witness, presented testimonies of the prosecution witnesses were material and substantial and not
several pictures showing that tricycles were allowed to ply in front of the Caloocan minor.
Cemetery.[17]
IV

The Rulings of the Trial and the Appellate Courts The Court of Appeals erred in not appreciating the evidence that the accused
was framed for the purpose of extorting money.

The trial court convicted petitioner of illegal possession of marijuana residue

V
largely on the strength of the arresting officers testimony. Patrolmen Espiritu and
Lumabas were neutral and disinterested witnesses, testifying only on what transpired
during the performance of their duties. Substantially, they asserted that the appellant The Court of Appeals erred in not acquitting the accused when the evidence
was found to be in possession of a substance which was later identified as crushed presented is consistent with both innocence and guilt.
marijuana residue.
VI
The trial court disbelieved appellants defense that this charge was merely
trumped up, because the appellant neither took any legal action against the allegedly
The Court of Appeals erred in admitting the evidence of the prosecution which
erring policemen nor moved for a reinvestigation before the city fiscal of Kalookan
are inadmissible in evidence.
City.
On appeal, Respondent Court found no proof that the decision of the trial court Restated more concisely, petitioner questions (1) the admissibility of the
was based on speculations, surmises or conjectures. On the alleged serious evidence against him, (2) the credibility of prosecution witnesses and the rejection by
discrepancies in the testimonies of the arresting officers, the appellate court ruled the trial and the appellate courts of the defense of extortion, and (3) the sufficiency of
that the said inconsistencies were insubstantial to impair the essential veracity of the the prosecution evidence to sustain his conviction.
narration. It further found petitioners contention -- that he could not be convicted of
illegal possession of marijuana residue -- to be without merit, because the forensic
chemist reported that what she examined were marijuana leaves.
The Courts Ruling

Issues The petition has no merit.

Petitioner assigns the following errors on the part of Respondent Court:

First Issue: Admissibility of the Evidence Seized During a Stop-and-Frisk
I

The Court of Appeals erred in upholding the findings of fact of the trial court. Petitioner protests the admission of the marijuana leaves found in his
possession, contending that they were products of an illegal search. The Solicitor
General, in his Comment, dated July 5, 1994, which was adopted as memorandum
for respondent, counters that the inadmissibility of the marijuana leaves was waived
because petitioner never raised this issue in the proceedings below nor did he object
to their admissibility in evidence. He adds that, even assuming arguendo that there
was no waiver, the search was legal because it was incidental to a warrantless arrest
under Section 5 (a), Rule 113 of the Rules of Court.
We disagree with petitioner and hold that the search was valid, being akin to a
stop-and-frisk. In the landmark case of Terry vs. Ohio,[18] a stop-and-frisk was defined
as the vernacular designation of the right of a police officer to stop a citizen on the
street, interrogate him, and pat him for weapon(s):
x x x (W)here a police officer observes an unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may be afoot
and that the persons with whom he is dealing may be armed and presently
dangerous, where in the course of investigating this behavior he identified himself as
a policeman and makes reasonable inquiries, and where nothing in the initial stages
of the encounter serves to dispel his reasonable fear for his own or others safety, he
is entitled for the protection of himself and others in the area to conduct a carefully
limited search of the outer clothing of such persons in an attempt to discover
weapons which might be used to assault him. Such a search is a reasonable search
under the Fourth Amendment, and any weapon seized may properly be introduced in
evidence against the person from whom they were taken.[19]
In allowing such a search, the United States Supreme Court held that the
interest of effective crime prevention and detection allows a police officer to approach
a person, in appropriate circumstances and manner, for purposes of investigating
possible criminal behavior even though there is insufficient probable cause to make
an actual arrest. This was the legitimate investigative function which Officer
McFadden discharged in that case, when he approached petitioner and his
companion whom he observed to have hovered alternately about a street corner for
an extended period of time, while not waiting for anyone; paused to stare in the same
store window roughly 24 times; and conferred with a third person. It would have been
sloppy police work for an officer of 30 years experience to have failed to investigate
this behavior further.
In admitting in evidence two guns seized during the stop-and-frisk, the US
Supreme Court held that what justified the limited search was the more immediate
interest of the police officer in taking steps to assure himself that the person with
whom he was dealing was not armed with a weapon that could unexpectedly and
fatally be used against him.
It did not, however, abandon the rule that the police must, whenever practicable,
obtain advance judicial approval of searches and seizures through the warrant
procedure, excused only by exigent circumstances.
In Philippine jurisprudence, the general rule is that a search and seizure must be
validated by a previously secured judicial warrant; otherwise, such search and
seizure is unconstitutional and subject to challenge. [20] Section 2, Article III of the
1987 Constitution, gives this guarantee:
SEC. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or
things to be seized.
Any evidence obtained in violation of the mentioned provision is legally
inadmissible in evidence as a fruit of the poisonous tree, falling under the
exclusionary rule:
SEC. 3. x x x
(2) Any evidence obtained in violation of x x x the preceding section shall be
inadmissible for any purpose in any proceeding.
This right, however, is not absolute.[21] The recent case of People vs.
Lacerna enumerated five recognized exceptions to the rule against warrantless
search and seizure, viz.: (1) search incidental to a lawful arrest, (2) search of moving
vehicles, (3) seizure in plain view, (4) customs search, and (5) waiver by the accused
themselves of their right against unreasonable search and seizure. [22] In People vs.
Encinada,[23] the Court further explained that [i]n these cases, the search and seizure
may be made only with probable cause as the essential requirement. Although the
term eludes exact definition, probable cause for a search is, at best, defined as a
reasonable ground of suspicion, supported by circumstances sufficiently strong in
themselves to warrant a cautious man in the belief that the person accused is guilty
of the offense with which he is charged; or the existence of such facts and
circumstances which could lead a reasonably discreet and prudent man to believe
that an offense has been committed and that the item(s), article(s) or object(s) sought
in connection with said offense or subject to seizure and destruction by law is in the
place to be searched.
Stop-and-frisk has already been adopted as another exception to the general
rule against a search without a warrant. In Posadas vs. Court of Appeals ,[24] the
Court held that there are many instances where a search and seizure can be effected
without necessarily being preceded by an arrest, one of which is stop-and-frisk. In
said case, members of the Integrated National Police of Davao stopped petitioner,
who was carrying a buri bag and acting suspiciously. They found inside petitioners
bag one .38-cal. revolver with two rounds of live ammunition, two live ammunitions
for a .22-cal. gun and a tear gas grenade.In upholding the legality of the search, the
Court said that to require the police officers to search the bag only after they had
obtained a search warrant might prove to be useless, futile and much too late under
the circumstances. In such a situation, it was reasonable for a police officer to stop a
suspicious individual briefly in order to determine his identity or to maintain the
status quo while obtaining more information, rather than to simply shrug his
shoulders and allow a crime to occur.
In the case at hand, Patrolman Espiritu and his companions observed during
their surveillance that appellant had red eyes and was wobbling like a drunk along
the Caloocan City Cemetery, which according to police information was a popular
hangout of drug addicts. From his experience as a member of the Anti-Narcotics Unit
of the Caloocan City Police, such suspicious behavior was characteristic of drug
addicts who were high. The policemen therefore had sufficient reason to stop
petitioner to investigate if he was actually high on drugs. During such investigation,
they found marijuana in petitioners possession:[25]
FISCAL RALAR:
Q And why were you conducting surveillance in front of the Caloocan
Cemetery, Sangandaan, Caloocan City?
A Because there were some informations that some drug dependents were
roaming around at A. Mabini Street in front of the Caloocan Cemetery,
Caloocan City.
xxx xxx xxx
Q While you were conducting your surveillance, together with Pat. Angel
Lumabas and one Arnold Enriquez, what happened, if any?
A We chanced upon one male person there in front of the Caloocan
Cemetery then when we called his attention, he tried to avoid us, then
prompting us to approach him and introduce ourselves as police
officers in a polite manner.
xxx xxx xxx
Q Could you describe to us the appearance of that person when you
chanced upon him?
A That person seems like he is high on drug.
Q How were you able to say Mr. Witness that that person that you chanced
upon was high on drug?
A Because his eyes were red and he was walking on a swaying manner.
Q What was he doing in particular when you chanced upon him?
A He was roaming around, sir.
Q You said that he avoided you, what did you do when he avoided you?
A We approached him and introduced ourselves as police officers in a
polite manner, sir.
Q How did you introduce yourselves?
A In a polite manner, sir.
Q What did you say when you introduced yourselves?
A We asked him what he was holding in his hands, sir.
Q And what was the reaction of the person when you asked him what he
was holding in his hands?
A He tried to resist, sir.
Q When he tried to resist, what did you do?
A I requested him if I can see what was he was(sic) holding in his hands.
Q What was the answer of the person upon your request?
A He allowed me to examine that something in his hands, sir.
xxx xxx xxx
Q What was he holding?
A He was holding his wallet and when we opened it, there was a marijuana
(sic) crushed residue.
Furthermore, we concur with the Solicitor Generals contention that petitioner
effectively waived the inadmissibility of any evidence illegally obtained when he failed
to raise this issue or to object thereto during the trial. A valid waiver of a right, more
particularly of the constitutional right against unreasonable search, requires the
concurrence of the following requirements: (1) the right to be waived existed; (2) the
person waiving it had knowledge, actual or constructive, thereof; and (3) he or she
had an actual intention to relinquish the right.[26] Otherwise, the Courts will indulge
every reasonable presumption against waiver of fundamental safeguards and will not
deduce acquiescence from the failure to exercise this elementary right. In the present
case, however, petitioner is deemed to have waived such right for his failure to raise
its violation before the trial court. In petitions under Rule 45, as distinguished from an
ordinary appeal of criminal cases where the whole case is opened for review, the
appeal is generally limited to the errors assigned by petitioner. Issues not raised
below cannot be pleaded for the first time on appeal.[27]
Second Issue: Assessment of Evidence
 Petitioner also contends that the two arresting officers testimony contained
polluted, irreconcilable and unexplained contradictions which did not support
petitioners conviction.
We disagree. Time and again, this Court has ruled that the trial courts
assessment of the credibility of witnesses, particularly when affirmed by the Court of
Appeals as in this case, is accorded great weight and respect, since it had the
opportunity to observe their demeanor and deportment as they testified before
it. Unless substantial facts and circumstances have been overlooked or
misappreciated by the trial court which, if considered, would materially affect the
result of the case, we will not countenance a departure from this rule. [28]
We concur with Respondent Courts ruling:
(e)ven assuming as contended by appellant that there had been some
inconsistencies in the prosecution witnesses testimonies, We do not find them
substantial enough to impair the essential veracity of their narration. In People vs.
Avila, it was held that As long as the witnesses concur on the material points, slight
differences in their remembrance of the details, do not reflect on the essential
veracity of their statements.
However, we find that, aside from the presumption of regularity in the
performance of duty, the bestowal of full credence on Pat. Espiritus testimony is
justified by tangible evidence on record. Despite Pat. Lumabas contradictory
testimony, that of Espiritu is supported by the Joint Affidavit [29] signed by both
arresting policemen. The question of whether the marijuana was found inside
petitioners wallet or inside a plastic bag is immaterial, considering that petitioner did
not deny possession of said substance. Failure to present the wallet in evidence did
not negate that marijuana was found in petitioners possession. This shows that such
contradiction is minor, and does not destroy Espiritus credibility. [30]
Third Issue: Sufficiency of Evidence
The elements of illegal possession of marijuana are: (a) the accused is in
possession of an item or object which is identified to be a prohibited drug; (b) such
possession is not authorized by law; and (c) the accused freely and consciously
possessed the said drug.[31]
The substance found in petitioners possession was identified by NBI Forensic
Chemist Aida Pascual to be crushed marijuana leaves. Petitioners lack of authority to
possess these leaves was established.His awareness thereof was undeniable,
considering that petitioner was high on drugs when stopped by the policemen and
that he resisted when asked to show and identify the thing he was holding. Such
behavior clearly shows that petitioner knew that he was holding marijuana and that it
was prohibited by law.
Furthermore, like the trial and the appellate courts, we have not been given
sufficient grounds to believe the extortion angle in this case. Petitioner did not file any
administrative or criminal case against the arresting officers or present any evidence,
other than his bare claim. His argument that he feared for his life was lame and
unbelievable, considering that he was released on bail and continued to be on bail as
early as April 26, 1988.[32] Since then, he could have made the charge in relative
safety, as he was no longer in the custody of the police. His defense of frame-up, like
alibi, is viewed by this Court with disfavor, because it is easy to concoct and
fabricate.[33]
The Proper Penalty
The trial and the appellate courts overlooked the Indeterminate Sentence Law
(Act No. 4103, as amended) by sentencing petitioner to a straight penalty of six years
and one day of imprisonment, aside from the imposed fine of six thousand
pesos. This Act requires the imposition of an indeterminate penalty:
SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by the
Revised Penal Code, or its amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall be that which, in view of the
attending circumstances, could be properly imposed under the rules of the said
Code, and the minimum which shall be within the range of the penalty next lower to
that prescribed by the Code for the offense; and if the offense is punished by any
other law, the court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by said law and the
minimum shall not be less than the minimum term prescribed by the same. (As
amended by Act No. 4225.)
SEC. 2. This Act shall not apply to persons convicted of offenses punished with death
penalty or life-imprisonment; to those convicted of treason; to those convicted of
misprision of treason, rebellion, sedition or espionage; to those convicted of piracy; to
those who are habitual delinquents; to those who shall have escaped from
confinement or evaded sentence; to those who having been granted conditional
pardon by the Chief Executive shall have violated the terms thereof; to those whose
maximum term of imprisonment does not exceed one year, not to those already
sentenced by final judgment at the time of approval of this Act, except as provided in
Section 5 hereof. (Underscoring supplied)
The Dangerous Drugs Law, R.A. 6425, as amended by B.P. 179, imposes the
following penalty for illegal possession of marijuana:
Sec. 8. x x x x
The penalty of imprisonment ranging from six years and one day to twelve years and
a fine ranging from six thousand to twelve thousand pesos shall be imposed upon
any person who, unless authorized by law, shall possess or use Indian hemp.
Prescinding from the foregoing, the Court holds that the proper penalty is an
indeterminate sentence of imprisonment ranging from six years and one day to
twelve years.[34]
WHEREFORE, the assailed Decision and Resolution are
hereby AFFIRMED with MODIFICATION. Petitioner is sentenced to
suffer IMPRISONMENT of SIX (6) YEARS, as minimum, to TWELVE (12) YEARS, as
maximum, and to PAY a FINE of SIX THOUSAND PESOS. Costs against petitioner.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BINAD SY
CHUA, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
Accused-appellant Binad Sy Chua was charged with violation of Section 16,
Article III of R.A. 6425, as amended by R.A. 7659, and for Illegal Possession of
ammunitions in two separate Informations which read as follows:
Criminal Case No. 96-507[1]
That on or about the 21st day of September 1996, in the City of Angeles, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, did
then and there willfully, unlawfully and feloniously have in his possession and under
his control two (2) plastic bags containing Methamphetamine Hydrochloride (SHABU)
weighing more or less two (2) kilos and one (1) small plastic bag
containing Methamphetamine Hydrocloride weighing more or less fifteen (15) grams,
which is a regulated drug, without any authority whatsoever.
Criminal Case No. 96-513[2]
That on or about the 21st day of September 1996, in the City of Angeles, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, did
then and there willfully, unlawfully and feloniously have in his possession and under
his control twenty (20) pieces of live .22 cal. ammunitions, without first having
obtained a license or permit to possess or carry the same.
Accused-appellant pleaded not guilty on arraignment. The two cases were
then jointly tried.
The prosecution presented three (3) witnesses, all members of the police force
of Angeles City. Their testimonies can be synthesized as follows:
On September 21, 1996, at around 10:00 in the evening, SPO2 Mario Nulud and
PO2 Emmeraldo Nunag received a report from their confidential informant that
accused-appellant was about to deliver drugs that night at the Thunder Inn Hotel in
Balibago, Angeles City. The informer further reported that accused-appellant
distributes illegal drugs in different karaoke bars in Angeles City. On the basis of this
lead, the PNP Chief of Angeles City, Col. Neopito Gutierrez, immediately formed a
team of operatives composed of Major Bernardino, Insp. Tullao, Insp. Emmanuel
Nunag, P02 Emmeraldo Nunag, SP01 Fernando Go, and some civilian assets, with
SPO2 Mario Nulud, as team investigator. The group of SPO2 Nulud, PO2 Nunag and
the civilian informer positioned themselves across McArthur Highway near Bali Hai
Restaurant, fronting Thunder Inn Hotel. The other group acted as their back up.
At around 11:45 in the evening, their informer pointed to a car driven by
accused-appellant which just arrived and parked near the entrance of the Thunder
Inn Hotel. After accused-appellant alighted from the car carrying a sealed Zest-O
juice box, SPO2 Nulud and PO2 Nunag hurriedly accosted him and introduced
themselves as police officers. As accused-appellant pulled out his wallet, a small
transparent plastic bag with a crystalline substance protruded from his right back
pocket. Forthwith, SPO2 Nulud subjected him to a body search which yielded twenty
(20) pieces of live .22 caliber firearm bullets from his left back pocket. When SPO2
Nunag peeked into the contents of the Zest-O box, he saw that it contained a
crystalline substance. SPO2 Nulud instantly confiscated the small transparent plastic
bag, the Zest-O juice box, the twenty (20) pieces of .22 caliber firearm bullets and the
car used by accused-appellant. Afterwards, SPO2 Nulud and the other police
operatives who arrived at the scene brought the confiscated items to the office of Col.
Guttierez at the PNP Headquarters in Camp Pepito, Angeles City.[3]
When Col. Gutierrez opened the sealed Zest-O juice box, he found 2 big plastic
bags containing crystalline substances. The initial field test conducted by SPO2
Danilo Cruz at the PNP Headquarters revealed that the siezed items contained
shabu.[4] Thereafter, SPO2 Nulud together with accused-appellant brought these
items for further laboratory examination to the Crime Laboratory at Camp Olivas, San
Fernando, Pampanga. After due testing, forensic chemist S/Insp. Daisy Babor
concluded that the crystalline substances yielded positive results for shabu. The
small plastic bag weighed 13.815 grams while the two big plastic bags weighed
1.942 kilograms of shabu.[5]
Accused-appellant vehemently denied the accusation against him and narrated
a different version of the incident.
Accused-appellant alleged that on the night in question, he was driving the car
of his wife to follow her and his son to Manila. He felt sleepy, so he decided to take
the old route along McArthur Highway. He stopped in front of a small store near
Thunder Inn Hotel in Balibago, Angeles City to buy cigarettes and candies. While at
the store, he noticed a man approach and examine the inside of his car. When he
called the attention of the onlooker, the man immediately pulled out a .45 caliber gun
and made him face his car with raised hands. The man later on identified himself as a
policeman. During the course of the arrest, the policeman took out his wallet and
instructed him to open his car. He refused, so the policeman took his car keys and
proceeded to search his car. At this time, the police officers companions arrived at
the scene in two cars. PO2 Nulud, who just arrived at the scene, pulled him away
from his car in a nearby bank, while the others searched his car.
Thereafter, he was brought to the Salakot Police Station and was held inside a
bathroom for about fifteen minutes until Col. Guttierez arrived, who ordered his men
to call the media. In the presence of reporters, Col. Guttierez opened the box and
accused-appellant was made to hold the box while pictures were being taken.[6]
Wilfredo Lagman corroborated the story of the accused-appellant in its material
points. He testified that he witnessed the incident while he was conducting a routine
security check around the premises of the Guess Building, near Thunder Inn Hotel. [7]
On September 15, 1998 the Regional Trial Court of Angeles City, Branch 59,
rendered a decision,[8] the dispositive portion of which reads:
WHEREFORE, the foregoing considered, judgement is hereby rendered as follows:
1. In Criminal Case No. 96-513 for Illegal Possession of Ammunitions, the accused is
hereby acquitted of the crime charged for insufficiency of evidence.
2. In Criminal Case No. 96-507 for Illegal Possession of 1,955.815 grams of shabu,
accused Binad Sy Chua is found GUILTY beyond reasonable doubt of the crime
charge and is hereby sentenced to suffer the penalty of reclusion perpetua and to
pay a fine of One Million (P1,000,000.00) Pesos.
SO ORDERED.[9]
Hence, the instant appeal where accused-appellant raised the following errors:
THE TRIAL COURT ERRED GRAVELY IN ITS FOLLOWING FINDINGS:
A. THE ARREST OF ACCUSED-APPELLANT BINAD SY CHUA WAS LAWFUL;
B. THE SEARCH OF HIS PERSON AND THE SUBSEQUENT CONFISCATION OF
SHABU ALLEGEDLY FOUND ON HIM WERE CONDUCTED IN A LAWFUL AND
VALID MANNER;
C. THE PROSECUTION EVIDENCE SUPPORTING THE CRIME CHARGED IS
SUFICIENT TO PROVE THE GUILT OF THE ACCUSED-APPELLANT BEYOND
REAONABLE DOUBT.[10]
Accused-appellant maintains that the warrantless arrest and search made by the
police operatives was unlawful; that in the light of the testimony of SPO2 Nulud that
prior to his arrest he has been under surveillance for two years, there was therefore
no compelling reason for the haste within which the arresting officers sought to arrest
and search him without a warrant; that the police officers had sufficient information
about him and could have easily arrested him. Accused-appellant further argues that
since his arrest was null an void, the drugs that were seized should likewise be
inadmissible in evidence since they were obtained in violation of his constitutional
rights against unreasonable search and seizures and arrest.
Accused-appellants argument is impressed with merit.
Although the trial courts evaluation of the credibility of witnesses and their
testimonies is entitled to great respect and will not be disturbed on appeal, however,
this rule is not a hard and fast one.
It is a time-honored rule that the assessment of the trial court with regard to the
credibility of witnesses deserves the utmost respect, if not finality, for the reason that
the trial judge has the prerogative, denied to appellate judges, of observing the
demeanor of the declarants in the course of their testimonies. The only exception is if
there is a showing that the trial judge overlooked, misunderstood, or misapplied some
fact or circumstance of weight and substance that would have affected the case. [11]
In the case at bar, there appears on record some facts of weight and substance
that have been overlooked, misapprehended, or misapplied by the trial court which
casts doubt on the guilt of accused-appellant. An appeal in a criminal case opens the
whole case for review and this includes the review of the penalty and indemnity
imposed by the trial court.[12] We are clothed with ample authority to review matters,
even those not raised on appeal, if we find that their consideration is necessary in
arriving at a just disposition of the case. Every circumstance in favor of the accused
shall be considered.[13] This is in keeping with the constitutional mandate that every
accused shall be presumed innocent unless his guilt is proven beyond reasonable
doubt.
First, with respect to the warrantless arrest and consequent search and seizure
made upon accused-appellant, the court a quo made the following findings:
Accused was searched and arrested while in possession of regulated drugs (shabu).
A crime was actually being committed by the accused and he was caught in flagrante
delicto. Thus, the search made upon his personal effects x x x allow a warrantless
search incident to a lawful arrest. x x x x
While it is true that the police officers were not armed with a search warrant when the
search was made over the personal affects (sic) of the accused, however, under the
circumstances of the case, there was sufficient probable cause for said officers to
believe that accused was then and there committing a crime.
xxxxxxxxx
In the present case, the police received information that the accused will distribute
illegal drugs that evening at the Thunder Inn Hotel and its vicinities. The police officer
had to act quickly and there was no more time to secure a search warrant. The
search is valid being akin to a stop and frisk.[14]
A thorough review of the evidence on record belies the findings and conclusion
of the trial court. It confused the two different concepts of a search incidental to a
lawful arrest (in flagrante delicto) and of a stop-and-frisk.
In Malacat v. Court of Appeals,[15] we distinguished the concepts of a stop-and-
frisk and of a search incidental to a lawful arrest, to wit:
At the outset, we note that the trial court confused the concepts of a stop-and-frisk
and of a search incidental to a lawful arrest. These two types of warrantless searches
differ in terms of the requisite quantum of proof before they may be validly effected
and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest determines the
validity of the incidental search, the legality of the arrest is questioned in a large
majority of these cases, e.g., whether an arrest was merely used as a pretext for
conducting a search. In this instance, the law requires that there first be arrest
before a search can be madethe process cannot be reversed. At bottom,
assuming a valid arrest, the arresting officer may search the person of the arrestee
and the area within which the latter may reach for a weapon or for evidence to
destroy, and seize any money or property found which was used in the commission
of the crime, or the fruit of the crime, or that which may be used as evidence, or
which might furnish the arrestee with the means of escaping or committing violence.
xxxxxxxxx
We now proceed to the justification for and allowable scope of a stop-and-frisk as
a limited protective search of outer clothing for weapons, as laid down in Terry,
thus:
We merely hold today that where a police officer observes unusual
conduct which leads him reasonably to conclude in light of his experience that
criminal activity may be afoot and that the persons with whom he is dealing may be
armed and presently dangerous, where in the course of investigating this
behavior he identifies himself as a policeman and makes reasonable inquiries,
and where nothing in the initial stages of the encounter serves to dispel his
reasonable fear for his own or others safety, he is entitled for the protection of himself
and others in the area to conduct a carefully limited search of the outer clothing of
such persons in an attempt to discover weapons which might be used to assault
him. Such a search is a reasonable search under the Fourth amendment.
Other notable points of Terry are that while probable cause is not required to conduct
a stop-and-frisk, it nevertheless holds that mere suspicion or a hunch will not
validate a stop-and-frisk. A genuine reason must exist, in light of the police
officers experience and surrounding conditions, to warrant the belief that the
person detained has weapons concealed about him. Finally, a stop-and-frisk
serves a two-fold interest: (1) the general interest of effective crime prevention and
detection, which underlies the recognition that a police officer may, under
appropriate circumstances and in an appropriate manner, approach a person for
purposes of investigating possible criminal behavior even without probable cause;
and (2) the more pressing interest of safety and self-preservation which permit the
police officer to take steps to assure himself that the person with whom he deals is
not armed with a deadly weapon that could unexpectedly and fatally be used against
the police officer.[16] (Emphasis ours)
In the case at bar, neither the in flagrante delicto nor the stop and frisk principles
is applicable to justify the warrantless arrest and consequent search and seizure
made by the police operatives on accused-appellant.
In in flagrante delicto arrests, the accused is apprehended at the very moment
he is committing or attempting to commit or has just committed an offense in the
presence of the arresting officer. Emphasis should be laid on the fact that the law
requires that the search be incidental to a lawful arrest. Therefore it is beyond cavil
that a lawful arrest must precede the search of a person and his
belongings.[17]Accordingly, for this exception to apply two elements must concur: (1)
the person to be arrested must execute an overt act indicating that he has just
committed, is actually committing, or is attempting to commit a crime; and (2) such
overt act is done in the presence or within the view of the arresting officer. [18]
We find the two aforementioned elements lacking in the case at bar. The record
reveals that when accused-appellant arrived at the vicinity of Thunder Inn Hotel, he
merely parked his car along the McArthur Highway, alighted from it and casually
proceeded towards the entrance of the Hotel clutching a sealed Zest-O juice box.
Accused-appellant did not act in a suspicious manner. For all intents and purposes,
there was no overt manifestation that accused-appellant has just committed, is
actually committing, or is attempting to commit a crime.
However, notwithstanding the absence of any overt act strongly manifesting a
violation of the law, the group of SPO2 Nulud hurriedly accosted[19] accused-
appellant and later on introduced themselves as police officers.[20] Accused-appellant
was arrested before the alleged drop-off of shabu was done. Probable cause in this
case was more imagined than real. Thus, there could have been no in flagrante
delictoarrest preceding the search, in light of the lack of an overt physical act on the
part of accused-appellant that he had committed a crime, was committing a crime or
was going to commit a crime. As applied to in flagrante delicto arrests, it has been
held that reliable information alone, absent any overt act indicative of a felonious
enterprise in the presence and within the view of the arresting officers, is not
sufficient to constitute probable cause that would justify an in flagrante delicto
arrest.[21] Hence, in People v. Aminudin,[22] we ruled that the accused-appellant was
not, at the moment of his arrest, committing a crime nor was it shown that he
was about to do so or that he had just done so. What he was doing was
descending the gangplank of the M/V Wilcon 9 and there was no outward indication
that called for his arrest. To all appearances, he was like any of the other passengers
innocently disembarking from the vessel. It was only when the informer pointed to
him as the carrier of the marijuana that he suddenly became suspect and so
subject to apprehension (Emphasis supplied).
The reliance of the prosecution in People v. Tangliben[23] to justify the polices
actions is misplaced. In the said case, based on the information supplied by
informers, police officers conducted a surveillance at the Victory Liner Terminal
compound in San Fernando, Pampanga against persons who may commit
misdemeanors and also on those who may be engaged in the traffic of dangerous
drugs. At 9:30 in the evening, the policemen noticed a person carrying a red
travelling bag who was acting suspiciously. They confronted him and requested
him to open his bag but he refused. He acceded later on when the policemen
identified themselves. Inside the bag were marijuana leaves wrapped in a plastic
wrapper. The police officers only knew of the activities of Tangliben on the
night of his arrest.
In the instant case, the apprehending policemen already had prior knowledge
from the very same informant of accused-appellants activities. No less than SPO2
Mario Nulud, the team leader of the arresting operatives, admitted that their informant
has been telling them about the activities of accused-appellant for two years prior to
his actual arrest on September 21, 1996. An excerpt of the testimony of SPO2 Mario
Nulud reveals the illegality of the arrest of accused-appellant as follows:
Q. Did the civilian informer of yours mentioned to you the name of this
chinese drug pusher?
A. He is mentioning the name of Binad or Jojo Chua.
Q. And he had been mentioning these names to you even
before September 21, 1996?
A. Yes, sir.
Q. How long did this civilian informant have been telling you about the
activities of this chinese drug pusher reckoning in relation to
September 21, 1996?
A. That was about two years already.
Q. Nothwithstanding his two years personal knowledge which you gained
from the civilian informant that this chinese drug pusher have been
engaged pushing drugs here in Angeles City, you did not think of
applying for a search warrant for this chinese drug pusher?
A. No, sir.
xxxxxxxxx
Q. When you accosted this Binad Chua, he was casually walking along the
road near the Thunder Inn Hotel, is that right?
A. He was pinpointed by the civilian informer that he is the chinese drug
pusher that will deliver to him also.
Q. My question Mr. Witness, is this Jojo Chua or Binad Chua the accused
in this case he alighted with a Corolla car with plate number 999, I
think, he just alighted when you saw him?
A. Yes, sir.
Q. From the car when he alighted, he casually walked towards near the
entrance of the Thunder Inn Hotel?
A. He was about to proceed towards Thunder Inn Hotel but he was
pinpointed already by the civilian informer.
Q. But he was just walking towards the entrance of the Thunder Inn Hotel?
A. Yes, sir, he is about to enter Thunder Inn Hotel.
xxxxxxxxx
Q. While he was walking, then you and PO2 Nunag pounced on him as you
used pounced on him in your affidavit?
A. Yes, sir.
xxxxxxxxx
Q. And you pounced on Jojo Chua before you saw that alleged small
plastic bag, is that correct?
A. Yes, sir.
Q. And after that you also confiscated this Zesto juice box?
A. Yes, sir.
xxxxxxxxx
Q. But would you agree with me that not all crystalline substance is shabu?
A. No, that is shabu and it is been a long time that we have been tailing the
accused that he is really a drug pusher.
 Q. So you have been tailing this accused for quite a long time that you are
very sure that what was brought by him was shabu?
A. Yes, sir.[24]
The police operatives cannot feign ignorance of the alleged illegal activities of
accused-appellant. Considering that the identity, address and activities of the
suspected culprit was already ascertained two years previous to the actual arrest,
there was indeed no reason why the police officers could not have obtained a judicial
warrant before arresting accused-appellant and searching his person. Whatever
information their civilian asset relayed to them hours before accused-appellants
arrest was not a product of an on-the-spot tip which may excuse them from obtaining
a warrant of arrest. Accordingly, the arresting teams contention that their arrest of
accused-appellant was a product of an on-the-spot tip is untenable.
In the same vein, there could be no valid stop-and-frisk in this case. A stop-and-
frisk was defined as the act of a police officer to stop a citizen on the street,
interrogate him, and pat him for weapon(s)[25] or contraband. The police officer should
properly introduce himself and make initial inquiries, approach and restrain a person
who manifests unusual and suspicious conduct, in order to check the latters outer
clothing for possibly concealed weapons.[26] The apprehending police officer must
have a genuine reason, in accordance with the police officers experience and the
surrounding conditions, to warrant the belief that the person to be held has weapons
(or contraband) concealed about him.[27] It should therefore be emphasized that a
search and seizure should precede the arrest for this principle to apply. [28]
This principle of stop-and-frisk search was invoked by the Court in Manalili v.
Court of Appeals.[29] In said case, the policemen chanced upon the accused who had
reddish eyes, walking in a swaying manner, and who appeared to be high on
drugs. Thus, we upheld the validity of the search as akin to a stop-and-frisk.
In People v. Solayao,[30] we also found justifiable reason to stop-and-frisk the
accused after considering the following circumstances: the drunken actuations of the
accused and his companions, the fact that his companions fled when they saw the
policemen, and the fact that the peace officers were precisely on an intelligence
mission to verify reports that armed persons where roaming the vicinity.
The foregoing circumstances do not obtain in the case at bar. There was no
valid stop-and-frisk in the case of accused-appellant. To reiterate, accused-appellant
was first arrested before the search and seizure of the alleged illegal items found in
his possession. The apprehending police operative failed to make any initial inquiry
into accused-appellants business in the vicinity or the contents of the Zest-O juice
box he was carrying. The apprehending police officers only introduced themselves
when they already had custody of accused-appellant. Besides, at the time of his
arrest, accused-appellant did not exhibit manifest unusual and suspicious conduct
reasonable enough to dispense with the procedure outlined by jurisprudence and the
law. There was, therefore, no genuine reasonable ground for the immediacy of
accused-appellants arrest.
Obviously, the acts of the police operatives wholly depended on the information
given to them by their confidential informant. Accordingly, before and during that time
of the arrest, the arresting officers had no personal knowledge that accused-
appellant had just committed, was committing, or was about to commit a crime.
At any rate, even if the fact of delivery of the illegal drugs actually occurred,
accused-appellants warrantless arrest and consequent search would still not be
deemed a valid stop-and frisk. For a valid stop-and-frisk the search and seizure must
precede the arrest, which is not so in this case. Besides, as we have earlier
emphasized, the information about the illegal activities of accused-appellant was not
unknown to the apprehending officers. Hence, the search and seizure of the
prohibited drugs cannot be deemed as a valid stop-and-frisk.
Neither can there be valid seizure in plain view on the basis of the seized items
found in accused-appellants possession. First, there was no valid intrusion. Second,
the evidence, i.e., the plastic bags found in the Zest-O juice box which contained
crystalline substances later on identified as methamphetamine hydrochloride (shabu)
and the 20 rounds of .22 caliber ammunition, were not inadvertently discovered.The
police officers first arrested accused-appellant and intentionally searched his person
and peeked into the sealed Zest-O juice box before they were able to see and later
on ascertain that the crystalline substance was shabu. There was no clear showing
that the sealed Zest-O juice box accused-appellant carried contained prohibited
drugs. Neither were the small plastic bags which allegedly contained crystalline
substance and the 20 rounds of .22 caliber ammunition visible. These prohibited
substances were not in plain view of the arresting officers; hence, inadmissible for
being the fruits of the poisonous tree.
In like manner, the search cannot be categorized as a search of a moving
vehicle, a consented warrantless search, or a customs search. It cannot even fall
under exigent and emergency circumstances, for the evidence at hand is bereft of
any such showing.
All told, the absence of ill-motive on the part of the arresting team cannot simply
validate, much more cure, the illegality of the arrest and consequent warrantless
search of accused-appellant. Neither can the presumption of regularity of
performance of function be invoked by an officer in aid of the process when he
undertakes to justify an encroachment of rights secured by the
Constitution.[31] In People v. Nubla,[32] we clearly stated that:
The presumption of regularity in the performance of official duty cannot be used as
basis for affirming accused-appellants conviction because, first, the presumption is
precisely just that a mere presumption. Once challenged by evidence, as in this case,
xxx [it] cannot be regarded as binding truth. Second, the presumption of regularity in
the performance of official functions cannot preponderate over the presumption of
innocence that prevails if not overthrown by proof beyond reasonable doubt.
Furthermore, we entertain doubts whether the items allegedly seized from
accused-appellant were the very same items presented at the trial of this case. The
record shows that the initial field test where the items seized were identified as
shabu, was only conducted at the PNP headquarters of Angeles City. [33] The items
were therefore not marked at the place where they were taken. In People v.
Casimiro,[34] we struck down with disbelief the reliability of the identity of the
confiscated items since they were not marked at the place where they were seized,
thus:

The narcotics field test, which initially identified the seized item as marijuana, was
likewise not conducted at the scene of the crime, but only at the narcotics office.
There is thus reasonable doubt as to whether the item allegedly seized from
accused-appellant is the same brick of marijuana marked by the policemen in their
headquarters and given by them to the crime laboratory.

The governments drive against illegal drugs needs the support of every citizen.
But it should not undermine the fundamental rights of every citizen as enshrined in
the Constitution. The constitutional guarantee against warrantless arrests and
unreasonable searches and seizures cannot be so carelessly disregarded as
overzealous police officers are sometimes wont to do. Fealty to the constitution and
the rights it guarantees should be paramount in their minds, otherwise their good
intentions will remain as such simply because they have blundered. The criminal
goes free, if he must, but it is the law that sets him free. Nothing can destroy a
government more quickly than its failure to observe its own laws, or worse, its
disregard of the charter of its own existence.[35]
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court
of Angeles City, Branch 59, in Criminal Cases Nos. 96-507 and 96-513, convicting
accused-appellant Binad Sy Chua of violation of Section 16, Article III, Republic Act
No. 6425 and sentencing him to suffer the penalty of reclusion perpetua and to pay a
fine of P1,000,000.00, is REVERSED and SET ASIDE. Accused-appellant Binad Sy
Chua is ACQUITTED on the ground of reasonable doubt. Consequently, he is
ordered forthwith released from custody, unless he is being lawfully held for another
crime.
SO ORDERED.