Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-342

May 4, 1946

AURELIO S. ALVERO, petitioner,

vs.
ARSENIO P. DIZON, ET AL., respondent.
Albert and Albert for petitioner.
First Assistant Solicitor General Reyes and Assistant Solicitor General
Alvendia for respondents.
DE JOYA, J.:
This is a petition for certiorari with injunction originally filed in this court.
In the petition it is alleged that petitioner Aurelio S. Alvero has been
accused of treason, in criminal case No. 3 of the People's Court; that at
the hearing on his petition for bail, the prosecution presented, as part
of its evidence, certain documents which had been allegedly seized by
soldiers of the United States Army, accompanied by Filipino guerrillas,
in the petitioner's house; that petitioner immediately objected to the
presentation of said documents, and called the attention of the
respondent judges to the fact that he had filed a petition, in which he
protested against the procedure of the government in the seizure of
said documents, and asked for their return to the petitioner; that the
respondents permitted the prosecution to present said documents as
evidence, which were considered, upon the termination of the
presentation of the evidence for both parties, in denying said petition
for bail; that the petition filed on December 1, 1945, for the return of the
documents allegedly seized illegally in petitioner's house, was not
considered by the respondents, before the commencement of the trial
of petitioner's case, on the merits, due perhaps to an involuntary
oversight; that at the commencement of the trial of said criminal case
No. 3, and during its course, the prosecution again presented, as
evidence, against the petitioner said documents which had been taken
from his house, and petitioner renewed his objection thereto, and
asked for their return to him, alleging that their seizure was illegal and
that their presentation would be tantamount to compelling him to testify
against himself, in violation of his constitutional rights; that in deciding
the question so raised, the respondent judges, in open court, stated
that the prosecution might in the meanwhile continue presenting said
documents, without prejudice to the final resolution of said petition,
when the prosecution should finish presenting its evidence; that in
concluding the presentation of its evidence and resting the case, after
offering said documents as part of its evidence, the petitioner again
raised the question of the admissibility of said documents, and the
respondent judges then ordered the substantiation of said allegations
of petitioner, and set for hearing his petition for the return of said
documents; that said petition was heard on February 16, 1946, and at
said hearing, the petitioner and his wife testified, without any
contradiction that, on February 12, 1945, on the occasion of the arrest
of the petitioner by soldiers of the United States Army, the latter
searched the house of the petitioner and seized, among other things,
the documents which he had in his house; that when said petition for
the return of said documents was submitted for the consideration and
decision of the respondent judges, the latter, on February 26, 1946,
issued an order denying said petition, and admitted as competent
evidence the documents presented by the prosecution, marked as
Exhibits A, C, G, H, K, L, P, R, R-1, R-2, U, Z, CC, DD, FF, HH; that on
the same date that said order was issued, denying the petition for the
return of said documents, petitioner asked for the reconsideration of
said order, which was also denied. (Petition, pars. 1-12.)
And herein petitioner now claims that the respondent judges, in
denying the petition for the return of said documents, acted without
jurisdiction and committed a grave abuse in the exercise of their
discretion, alleging that even the seizure of documents by means of a
search warrant legally issued, constitutes a violation of the rights
guaranteed in paragraphs 3 and 18 of section 1 of Article III of the

Constitution, and, consequently, when their seizure cannot be justified

by the corresponding search warrant, the court should order their
immediate return; that the petitioner has no other speedy and
adequate remedy for the protection of his rights guaranteed by the
Constitution, other than this petition for certiorari, as the right of appeal
granted by law to a person accused of a crime, is costly and highly
prejudicial to the petitioner, as it presupposes that the prosecution has
established the guilt of the accused by means of legal and competent
evidence, as alleged in the last three (3) paragraphs of the petition.
Consequently, herein petitioner asks for the annulment of the order
issued by the respondent judges, on February 26, 1946, in said
criminal case No. 3, entitled People of the Philippines vs. Aurelio S.
Alvero, the return to him of the documents presented by the
prosecution, mentioned above, and the issuance of a writ of
preliminary injunction. .In their answer filed on March 21, 1946, herein
respondents have substantially admitted the allegations made and
contained in the first twelve (12) paragraphs of the petition, except the
portions alleging that the documents in question had been obtained by
means of force and intimidation or through coercion; and that certain
soldiers of the American Army took certain personal properties of
herein petitioner, at the time the search was made; and that the
acquisition of said documents was manifestly a violation of petitioner's
constitutional rights and that their admission, as evidence for the
prosecution, would be tantamount to compelling petitioner, as accused,
to testify against himself all of which portions have been expressly
denied by the respondents.
Respondents have also expressly denied the allegations contained in
the remaining three (3) paragraphs of the petition.
And as defenses, respondents allege (1) that petitioner himself has
admitted the legality of the seizure of the documents in question in his
motion for reconsideration, dated February 26, 1946; (2) that petitioner
has not proven that said documents had been illegally seized for him;
(3) that the seizure of the documents in question took place, on
February 12, 1945, in Pasay, Rizal, which was then still a combat
zone, and that the seizure of certain papers in the house of the
petitioner was made by soldiers of the United States Army of Liberation
or its instrumentalities; (4) that said seizure was effected lawfully under
the terms of the proclamation of the Commander in Chief of the United
States Liberation Forces, dated December 29, 1944, in which he
declared his purpose to remove alleged collaborators, when
apprehended, from any position of political and economic influence in
the Philippines and to hold them in restraint for the duration of the war;
(5) that the documents in question had been properly admitted as
evidence for the prosecution in criminal case No. 3, as herein
petitioner, as accused in said case, had expressly waived his right to
object to their admissibility, particularly Exhibits A, FF, HH and P; (6)
that petitioner's evidence of alleged ownership, relative to Exhibits C,
G, H, K, I, P, R, R-1 and R-2, is altogether insufficient, and petitioner
himself has expressly admitted that said documents are not his
personal papers but part of the files of the New Leaders' Association,
which was proven to be an organization created, for the purpose of
collaborating with the enemy; (7) and that none of the exhibits referred
to in the petition has been satisfactorily identified by the petitioner as
included among the papers allegedly wrongfully seized from his house
and belonging to him.
Considering the allegations made by the parties in their respective
pleadings, and their supporting papers, as well as the admissions
made therein, the following facts appear to have been sufficiently
established:
(1) That on February 12, 1945, while the battle for Manila was raging,
soldiers of the United States Army, accompanied by men of Filipino
Guerrilla Forces, placed herein petitioner under arrest, having been
suspected of collaboration with the enemy, and seized and took certain
papers from his house in Pasay, Rizal;
(2) That on or about October 4, 1945, petitioner was accused of
treason, in criminal case No. 3 of the People's Court; after which, on
December 1, 1945, he filed a petition, demanding the return of the
papers allegedly seized and taken from his house;

(3) That petitioner also filed a petition for bail, at the hearing of which
the prosecution presented certain papers and documents, which were
admitted as part of its evidence, and said petition was denied;
(4) That at the trial of the case on the merits, the prosecution again
presented said papers and documents, which were admitted as part of
its evidence, and were marked as exhibits, as described in the petition
for certiorari, filed in this court;
(5) That herein petitioner had failed to object properly to the admission
of said papers and documents at the hearing on said petition for bail,
and at the trial of the case on the merits, in not having insisted that the
question of the legality of the search and seizure of the papers and
documents taken from his house should have been litigated and finally
decided first, and thus practically waived his objection to their
admissibility, as evidence for the prosecution;
(6) That at the hearing on his petition for the return of the papers taken
from his house, held after they had been admitted as part of the
evidence for the prosecution, at the hearing on the petition for bail and
at the trial of the case on the merits, herein petitioner had failed to
identify satisfactorily the documents now in question, and his
ownership thereof; and
(7) That petitioner himself in his petition for reconsideration, dated
February 26, 1946, admitted the legality the legality of the seizure of
the documents taken from his house, and at the hearing on his petition
for bail, he himself called for some of the documents in question.
The right of officers and men of the United States Army to arrest herein
petitioner, as a collaborationist suspect, and to seize his personal
papers, without any search warrant, in the zone of military operations,
is unquestionable, under the provisions of article 4, Chapter II, Section
I, of the Regulations relative to the Laws and Customs of War on Land
of the Hague Conventions of 1907, authorizing the seizure of military
papers in the possession of prisoners of war (Wilson, International
Law, 3d ed., 1939, p.524); and also under the proclamation, dated
December 29, 1944, issued by Gen. Douglas MacArthur, as
Commander in Chief of the United States of Army, declaring his
purpose to remove certain citizens of the Philippines, who had
voluntarily given aid and comfort to the enemy, in violation of the
allegiance due the Governments of the United States and the
Commonwealth of the Philippines, when apprehended, from any
position of political and economic influence in the Philippines and to
hold them in restraint for the duration of the war. (41 Off. Gaz., No. 2,
pp. 148, 149.) As a matter of fact, petitioner himself, in his motion for
reconsideration, dated February 26, 1946, expressly admitted the
legality of the seizure of his personal papers and documents at the
time of his arrest.
The most important exception to the necessity for a search warrant is
the right of search and seizure as an incident to a lawful arrest. A lawful
arrest may be made either while a crime is being committed or after its
commission. The right to search includes in both instances that of
searching the person of him who is arrested, in order to find and seize
things connected with the crime as its fruits or as the means by which it
was committed. (Agnello vs. United States, 269 U. S., 20.)
When one is legally arrested for an offense, whatever is found in his
possession or in his control may be seized and used in evidence
against him; and an officer has the right to make an arrest without a
warrant of a person believed by the officer upon reasonable grounds to
have committed a felony. (Carroll vs. United States, 267 U. S., 132.).
The majority of the states have held that the privilege against
compulsory self-incrimination, which is also guaranteed by state
constitutional provisions is not violated by the use in evidence of
articles obtained by an unconstitutional search and seizure. (People
vs. Defore, 242 N. Y., 13; 150 N. E., 585.)

consented to their presentation, as part of the evidence for the

prosecution, at the hearing on his petition for bail and at the trial of the
case on the merits, without having insisted that the question of the
alleged illegality of the search and seizure of said papers and
documents should first have been directly litigated and established by
a motion, made before the trial, for their return, he was and should be
deemed to have waived his objection to their admissibility as part of
the evidence for the prosecution; since the privilege against
compulsory self-incrimination may be waived. (Weeks vs. United
States, 232 U. S., 383; Silverthorne Lumber Co. vs. United States, 251
U. S., 385; Gouled vs. United States, 255 U. S., 298; People vs.
Carlos, 47 Phil., 626, 630, 631.)
At the hearing on his petition for bail, petitioner himself requested the
production of the document marked as Exhibit A, which was a letter
sent by him to Dr. Jose P. Laurel; the document marked as Exhibit HH,
which was a memorandum to Col. Suzuki, dated December 30, 1944;
and the document marked as Exhibit P, which was a memorandum on
Nippongo classes. And he is now, therefore, estopped from
questioning their admission.
Furthermore, petitioner could not properly identify many of said
documents, such as Exhibit FF, nor satisfactorily establish his
ownership thereof; while the prosecution has sufficiently established
the fact that some of the papers now in question, such as Exhibit C,
had been received at the Office of the CIC of the United States Army in
the City of Manila, since February 11, 1945, that is, one day prior to the
seizure of certain papers and documents in the house of the petitioner.
And with reference to Exhibits C, G, H, K, L, P, R, R-1 and R-2,
petitioner himself admitted that they are not his personal papers but
part of the files of the New Leader's Association. And it is well
established rule in this jurisdiction that in a petition for the production of
papers and documents, they must be sufficiently described and
identified, otherwise the petition cannot prosper. (Liebenow vs.
Philippine Vegetable Oil Co., 39 Phil., 60, 67, 69; Rule 21, section 1,
Rules of Court.)
The purpose of the constitutional provisions against unlawful searches
and seizures is to prevent violations of private security in person and
property, and unlawful invasions 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. (Adams vs. New
York, 192 U. S., 585.) But it does not prohibit the Federal Government
from taking advantage of unlawful searches made by a private person
or under authority of state law. (Weeks vs. United States, 232 U. S.,
383; Burdeau vs. McDowell, 256 U. S., 465.)
As the soldiers of the United States Army, that took and seized certain
papers and documents from the residence of herein petitioner, on
February 12, 1945, were not acting as agents or on behalf of the
Government of the Commonwealth of the Philippines; and that those
papers and documents came in the possession of the authorities of the
Commonwealth Government, through the Office of the CIC of the
United States Army in Manila, the use and presentation of said papers
and documents, as evidence for the prosecution against herein
petitioner, at the trial of his case for treason, before the People's Court,
cannot now be legally attacked, on the ground of unlawful or
unreasonable searches and seizures, or on any other constitutional
ground, as declared by the Supreme Court of the United States in
similar cases. (Burdeau vs. McDowell, 256 U. S., 465; Gambino vs.
United States, 275 U. S., 310.)
In view of the foregoing, it is evident that the petition for certiorari with
injunction, filed in this case, is absolutely without merit, and it is,
therefore, hereby denied and dismissed with costs. So ordered.
Jaranilla, Feria, Pablo, and Hilado, JJ., and Buenaventura, Santos,
Santiago and T. Santos, JJ., concur.

Separate Opinions
It is true that on December 1, 1945, herein petitioner filed a petition,
demanding the return of certain papers and documents allegedly
seized and taken from his house at the time of his arrest; but when he

PERFECTO, J., concurring:

We concur in the decision, but we wish to make of record our express

disagreement with the doctrine as stated in the following paragraphs of
said decision:
The majority of the states have held that the privilege against
compulsory self-incrimination, which is also guaranteed by
state constitutional provisions is not violated by the use in
evidence of articles obtained by an unconstitutional search
and seizure. (People vs. Defore, 242 N. Y., 13; 150 N. E.,
585.).
But it does not prohibit the Federal Government from taking
advantage of unlawful searches made by a private person or
under authority of state law. (Weeks vs. United States, 232
U. S., 383; Burdeau vs. McDowell, 256 U. S., 465.)
We also disagree with the following pronouncement in the other
concurring opinion:.
La traicion implica renuncia y privacion de la garantia contra
irrazonables registros y secuestros, diligencias previas a la
conviccion o absolucion, actuaciones estas finales del
proceso.
The theory is erroneous and retrogressive. It violates the spirit and the
letter of the Constitution. There is no reason, either legal or moral, for
depriving an accused of treason of the benefits of constitutional
guarantees. Even those convicted of the most heinous crimes remain
under the pale of the Constitution, and cannot be punished, including
those sentenced to death, except in accordance with the due process
clause of our fundamental law.

Republic of the Philippines

SUPREME COURT
Manila
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.

BIDIN, J.:
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 11 and Section 2 (e) (i), Article 1 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).
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 curiousity 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.
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 (Sec.
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:
Sec. 2. The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined
personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be
searched and the persons or things to be seized.
Sec. 3. (1) The privacy of communication and
correspondence shall be inviolable except upon lawful order
of the court, or when public safety or order requires
otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any purpose in
any proceeding.
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
[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.
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.

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.

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).

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:

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.
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 parcel
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]).

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.
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.
Corolarilly, 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 (See. 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.
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]);
Castaares 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.
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.

SECOND DIVISION
[G.R. No. 107383. February 20, 1996.]
CECILIA ZULUETA, petitioner, vs. COURT OF APPEALS and
ALFREDO MARTIN, respondents.
DECISION
MENDOZA, J.:
This is a petition to review the decision of the Court of Appeals,
affirming the decision of the Regional Trial Court of Manila (Branch X)
which ordered petitioner to return documents and papers taken by her
from private respondents clinic without the latters knowledge and
consent.
The facts are as follows:
Petitioner Cecilia Zulueta is the wife of private respondent Alfredo
Martin. On March 26, 1982, petitioner entered the clinic of her
husband, a doctor of medicine, and in the presence of her mother, a
driver and private respondents secretary, forcibly opened the drawers
and cabinet in her husbands clinic and took 157 documents consisting
of private correspondence between Dr. Martin and his alleged
paramours, greetings cards, cancelled checks, diaries, Dr. Martins
passport, and photographs. The documents and papers were seized
for use in evidence in a case for legal separation and for
disqualification from the practice of medicine which petitioner had filed
against her husband.
Dr. Martin brought this action below for recovery of the documents and
papers and for damages against petitioner. The case was filed with the

Regional Trial Court of Manila, Branch X, which, after trial, rendered

judgment for private respondent, Dr. Alfredo Martin, declaring him the
capital/exclusive owner of the properties described in paragraph 3 of
plaintiffs Complaint or those further described in the Motion to Return
and Suppress and ordering Cecilia Zulueta and any person acting in
her behalf to immediately return the properties to Dr. Martin and to pay
him P5,000.00, as nominal damages; P5,000.00, as moral damages
and attorneys fees; and to pay the costs of the suit. The writ of
preliminary injunction earlier issued was made final and petitioner
Cecilia Zulueta and her attorneys and representatives were enjoined
from using or submitting/admitting as evidence the documents and
papers in question. On appeal, the Court of Appeals affirmed the
decision of the Regional Trial Court. Hence this petition.
There is no question that the documents and papers in question
belong to private respondent, Dr. Alfredo Martin, and that they were
taken by his wife, the herein petitioner, without his knowledge and
consent. For that reason, the trial court declared the documents and
papers to be properties of private respondent, ordered petitioner to
return them to private respondent and enjoined her from using them in
evidence. In appealing from the decision of the Court of Appeals
affirming the trial courts decision, petitioners only ground is that in
Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled that the documents
and papers (marked as Annexes A-i to J-7 of respondents comment in
that case) were admissible in evidence and, therefore, their use by
petitioners attorney, Alfonso Felix, Jr., did not constitute malpractice or
gross misconduct. For this reason it is contended that the Court of
Appeals erred in affirming the decision of the trial court instead of
dismissing private respondents complaint.
Petitioners contention has no merit. The case against Atty. Felix, Jr.
was for disbarment. Among other things, private respondent, Dr.
Alfredo Martin, as complainant in that case, charged that in using the
documents in evidence, Atty. Felix, Jr. committed malpractice or gross
misconduct because of the injunctive order of the trial court. In
dismissing the complaint against Atty. Felix, Jr., this Court took note of
the following defense of Atty. Felix, Jr. which it found to be impressed
with merit:2
On the alleged malpractice or gross misconduct of respondent [Alfonso
Felix, Jr.], he maintains that:
xxx

xxx

xxx

4. When respondent refiled Cecilias case for legal separation before

the Pasig Regional Trial Court, there was admittedly an order of the
Manila Regional Trial Court prohibiting Cecilia from using the
documents Annex A-I to J-7. On September 6, 1983, however having
appealed the said order to this Court on a petition for certiorari, this
Court issued a restraining order on aforesaid date which order
temporarily set aside the order of the trial court. Hence, during the
enforceability of this Courts order, respondents request for petitioner to
admit the genuineness and authenticity of the subject annexes cannot
be looked upon as malpractice. Notably, petitioner Dr. Martin finally
admitted the truth and authenticity of the questioned annexes. At that
point in time, would it have been malpractice for respondent to use
petitioners admission as evidence against him in the legal separation
case pending in the Regional Trial Court of Makati? Respondent
submits it is- not malpractice.
Significantly, petitioners admission was done not thru his counsel but
by Dr. Martin himself under oath. Such verified admission constitutes
an affidavit, and, therefore, receivable in evidence against him.
Petitioner became bound by his admission. For Cecilia to avail herself
of her husbands admission and use the same in her action for legal
separation cannot be treated as malpractice.

Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts
to no more than a declaration that his use of the documents and
papers for the purpose of securing Dr. Martins admission as to their
genuiness and authenticity did not constitute a violation of the
injunctive order of the trial court. By no means does the decision in that
case establish the admissibility of the documents and papers in
question.
It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the
charge of violating the writ of preliminary injunction issued by the trial
court, it was only because, at the time he used the documents and
papers, enforcement of the order of the trial court was temporarily
restrained by this Court. The TRO issued by this Court was eventually
lifted as the petition for certiorari filed by petitioner against the trial
courts order was dismissed and, therefore, the prohibition against the
further use of the documents and papers became effective again.
Indeed the documents and papers in question are inadmissible in
evidence. The constitutional injunction declaring the privacy of
communication and correspondence [to be] inviolable3 is no less
applicable simply because it is the wife (who thinks herself aggrieved
by her husbands infidelity) who is the party against whom the
constitutional provision is to be enforced. The only exception to the
prohibition in the Constitution is if there is a lawful order [from a] court
or when public safety or order requires otherwise, as prescribed by
law.4 Any violation of this provision renders the evidence obtained
inadmissible for any purpose in any proceeding.5
The intimacies between husband and wife do not justify any one of
them in breaking the drawers and cabinets of the other and in
ransacking them for any telltale evidence of marital infidelity. A person,
by contracting marriage, does not shed his/her integrity or his right to
privacy as an individual and the constitutional protection is ever
available to him or to her.
The law insures absolute freedom of communication between the
spouses by making it privileged. Neither husband nor wife may testify
for or against the other without the consent of the affected spouse
while the marriage subsists.6 Neither may be examined without the
consent of the other as to any communication received in confidence
by one from the other during the marriage, save for specified
exceptions.7 But one thing is freedom of communication; quite another
is a compulsion for each one to share what one knows with the other.
And this has nothing to do with the duty of fidelity that each owes to the
other.
WHEREFORE, the petition for review is DENIED for lack of merit.
SO ORDERED.

3
4
5

warned him that if his deposition was found to be false and without
legal basis, he could be charged for perjury. Respondent Judge signed
respondent de Leons application for search warrant and respondent
Logronios deposition, Search Warrant No. 2-M-70 was then sign by
respondent Judge and accordingly issued.

EN BANC
[G.R. No. L-32409. February 27, 1971.]
BACHE & CO. (PHIL.), INC. and FREDERICK E. SEGGERMAN,
Petitioners, v. HON. JUDGE VIVENCIO M. RUIZ, MISAEL P. VERA,
in his capacity as Commissioner of Internal Revenue, ARTURO
LOGRONIO, RODOLFO DE LEON, GAVINO VELASQUEZ, MIMIR
DELLOSA, NICANOR ALCORDO, JOHN DOE, JOHN DOE, JOHN
DOE, and JOHN DOE, Respondents.

Three days later, or on February 28, 1970, which was a Saturday, the
BIR agents served the search warrant petitioners at the offices of
petitioner corporation on Ayala Avenue, Makati, Rizal. Petitioners
lawyers protested the search on the ground that no formal complaint
or transcript of testimony was attached to the warrant. The agents
nevertheless proceeded with their search which yielded six boxes of
documents.

DECISION

On March 3, 1970, petitioners filed a petition with the Court of First

Instance of Rizal praying that the search warrant be quashed,
dissolved or recalled, that preliminary prohibitory and mandatory writs
of injunction be issued, that the search warrant be declared null and
void, and that the respondents be ordered to pay petitioners, jointly
and severally, damages and attorneys fees. On March 18, 1970, the
respondents, thru the Solicitor General, filed an answer to the petition.
After hearing, the court, presided over by respondent Judge, issued
on July 29, 1970, an order dismissing the petition for dissolution of the
search warrant. In the meantime, or on April 16, 1970, the Bureau of
Internal Revenue made tax assessments on petitioner corporation in
the total sum of P2,594,729.97, partly, if not entirely, based on the
documents thus seized. Petitioners came to this Court.

VILLAMOR, J.:

The petition should be granted for the following reasons:chanrob1es

virtual 1aw library

San Juan, Africa, Gonzales & San Agustin, for Petitioners.

Solicitor General Felix Q. Antonio, Assistant Solicitor General
Crispin V . Bautista, Solicitor Pedro A. Ramirez and Special
Attorney Jaime M. Maza for Respondents.

This is an original action of certiorari, prohibition and mandamus, with

prayer for a writ of preliminary mandatory and prohibitory injunction. In
their petition Bache & Co. (Phil.), Inc., a corporation duly organized
and existing under the laws of the Philippines, and its President,
Frederick E. Seggerman, pray this Court to declare null and void
Search Warrant No. 2-M-70 issued by respondent Judge on February
25, 1970; to order respondents to desist from enforcing the same
and/or keeping the documents, papers and effects seized by virtue
thereof, as well as from enforcing the tax assessments on petitioner
corporation alleged by petitioners to have been made on the basis of
the said documents, papers and effects, and to order the return of the
latter to petitioners. We gave due course to the petition but did not
issue the writ of preliminary injunction prayed for therein.
The pertinent facts of this case, as gathered from record, are as
follows:chanrob1es virtual 1aw library
On February 24, 1970, respondent Misael P. Vera, Commissioner of
Internal Revenue, wrote a letter addressed to respondent Judge
Vivencio M. Ruiz requesting the issuance of a search warrant against
petitioners for violation of Section 46(a) of the National Internal
Revenue Code, in relation to all other pertinent provisions thereof,
particularly Sections 53, 72, 73, 208 and 209, and authorizing
Revenue Examiner Rodolfo de Leon, one of herein respondents, to
make and file the application for search warrant which was attached to
the letter.
In the afternoon of the following day, February 25, 1970, respondent
De Leon and his witness, respondent Arturo Logronio, went to the
Court of First Instance of Rizal. They brought with them the following
papers: respondent Veras aforesaid letter-request; an application for
search warrant already filled up but still unsigned by respondent De
Leon; an affidavit of respondent Logronio subscribed before
respondent De Leon; a deposition in printed form of respondent
Logronio already accomplished and signed by him but not yet
subscribed; and a search warrant already accomplished but still
unsigned by respondent Judge.
At that time respondent Judge was hearing a certain case; so, by
means of a note, he instructed his Deputy Clerk of Court to take the
depositions of respondents De Leon and Logronio. After the session
had adjourned, respondent Judge was informed that the depositions
had already been taken. The stenographer, upon request of
respondent Judge, read to him her stenographic notes; and thereafter,
respondent Judge asked respondent Logronio to take the oath and

1. Respondent Judge failed to personally examine the complainant

and his witness.
The pertinent provisions of the Constitution of the Philippines and of
the Revised Rules of Court are:jgc:chanrobles.com.ph
"(3) 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." (Art. III, Sec. 1, Constitution.)
"SEC. 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 by the judge or justice of the peace
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.
"No search warrant shall issue for more than one specific offense.
"SEC. 4. Examination of the applicant. The judge or justice of the
peace 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." (Rule 126, Revised Rules
of Court.)
The examination of the complainant and the witnesses he may
produce, required by Art. III, Sec. 1, par. 3, of the Constitution, and by
Secs. 3 and 4, Rule 126 of the Revised Rules of Court, should be
conducted by the judge himself and not by others. The phrase "which
shall be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce,"
appearing in the said constitutional provision, was introduced by
Delegate Francisco as an amendment to the draft submitted by the
Sub-Committee of Seven. The following discussion in the
Constitutional Convention (Laurel, Proceedings of the Philippine
Constitutional Convention, Vol. III, pp. 755-757) is
enlightening:jgc:chanrobles.com.ph
"SR. ORENSE. Vamos a dejar compaero los piropos y vamos al
grano.
En los casos de una necesidad de actuar inmediatamente para que

no se frusten los fines de la justicia mediante el registro inmediato y la

incautacion del cuerpo del delito, no cree Su Seoria que causaria
cierta demora el procedimiento apuntado en su enmienda en tal forma
que podria frustrar los fines de la justicia o si Su Seoria encuentra un
remedio para esto casos con el fin de compaginar los fines de la
justicia con los derechos del individuo en su persona, bienes etcetera,
etcetera.
"SR. FRANCISCO. No puedo ver en la practica el caso hipottico que
Su Seoria pregunta por la siguiente razon: el que solicita un
mandamiento de registro tiene que hacerlo por escrito y ese escrito
no aparecer en la Mesa del Juez sin que alguien vaya el juez a
presentar ese escrito o peticion de sucuestro. Esa persona que
presenta el registro puede ser el mismo denunciante o alguna
persona que solicita dicho mandamiento de registro. Ahora toda la
enmienda en esos casos consiste en que haya peticion de registro y
el juez no se atendra solamente a sea peticion sino que el juez
examiner a ese denunciante y si tiene testigos tambin examiner a los
testigos.
"SR. ORENSE. No cree Su Seoria que el tomar le declaracion de
ese denunciante por escrito siempre requeriria algun tiempo?.

follows:jgc:chanrobles.com.ph
"A And after finishing reading the stenographic notes, the Honorable
Judge requested or instructed them, requested Mr. Logronio to raise
his hand and warned him if his deposition will be found to be false and
without legal basis, he can be charged criminally for perjury. The
Honorable Court told Mr. Logronio whether he affirms the facts
contained in his deposition and the affidavit executed before Mr.
Rodolfo de Leon.
"Q And thereafter?
"A And thereafter, he signed the deposition of Mr. Logronio.
"Q Who is this he?
"A The Honorable Judge.
"Q The deposition or the affidavit?
"A The affidavit, Your Honor."cralaw virtua1aw library
Thereafter, respondent Judge signed the search warrant.

"SR. FRANCISCO. Seria cuestio de un par de horas, pero por otro

lado minimizamos en todo lo posible las vejaciones injustas con la
expedicion arbitraria de los mandamientos de registro. Creo que entre
dos males debemos escoger. el menor.
x

"MR. LAUREL. . . . The reason why we are in favor of this amendment

is because we are incorporating in our constitution something of a
fundamental character. Now, before a judge could issue a search
warrant, he must be under the obligation to examine personally under
oath the complainant and if he has any witness, the witnesses that he
may produce . . ."cralaw virtua1aw library
The implementing rule in the Revised Rules of Court, Sec. 4, Rule
126, is more emphatic and candid, for it requires the judge, before
issuing a search warrant, to "personally examine on oath or affirmation
the complainant and any witnesses he may produce . . ."cralaw
virtua1aw library
Personal examination by the judge of the complainant and his
witnesses is necessary to enable him to determine the existence or
non-existence of a probable cause, pursuant to Art. III, Sec. 1, par. 3,
of the Constitution, and Sec. 3, Rule 126 of the Revised Rules of
Court, both of which prohibit the issuance of warrants except "upon
probable cause." The determination of whether or not a probable
cause exists calls for the exercise of judgment after a judicial appraisal
of facts and should not be allowed to be delegated in the absence of
any rule to the contrary.
In the case at bar, no personal examination at all was conducted by
respondent Judge of the complainant (respondent De Leon) and his
witness (respondent Logronio). While it is true that the complainants
application for search warrant and the witness printed-form deposition
were subscribed and sworn to before respondent Judge, the latter did
not ask either of the two any question the answer to which could
possibly be the basis for determining whether or not there was
probable cause against herein petitioners. Indeed, the participants
seem to have attached so little significance to the matter that notes of
the proceedings before respondent Judge were not even taken. At this
juncture it may be well to recall the salient facts. The transcript of
stenographic notes (pp. 61-76, April 1, 1970, Annex J-2 of the Petition)
taken at the hearing of this case in the court below shows that per
instruction of respondent Judge, Mr. Eleodoro V. Gonzales, Special
Deputy Clerk of Court, took the depositions of the complainant and his
witness, and that stenographic notes thereof were taken by Mrs.
Gaspar. At that time respondent Judge was at the sala hearing a case.
After respondent Judge was through with the hearing, Deputy Clerk
Gonzales, stenographer Gaspar, complainant De Leon and witness
Logronio went to respondent Judges chamber and informed the
Judge that they had finished the depositions. Respondent Judge then
requested the stenographer to read to him her stenographic notes.
Special Deputy Clerk Gonzales testified as

The participation of respondent Judge in the proceedings which led to

the issuance of Search Warrant No. 2-M-70 was thus limited to
listening to the stenographers readings of her notes, to a few words of
warning against the commission of perjury, and to administering the
oath to the complainant and his witness. This cannot be consider a
personal examination. If there was an examination at all of the
complainant and his witness, it was the one conducted by the Deputy
Clerk of Court. But, as stated, the Constitution and the rules require a
personal examination by the judge. It was precisely on account of the
intention of the delegates to the Constitutional Convention to make it a
duty of the issuing judge to personally examine the complainant and
his witnesses that the question of how much time would be consumed
by the judge in examining them came up before the Convention, as
can be seen from the record of the proceedings quoted above. The
reading of the stenographic notes to respondent Judge did not
constitute sufficient compliance with the constitutional mandate and
the rule; for by that manner respondent Judge did not have the
opportunity to observe the demeanor of the complainant and his
witness, and to propound initial and follow-up questions which the
judicial mind, on account of its training, was in the best position to
conceive. These were important in arriving at a sound inference on the
all-important question of whether or not there was probable cause.
2. The search warrant was issued for more than one specific offense.
Search Warrant No. 2-M-70 was issued for" [v]iolation of Sec. 46(a) of
the National Internal Revenue Code in relation to all other pertinent
provisions thereof particularly Secs. 53, 72, 73, 208 and 209." The
question is: Was the said search warrant issued "in connection with
one specific offense," as required by Sec. 3, Rule 126?
To arrive at the correct answer it is essential to examine closely the
provisions of the Tax Code referred to above. Thus we find the
following:chanrob1es virtual 1aw library
Sec. 46(a) requires the filing of income tax returns by corporations.
Sec. 53 requires the withholding of income taxes at source.
Sec. 72 imposes surcharges for failure to render income tax returns
and for rendering false and fraudulent returns.
Sec. 73 provides the penalty for failure to pay the income tax, to make
a return or to supply the information required under the Tax Code.
Sec. 208 penalizes" [a]ny person who distills, rectifies, repacks,
compounds, or manufactures any article subject to a specific tax,
without having paid the privilege tax therefore, or who aids or abets in
the conduct of illicit distilling, rectifying, compounding, or illicit
manufacture of any article subject to specific tax . . .," and provides
that in the case of a corporation, partnership, or association, the
official and/or employee who caused the violation shall be responsible.
Sec. 209 penalizes the failure to make a return of receipts, sales,

business, or gross value of output removed, or to pay the tax due

thereon.

defeat its major objective: the elimination of general warrants."cralaw

virtua1aw library

The search warrant in question was issued for at least four distinct
offenses under the Tax Code. The first is the violation of Sec. 46(a),
Sec. 72 and Sec. 73 (the filing of income tax returns), which are
interrelated. The second is the violation of Sec. 53 (withholding of
income taxes at source). The third is the violation of Sec. 208
(unlawful pursuit of business or occupation); and the fourth is the
violation of Sec. 209 (failure to make a return of receipts, sales,
business or gross value of output actually removed or to pay the tax
due thereon). Even in their classification the six above-mentioned
provisions are embraced in two different titles: Secs. 46(a), 53, 72 and
73 are under Title II (Income Tax); while Secs. 208 and 209 are under
Title V (Privilege Tax on Business and Occupation).

While the term "all business transactions" does not appear in Search
Warrant No. 2-M-70, the said warrant nevertheless tends to defeat the
major objective of the Bill of Rights, i.e., the elimination of general
warrants, for the language used therein is so all-embracing as to
include all conceivable records of petitioner corporation, which, if
seized, could possibly render its business inoperative.

Respondents argue that Stonehill, Et. Al. v. Diokno, Et Al., L-19550,

June 19, 1967 (20 SCRA 383), is not applicable, because there the
search warrants were issued for "violation of Central Bank Laws,
Internal Revenue (Code) and Revised Penal Code;" whereas, here
Search Warrant No 2-M-70 was issued for violation of only one code,
i.e., the National Internal Revenue Code. The distinction more
apparent than real, because it was precisely on account of the
Stonehill incident, which occurred sometime before the present Rules
of Court took effect on January 1, 1964, that this Court amended the
former rule by inserting therein the phrase "in connection with one
specific offense," and adding the sentence "No search warrant shall
issue for more than one specific offense," in what is now Sec. 3, Rule
126. Thus we said in Stonehill:jgc:chanrobles.com.ph
"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 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 a paragraph, directing that no search warrant shall
issue for more than one specific offense."
3. The search warrant does not particularly describe the things to be
seized.
The documents, papers and effects sought to be seized are described
in Search Warrant No. 2-M-70 in this manner:jgc:chanrobles.com.ph
"Unregistered and private books of accounts (ledgers, journals,
columnars, receipts and disbursements books, customers ledgers);
receipts for payments received; certificates of stocks and securities;
contracts, promissory notes and deeds of sale; telex and coded
messages; business communications, accounting and business
records; checks and check stubs; records of bank deposits and
withdrawals; and records of foreign remittances, covering the years
1966 to 1970."cralaw virtua1aw library
The description does not meet the requirement in Art III, Sec. 1, of the
Constitution, and of Sec. 3, Rule 126 of the Revised Rules of Court,
that the warrant should particularly describe the things to be seized.
In Stonehill, this Court, speaking thru Mr. Chief Justice Roberto
Concepcion, said:jgc:chanrobles.com.ph
"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:chanrob1es virtual 1aw library
Books of accounts, financial records, vouchers, journals,
correspondence, receipts, ledgers, portfolios, credit journals,
typewriters, and other documents and/or paper 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

In Uy Kheytin, Et. Al. v. Villareal, etc., Et Al., 42 Phil. 886, 896, this
Court had occasion to explain the purpose of the requirement that the
warrant should particularly describe the place to be searched and the
things to be seized, to wit:jgc:chanrobles.com.ph
". . . Both the Jones Law (sec. 3) and General Orders No. 58 (sec. 97)
specifically require that a search warrant should particularly describe
the place to be searched and the things to be seized. The evident
purpose and intent of this requirement is to limit the things to be
seized to those, and only those, particularly described in the search
warrant to leave the officers of the law with no discretion regarding
what articles they shall seize, to the end that unreasonable searches
and seizures may not be made, that abuses may not be
committed. That this is the correct interpretation of this constitutional
provision is borne out by American authorities."cralaw virtua1aw
library
The purpose as thus explained could, surely and effectively, be
defeated under the search warrant issued in this case.
A search warrant may be said to particularly describe the things to be
seized when the description therein is as specific as the
circumstances will ordinarily allow (People v. Rubio; 57 Phil. 384); or
when the description expresses a conclusion of fact not of law
by which the warrant officer may be guided in making the search and
seizure (idem., dissent of Abad Santos, J.,); or when the things
described are limited to those which bear direct relation to the offense
for which the warrant is being issued (Sec. 2, Rule 126, Revised Rules
of Court). The herein search warrant does not conform to any of the
foregoing tests. If the articles desired to be seized have any direct
relation to an offense committed, the applicant must necessarily have
some evidence, other than those articles, to prove the said offense;
and the articles subject of search and seizure should come in handy
merely to strengthen such evidence. In this event, the description
contained in the herein disputed warrant should have mentioned, at
least, the dates, amounts, persons, and other pertinent data regarding
the receipts of payments, certificates of stocks and securities,
contracts, promissory notes, deeds of sale, messages and
communications, checks, bank deposits and withdrawals, records of
foreign remittances, among others, enumerated in the warrant.
Respondents contend that certiorari does not lie because petitioners
failed to file a motion for reconsideration of respondent Judges order
of July 29, 1970. The contention is without merit. In the first place,
when the questions raised before this Court are the same as those
which were squarely raised in and passed upon by the court below,
the filing of a motion for reconsideration in said court before certiorari
can be instituted in this Court is no longer a prerequisite. (Pajo, etc.,
Et. Al. v. Ago, Et Al., 108 Phil., 905). In the second place, the rule
requiring the filing of a motion for reconsideration before an
application for a writ of certiorari can be entertained was never
intended to be applied without considering the circumstances.
(Matutina v. Buslon, Et Al., 109 Phil., 140.) In the case at bar time is of
the essence in view of the tax assessments sought to be enforced by
respondent officers of the Bureau of Internal Revenue against
petitioner corporation, On account of which immediate and more direct
action becomes necessary. (Matute v. Court of Appeals, Et Al., 26
SCRA 768.) Lastly, the rule does not apply where, as in this case, the
deprivation of petitioners fundamental right to due process taints the
proceeding against them in the court below not only with irregularity
but also with nullity. (Matute v. Court of Appeals, Et Al., supra.)
It is next contended by respondents that a corporation is not entitled to
protection against unreasonable search and seizures. Again, we find
no merit in the contention.
"Although, for the reasons above stated, we are of the opinion that an
officer of a corporation which is charged with a violation of a statute of

the state of its creation, or of an act of Congress passed in the

exercise of its constitutional powers, cannot refuse to produce the
books and papers of such corporation, we do not wish to be
understood as holding that a corporation is not entitled to immunity,
under the 4th Amendment, against unreasonable searches and
seizures. A corporation is, after all, but an association of individuals
under an assumed name and with a distinct legal entity. In organizing
itself as a collective body it waives no constitutional immunities
appropriate to such body. Its property cannot be taken without
compensation. It can only be proceeded against by due process of
law, and is protected, under the 14th Amendment, against unlawful
discrimination . . ." (Hale v. Henkel, 201 U.S. 43, 50 L. ed. 652.)
"In Linn v. United States, 163 C.C.A. 470, 251 Fed. 476, 480, it was
thought that a different rule applied to a corporation, the ground that it
was not privileged from producing its books and papers. But the rights
of a corporation against unlawful search and seizure are to be
protected even if the same result might have been achieved in a lawful
way." (Silverthorne Lumber Company, Et. Al. v. United States of
America, 251 U.S. 385, 64 L. ed. 319.)
In Stonehill, Et. Al. v. Diokno, Et Al., supra, this Court impliedly
recognized the right of a corporation to object against unreasonable
searches and seizures, thus:jgc:chanrobles.com.ph
"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 the interest of each of them in said
corporations, whatever, the offices they hold therein may be. Indeed, it
is well settled that the legality of a seizure can be contested only by
the party whose rights have been impaired thereby, and that the
objection to an unlawful search and seizure is purely personal and
cannot be availed of by third parties. 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 . . ."cralaw virtua1aw library
In the Stonehill case only the officers of the various corporations in
whose offices documents, papers and effects were searched and
seized were the petitioners. In the case at bar, the corporation to
whom the seized documents belong, and whose rights have thereby
been impaired, is itself a petitioner. On that score, petitioner
corporation here stands on a different footing from the corporations in
Stonehill.
The tax assessments referred to earlier in this opinion were, if not
entirely as claimed by petitioners at least partly as in effect
admitted by respondents based on the documents seized by virtue
of Search Warrant No. 2-M-70. Furthermore, the fact that the
assessments were made some one and one-half months after the
search and seizure on February 25, 1970, is a strong indication that
the documents thus seized served as basis for the assessments.
Those assessments should therefore not be enforced.
PREMISES CONSIDERED, the petition is granted. Accordingly,
Search Warrant No. 2-M-70 issued by respondent Judge is declared
null and void; respondents are permanently enjoined from enforcing
the said search warrant; the documents, papers and effects seized
thereunder are ordered to be returned to petitioners; and respondent
officials the Bureau of Internal Revenue and their representatives are
permanently enjoined from enforcing the assessments mentioned in
Annex "G" of the present petition, as well as other assessments based
on the documents, papers and effects seized under the search
warrant herein nullified, and from using the same against petitioners in
any criminal or other proceeding. No pronouncement as to costs.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Fernando, Teehankee
and Makasiar, JJ., concur.
Reyes, J.B.L., J., concurs with Mr. Justice Barredo.

Castro, J., concurs in the result.

Separate Opinions
BARREDO, J., concurring:chanrob1es virtual 1aw library
I concur.
I agree with the ruling that the search warrants in question violates the
specific injunction of Section 3, Rule 126 that "No search warrant shall
issue for more than one specific offense." There is no question in my
mind that, as very clearly pointed out by Mr. Justice Villamor, the
phrase "for violation of Section 46 (a) of the National Internal Revenue
Code in relation to all other pertinent provisions thereof, particularly
Sections 53, 72, 73, 208 and 209" refers to more than one specific
offense, considering that the violation of Section 53 which refers to
withholding of income taxes at the sources, Section 208 which
punishes pursuit of business or occupation without payment of the
corresponding specific or privilege taxes, and Section 209 which
penalizes failure to make a return of receipts sales, business or gross
value output actually removed or to pay the taxes thereon in
connection with Title V on Privilege Taxes on Business and
Occupation can hardly be absorbed in a charge of alleged violation of
Section 46(a), which merely requires the filing of income tax returns by
corporations, so as to constitute with it a single offense. I perceive
here the danger that the result of the search applied for may be used
as basis not only for a charge of violating Section 46(a) but also and
separately of Section 53, 208 and 209. Of course, it is to be admitted
that Sections 72 and 73, also mentioned in the application, are really
directly related to Section 46(a) because Section 72 provides for
surcharges for failure to render, returns and for rendering false and
fraudulent returns and Section 73 refers to the penalty for failure to file
returns or to pay the corresponding tax. Taken together, they
constitute one single offense penalized under Section 73. I am not and
cannot be in favor of any scheme which amounts to an indirect means
of achieving that which not allowed to be done directly. By merely
saying that a party is being charged with violation of one section of the
code in relation to a number of other sections thereof which in truth
have no clear or direct bearing with the first is to me condemnable
because it is no less than a shotgun device which trenches on the
basic liberties intended to be protected by the unequivocal limitations
imposed by the Constitution and the Rules of Court on the privilege to
secure a search warrant with the aggravating circumstance of being
coupled with an attempt to mislead the judge before whom the
application for its issuance is presented.
I cannot close this brief concurrence without expressing my vehement
disapproval of the action taken by respondent internal revenue
authorities in using the documents and papers secured during the
search, the legality of which was pending resolution by the court, as
basis of an assessment, no matter how highly motivated such action
might have been. This smacks of lack of respect, if not contempt for
the court and is certainly intolerable. At the very least, it appears as an
attempt to render the court proceedings moot and academic, and
dealing as this case does with constitutionally protected rights which
are part and parcel of the basic concepts of individual liberty and
democracy, the government agents should have been the first ones to
refrain from trying to make a farce of these court proceedings. Indeed,
it is to be regretted that the government agents and the court have
acted irregularly, for it is highly doubtful if it would be consistent with
the sacredness of the rights herein found to have been violated to
permit the filing of another application which complies with the
constitutional requirements above discussed and the making of
another search upon the return of the papers and documents now in
their illegal possession. This could be an instance wherein taxes
properly due the State will probably remain unassessed and unpaid
only because the ones in charge of the
execution of the laws did not know how to respect basic constitutional
rights and liberties.

THIRD DIVISION
[G.R. No. 99050. September 2, 1992.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. CONWAY B.
OMAWENG, Accused-Appellant.
The Solicitor General for Plaintiff-Appellee.

(sic) his person or premises, he is precluded from later complaining

thereof (Cooley, Constitutional Limitations, 8th ed., vol. I, page 631.)
The right to be secure from unreasonable search may, like every right,
be waived and such waiver may be made either expressly or
impliedly." Since in the course of the valid search forty-one (41)
packages of drugs were found, it behooved the officers to seize the
same; no warrant was necessary for such seizure. Besides, when said
packages were identified by the prosecution witnesses and later on
formally offered in evidence, the accused did not raise any objection
whatsoever.

DECISION

DAVIDE, JR., J.:

Joel C. Obar for Accused-Appellant.

SYLLABUS

1. CRIMINAL LAW; DANGEROUS DRUG ACT; ILLEGAL

POSSESSION OF PROHIBITED DRUGS; PROOF OF OWNERSHIP
THEREOF BY THE ACCUSED NOT REQUIRED. The accused
contends that the prosecution failed to prove that he is the owner of
the marijuana found inside the travelling bag which he had in his
vehicle, a Ford Fiera Proof of ownership is immaterial. Accused was
prosecuted for the dispatching in transit or transporting of prohibited
drugs pursuant to Section 4, Article II of R.A. No. 6425, as amended.
This section does not require that for one to be liable for participating
in any of the proscribed transactions enumerated therein, he must be
the owner of the prohibited drug. This section penalizes the pusher,
who need not be the owner of the prohibited drug. The law defines
pusher as "any person who sells, administers, delivers, or gives away
to another, on any terms whatsoever, or distributes, dispatches in
transit or transports any dangerous drug or who acts as a broker in
any of such transactions, in violation of this Act. [Section 2 (m), R.A.
No. 6425, as amended.] In People v. Alfonso, [186 SCRA (1990)]
where the accused was charged with the unlawful transportation of
marijuana under the aforesaid Section 4, this Court ruled that
ownership is not a basic issue.
2. REMEDIAL LAW; EVIDENCE; CIRCUMSTANTIAL EVIDENCE
COMBINATION THEREOF; WARRANTS A CONVICTION BEYOND
REASONABLE DOUBT. The facts, as proven by the prosecution,
establish beyond cavil that the accused was caught in the act of
transporting the prohibited drug or, in other words, in flagrante delicto.
That he knew fully well what he was doing is shown beyond moral
certainty by the following circumstances: (a) the prohibited drug was
found in a travelling bag, (b) he is the owner of the said bag, (c) he
concealed the bag behind a spare tire, (d) he was travelling alone, and
(e) the Ford Fiera in which he loaded the bag was under his absolute
control, pursuant to Section 4, Rule 133 of the Rules of Court (on
circumstantial evidence), the combination of all these circumstances is
such as to produce a conviction beyond reasonable doubt. Such
circumstances, unrebutted by strong and convincing evidence by the
accused, even gave rise to the presumption that he is the owner of the
prohibited drug. [Section 3(j), Rule 131, Rules of Court.]
3. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST
UNREASONABLE SEARCH & SEIZURE; WHEN DEEMED WAIVED.
Accused was not subjected to any search which may be
stigmatized as a violation of his Constitutional right against
unreasonable searches and seizures. [Section 2, Article III, 1987
Constitution.] If one had been made, this Court would be the first to
condemn it "as the protection of the citizen and the maintenance of his
constitutional rights is one of the highest duties and privileges of the
Court." [Rodriguez v. Villamiel, 65 Phil. 230 (1937).] He willingly gave
prior consent to the search and voluntarily agreed to have it conducted
on his vehicle and travelling bag. Thus, the accused waived his right
against unreasonable searches and seizures As this Court stated in
People v. Malasugui: (63 Phil. 221, 226 [1936]. See also Vda. de
Garcia v. Locsin, 65 Phil. 689 [1938]; People v. Donato, 198 SCRA
130 [1991]; People v. Rodrigueza, 205 SCRA 791 [1992].)." . . When
one voluntarily submits to a search or consents to have it made of

Accused Conway B. Omaweng was originally indicted for the violation

of Section 4, Article II of Republic Act No. 6425, otherwise known as
the Dangerous Drugs Act of 1972, as amended, in a criminal
complaint filed with the Municipal Trial Court of Bontoc, Mountain
Province on 12 September 1988. 1 Upon his failure to submit counteraffidavits despite the granting of an extension of time to do so, the
court declared that he had waived his right to a preliminary
investigation and, finding probable cause against the accused,
ordered the elevation of the case to the proper court. 2
On 14 November 1988, the Office of the Provincial Fiscal of Mountain
Province filed an Information charging the accused with the violation
of Section 47 Article II of the Dangerous Drugs Act of 1972, as
amended. The accusatory portion thereof reads:chanrobles virtual
lawlibrary
"That on or about September 12, 1988, at Dantay, Bontoc, Mountain
Province, and within the jurisdiction of this Honorable Court, the
above-named accused, without being authorized by law, did then and
there willfully, unlawfully and feloniously dispatch in transit or transport
in a Ford Fiera, owned and driven by him, 10 1/4 kilos of processed
marijuana in powder form contained in al plastic bags of different sizes
which were placed in a travelling bag destained (sic) and intended for
delivery, disposition and sale in Sagada, Mountain Province, with full
knowledge that said processed marijuana is (sic) prohibited drug or
from which (sic) prohibited drug maybe manufactured.
CONTRARY TO LAW." 3
The case was docketed as Criminal Case No. 713.
After his motion for reinvestigation was denied by the Provincial Fiscal,
4 the accused entered a plea of not guilty during his arraignment on
20 June 1989.
During the trial on the merits, the prosecution presented four (4)
witnesses. The accused did not present any evidence other than
portions of the Joint Clarificatory Sworn Statement, dated 23
December 1988, of prosecution witnesses Joseph Layong and David
Fomocod.
On 21 March 1991, the trial court promulgated its Judgment 5
convicting the accused of the crime of transporting prohibited drugs
penalized under Section 4, Article II of R.A. No. 6425, as amended.
The dispositive portion of the decision reads:jgc:chanrobles.com.ph
"WHEREFORE, judgment is hereby rendered imposing upon the
accused herein the penalty of life imprisonment and a fine of Twenty
Five Thousand Pesos.
Pursuant to Sec. 20, Art. IV of the aforecited special law, the drugs
subject of the crime are ordered confiscated and forfeited in favor of
the Government. Accordingly, it is further directed that such drugs so
confiscated and forfeited be destroyed without delay per existing rules
and regulations on the matter.chanrobles lawlibrary : rednad
Costs against the accused.
SO ORDERED." 6

Hence, this appeal.

In the Appellants Brief, Accused imputes upon the trial court the
commission of the following errors.
"I
. . . IN CONVICTING THE ACCUSED DESPITE INSUFFICIENCY OF
EVIDENCE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.
II
. . . IN NOT CONSIDERING THE JOINT CLARIFICATORY
STATEMENT OF THE ARRESTING OFFICERS TO THE EFFECT
THAT THE ACCUSED IS NOT THE OWNER OF THE PROHIBITED
DRUG SUBJECT OF THIS CASE.
III
. . . IN NOT RULING THAT THE CONTRABAND SUBJECT OF THE
INSTANT CASE IS INADMISSIBLE IN EVIDENCE FOR HAVING
BEEN OBTAINED IN VIOLATION OF THE CONSTITUTIONAL RIGHT
OF THE ACCUSED AGAINST UNREASONABLE SEARCH (sic) AND
SEIZURE." 7

examinations of marijuana, shabu and cocaine samples, conducted

two chemistry examinations of the substance contained in the plastic
packets taken from appellant and found them to be positive for
hashish or marijuana (TSN, October 24, 1990, pp. 3, 5-81)." 9
Anent the first assigned error, the accused contends that the
prosecution failed to prove that he is the owner of the marijuana found
inside the travelling bag which he had in his vehicle, a Ford Fiera
Proof of ownership is immaterial. Accused was prosecuted for the
dispatching in transit or transporting of prohibited drugs pursuant to
Section 4, Article II of R.A. No. 6425, as amended. This section does
not require that for one to be liable for participating in any of the
proscribed transactions enumerated therein, he must be the owner of
the prohibited drug. It simply reads:jgc:chanrobles.com.ph
"SEC. 4. Sale, Administration, Delivery, Distribution and Transportation
of Prohibited Drugs. The penalty of life imprisonment to death and a
fine ranging from twenty thousand to thirty thousand pesos shall be
imposed upon any person who, unless authorized by law, shall sell,
administer, deliver, give away to another, distribute, dispatch in transit
or transport any prohibited drug, or shall act as a broker in any of such
transactions. If the victim of the offense is a minor, or should a
prohibited drug involved in any offense under this Section be the
proximate cause of the death of a victim thereof, the maximum penalty
herein provided shall be imposed."cralaw virtua1aw library

The appeal is without merit. The decision appealed from must be

upheld.

This section penalizes the pusher, who need not be the owner of the
prohibited drug. The law defines pusher as "any person who sells,
administers, delivers, or gives away to another, on any terms
whatsoever, or distributes, dispatches in transit or transports any
dangerous drug or who acts as a broker in any of such transactions, in
violation of this Act. 10

After a careful review and evaluation of the evidence, We find to have

been fully proven the following facts as summarized by the Solicitor
General in the Brief for the Appellee. 8

In People v. Alfonso, 11 where the accused was charged with the

unlawful transportation of marijuana under the aforesaid Section 4,
this Court ruled that ownership is not a basic issue.cralawnad

"In the morning of September 12, 1988, Joseph Layong, a PC

constable with the Mt. Province PC Command at Bontoc, Mt. Province
proceeded with other PC soldiers to Barrio Dantay, Bontoc and, per
instruction of their officer, Capt. Eugene Martin, put up a checkpoint at
the junction of the roads, one going to Sagada and the other to Bontoc
(TSN, November 9, 1989, pp. 3-4). They stopped and checked all
vehicles that went through the checkpoint (TSN, April 5, 1990, p. 12).

The facts, as proven by the prosecution, establish beyond cavil that

the accused was caught in the act of transporting the prohibited drug
or, in other words, in flagrante delicto. That he knew fully well what he
was doing is shown beyond moral certainty by the following
circumstances: (a) the prohibited drug was found in a travelling bag,
(b) he is the owner of the said bag, (c) he concealed the bag behind a
spare tire, (d) he was travelling alone, and (e) the Ford Fiera in which
he loaded the bag was under his absolute control, pursuant to Section
4, Rule 133 of the Rules of Court (on circumstantial evidence), the
combination of all these circumstances is such as to produce a
conviction beyond reasonable doubt. Such circumstances, unrebutted
by strong and convincing evidence by the accused, even gave rise to
the presumption that he is the owner of the prohibited drug. 12

At about 9:15 A.M., Layong and his teammate, Constable David

Osborne Famocod (sic), saw and flagged down a cream-colored Ford
Fiera bearing Plate No. ABT-634 coming from the Bontoc Poblacion
and headed towards Baguio (TSN, November 9, 1989, pp. 4-5, 8). The
vehicle was driven by appellant and had no passengers (TSN,
November 9, 1989, pp. 4-5).
Layong and his companions asked permission to inspect the vehicle
and appellant acceded to the request. (TSN, November 9, 1989, pp.
4-5). When they peered into the rear of the vehicle, they saw a
travelling bag which was partially covered by the rim of a spare tire
under the passenger seat on the right side of the vehicle (TSN,
November 9, 1989, pp. 6, 10, 11).chanrobles.com:cralaw:red
Layong and his companions asked permission to see the contents of
the bag (TSN, November 9, 1989, p. 6). Appellant consented to the
request but told them that it only contained some clothes (TSN,
November 9, 1989, p. 6). When Layong opened the bag, he found that
it contained forty-one (41) plastic packets of different sizes containing
pulverized substances (TSN, November 9, 1989, pp. 7, 9).
Layong gave a packet to his team leader, constable David Osborne
Fomocod, who, after sniffing the stuff concluded that it was marijuana
(TSN, November 9, 1989, p. 16).
The PC constables, together with appellant, boarded the latters Ford
Fiera and proceeded to the Bontoc poblacion to report the incident to
the PC Headquarters (TSN, November 9, 1989, pp. 7-8) The
prohibited drugs were surrendered to the evidence custodian, Sgt.
Angel Pokling (TSN, November 9, 1989, pp. 7-8).
Major Carlos Figueroa, a PC Forensic Chemist at Camp Dangwa, La
Trinidad, Benguet, who has conducted more than 2500 professional

The second assigned error is devoid of merit. The declaration in the

joint clarificatory sworn statement executed by the apprehending
officers, that the marijuana subject of the case was surreptitiously
placed by an unknown person in the bag of the accused, is not
supported by evidence. Said sworn statement cannot be used as a
basis for exoneration because the very same officers who signed the
same reiterated on the witness stand their statements in their original
affidavit implicating the accused, both the criminal complaint before
the Municipal Trial Court of Lontoc and the information in this case
were based on this original affidavit. No probative value could be
assigned to it not only because it was procured by the defense under
questionable circumstances, but also because the affiants therein
merely expressed their personal opinion. The trial courts correct
exposition on this point, to which nothing more may be added,
deserves to be quoted, thus:jgc:chanrobles.com.ph
"From the portions of the Joint Clarificatory Sworn Statement- of
prosecution witnesses Layong and Fomocod cited (Exhs. "I" to "I-C" ;
p 155, Record), the defense would want this Court to draw the
inference that the accused Conway Omaweng is innocent as
confirmed by no less than the persons who apprehended the suspect
in flagranti (sic). In other words, that the said accused is not the owner
of the contraband confiscated but someone else; that to (sic)
mysterious individual placed the prohibited articles inside the travelling
bag of the accused without the knowledge and consent of the latter;
and that the identity of this shadowy third person is known by the
PC/INP investigators. The isolated declarations, albeit under oath are

much too asinine to be true and do not affect the credibilities of the
witnesses affiants and the truth of their affirmations on the stand.
As gleaned from parts of the record of the reinvestigation of this case
conducted by the Provincial Fiscal (Exhs "G" and "D" ; pp. 158 and
161, Record), it appears that Layong and Fomocod were prevailed
upon to affix their signatures to (sic) the document styled as Joint
Clarificatory Sworn Statement by interested persons in a vain ploy to
extricate the accused from the morass he got himself into. Testifying in
open court, the same witnesses maintained the tenor of their original
affidavit supporting the filing of the criminal complaint in the lower
court (Exh. "C" ; p. 2, Record) No additional information was elicited
from said witnesses during their examination from which it can
reasonably be deduced that a third person instead of the accused is
the culprit and that the suspect is being framed-up for a crime he did
not commit. Nonetheless, granting arguendo that the declarations of
Layong and Fomocod now the bone of contention, are on the level,
the same are but mere opinions and conclusions without bases. Any
which way, to believe that any person in his right mind owning several
kilos of hot hashish worth tens of thousands of pesos would simply
stash it away in the travelling bag of someone he has no previous
agreement with is a mockery of common sense. And to think further
that the PC/INP agents know of such fact yet they kept the vital
information under confidential Status (whatever that means in police
parlance) while an innocent person is being prosecuted and practically
in the shadow of the gallows for the offense would be stretching
human credulity to the snapping point. By and large, the fact remains
as the circumstances logically indicate that the accused Conway
Omaweng has knowledge of the existence of the contraband inside
his vehicle and he was caught red-handed transporting the hot stuff."
13

Fomocod smelled it, he said it was marijuana." 16

This testimony was not dented on cross-examination or rebutted by
the accused for he chose not to testify on his own behalf.
Thus, the accused waived his right against unreasonable searches
and seizures As this Court stated in People v. Malasugui: 17
". . . When one voluntarily submits to a search or consents to have it
made of (sic) his person or premises, he is precluded from later
complaining thereof (Cooley, Constitutional Limitations, 8th ed., vol. I,
page 631.) The right to be secure from unreasonable search may, like
every right, be waived and such waiver may be made either expressly
or impliedly."cralaw virtua1aw library
Since in the course of the valid search forty-one (41) packages of
drugs were found, it behooved the officers to seize the same; no
warrant was necessary for such seizure. Besides, when said
packages were identified by the prosecution witnesses and later on
formally offered in evidence, the accused did not raise any objection
whatsoever. Thus, in the accuseds Comments And/Or Objections To
Offer of Evidence, 18 We merely find the following:chanrobles law
library
"EXHIBIT COMMENTS AND/OR OBJECTIONS
"A" The bag was not positively identified to be
the same bag allegedly found inside the
vehicle driven by the accused. The

The third assignment of error hardly deserves any consideration

Accused was not subjected to any search which may be stigmatized
as a violation of his Constitutional right against unreasonable
searches and seizures. 14 If one had been made, this Court would be
the first to condemn it "as the protection of the citizen and the
maintenance of his constitutional rights is one of the highest duties
and privileges of the Court." 15 He willingly gave prior consent to the
search and voluntarily agreed to have it conducted on his vehicle and
travelling bag. Prosecution witness Joseph Layong testified
thus:chanrobles lawlibrary : rednad

arresting officers failed to show any

identifying marks; thug, said bag is an
irrelevant evidence not admissible in court;
"A-1" to "A-40" Objected to also as irrelevant as the 40
bags now being offered are not the same

"PROSECUTOR AYOCHOK:chanrob1es virtual 1aw library

bags alleged in the information which is 41

Q When you and David Fomocod saw the travelling bag, what did you
do?

bags. The prosecution failed to proved (sic)

beyond reasonable doubt that Exhibit "A-1"

A When we saw that travelling bag, we asked the driver if we could

see the contents.

to "A-40" are the same bags allegedly taken

Q And what did or what was the reply of the driver, if there was any?

from inside Exhibit "A" because what is

A He said you can see the contents but those are only clothings (sic).

supposed to be inside the bag are 41 bags

Q When he said that, what did you do?

and not 40 bags."cralaw virtua1aw library

A We asked him if we could open and see it.

Q When you said that, what did he tell you?

A He said you can see it.
Q And when he said you can see and open it, what did you do?
A When I went inside and opened the bag, I saw that it was not
clothings (sic) that was contained in the bag.
Q And when you saw that it was not clothings (sic), what did you do?
A When I saw that the contents were not clothes, I took some of the
contents and showed it to my companion Fomocod and when

WHEREFORE, the decision of Branch 36 of the Regional Trial t of

Bontoc, Mountain Province of 21 March 1991 in Criminal Case No.
713 finding the accused CONWAY B. OMAWENG guilty beyond
reasonable doubt of the crime charged, is hereby AFFIRMED.
Costs against the accused.
SO ORDERED.