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CHECKPOINTS AND THE RIGHT AGAINST

UNREASONABLE SEARCH AND SEIZURE


By: Atty.Fred | January 21, 2008 in Criminal Law, Elections and Constitutional Law, Litigation
12 Replies | Related posts at the bottom of article

A checkpoint is something that motorists have to contend with on the road. Only recently, a
concerned Filipino citizen raised some issues with respect to PNP/AFP checkpoints. The issues
raised are valid, as the Supreme Court itself noted that it has become aware of how some
checkpoints have been used as points of thievery and extortion practiced upon innocent civilians.
Even the increased prices of foodstuffs coming from the provinces, entering the Metro Manila area
and other urban centers, are largely blamed on the checkpoints, because the men manning them
have reportedly become experts in mulcting travelling traders. This, of course, is a national
tragedy.

Still, the power of the authorities to install checkpoints is conceded by the Supreme Court. With that,
lets have a brief discussion on checkpoints and the right against unreasonable search and seizures.

The Constitution ensures the right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to be searched and the
persons or things to be seized. (Section 2, Article III). The Constitution also provides that any
evidence obtained in violation of the provision mentioned is inadmissible in evidence (Sec. 3, Article
III).

The general rule is this no arrests and search/seizure could be made without a warrant.
However, there are exceptions. Among the exceptions concerning search and seizure are: (1)
search of moving vehicles; (2) seizure in plain view; and (3) waiver by the accused of his right
against unreasonable search and seizure. These exceptions, while distinct and separate from each
other, are often discussed together (routine airport security inspection is a slightly different matter,
but thats the subject of another post).

Search and seizure relevant to moving vehicles are allowed in recognition of the impracticability
of securing a warrant under said circumstances. In such cases however, the search and seizure may
be made only upon probable cause, i.e., upon a belief, reasonably arising out of circumstances
known to the seizing officer, that an automobile or other vehicle contains an item, article or object
which by law is subject to seizure and destruction. The SC also found probable cause in the
following instances:

(a) where the distinctive odor of marijuana emanated from the plastic bag carried by the accused;

(b) where an informer positively identified the accused who was observed to have been acting
suspiciously;

(c) where the accused fled when accosted by policemen;

(d) where the accused who were riding a jeepney were stopped and searched by policemen who
had earlier received confidential reports that said accused would transport a large quantity of
marijuana; and
(e) where the moving vehicle was stopped and searched on the basis of intelligence information and
clandestine reports by a deep penetration agent or spy one who participated in the drug
smuggling activities of the syndicate to which the accused belonged that said accused were
bringing prohibited drugs into the country.

Under the plain view doctrine, objects falling in the plain view of an officer who has a right
to be in the position to have that view are subject to seizure and may be presented as evidence. The
plain view doctrine applies when the following requisites concur:

(a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is
in a position from which he can view a particular area;

(b) the discovery of the evidence in plain view is inadvertent; and

(c) it is immediately apparent to the officer that the item he observes may be evidence of a crime,
contraband or otherwise subject to seizure.

To illustrate, the SC found all these elements in one case: The law enforcement officers lawfully
made an initial intrusion because of the enforcement of the Gun Ban and were properly in a position
from which they particularly viewed the area. In the course of such lawful intrusion, the policemen
came inadvertently across a piece of evidence incriminating the petitioner where they saw the gun
tucked into his waist. The gun was in plain view and discovered inadvertently when the petitioner
alighted from the vehicle. In this particular case, the gun was found only after the accused
steped out of the vehicle. The accused claims that he could not have freely refused the police
orders issued by the police team who were armed to the teeth and in the face of
such show of force. The SC, however, noted that the police team manning the checkpoint
politely requested the passengers to alight from their vehicles, and the motorists who refused this
request were not forced to do so.

As to military or police checkpoints, the Supreme Court already ruled that these checkpoints are
not illegal per se, as long as the vehicle is neither searched nor its occupants subjected to
body search, and the inspection of the vehicle is merely visual. The search which is limited to
routine checks visual inspection or flashing a light inside the car, without the occupants being
subjected to physical or body searches. In other words, in the absence of probable cause, the
authorities:

(a) cannot compel the passengers to step out of the car;

(b) cannot conduct bodily searches; and

(c) cannot compel the motorist to open the trunk or glove compartment of the car, or any package
contained therein.

A search of the luggage inside the vehicle would require the existence of probable cause. On the
other hand, no probable cause is required if the accused voluntarily opens the trunk and allows the
search, as waiver of ones right against unreasonable search and seizures is one of the exceptions
noted above.

The negative impressions on checkpoints, however, should not be an excuse to be rude to the
officers manning them. If Im flagged down at a check point, I usually roll down the drivers window
halfway, address the officer in a courteous manner, then mentally note his name plate. What is your
recourse in case of abuse? In the words of the Supreme Court: where abuse marks the operation of
a checkpoint, the citizen is not helpless. For the military is not above but subject to the law. And the
courts exist to see that the law is supreme. Soldiers, including those who man checkpoints, who
abuse their authority act beyond the scope of their authority and are, therefore, liable criminally and
civilly for their abusive acts. This tenet should be ingrained in the soldiery in the clearest of terms by
higher military authorities.

* Sources:

Abenes vs. Court of Appeals (G.R. No. 156320, February 14, 2007)
People vs. Lacerna (G.R. No. 109250, September 5, 1997)
Valmonte vs. De Villa (G.R. No. 83988, May 24, 1990)

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G.R. No. 83988 May 24, 1990

RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLES'S


RIGHTS (ULAP), petitioners,
vs.
GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT
COMMAND, respondents.

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

PADILLA, J.:

In the Court's decision dated 29 September 1989, petitioners' petition for prohibition seeking the
declaration of the checkpoints as unconstitutional and their dismantling and/or banning, was
dismissed.

Petitioners have filed the instant motion and supplemental motion for reconsideration of said
decision. Before submission of the incident for resolution, the Solicitor General, for the respondents,
filed his comment, to which petitioners filed a reply.

It should be stated, at the outset, that nowhere in the questioned decision did this Court
legalize all checkpoints, i.e. at all times and under all circumstances. What the Court declared is, that
checkpoints are not illegal per se. Thus, under exceptional circumstances, as where the survival of
organized government is on the balance, or where the lives and safety of the people are in grave
peril, checkpoints may be allowed and installed by the government. Implicit in this proposition is, that
when the situation clears and such grave perils are removed, checkpoints will have absolutely no
reason to remain.

Recent and on-going events have pointed to the continuing validity and need for checkpoints
manned by either military or police forces. The sixth (6th) attempted coup d' etat (stronger than all
previous ones) was staged only last 1 December 1989. Another attempt at a coup d' etat is taken
almost for granted. The NPA, through its sparrow units, has not relented but instead accelerated its
liquidation of armed forces and police personnel. Murders, sex crimes, hold-ups and drug abuse
have become daily occurrences. Unlicensed firearms and ammunition have become favorite objects
of trade. Smuggling is at an all time high. Whether or not effective as expected, checkpoints have
been regarded by the authorities as a security measure designed to entrap criminals and insurgents
and to constitute a dragnet for all types of articles in illegal trade.

No one can be compelled, under our libertarian system, to share with the present government its
ideological beliefs and practices, or commend its political, social and economic policies or
performance. But, at least, one must concede to it the basic right to defend itself from its enemies
and, while in power, to pursue its program of government intended for public welfare; and in the
pursuit of those objectives, the government has the equal right, under its police power, to select the
reasonable means and methods for best achieving them. The checkpoint is evidently one of such
means it has selected.

Admittedly, the routine checkpoint stop does intrude, to a certain extent, on motorist's right to "free
passage without interruption", but it cannot be denied that, as a rule, it involves only a brief detention
of travellers during which the vehicle's occupants are required to answer a brief question or
two. 1 For as long as the vehicle is neither searched nor its occupants subjected to a body search, and
the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as
violative of an individual's right against unreasonable search.

These routine checks, when conducted in a fixed area, are even less intrusive. As held by the U.S.
Supreme Court:

Routine checkpoint stops do not intrude similarly on the motoring public. First, the
potential interference with legitimate traffic is minimal. Motorists using these
highways are not taken by surprise as they know, or may obtain knowledge of, the
location of the checkpoints and will not be stopped elsewhere. Second, checkpoint
operations both appear to and actually involve less discretionary enforcement
activity. The regularized manner in which established checkpoints are operated is
visible evidence, reassuring to law-abiding motorists, that the stops are duly
authorized and believed to serve the public interest. The location of a fixed
checkpoint is not chosen by officers in the field, but by officials responsible for
making overall decisions as to the most effective allocation of limited enforcement
resources. We may assume that such officials will be unlikely to locate a checkpoint
where it bears arbitrarily or oppressively on motorists as a class, and since field
officers may stop only those cars passing the checkpoint, there is less room for
abusive or harassing stops of individuals than there was in the case of roving-patrol
stops. Moreover, a claim that a particular exercise of discretion in locating or
operating a checkpoint is unreasonable is subject to post-stop judicial review. 2

The checkpoints are nonetheless attacked by the movants as a warrantless search and seizure and,
therefore, violative of the Constitution. 3

As already stated, vehicles are generally allowed to pass these checkpoints after a routine
inspection and a few questions. If vehicles are stopped and extensively searched, it is because of
some probable cause which justifies a reasonable belief of the men at the checkpoints that either the
motorist is a law-offender or the contents of the vehicle are or have been instruments of some
offense. Again, as held by the U.S. Supreme Court

Automobiles, because of their mobility, may be searched without a warrant upon


facts not justifying a warrantless search of a residence or office. Brinegar v. United
States, 338 US 160, 93 L Ed 1879, 69 S Ct 1302 (1949); Carroll v. United States,
267 US 132, 69 L Ed 543,45 S Ct 280, 39 ALR 790 (1925). The cases so holding
have, however, always insisted that the officers conducting the search have
'reasonable or probable cause to believe that they will find the instrumentality of a
crime or evidence pertaining to a crime before they begin their warrantless search.
... 4

Besides these warrantless searches and seizures at the checkpoints are quite similar to searches
and seizures accompanying warrantless arrests during the commission of a crime, or immediately
thereafter. In People vs. Kagui Malasuqui it was held

To hold that no criminal can, in any case, be arrested and searched for the evidence
and tokens of his crime without a warrant, would be to leave society, to a large
extent, at the mercy of the shrewdest the most expert, and the most depraved of
criminals, facilitating their escape in many instances. 5

By the same token, a warrantless search of incoming and outgoing passengers, at the arrival and
departure areas of an international airport, is a practice not constitutionally objectionable because it
is founded on public interest, safety, and necessity.

Lastly, the Court's decision on checkpoints does not, in any way, validate nor condone abuses
committed by the military manning the checkpoints. The Court's decision was concerned with power,
i.e. whether the government employing the military has the power to install said checkpoints. Once
that power is acknowledged, the Court's inquiry ceases. True, power implies the possibility of its
abuse. But whether there is abuse in a particular situation is a different "ball game" to be resolved in
the constitutional arena.

The Court, like all other concerned members of the community, has become aware of how some
checkpoints have been used as points of thievery and extortion practiced upon innocent civilians.
Even the increased prices of foodstuffs coming from the provinces, entering the Metro Manila area
and other urban centers, are largely blamed on the checkpoints, because the men manning them
have reportedly become "experts" in mulcting travelling traders. This, of course, is a national tragedy
.

But the Court could not a priori regard in its now assailed decision that the men in uniform are
rascals or thieves. The Court had to assume that the men in uniform live and act by the code of
honor and they are assigned to the checkpoints to protect, and not to abuse, the citizenry. 6 The
checkpoint is a military "concoction." It behooves the military to improve the QUALITY of their men
assigned to these checkpoints. For no system or institution will succeed unless the men behind it are
honest, noble and dedicated.

In any situation, where abuse marks the operation of a checkpoint, the citizen is not helpless. For the
military is not above but subject to the law. And the courts exist to see that the law is supreme.
Soldiers, including those who man checkpoints, who abuse their authority act beyond the scope of
their authority and are, therefore, liable criminally and civilly for their abusive acts; 7 This tenet should
be ingrained in the soldiery in the clearest of terms by higher military authorities.

ACCORDINGLY, the Motion and Supplemental Motion for Reconsideration are DENIED. This denial
is FINAL.

SO ORDERED.

Fernan C.J., Narvasa, Melencio-Herrera, Paras, Feliciano, Bidin, Cortes, Grio-Aquino, Medialdea
and Regalado, JJ., concur.
Gancayco, J., is on leave.

Separate Opinions

GUTIERREZ, JR., J., concurring:

The problem we face in the resolution of this petition arises from our knowledge that law
enforcement officers use checkpoints as opportunities for mulcting oppression, and other forms of
abuse. However, to completely ban checkpoints as unconstitutional is to lose sight of the fact that
the real objective behind their use is laudable and necessary, If we say that ALL checkpoints are
unconstitutional, we are banning a law enforcement measure not because it is per se illegal but
because it is being used for evil purposes by the soldiers or police who man it.

This is another instance where the Supreme Court is urged to solve a problem of discipline facing
the executive and the military. My reluctant concurrence with the majority opinion is premised on the
hope that our top military and police officials will devise effective measures which would insure that
checkpoints are used only where absolutely needed and that the officers who are assigned to these
checkpoints discharge their duties as professional soldiers or peace officers in the best traditions of
the military and the police. I repeat that this is a problem of enforcement and not legality.

CRUZ, J., dissenting:

I reiterate my original dissent and add the following observations.

The majority would justify the checkpoints on the ground of rampant criminality, e.g., the failed coup,
the "sparrow" killings, murders, sex crimes, drug abuse, smuggling, etc. I was not aware that the
failure of the authorities to suppress crime was an excuse to suspend the Bill of Rights. It has always
been my impression that even criminals, and more so the innocent, are entitled to the right against
unreasonable searches and seizures.

The protection of the security of the State is a convenient pretext of the police state to suppress
individual rights. Constitutional shortcuts should not be allowed in a free regime where the highest
function of authority is precisely to exalt liberty.

The ponencia says that the Constitution is not violated because "the inspection of the vehicle is
limited to a visual search." Assuming that this is all the search entails, it suffers from the additional
defect of inefficaciousness, making it virtually useless. It did not prevent the staging of the December
1 coup, where the rebels used all kinds of high-powered weapons that were not detected by "a visual
search."

Under Article 111, Section 2 of the Constitution, probable cause is determined "personally by the
judge," not by a soldier or a policeman. It is not for the peace officer to decide when a warrantless
search and seizure may be made save in the exceptional instances allowed, as where a crime is
being committed or before or after its commission. I can hardly believe that the majority is seriously
offering this exception as a continuing situation to justify the regular warrantless searches at the
checkpoints.

It is easy to say that "where abuse marks the operation of a checkpoint, the citizen is not helpless."
Let us at least be realistic. This Court would be the first to dismiss the complaint if not supported by
hard evidence, which we know is not easily come by. The remedy, in my view. is to remove the
source of the evil instead of leaving it unchecked and then simply suggesting a cure, which is not
even effective. It is like inoculating a patient after exposing him to contagion.

SARMIENTO, J., dissenting:

The majority states that checkpoints are justified by "grave peril." The question, however, is whether
or not the existence of such grave perils has the effect of suspending the Bill of Rights, specifically,
the right against unreasonable searches and seizures.

Under the Constitution, "[a] state of martial law does not suspend the operation of the Constitution."
(CONST., art. VII, sec. 18). If not even martial law can suspend the fundamental law, I do not see
how a mere executive act can.

That the State has the right to defend itself is a proposition difficult to argue against. The query,
again, is whether or not it may defend itself against its enemies at the expense of liberty. After
fourteen years of authoritarian rule, I think by now we should have learned our lesson ' and known
better.

Although "routine inspections" are another matter, I can not think that the checkpoints in question
have been meant to undertake routine inspections alone. As it is, no ground rules have been given
our law enforcers, which is to say that they have the carte blanche to search vehicles and even
persons without the benefit of a valid judicial warrant. I do not believe that this can be done in a
constitutional regime.

I find references to the case of People v. Kagui Malasugui [63 Phil. 221 (1936)] to be inapt In that
case, there was a waiver of the right against unreasonable search and secondly, there existed a
clear probable cause for search and arrest. Certainly, there was reason for excepting the case from
the rule. Malasugui, however, is an exception. And obviously, the majority would make a general rule
out of it.

Certainly, it is different where the authority has probable cause to believe that a crime has been
committed by a suspect, in which case, it may place him under arrest or search his person
(Malasugui, supra). But I do not think that it may claim the existence of probable cause for every
vehicle or person stopped and searched at a checkpoint. And precisely, check-points are intended to
allow the authorities to fish for probable cause even if in the beginning there was none. This makes,
to my mind, the setting up of checkpoints unconstitutional.

Separate Opinions
GUTIERREZ, JR., J., concurring:

The problem we face in the resolution of this petition arises from our knowledge that law
enforcement officers use checkpoints as opportunities for mulcting oppression, and other forms of
abuse. However, to completely ban checkpoints as unconstitutional is to lose sight of the fact that
the real objective behind their use is laudable and necessary, If we say that ALL checkpoints are
unconstitutional, we are banning a law enforcement measure not because it is per se illegal but
because it is being used for evil purposes by the soldiers or police who man it.

This is another instance where the Supreme Court is urged to solve a problem of discipline facing
the executive and the military. My reluctant concurrence with the majority opinion is premised on the
hope that our top military and police officials will devise effective measures which would insure that
checkpoints are used only where absolutely needed and that the officers who are assigned to these
checkpoints discharge their duties as professional soldiers or peace officers in the best traditions of
the military and the police. I repeat that this is a problem of enforcement and not legality.

CRUZ, J., dissenting:

I reiterate my original dissent and add the following observations.

The majority would justify the checkpoints on the ground of rampant criminality, e.g., the failed coup,
the "sparrow" killings, murders, sex crimes, drug abuse, smuggling, etc. I was not aware that the
failure of the authorities to suppress crime was an excuse to suspend the Bill of Rights. It has always
been my impression that even criminals, and more so the innocent, are entitled to the right against
unreasonable searches and seizures.

The protection of the security of the State is a convenient pretext of the police state to suppress
individual rights. Constitutional shortcuts should not be allowed in a free regime where the highest
function of authority is precisely to exalt liberty.

The ponencia says that the Constitution is not violated because "the inspection of the vehicle is
limited to a visual search." Assuming that this is all the search entails, it suffers from the additional
defect of inefficaciousness, making it virtually useless. It did not prevent the staging of the December
1 coup, where the rebels used all kinds of high-powered weapons that were not detected by "a visual
search."

Under Article 111, Section 2 of the Constitution, probable cause is determined "personally by the
judge," not by a soldier or a policeman. It is not for the peace officer to decide when a warrantless
search and seizure may be made save in the exceptional instances allowed, as where a crime is
being committed or before or after its commission. I can hardly believe that the majority is seriously
offering this exception as a continuing situation to justify the regular warrantless searches at the
checkpoints.

It is easy to say that "where abuse marks the operation of a checkpoint, the citizen is not helpless."
Let us at least be realistic. This Court would be the first to dismiss the complaint if not supported by
hard evidence, which we know is not easily come by. The remedy, in my view. is to remove the
source of the evil instead of leaving it unchecked and then simply suggesting a cure, which is not
even effective. It is like inoculating a patient after exposing him to contagion.

SARMIENTO, J., dissenting:


The majority states that checkpoints are justified by "grave peril." The question, however, is whether
or not the existence of such grave perils has the effect of suspending the Bill of Rights, specifically,
the right against unreasonable searches and seizures.

Under the Constitution, "[a] state of martial law does not suspend the operation of the Constitution."
(CONST., art. VII, sec. 18). If not even martial law can suspend the fundamental law, I do not see
how a mere executive act can.

That the State has the right to defend itself is a proposition difficult to argue against. The query,
again, is whether or not it may defend itself against its enemies at the expense of liberty. After
fourteen years of authoritarian rule, I think by now we should have learned our lesson ' and known
better.

Although "routine inspections" are another matter, I can not think that the checkpoints in question
have been meant to undertake routine inspections alone. As it is, no ground rules have been given
our law enforcers, which is to say that they have the carte blanche to search vehicles and even
persons without the benefit of a valid judicial warrant. I do not believe that this can be done in a
constitutional regime.

I find references to the case of People v. Kagui Malasugui [63 Phil. 221 (1936)] to be inapt In that
case, there was a waiver of the right against unreasonable search and secondly, there existed a
clear probable cause for search and arrest. Certainly, there was reason for excepting the case from
the rule. Malasugui, however, is an exception. And obviously, the majority would make a general rule
out of it.

Certainly, it is different where the authority has probable cause to believe that a crime has been
committed by a suspect, in which case, it may place him under arrest or search his person
(Malasugui, supra). But I do not think that it may claim the existence of probable cause for every
vehicle or person stopped and searched at a checkpoint. And precisely, check-points are intended to
allow the authorities to fish for probable cause even if in the beginning there was none. This makes,
to my mind, the setting up of checkpoints unconstitutional.

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G.R. No. 200334 July 30, 2014

THE PEOPLE OF THE PHILIPPINES, Respondent-Appellee,


vs.
VICTOR COGAED y ROMANA, Accused-Appellant.

DECISION

LEONEN, J.:

The mantle of protection upon one's person and one's effects through Article III, Section 2 of the
Constitution is essential to allow citizens to evolve their autonomy and, hence, to avail themselves of
their right to privacy. The alleged compromise with the battle against dangerous drugs is more
apparent than real. Often, the compromise is there because law enforcers neglect to perform what
could have been done to uphold the Constitution as they pursue those who traffic this scourge of
society.
Squarely raised in this appeal1 is the admissibility of the evidence seized as a result of a warrantless
arrest. The police officers identified the alleged perpetrator through facts that were not based on
their personal knowledge. The information as to the accuseds whereabouts was sent through a text
message. The accusedwho never acted suspicious was identified by a driver. The bag that allegedly
contained the contraband was required to be opened under intimidating circumstances and without
the accused having been fully apprised of his rights. This was not a reasonable search within the
meaning of the Constitution. There was no reasonable suspicion that would allow a legitimate "stop
and frisk" action. The alleged waiver of rights by the accused was not done intelligently, knowingly,
and without improper pressure or coercion.

The evidence, therefore, used against the accused should be excluded consistent with Article III,
Section 3 (2) of the Constitution. There being no possible admissible evidence, the accused should
be acquitted.

According to the prosecution, at about 6:00 a.m. of November 25, 2005, Police Senior Inspector
Sofronio Bayan (PSI Bayan) of the San Gabriel Police Station in San Gabriel,La Union, "received a
text message from an unidentified civilian informer"2 that one Marvin Buya (also known as Marvin
Bugat) "[would]be transporting marijuana"3 from Barangay LunOy, San Gabriel, La Union to the
Poblacion of San Gabriel, La Union.4

PSI Bayan organized checkpoints in order "to intercept the suspect."5 PSI Bayan ordered SPO1
Jaime Taracatac, Jr. (SPO1 Taracatac), a member of the San Gabriel Police, to set up a checkpoint
in the waiting area of passengers from San Gabriel bound for San Fernando City.6 A passenger
jeepney from Barangay Lun-Oy arrived at SPO1 Taracatacs checkpoint.7 The jeepney driver
disembarked and signalled to SPO1 Taracatac indicating the two male passengers who were
carrying marijuana.8 SPO1 Taracatac approached the two male passengers who were later identified
as Victor RomanaCogaed and Santiago Sacpa Dayao.9 Cogaed was carrying a blue bag and a sack
while Dayao was holding a yellow bag.10

SPO1 Taracatac asked Cogaed and Dayao about the contents of their bags.11 Cogaed and Dayao
told SPO1 Taracatac that they did not know since they were transporting the bags as a favor for their
barriomatenamed Marvin.12 After this exchange, Cogaed opened the blue bag, revealing three bricks
of what looked like marijuana.13 Cogaed then muttered, "nagloko daytoy nga Marvinen, kastoymet
gayam ti nagyanna,"which translates to "Marvin is a fool, this is what [is] contained in the
bag."14 "SPO1 Taracatac arrested [Cogaed] and . . . Dayao and brought them to the police
station."15 Cogaed and Dayao "were still carrying their respective bags"16inside the station.17

While at the police station, the Chief of Police and Investigator PO3 Stanley Campit (PO3 Campit)
requested Cogaed and Dayao to empty their bags.18 Inside Cogaeds sack was "four (4) rolled pieces
of suspected marijuana fruiting tops,"19 and inside Dayaos yellow bag was a brick of suspected
marijuana.20

PO3 Campit prepared the suspected marijuana for laboratory testing.21 PSI Bayan personally
delivered the suspected marijuana to the PNP Crime Laboratory.22 Forensic Chemical Officer Police
Inspector Valeriano Panem Laya II performed the tests and found that the objects obtained were
indeed marijuana.23 The marijuana collected from Cogaeds blue bag had a total weight of 8,091.5
grams.24 The marijuana from Cogaeds sack weighed 4,246.1 grams.25 The marijuana collected from
Dayaos bag weighed 5,092 grams.26 A total of 17,429.6 grams werecollected from Cogaeds and
Dayaos bags.27
According to Cogaeds testimony during trial, he was at Balbalayan, La Union, "waiting for a jeepney
to take him"28to the Poblacion of San Gabriel so he could buy pesticide.29 He boarded a jeepney and
recognized Dayao, his younger brothers friend.30 Upon arrival at the Poblacion of San Gabriel,
Dayao and Cogaed alighted from the jeepney.31 Dayao allegedly "asked for [Cogaeds] help in
carrying his things, which included a travelling bag and a sack."32 Cogaed agreed because they were
both going to the market.33 This was when SPO1 Taracatac approached them, and when SPO1
Taracatac asked Cogaed what was inside the bags, Cogaed replied that he did not know.34 SPO1
Taracatac then talked to Dayao, however, Cogaed was not privy to their conversation.35Thereafter,
SPO1 Taracatac arrested Dayao and Cogaed and brought them to the police station.36 These facts
were corroborated by an eyewitness,Teodoro Nalpu-ot, who was standing across the parking lot
where Cogaed was apprehended.37

At the police station, Cogaed said that "SPO1 Taracatac hit [him] on the head."38 The bags were also
opened, but Cogaed never knew what was inside.39

It was only later when Cogaed learned that it was marijuana when he and Dayao were charged with
illegal possession of dangerous drugs under Republic Act No. 9165.40 The information against them
states:

That on or about the 25th day of November, 2005, in the Municipality of San Gabriel, Province of La
Union, and within the jurisdiction of this Honorable Court, the above-named accused VICTOR
COGAED Y ROMANA and SANTIAGO DAYAO Y SACPA (who acted with discernment) and JOHN
DOE,conspiring, confederating and mutually helping one another, did then there wilfully, unlawfully,
feloniously and knowingly, without being authorized by law, have in their control, custody and
possession dried marijuana, a dangerous drug, with a total weight of seventeen thousand,four
hundred twenty-nine and sixtenths (17, 429.6) grams.

CONTRARY TO Section 11 (Possession of Dangerous Drugs), Article II, of Republic Act No. 9165
(otherwise known as the "Comprehensive Dangerous Drugs Act of 2002").41

The case was raffled to Regional Trial Court, Branch 28 of San Fernando City, La Union.42 Cogaed
and Dayao pleaded not guilty.43 The case was dismissed against Dayao because he was only 14
years old at that time and was exempt from criminal liability under the Juvenile Justice and Welfare
Act of 2006 or Republic Act No. 9344.44Trial against Cogaed ensued. In a decision45 dated May 21,
2008, the Regional Trial Court found Cogaed guilty. The dispositive portion of the decision states:

WHEREFORE, the Court finds accused Victor Cogaed y Romana GUILTY beyond reasonable doubt
for Violation of Section 11, Article II of Republic Act No. 9165 (otherwise known as the
"Comprehensive Dangerous Drugs Act of 2002") and sentences him to suffer life imprisonment, and
to pay a fine of one million pesos (Php 1,000,000.00).46

The trial court judge initiallyfound Cogaeds arrest illegal considering that "Cogaed at that time was
not, at the moment of his arrest, committing a crime nor was shown that hewas about to do so or
that had just done so. He just alighted from the passenger jeepney and there was no outward
indication that called for his arrest."47 Since the arrest was illegal, the warrantless search should also
be considered illegal.48 However, the trial court stated that notwithstanding the illegality of the arrest,
Cogaed "waived his right to object to such irregularity"49 when "he did not protest when SPO1
Taracatac, after identifying himself, asked him to open his bag."50

Cogaed appealed51 the trial courts decision.However, the Court of Appeals denied his appeal and
affirmed the trial courts decision.52 The Court of Appeals found that Cogaed waived his right against
warrantless searches when "[w]ithout any prompting from SPO1 Taracatac, [he] voluntarily opened
his bag."53 Hence, this appeal was filed.

The following errors were assigned by Cogaed in his appellants brief:

THE TRIAL COURT GRAVELY ERRED IN ADMITTING THE SEIZED DANGEROUS DRUGS AS
EVIDENCE AGAINST THE ACCUSED-APPELLANT DESPITE BEING THE RESULT OF AN
UNLAWFUL WARRANTLESS SEARCH AND SEIZURE.

II

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE


THE ARRESTING OFFICERS NON-COMPLIANCE WITH THE REQUIREMENTS FOR THE
PROPER CUSTODY OF SEIZED DANGEROUS DRUGS UNDER REPUBLIC ACT NO. 9165.

III

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE


THE ARRESTING OFFICERS FAILURE TO PRESERVE THE INTEGRITY AND EVIDENTIARY
VALUE OF THE SEIZED DANGEROUS DRUGS.54

For our consideration are the following issues: (1) whether there was a valid search and seizure of
marijuana as against the appellant; (2) whether the evidence obtained through the search should be
admitted; and (3) whether there was enough evidence to sustain the conviction of the accused.

In view of the disposition of this case, we deem that a discussion with respect to the requirements on
the chain of custody of dangerous drugs unnecessary.55

We find for the accused.

II

The right to privacy is a fundamental right enshrined by implication in our Constitution. It has many
dimensions. One of its dimensions is its protection through the prohibition of unreasonable searches
and seizures in Article III, Section 2 of the Constitution:

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
determinedpersonally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to be searched and the
persons or things to be seized.

This provision requires that the court examine with care and diligence whether searches and
seizures are "reasonable." As a general rule, searches conducted with a warrant that meets all the
requirements of this provision are reasonable. This warrant requires the existence of probable cause
that can only be determined by a judge.56 The existence of probable cause must be established by
the judge after asking searching questions and answers.57 Probable cause at this stage can only
exist if there is an offense alleged to be committed. Also, the warrant frames the searches done by
the law enforcers. There must be a particular description of the place and the things to be
searched.58

However, there are instances when searches are reasonable even when warrantless.59 In the Rules
of Court, searchesincidental to lawful arrests are allowed even without a separate warrant.60 This
court has taken into account the "uniqueness of circumstances involved including the purpose of the
search or seizure, the presence or absence of probable cause, the manner in which the search and
seizure was made, the place or thing searched, and the character of the articles procured."61 The
known jurisprudential instances of reasonable warrantless searches and seizures are:

1. Warrantless search incidental to a lawful arrest. . . ;

2. Seizure of evidence in "plain view," . . . ;

3. Search of a moving vehicle. Highly regulated by the government, the vehicles inherent
mobility reduces expectation of privacy especially when its transit in public thoroughfares
furnishes a highly reasonable suspicion amounting to probable cause that the occupant
committed a criminal activity;

4. Consentedwarrantless search;

5. Customs search;

6. Stop and frisk; and

7. Exigent and emergency circumstances.62 (Citations omitted)

III

One of these jurisprudential exceptionsto search warrants is "stop and frisk". "Stop and frisk"
searches are often confused with searches incidental to lawful arrests under the Rules of
Court.63 Searches incidental to a lawful arrest require that a crime be committed in flagrante delicto,
and the search conducted within the vicinity and withinreach by the person arrested is done to
ensure that there are no weapons, as well as to preserve the evidence.64

On the other hand, "stop and frisk"searches are conducted to prevent the occurrence of a crime. For
instance, the search in Posadas v. Court of Appeals65 was similar "to a stop and frisk situation
whose object is either to determine the identity of a suspicious individual or to maintain the status
quomomentarily while the police officer seeks to obtain more information."66 This court stated that the
"stop and frisk" search should be used "[w]hen dealing with a rapidly unfolding and potentially
criminal situation in the city streets where unarguably there is no time to secure . . . a search
warrant."67

The search involved in this case was initially a "stop and frisk" search, but it did not comply with all
the requirements of reasonability required by the Constitution.

"Stop and frisk" searches (sometimes referred to as Terrysearches68) are necessary for law
enforcement. That is, law enforcers should be given the legal arsenal to prevent the commission of
offenses. However, this should be balanced with the need to protect the privacy of citizens in
accordance with Article III, Section 2 of the Constitution.
The balance lies in the concept of"suspiciousness" present in the situation where the police officer
finds himself or herself in. This may be undoubtedly based on the experience ofthe police officer.
Experienced police officers have personal experience dealing with criminals and criminal behavior.
Hence, they should have the ability to discern based on facts that they themselves observe
whether an individual is acting in a suspicious manner. Clearly, a basic criterion would be that the
police officer, with his or her personal knowledge, must observe the facts leading to the suspicion of
an illicit act.

In Manalili v. Court of Appeals,69 the police officers were initially informed about a place frequented
by people abusing drugs.70 When they arrived, one of the police officers saw a man with "reddish
eyes and [who was] walking in a swaying manner."71 The suspicion increased when the man avoided
the police officers.72 These observations led the police officers to conclude that the man was high on
drugs.73 These were sufficient facts observed by the police officers "to stop[the] petitioner [and]
investigate."74

In People v. Solayao,75 police officers noticed a man who appeared drunk.76 This man was also
"wearing a camouflage uniform or a jungle suit."77 Upon seeing the police, the man fled.78 His flight
added to the suspicion.79After stopping him, the police officers found an unlicensed "homemade
firearm"80 in his possession.81 This court ruled that "[u]nder the circumstances, the government
agents could not possibly have procured a search warrant first."82 This was also a valid search.

In these cases, the police officers using their senses observed facts that led to the suspicion. Seeing
a man with reddish eyes and walking in a swaying manner, based on their experience, is indicative
of a person who uses dangerous and illicit drugs. A drunk civilian in guerrilla wear is probably hiding
something as well.

The case of Cogaed was different. He was simply a passenger carrying a bag and traveling aboarda
jeepney. There was nothing suspicious, moreover, criminal, about riding a jeepney or carrying a bag.
The assessment of suspicion was not made by the police officer but by the jeepney driver. It was the
driver who signalled to the police that Cogaed was "suspicious."

This is supported by the testimony of SPO1 Taracatac himself:

COURT:

Q So you dont know what was the content while it was still being carried by him in the passenger
jeep?

WITNESS:

A Not yet, Your Honor.83

SPO1 Taracatac likewise stated:

COURT:

Q If the driver did not make a gesture pointing to the accused, did you have reason to believe that
the accused were carrying marijuana?

WITNESS:
A No, Your Honor.84

The jeepney driver had to point toCogaed. He would not have been identified by the police officers
otherwise.

It is the police officer who should observe facts that would lead to a reasonable degree of suspicion
of a person. The police officer should not adopt the suspicion initiated by another person. This is
necessary to justify that the person suspected be stopped and reasonably searched.85 Anything less
than this would be an infringementupon ones basic right to security of ones person and effects.

IV

Normally, "stop and frisk" searches do not give the law enforcer an opportunity to confer with a judge
to determine probable cause. In Posadas v. Court of Appeals,86 one of the earliest cases adopting
the "stop and frisk" doctrine in Philippine jurisprudence, this court approximatedthe suspicious
circumstances as probable cause:

The probable causeis that when the petitioner acted suspiciously and attempted to flee with the buri
bag there was a probable cause that he was concealing something illegal in the bag and it was the
right and duty of the police officers to inspect the same.87 (Emphasis supplied)

For warrantless searches, probable cause was defined as "a reasonable ground of
suspicionsupported by circumstances sufficiently strong in themselves to warrant a cautious man to
believe that the person accused is guilty of the offense with which he is charged."88

Malacat v. Court of Appeals89 clarifies the requirement further. It does not have to be probable
cause,but it cannot be mere suspicion.90 It has to be a "genuine reason"91 to serve the purposes of
the "stop and frisk" exception:92

Other notable points of Terryare that while probable cause is not required to conduct a "stop and
frisk," it nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A
genuine reason must exist, in light of the police officers experience and surrounding conditions, to
warrant the belief that the person detained has weapons concealed about him.93 (Emphasis supplied,
footnotes omitted)

In his dissent for Esquillo v. People,94 Justice Bersamin reminds us that police officers must not rely
on a single suspicious circumstance.95 There should be "presence of more than oneseemingly
innocent activity, which, taken together, warranted a reasonable inference of criminal activity."96 The
Constitution prohibits "unreasonable searches and seizures."97 Certainly, reliance on only one
suspicious circumstance or none at all will not result in a reasonable search.98

There was not a single suspicious circumstance in this case, and there was no approximation for the
probable cause requirement for warrantless arrest. The person searched was noteven the person
mentioned by the informant. The informant gave the name of Marvin Buya, and the person searched
was Victor Cogaed. Even if it was true that Cogaed responded by saying that he was transporting
the bag to Marvin Buya, this still remained only as one circumstance. This should not have been
enough reason to search Cogaed and his belongings without a valid search warrant.

V
Police officers cannot justify unbridled searches and be shielded by this exception, unless there is
compliance with the "genuine reason" requirement and that the search serves the purpose of
protecting the public. As stated in Malacat:

[A] "stop-and-frisk" serves a two-fold interest: (1) the general interest of effective crime prevention
and detection, which underlies the recognition that a police officer may, under appropriate
circumstances and in an appropriate manner, approach a person for purposes of investigating
possible criminal behavior even without probable cause; and (2) the more pressing interest of safety
and self-preservationwhich permit the police officer to take steps to assure himself that the person
with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used
against the police officer.99 (Emphasis supplied)

The "stop and frisk" searchwas originally limited to outer clothing and for the purpose of detecting
dangerous weapons.100 As in Manalili,101 jurisprudence also allows "stop and frisk" for cases involving
dangerous drugs.

The circumstances of thiscase are analogous to People v. Aruta.102 In that case, an informant told the
police that a certain "Aling Rosa" would be bringing in drugs from Baguio City by bus.103 At the bus
terminal, the police officers prepared themselves.104 The informant pointed at a woman crossing the
street105 and identified her as "Aling Rosa."106 The police apprehended "Aling Rosa," and they alleged
that she allowed them to look inside her bag.107The bag contained marijuana leaves.108

In Aruta, this court found that the search and seizure conducted was illegal.109 There were no
suspicious circumstances that preceded Arutas arrest and the subsequent search and seizure.110 It
was only the informant that prompted the police to apprehend her.111 The evidence obtained was not
admissible because of the illegal search.112 Consequently, Aruta was acquitted.113

Arutais almost identical to this case, except that it was the jeepney driver, not the polices informant,
who informed the police that Cogaed was "suspicious."

The facts in Arutaare also similar to the facts in People v. Aminnudin.114 Here, the National Bureau
ofInvestigation (NBI) acted upon a tip, naming Aminnudin as somebody possessing drugs.115 The NBI
waited for the vessel to arrive and accosted Aminnudin while he was disembarking from a
boat.116 Like in the case at bar, the NBI inspected Aminnudins bag and found bundles of what
turnedout to be marijuana leaves.117 The court declared that the searchand seizure was
illegal.118 Aminnudin was acquitted.119

People v. Chua120 also presents almost the same circumstances. In this case, the police had been
receiving information that the accused was distributing drugs in "different karaoke bars in Angeles
City."121 One night, the police received information that thisdrug dealer would be dealing drugs at the
Thunder Inn Hotel so they conducted a stakeout.122 A car "arrived and parked"123 at the hotel.124The
informant told the police that the man parked at the hotel was dealing drugs.125 The man alighted
from his car.126 He was carrying a juice box.127 The police immediately apprehended him and
discovered live ammunition and drugs in his person and in the juice box he was holding.128

Like in Aruta, this court did not find anything unusual or suspicious about Chuas situation when the
police apprehended him and ruled that "[t]here was no validstop-and-frisk."129

VI

None of the other exceptions to warrantless searches exist to allow the evidence to be
admissible.The facts of this case do not qualify as a search incidental to a lawful arrest.
Rule 126, Section 13 of the Rules of Court allows for searches incidental to a lawful arrest. For there
to be a lawful arrest, there should be either a warrant of arrest or a lawful warrantless arrest as
enumerated in Rule 113, Section 5 of the Rules of Court:

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

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

(b) When an offense has just been committed and he has probable cause to believe based
on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while his
case is pending, or has escaped while being transferred from one confinement to another.

The apprehension of Cogaed was not effected with a warrant of arrest. None of the instances
enumerated in Rule 113, Section 5 of the Rules of Court were present whenthe arrest was made. At
the time of his apprehension, Cogaed has not committed, was not committing, or was about to
commit a crime. As in People v. Chua, for a warrantless arrest of in flagrante delictoto be affected,
"two elements must concur: (1) the person to bearrested must execute anovert act indicating that he
has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act
is done inthe presence or within the view of the arresting officer."130 Both elements were missing
when Cogaed was arrested.131 There were no overt acts within plain view of the police officers that
suggested that Cogaed was in possession of drugs at that time.

Also, Cogaed was not an escapee prisoner that time; hence, he could not have qualified for the last
allowable warrantless arrest.

VII

There can be no valid waiver of Cogaeds constitutional rights even if we assume that he did not
object when the police asked him to open his bags. As this court previously stated:

Appellants silence should not be lightly taken as consent to such search. The implied acquiescence
to the search, if there was any, could not have been more than mere passive conformity given under
intimidating or coercive circumstances and is thus considered no consent at all within the purview of
the constitutional guarantee.132(Citations omitted) Cogaeds silence or lack of aggressive objection
was a natural reaction to a coercive environment brought about by the police officers excessive
intrusion into his private space. The prosecution and the police carry the burden of showing that the
waiver of a constitutional right is one which is knowing, intelligent, and free from any coercion. In all
cases, such waivers are not to be presumed.

The coercive atmosphere created by the presence of the police officer can be discerned again from
the testimony of SPO1 Taracatac during cross-examination:

ATTY. BINWAG:
Q Now, Mr. witness, you claimed that you only asked them what are the contents of their bags, is it
not?

WITNESS:

A Yes, maam.

Q And then without hesitation and voluntarily they just opened their bags, is it not?

A Yes, maam.

Q So that there was not any order from you for them to open the bags?

A None, maam.

Q Now, Mr. witness when you went near them and asked them what were the contents ofthe bag,
you have not seen any signs of hesitation or fright from them, is it not?

A It seems they were frightened, maam.

Q But you actually [claimed] that there was not any hesitation from them in opening the bags, is it
not?

A Yes, maam but when I went near them it seems that they were surprised.133 (Emphasis supplied)

The state of mind of Cogaed was further clarified with SPO1 Taracatacs responses to Judge
Florendos questions:

COURT:

....

Q Did you have eye contact with Cogaed?

A When I [sic] was alighting from the jeepney, Your Honor I observed that he was somewhat
frightened. He was a little apprehensive and when he was already stepping down and he put down
1wphi 1

the bag I asked him, "whats that," and he answered, "I dont know because Marvin only asked me to
carry."134

For a valid waiver by the accused of his or her constitutional right, it is not sufficient that the police
officerintroduce himself or herself, or be known as a police officer. The police officer must also
1w phi 1

inform the person to be searched that any inaction on his orher part will amount to a waiver of any of
his or her objections that the circumstances do not amount to a reasonable search. The police officer
must communicate this clearly and in a language known to the person who is about to waive his or
her constitutional rights. There must be anassurance given to the police officer that the accused fully
understands his or her rights. The fundamental nature of a persons constitutional right to privacy
requires no less.

VIII
The Constitution provides:
Any evidence obtained in violation of [the right against unreasonable searches and seizures] shall be
inadmissible for any purpose in any proceeding.135

Otherwise known as the exclusionary rule or the fruit of the poisonous tree doctrine, this
constitutional provision originated from Stonehill v. Diokno.136 This rule prohibits the issuance of
general warrants that encourage law enforcers to go on fishing expeditions. Evidence obtained
through unlawful seizures should be excluded as evidence because it is "the only practical means of
enforcing the constitutional injunction against unreasonable searches and seizures."137 It ensures that
the fundamental rights to ones person, houses, papers, and effects are not lightly infringed upon
and are upheld.

Considering that the prosecution and conviction of Cogaed were founded on the search of his bags,
a pronouncement of the illegality of that search means that there is no evidence left to convict
Cogaed.

Drugs and its illegal traffic are a scourgeto our society. In the fight to eradicate this menace, law
enforcers should be equipped with the resources to be able to perform their duties better. However,
we cannot, in any way, compromise our societys fundamental values enshrined in our Constitution.
Otherwise, we will be seen as slowlydismantling the very foundations of the society that we seek to
protect.

WHEREFORE, the decisions of the Regional Trial Court, Branch 28, San Fernando City, La Union
and of the Court of Appeals in CA-G.R. CR-HC No. 03394 are hereby REVERSEDand SET ASIDE.
For lack of evidence to establish his guilt beyond reasonable doubt, accused-appellant VICTOR
COGAED Y ROMANA is hereby ACQUITTED and ordered RELEASED from confinement unless he
is being heldfor some other legal grounds. No costs.

SO ORDERED.

------------------------------------------------------------------------------------------------------------------------------------

G.R. No. 76005. April 23, 1993.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
RODELIO C. EXALA, RESTITUTO B. BOCALAN and JAIME P. FERNANDEZ, accused,
RESTITUTO B. BOCALAN, accused-appellant.

The Solicitor General for plaintiff-appellee.

Amador E. Mostajo and Presbiterio Velasco, Jr. for accused -appellant.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; "STOP-AND-SEARCH" AT A MILITARY OR


POLICE CHECKPOINT, THE CONSTITUTIONALITY OF WHICH HAS BEEN UPHELD, IS ONE OF
THE INSTANCES WHERE SEARCH AND SEIZURE CAN BE EFFECTED WITHOUT PRIOR
ARREST OR WARRANT. There are indeed instances where search and seizure can be effected
without necessarily being preceded by an arrest. An illustration would be the "stop-and-search"
without a warrant at military or police checkpoints, the constitutionality of which has already been
upheld by this Court. Vehicles are generally allowed to pass through these checkpoints after a
routine inspection and answering a few questions. If vehicles are stopped and extensively searched
it is because of some probable cause which justifies a reasonable belief of those manning the
checkpoints that either the motorist is a law-offender or the contents of the vehicle are or have been
instruments in the commission of an offense. However, lest it be misunderstood, this doctrine is not
intended to do away with the general rule that no person shall be subjected to search of his person,
personal effects and belongings, or his residence except by virtue of a search warrant or on the
occasion of a lawful arrest. The case before Us is an incident to or an offshoot of a lawful "stop-and-
search" at a military or police checkpoint.

2. ID.; ID.; THE RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE MAY BE WAIVED,
AS IN THIS CASE. Their submissive stance after the discovery of the bag of marijuana, as well
as the absence of any protest on their part when arrested, not only casts serious doubt on their
professed innocence but also confirms their acquiescence to the search. Clearly then, there was
waiver of the right against unreasonable search and seizure. In one case We held ". . . When one
voluntarily submits to a search or consents to have it made of his person or premises, he is
precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th Ed., Vol. I, p. 361).
The right to be secure from unreasonable search and seizure may, like every right, be waived and
such waiver may be made either expressly or impliedly."

3. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST MADE UPON DISCOVERY OF ACT OF


DISPATCHING IN TRANSIT OR TRANSPORTING MARIJUANA IN VIOLATION OF SEC. 4, ART.
II, R.A. 6425, AS AMENDED, IS LAWFUL AND REQUIRES NO WARRANT; AN INSTANCE OF
WARRANTLESS ARREST UNDER SEC. 5, PAR. (A), RULE 113, 1985 RULES ON CRIMINAL
PROCEDURE, AS AMENDED. The arrest of the three (3) accused was lawful because it was
made upon the discovery of the prohibited drug in their possession. There was no need for a
warrant; the arrest was made while a crime was committed. This is one of the situations envisioned
by Sec. 5, par. (a), of Rule 113 of the 1985 Rules on Criminal Procedure, as amended, when a
warrantless arrest may be made. The accused were caught in the act of dispatching in transit or
transporting marijuana, in violation of Sec. 4, Art. II, of R.A. 6425, as amended.

4. ID.; ID.; WEIGHT OF FACTUAL CONCLUSIONS BY TRIAL COURT RELATIVE TO


CREDIBILITY OF WITNESSES; CASE AT BAR. Factual conclusions by the trial court relative to
the credibility of witnesses are entitled to great respect and are generally sustained by the appellate
court unless some material facts have been overlooked or misconstrued as to affect the result.
There is none in this case on appeal.

5. ID.; EVIDENCE; OBJECTION ON THE LEGALITY OF SEARCH AND ADMISSIBILITY OF


EVIDENCE OBTAINED IN THE COURSE OF SEARCH IS WAIVED WHEN NOT RAISED BEFORE
THE TRIAL COURT, AND THE COURT IS BOUND TO ADMIT THE EVIDENCE. We turn to the
legal question on the admissibility of the marijuana as evidence in the light of Bocalan's contention
that it was seized without a valid search warrant. Since the search was conducted prior to the arrest,
Bocalan argues that it was not incident to a lawful arrest. This issue was never raised in the
proceedings below. Bocalan never objected to the admissibility of the evidence on the ground that
the same was obtained in a warrantless search. Consequently, he is deemed to have waived his
objection on the legality of the search and the admissibility of the evidence obtained in the course
thereof. In view of such waiver, the court is bound to admit evidence.

6. CRIMINAL LAW; MATERIALITY OF OWNERSHIP OF PROHIBITED DRUG IN A


PROSECUTION FOR VIOLATION OF SEC. 4, ART. II, R.A. 6425, AS AMENDED. Proof of
ownership is immaterial where the accused is charged with the unlawful transportation of marijuana.
Section 4, Art. II, of R.A. 6425, as amended, does not require that one be the owner of the prohibited
drug before he can be prosecuted for dispatching in transit or transporting a prohibited drug.
CRUZ, J., dissenting:

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; SEARCH AND SEIZURE AT AN ORDINARY


CHECKPOINT IS ILLEGAL FOR LACK OF PROBABLE CAUSE AS ENVISIONED IN THE BILL OF
RIGHTS. I do not agree that in the interest of peace and order, any or every vehicle may be
stopped at any time by the authorities and searched without warrant on the chance that it may be
carrying prohibited articles. That possibility is not the probable cause envisioned in the Bill of Rights.
In the case of the ordinary checkpoint, there is not even any suspicion to justify the search. The
search is made as a matter of course, either of all vehicles or at random. There is no showing that a
crime is about to be committed, is actually being committed, or has just been committed and the
searching officer has personal knowledge that the person being searched or arrested is the culprit . .
. I realize that this view would result in the inadmissibility of the seized marijuana as evidence
against the petitioner and in his inevitable acquittal. But as I have always maintained, we cannot
retroactively validate an illegal search on the justification that, after all, the articles seized are illegal.

DECISION

BELLOSILLO, J p:

The admissibility of the evidence seized from the accused at a checkpoint after being stopped for
routine inspection is put to test in this appeal from the decision 1 of the Regional Trial Court of
Cavite City finding inter alia accused-appellant Restituto B. Bocalan guilty beyond reasonable doubt
of violating Sec. 4, Art. II, of R.A. 6425, as amended, otherwise known as "The Dangerous Drugs Act
of 1972."

On 2 November 1982, at about 8:15 in the evening, a private jeep driven by accused-appellant
Restituto B. Bocalan was stopped at a police checkpoint in Cavite City for routine inspection
regarding unlicensed firearms and other prohibited items. With Bocalan were his co-accused Jaime
P. Fernandez and Rodelio C. Exala. Pfc. Ricardo Galang, a member of the inspection team, went
near the jeep and asked the occupants if there were firearms inside. They answered in the negative.
Pfc. Galang then proceeded to inspect the vehicle by beaming a flashlight inside. He noticed a black
leather bag measuring about one (1) foot wide and two (2) feet long with its sides bulging. He asked
what it contained. There was deadening silence. Nobody answered. Instead, the three (3) accused,
Restituto B. Bocalan, Jaime P. Fernandez and Rodelio C. Exala, suddenly became fidgety.
Suspicious, Pfc. Galang ordered the bag opened. He found what he excitedly described as
"marijuana, marijuana, napakaraming marijuana!" At this juncture, the three (3) remained motionless
in their seats and appeared petrified with fear. They were brought to the police station that same
night for further investigation. 2

After laboratory examination, the bag was verified to contain more than two (2) kilos of Indian hemp
otherwise known as marijuana. 3

Thereafter, Rodelio C. Exala, Restituto B. Bocalan and Jaime P. Fernandez were accordingly
charged for violation of Sec. 4, Art. II, of R.A. 6425, as amended.

After trial, Bocalan was held guilty as principal and sentenced to life imprisonment. A fine of
P25,000.00 was also imposed. 4 The other two (2) were convicted as accomplices and received
lighter penalties. Fernandez appealed to the Court of Appeals. Exala did not.

Bocalan, whose punishment is reviewable only by this Court, is now before Us assailing his
conviction; hence, We deal only with him in this appeal.
Appellant Bocalan seeks exculpation by imputing ownership of the bag to Exala alone. 5 Bocalan
claims that while on the way to Cavite City, he and Fernandez offered Exala a ride. Exala accepted
the offer and requested Bocalan to make a detour to Salitran, Dasmarias, Cavite, where he was to
pick up some clothes. They agreed and Exala got the bag which he kept beside him all the time until
their apprehension at the checkpoint. 6

Bocalan further contends that the trial court erred in admitting the bag as evidence against him since
it was obtained through a warrantless search. 7

The protestations of Bocalan are devoid of merit. We agree with the trial court that the conduct of
Bocalan was not only unusual but also contrary to normal human experience. 8 He alleged that he
knew Exala only by face and had no personal association with him; 9 yet, on that eventful day of 2
November 1982, he agreed to detour to Salitran which was some fifteen (15) to twenty (20)
kilometers out of his way. Thus, his contention that it was Exala who owned the bag containing the
marijuana is hardly credible.

On the other hand, Exala declared that it was he who did not know the contents of the bag as it was
already in the jeep when he boarded it. Exala asserted that it was either Bocalan or Fernandez who
owned the bag. Exala swore that Bocalan and Fernandez offered him P5,000.00, later raised to
P10,000.00, to take the blame alone, but he refused. 10

Proof of ownership is immaterial where the accused is charged with the unlawful transportation of
marijuana. 11 Section 4, Art. II, of R.A. 6425, as amended, does not require that one be the owner of
the prohibited drug before he can be prosecuted for dispatching in transit or transporting a prohibited
drug. The law simply provides thus

"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."

Nonetheless, there is substantial evidence to prove that Bocalan was directly involved in the
unlawful dispatch in transit or transport of marijuana. The evidence of the prosecution, particularly
the testimonies of Pfc. Ricardo Galang and Pat. Rosauro de Guzman, belies the defense of Bocalan
and establishes beyond cavil that he was caught in flagrante delicto of transporting the prohibited
drug; that he was the driver of the jeep owned by his father that carried the stuff; and, that he was in
fact the owner of the bag. The trial court noted that Bocalan picked up Fernandez and Exala one
after the other to accompany him to the place where the bag of marijuana was taken and to help him
bring the marijuana to Cavite City. 12 Regardless of the degree of participation of Fernandez and
Exala, Bocalan is correctly punished for his direct involvement in the crime.

Such factual conclusions by the trial court relative to the credibility of witnesses are entitled to great
respect and are generally sustained by the appellate court unless some material facts have been
overlooked or misconstrued as to affect the result. 13 There is none in this case on appeal.

We turn to the legal question on the admissibility of the marijuana as evidence in the light of
Bocalan's contention that it was seized without a valid search warrant. Since the search was
conducted prior to the arrest, Bocalan argues that it was not incident to a lawful arrest.
This issue was never raised in the proceedings below. Bocalan never objected to the admissibility of
the evidence on the ground that the same was obtained in a warrantless search. Consequently, he is
deemed to have waived his objection on the legality of the search and the admissibility of the
evidence obtained in the course thereof. 14 In view of such waiver, the court is bound to admit the
evidence. 15 But even assuming arguendo that there was no waiver, still appellant's contention
deserves scant consideration.

There are indeed instances where search and seizure can be effected without necessarily being
preceded by an arrest. 16 An illustration would be the "stop-and-search" without a warrant at military
or police checkpoints, the constitutionality of which has already been upheld by this Court. 17
Vehicles are generally allowed to pass through these checkpoints after a routine inspection and
answering a few questions. If vehicles are stopped and extensively searched it is because of some
probable cause which justifies a reasonable belief of those manning the checkpoints that either the
motorist is a law-offender or the contents of the vehicle are or have been instruments in the
commission of an offense. 18 However, lest it be misunderstood, this doctrine is not intended to do
away with the general rule that no person shall be subjected to search of his person, personal
effects and belongings, or his residence except of virtue of a search warrant or on the occasion of a
lawful arrest. 19 The case before Us is an incident to or an offshoot of a lawful "stop-and-search" at
a military or police checkpoint.

The checkpoint in the instant case was established in line with "Operational Bakal" the main object of
which was to search for unlicensed firearms and other prohibited items in the possession of
unauthorized persons passing through it. 20 When the jeep carrying the contraband passed through
the checkpoint, it was flagged down and the occupants were asked routine questions. In the course
thereof, Pfc. Galang noticed a black leather bag the sides of which were bulging. He asked what the
contents of the bag were. None of the accused answered. At that moment, the demeanor of the
accused changed; they became suspiciously quiet and nervous as if they were concealing
something from Pfc. Galang. The accused clearly appeared to be in abject fear of being discovered.
Such peculiar apprehensiveness if not restrained reaction of the accused, which did not appear
normal, provided the probable cause justifying a more extensive search that led to the opening of the
bag and the discovery of the prohibited stuff. Significantly, there was no sign of any protest or
objection to the search. The accused remained silent even after their arrest.

Their submissive stance after the discovery of the bag of marijuana, as well as the absence of any
protest on their part when arrested, not only casts serious doubts on their professed innocence 21
but also confirms their acquiescence to the search. 22 Clearly then, there was waiver of the right
against unreasonable search and seizure. 23 In one case 24 We held

". . . When one voluntarily submits to a search or consents to have it made of his person or
premises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th Ed.,
Vol. I, p. 361). The right to be secure from unreasonable search and seizure may, like every right, be
waived and such waiver may be made either expressly or impliedly" (emphasis supplied).

The arrest of the three (3) accused was lawful because it was made upon the discovery of the
prohibited drug in their possession. There was no need for a warrant; the arrest was made while a
crime was committed. This is one of the situations envisioned by Sec. 5, par. (a), of Rule 113 of the
1985 Rules on Criminal Procedure, as amended, when a warrantless arrest may be made. 25 The
accused were caught in the act of dispatching in transit or transporting marijuana, in violation of Sec.
4, Art. II, of R.A. 6425, as amended.
The alleged contradiction between the sworn statements of Pfc. Galang and Pat. de Guzman was
explained in their separate testimonies and, in any event, has been resolved by the trial court as a
factual issue. We find no reason to reverse its findings.

Anent the argument that the three (3) accused should not have been assigned different levels of
liability, suffice it to say that whether a principal, co-principal or conspirator, accused-appellant would
have been meted out the same penalty imposed by the trial court.

WHEREFORE, there being no reversible error in the decision appealed from finding accused-
appellant RESTITUTO B. BOCALAN guilty beyond reasonable doubt of the crime charged, the same
is AFFIRMED, with costs against him.

SO ORDERED.

Grio-Aquino and Quiason, JJ ., concur.

Separate Opinions

CRUZ, J., dissenting:

I dissent, for the reasons expressed in my dissenting opinions in Valmonte v. de Villa, 185 SCRA
665/178 SCRA 211, and People v. Malmstedt, 198 SCRA 401, and the following additional
observations.

I am opposed to checkpoints as regular police measures aimed at reducing criminality in general. I


do not agree that in the interest of peace and order, any or every vehicle may be stopped at any time
by the authorities and searched without warrant on the chance that it may be carrying prohibited
articles. That possibility is not the probable cause envisioned in the Bill of Rights.

In the case of the ordinary checkpoint, there is not even any suspicion to justify the search. The
search is made as a matter of course, either of all vehicles or at random. There is no showing that a
crime is about to be committed, is actually being committed, or has just been committed and the
searching officer has personal knowledge that the person being searched or arrested is the culprit.

I will concede that checkpoints may be established at borders of states or at "constructive borders"
near the boundary for the purpose of preventing violations of immigration and customs laws. But in
the interior of the territory, the requirements of a valid search and seizure must be strictly observed.
The only permissible exemption is where a crime like a bank robbery has just been committed or a
jailbreak has just occurred, and the authorities have to seal off all possible avenues of escape in the
area. In all other cases, I submit that the checkpoint should not be allowed.

I realize that this view would result in the inadmissibility of the of the seized marijuana as evidence
against the petitioner and in his inevitable acquittal. But as I have always maintained, we cannot
retroactively validate an illegal search on the justification that, after all, the articles seized are illegal.
That is putting the cart before the horse. I would rather see some criminals go unpunished now and
then than agree to the Bill of Rights being systematically ignored in the oppressive checkpoint.
Respect for the Constitution is more important than securing a conviction based on a violation of the
rights of the accused.

-------------------------------------------------------------------------------------------------------------------------------------
DOJ ISSUES ADVISORY OPINION ON RULES

ON MILITARY/POLICE CHECKPOINTS [1]


24 March 2011

The Department of Justice (DOJ) released today the first Advisory Opinion
summarizing the basic rights of citizens in military/police checkpoints.

Advisory Opinion No. 1 signed by Secretary Leila M. De Lima is issued in line with
the thrust of the Department to take a pro-active stance and dynamic approach in
criminal justice concerns.

The ten (10) checkpoint rules outlined in the Advisory are anchored on the
constitutional guarantee against unreasonable searches and seizures (Section 2,
Article III). These are:
1. Checkpoint must be well-lighted, properly identified and manned by uniformed
personnel.
2. Upon approach, slow down, dim headlights and turn on cabin lights. Never step out
of the vehicle.
3. Lock all doors. Only visual search is allowed.
4. Do not submit to a physical or bodily search.
5. You are not obliged to open glove compartment, trunk or bags.
6. Ordinary/routine questions may be asked. Be courteous but firm with answers.
7. Assert your rights, have presence of mind and do not panic.
8. Keep your drivers license and car registration handy and within reach.
9. Be ready to use your cellphone at anytime. Speed-dial emergency number. Report
violations immediately. Your actions may save others.

Each rule is supported by law and jurisprudence to ensure that in the implementation
of proper search and seizure procedures at military and police checkpoints, human
rights are not violated. Important definitions such
as checkpoint, visual search and probable cause are
included in the Advisory. The rules are couched in a language that is easy to
understand and memorize.

Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN
Department of Justice Manila
15 March 2011

ADVISORY OPINION NO. 01

DEPARTMENT OF JUSTICE ADVISORY


ON RULES ON MILITARY/POLICE CHECKPOINTS

I. INTRODUCTION

This Department of Justice (DOJ) Advisory (the Advisory) is intended to


address and advise the public on the proper conduct of checkpoints to protect citizens,
to serve as warning to erring law enforcers and to weed out illegal checkpoints. The
Advisory summarizes law and jurisprudence to ensure that in the implementation of
proper search and seizure procedures at military or police checkpoints, civil, political
and human rights are not violated.

II. SUMMARY OF THE LAW


1. Constitution

Section 2, Article III of the Constitution provides for the right of the people to be
secure in their persons, houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place
to be searched and the persons or things to be seized.

Section 3, Article III also provides that any evidence obtained in violation of the
preceding section shall be inadmissible for any purpose in any proceeding.
1. Election laws, rules and guidelines

The Commission on Elections (COMELEC) has issued guidelines on the


establishment of checkpoints to effectively implement the firearms ban during
election period pursuant to the powers vested in it by the Constitution, Omnibus
Election Code and other election laws.
1. Supreme Court decisions

The Supreme Court, in several cases, has ruled that not all checkpoints are
illegal. Those which are warranted by the exigencies of public order and are
conducted in a way least intrusive to motorists are allowed. For, admittedly, routine
checkpoints do intrude, to a certain extent, on motorists right to free passage
without interruption, but it cannot be denied that, as a rule, it involves only a
brief detention of travelers during which the vehicles occupants are required to
answer a brief question or two. For as long as the vehicle is neither searched not its
occupants subjected to a body search, and the inspection of the vehicle is limited to a
visual search, said routine checks cannot be regarded as violative of
an individuals right against unreasonable search. In fact, these routine checks,
when conducted in a fixed area, are even less intrusive. [1]

III. IMPORTANT DEFINITIONS


1. Checkpoint A place where the millitary or police check vehicular or pedestrian traffic
in order to enforce circulation control measures and other laws, orders, and regulations
which involves only a brief detention of travelers during which
the vehicles occupants are required to answer a brief question or two.
2. Brief detention a brief stoppage or interruption of travel or motion (in the context of the
conduct of checkpoints).
3. Plain view that which is readily in sight of an officer who has a right to be in the
position to have that view.
4. Probable cause the existence of such facts and circumstances as would lead a person of
ordinary caution and prudence to entertain an honest and strong suspicion that the person
charged is guilty of the crime subject of the investigation.
5. Uniformed personnel refers to the AFP and/oor PNP personnel wearing their respective
service uniforms with the name plates and other identification tags.
6. Visual search an eye search using the plain view doctrine.

IV. ADVISORY
The general public is hereby advised on the rules on military/police checkpoints as
follows:
1. CHECKPOINT MUST BE WELL-LIGHTED, PROPERLY IDENTIFIED AND
MANNED BY UNIFORMED PERSONNEL.
2. Checkpoint guidelines provide that all personnel manning legitimate checkpoints should
be in service uniform with the name plates and other identification tags clearly visible
and readable.
3. UPON APPROACH, SLOW DOWN, DIM HEADLIGHTS AND TURN ON CABIN
LIGHTS. NEVER STEP OUT OF THE VEHICLE.

4. In a checkpoint inquiry, the occupants cannot be compelled to step out of the vehicle. [2]
5. LOCK ALL DOORS. ONLY VISUAL SEARCH IS ALLOWED.

6. The search which is normally permissible is limited to visual search where the officer
simply looks into the vehicle and flashes a light therein without opening
the cars door. [3]
7. DO NOT SUBMIT TO A PHYSICAL OR BODY SEARCH.
8. The search which is normally permissible is limited to an instance where the occupants
are not subjected to a physical or body search. [4]
9. YOU ARE NOT OBLIGED TO OPEN GLOVE COMPARTMENT, TRUNK OR
BAGS.
10. The personnel manning the checkpoint cannot compel the motorist to open the trunk or
glove compartment of the car or any package contained therein. Such extensive search
requires the existence of probable cause. [5]
11. ORDINARY/ROUTINE QUESTIONS MAY BE ASKED. BE COURTEOUS BUT
FIRM WITH ANSWERS.
12. Checkpoint involves only a brief detention of travelers during which
the vehicles occupants are required to answer a brief question or two. [6]
13. ASSERT YOUR RIGHTS, HAVE PRESENCE OF MIND AND DO NOT PANIC.
14. The constitutional immunity against unreasonable searches and seizures is a personal
right which may be waived. Affirmative acts of volition without being forced or
intimidated to do so, shall properly be construed as a clear waiver of right. [7]
15. KEEP YOUR DRIVERS LICENSE AND CAR REGISTRATION HANDY AND
WITHIN REACH.
16. To avoid delay and inconvenience, ready the car registration documents for inspection, in
case requested by authorities.
17. BE READY TO USE YOUR CELLPHONE AT ANYTIME. SPEED DIAL
EMERGENCY NUMBER.
18. In case of violation in any these standards, cellphones can be used anytime to call
emergency numbers: 117 (PNP) or (02) 521-2930 (DOJ Action Center).
19. REPORT VIOLATIONS IMMEDIATELY. YOUR ACTIONS MAY SAVE OTHERS.
20. All violations shall be reported to the authorities to ensure steps are taken to investigate
checkpoint violations.

This Advisory is issued in line with the thrust of the Department to take a pro-active
stance and dynamic approach in criminal justice concerns and all are enjoined to
observe this Advisory.

(signed)
LEILA M. DE LIMA
Secretary
-------------------------------------------------------------------------------------------------------------------------------------

G.R. No. 209387, January 11, 2016

ERWIN LIBO-ON DELA CRUZ, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

LEONEN, J.

Routine baggage inspections conducted by port authorities, although done without search warrants, are not
unreasonable searches per se. Constitutional provisions protecting privacy should not be so literally
understood so as to deny reasonable safeguards to ensure the safety of the traveling public.

For resolution is a Petition for Review on Certiorari1 assailing the Decision2 dated September 28, 2012 and
the Resolution3 dated August 23, 2013 of the Court of Appeals, Cebu City.4 The Court of Appeals
affirmed5 the trial court's Judgment6 finding petitioner Erwin Libo-on Dela Cruz (Dela Cruz) guilty beyond
reasonable doubt of possessing unlicensed firearms under Commission on Elections Resolution No. 77647 in
relation to Section 2618 of Batas Pambansa Big. 8819 during the 2007 election period.10

Dela Cruz was an on-the-job trainee of an inter-island vessel. He frequently traveled, "coming back and
forth taking a vessel."12 At around 12:00 noon of May 11, 2007, Dela Cruz was at a pier of the Cebu
Domestic Port to go home to Iloilo.13While buying a ticket, he allegedly left his bag on the floor with a
porter.14 It took him around 15 minutes to purchase a ticket.15

Dela Cruz then proceeded to the entrance of the terminal and placed his bag on the x-ray scanning machine
for inspection.16 The operator of the x-ray machine saw firearms inside Dela Cruz's bag.17

Cutie Pie Flores (Flores) was the x-ray machine operator-on-duty on May 11, 2007.18 She saw the
impression of what appeared to be three (3) firearms inside Dela Cruz's bag.19 Upon seeing the suspected
firearms, she called the attention of port personnel Archie Igot (Igot) who was the baggage inspector then.20

Igot asked Dela Cruz whether he was the owner of the bag.21 Dela Cruz answered Igot in the affirmative and
consented to Igot's manual inspection of the bag.22

"Port Police Officer Adolfo Abregana [(Officer Abregana)] was on duty at the terminal of the Cebu Domestic
Port in Pier 1-G when his attention was called by ... Igot."23 Igot told Officer Abregana that there were
firearms in a bag owned by a certain person.24 Igot then pointed to the person.25 That person was later
identified as Dela Cruz.26

Dela Cruz admitted that he was owner of the bag.27 The bag was then inspected and the following items
were found inside: three (3) revolvers; NBI clearance; seaman's book; other personal items; and four (4)
live ammunitions placed inside the cylinder.28 When asked whether he had the proper documents for the
firearms, Dela Cruz answered in the negative.29

Dela Cruz was then arrested and informed of his violation of a crime punishable by law.30 He was also
informed of his constitutional rights.31

In the Information dated November 19, 2003, Dela Cruz was charged with violation of Republic Act No. 8294
for illegal possession of firearms.32 chan roblesv irt uallawl ibra ry

Criminal Case No. CBU -80084

That on or about the 11th day of May 2007, at about 12:45 p.m. in the City of Cebu, Philippines, and within
the jurisdiction of this Honorable Court, the said accused, with the deliberate intent and without being
authorized by law, did then and there possess and carry outside his residence one (1) Cal. 38 Simith [sic] &
Wesson revolver without serial number; one (1) .22 Smith & Wesson Magnum revolver without serial
number; one (1) North American Black Widow magnum revolver without serial number and four rounds of
live ammunitions for cal. 38 without first securing the necessary license to possess and permit to carry from
the proper authorities.

CONTRARY TO LAW.33
cralawlawl ibra ry
ChanRoblesVirt ualawli bra ry

Subsequently, another Information was filed charging Dela Cruz with the violation of Commission on
Elections Resolution No. 7764, in relation to Section 261 of Batas Pambansa Blg. 88134 chan roble svirtuallaw lib rary

Criminal Case No. CBU 80085

That on or about the 11th day of May 2007, at about 12:45 in the afternoon, which is within the election
period for the May 14, 2007 National and Local Elections, in the City of Cebu, Philippines and within the
jurisdiction of this Honorable Court, the said accused, with deliberate intent, did then and there possess and
carry outside his residence the following

One (1) cal. .38 Simith [sic] & Wesson revolver without serial number; One (1) cal. .22 Smith & Wesson
Magnum revolver without serial number; One (1) North American Black Widow magnum revolver without
serial number and four (4) rounds of live ammunitions for cal. 38.

CONTRARY TO LAW.35
cralawlawl ibra ry
ChanRoblesVirt ualawli bra ry
Dela Cruz entered a plea of not guilty to both charges during arraignment.36

After trial, Branch 12 of the Regional Trial Court, Cebu City found Dela Cruz guilty beyond reasonable doubt
of violating the Gun Ban under Commission on Elections Resolution No. 7764, in relation to Section 261 of
Batas Pambansa Blg. 881 in Criminal Case No. CBU 80085.37 Dela Cruz was sentenced to suffer
imprisonment of one (1) year with disqualification from holding public office and the right to suffrage.38

According to the trial court, the prosecution was able to prove beyond reasonable doubt that Dela Cruz
committed illegal possession of firearms.39 It proved the following elements: "(a) the existence of the
subject firearm and (b) the fact that the accused who owned or possessed it does not have the license or
permit to possess the same."40 The prosecution presented the firearms and live ammunitions found in Dela
Cruz's possession.41 It also presented three (3) prosecution witnesses who testified that the firearms were
found inside Dela Cruz's bag.42 The prosecution also presented a Certification that Dela Cruz did not file any
application for license to possess a firearm, and he was not given authority to carry a firearm outside his
residence.43

The trial court also held that the search conducted by the port authorities was reasonable and, thus,
valid44 cha nrob lesvi rtua llawli bra ry

Given the circumstances obtaining here, the court finds the search conducted by the port authorities
reasonable and, therefore, not violative of the accused's constitutional rights. Hence, when the search of the
bag of the accused revealed the firearms and ammunitions, accused is deemed to have been caught
in flagrante delicto, justifying his arrest even without a warrant under Section 5(a), Rule 113 of the Rules of
Criminal Procedure. The firearms and ammunitions obtained in the course of such valid search are thus
admissible as evidence against [the] accused.45
cralawlawl ibra ry
ChanRoblesVi rtua lawlib rary

The trial court did not give credence to Dela Cruz's claim that the firearms were "planted" inside his bag by
the porter or anyone who could have accessed his bag while he was buying a ticket.46According to the trial
court, Dela Cruz's argument was "easy to fabricate, but terribly difficult to disprove."47 Dela Cruz also did
not show improper motive on the part of the prosecution witnesses to discredit their testimonies.48

The trial court dismissed the case for violation of Republic Act No. 8294.49 It held that "Republic Act No.
8294 penalizes simple illegal possession of firearms, provided that the person arrested committed 'no other
crime.'"50 Dela Cruz, who had been charged with illegal possession of firearms, was also charged with
violating the Gun Ban under Commission on Elections Resolution No. 7764.51

The dispositive portion of the trial court's Consolidated Judgment reads

WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of violation of COMELEC
Resolution No. 7764 in relation to Section 261 of BP Blg. 881 in Criminal Case No. CBU-80085, and hereby
sentences him to suffer an imprisonment for a period of one (1) year, and to suffer disqualification to hold
public office and deprivation of the right to suffrage.

While Criminal Case No. CBU-80084 for Violation of RA 8294 is hereby DISMISSED. Accordingly, the cash
bond posted by accused therein for his provisional liberty is hereby ordered cancelled and released to said
accused.

The subject firearms (Exhs. "H", "I" & "J"), and the live ammunitions (Exhs. "K to K-2"") shall, however,
remain in custodia legis for proper disposition of the appropriate government agency.

SO ORDERED.52 (Emphasis in the original)


cralawlawl ibra ry

On appeal, the Court of Appeals affirmed the trial court's Judgment.53 It held that the defense failed to show
that the prosecution witnesses were moved by improper motive; thus, their testimonies are entitled to full
faith and credit.54 The acts of government authorities were found to be regular.55

The Court of Appeals did not find Dela Cruz's defense of denial meritorious.56 "Denial as a defense has been
viewed upon with disfavor by the courts due to the ease with which it can be concocted."57 Dela Cruz did not
present any evidence "to show that he had authority to carry outside of residence firearms and ammunition
during the period of effectivity of the Gun Ban [during] election time." The prosecution was able to prove
Dela Cruz's guilt beyond reasonable doubt.
The dispositive portion of the assailed Decision provides

WHEREFORE, premises considered, the appeal is hereby DENIED. The assailed January 27, 2010
Consolidated Judgment of the Regional Trial Court (RTC), Branch 12 of Cebu City in Criminal Case CBU-
59434 is hereby AFFIRMED. Costs on accused-appellant.

SO ORDERED.59 (Emphasis in the original)


cralawlawl ibra ry

Dela Cruz filed a Motion for Reconsideration,60 which was denied by the Court of Appeals in its Resolution
dated August 23, 2013.61

Dela Cruz filed this Petition on November 4, 2013.62 In the Resolution63 dated December 9, 2013, this court
required respondent, through the Office of the Solicitor General, to submit its Comment on the Petition.
Respondent submitted its Comment64 on March 6, 2014, which this court noted in the Resolution65 dated
March 19, 2014.

Dela Cruz claims that he was an on-the-job trainee for an inter-island vessel.66 He was "well[-]acquainted
with [the] inspection scheme [at the] ports."67 He would not have risked placing prohibited items such as
unlicensed firearms inside his luggage knowing fully the consequences of such an action.68

According to Dela Cruz, when he arrived at the port on May 11, 2007, he left his luggage with a porter to
buy a ticket.69 "A considerable time of fifteen minutes went by before he could secure the ticket while his
luggage was left sitting on the floor with only the porter standing beside it."70 He claims that someone must
have placed the unlicensed firearms inside his bag during the period he was away from it.71 He was
surprised when his attention was called by the x-ray machine operator after the firearms were detected.72

Considering the circumstances, Dela Cruz argues that there was no voluntary waiver against warrantless
search73 chanro blesvi rt uallawl ibra ry

In petitioner's case, it may well be said that, with the circumstances attending the search of his luggage, he
had no actual intention to relinquish his right against warrantless searches. He knew in all honest belief that
when his luggage would pass through the routine x-ray examination, nothing incriminating would be
recovered. It was out of that innocent confidence that he allowed the examination of his luggage. . . . [H]e
believed that no incriminating evidence wfouldj be found. He knew he did not place those items. But
what is strikingly unique about his situation is that a considerable time interval lapsed, creating an
opportunity for someone else to place inside his luggage those incriminating items.74 (Emphasis in the
original) cralaw lawlib rary

Respondent argues that there was a valid waiver of Dela Cruz's right to unreasonable search and seizure,
thus warranting his conviction.75 Dela Cruz was "caught in flagrante delicto carrying three (3) revolvers and
four (4) live ammunitions when his bag went through the x-ray machine in the Cebu Domestic Port on May
11, 2007, well within the election period."76 The firearms were seized during a routine baggage x-ray at the
port of Cebu, a common seaport security procedure.77

According to respondent, this case is similar to valid warrantless searches and seizures conducted by airport
personnel pursuant to routine airport security procedures.78

Records are also clear that Dela Cruz voluntarily waived his right to unreasonable searches and
seizure.79 The trial court found that Dela Cruz voluntarily gave his consent to the search.80

Dela Cruz's claim that his bag was switched is also baseless.81 The witnesses categorically testified that Dela
Cruz was "in possession of the bag before it went through the x-ray machine, and he was also in possession
of the same bag that contained the firearms when he was apprehended."82

Dela Cruz raised the lone issue of "whether the Court of Appeals gravely erred in finding [him] guilty beyond
reasonable doubt of the crime charged despite the failure of the prosecution to establish his guilt beyond
reasonable doubt[.]"83

The issues for resolution in this case are

First, whether petitioner Erwin Libo-on Dela Cruz was in possession of the illegal firearms within the
meaning of the Commission on Elections Resolution No. 7764, in relation to Section 261 of Batas Pambansa
Blg. 881;

Second, whether petitioner waived his right against unreasonable searches and seizures; and

Lastly, assuming that there was no waiver, whether there was a valid search and seizure in this case.

We deny the Petition.

The present criminal case was brought to this court under Rule 45 of the Rules of Court. The penalty
imposed on petitioner by the trial court is material in determining the mode of appeal to this court. A
petition for review on certiorari under Rule 45 must be differentiated from appeals under Rule 124, Section
1384 involving cases where the lower court imposed on the accused the penalty of reclusion perpetua, life
imprisonment, or, previously, death.85

In Mercado v. People86 cha nrob lesvi rtua llawlib ra ry

Where the Court of Appeals finds that the imposable penalty in a criminal case brought to it on appeal is at
least reclusion perpetua, death or life imprisonment, then it should impose such penalty, refrain from
entering judgment thereon, certify the case and elevate the entire records to this Court for review. This will
obviate the unnecessary, pointless and time-wasting shuttling of criminal cases between this Court and the
Court of Appeals, for by then this Court will acquire jurisdiction over the case from the very inception and
can, without bothering the Court of Appeals which has fully completed the exercise of its jurisdiction, do
justice in the case.

On the other hand, where the Court of Appeals imposes a penalty less than reclusion perpetua, a review of
the case may be had only by petition for review on certiorari under Rule 45 where only errors or questions
of law may be raised.87 (Emphasis supplied, citations omitted) c ralawlawli bra ry

It is settled that in petitions for review on certiorari, only questions of law are reviewed by this court.88 The
rule that only questions of law may be raised in a petition for review under Rule 45 is based on sound and
practical policy considerations stemming from the differing natures of a question of law and a question of
fact

A question of law exists when the doubt or controversy concerns the correct application of law or
jurisprudence to a certain set of facts; or when the issue does not call for an examination of the probative
value of the evidence presented, the truth or falsehood of facts being admitted. A question of fact exists
when the doubt or difference arises as to the truth or falsehood of facts or when the query invites calibration
of the whole evidence considering mainly the credibility of the witnesses, the existence and relevancy of
specific surrounding circumstances as well as their relation to each other and to the whole, and the
probability of the situation.89
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ChanRobles Vi rtua lawlib rary

Concomitantly, factual findings of the lower courts as affirmed by the Court of Appeals are binding on this
court.90

In contrast, an appeal in a criminal case "throws the whole case open for review[.]"91 The underlying
principle is that errors in an appealed judgment, even if not specifically assigned, may be corrected motu
propio by the court if the consideration of these errors is necessary to arrive at a just resolution of the
case.92 Nevertheless, "the right to appeal is neither a natural right nor a part of due process, it being merely
a statutory privilege which may be exercised only in the manner provided for by law[.]"93

II

Petitioner argues that the firearms found in his bag were not his. Thus, he could not be liable for possessing
the contraband. Key to the resolution of this case is whether petitioner possessed firearms without the
necessary authorization from the Commission on Elections. Petitioner was charged under special laws:
Republic Act No. 8294 and Commission on Elections Resolution No. 7764, in relation to Section 261 of Batas
Pambansa Blg. 881.
The law applicable is Section 2(a) of Commission on Elections Resolution No. 7764, which provides

SECTION 2. Prohibitions. During the election period from January 14, 2007 it shall be unlawful for

a. Any person, including those possessing a permit to carry firearms outside of residence or place of
business, to bear, carry or transport firearms or other deadly weapons in public places including any
building, street, park, private vehicle or public conveyance. For the purpose firearm includes airgun,
while deadly weapons include hand grenades or other explosives, except pyrotechnics[.]
cralawlawl ibra ry

Section 261 (q) of Batas Pambansa Blg. 881 states

Section 261. Prohibited Acts. - The following shall be guilty of an election offense

....

(q) Carrying firearms outside residence or place of business. - Any person who, although possessing a
permit to carry firearms, carries any firearms outside his residence or place of business during the election
period, unless authorized in writing by the Commission: Provided, That a motor vehicle, water or air craft
shall not be considered a residence or place of business or extension hereof. (Par. (1), Id.)

This prohibition shall not apply to cashiers and disbursing officers while in the performance of their duties or
to persons who by nature of their official duties, profession, business or occupation habitually carry large
sums of money or valuables.
cralawlawl ibra ry

For a full understanding of the nature of the constitutional rights involved, we will examine three (3) points
of alleged intrusion into the right to privacy of petitioner: first, when petitioner gave his bag for x-ray
scanning to port authorities; second, when the baggage inspector opened petitioner's bag and called the
Port Authority Police; and third, when the police officer opened the bag to search, retrieve, and seize the
firearms and ammunition.

III

The first point of intrusion occurred when petitioner presented his bag for inspection to port personnelthe
x-ray machine operator and baggage inspector manning the x-ray machine station.94 With regard to
searches and seizures, the standard imposed on private persons is different from that imposed on state
agents or authorized government authorities.

In People v. Marti,95 the private forwarding and shipping company, following standard operating procedure,
opened packages sent by accused Andre Marti for shipment to Zurich, Switzerland and detected a peculiar
odor from the packages.96 The representative from the company found dried marijuana leaves in the
packages.97 He reported the matter to the National Bureau of Investigation and brought the samples to the
Narcotics Section of the Bureau for laboratory examination.98 Agents from the National Bureau of
Investigation subsequently took custody of the illegal drugs.99 Andre Marti was charged with and was found
guilty of violating Republic Act No. 6425, otherwise known as the Dangerous Drugs Act.100

This court held that there was no unreasonable search or seizure.101 The evidence obtained against the
accused was not procured by the state acting through its police officers or authorized government
agencies.102 The Bill of Rights does not govern relationships between individuals; it cannot be invoked
against the acts of private individuals103 chan roble svirtuallaw lib rary

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.104
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ChanRobles Vi rtua lawlib rary
Hence, by virtue of Marti, items seized pursuant to a reasonable search conducted by private persons are
not covered by the exclusionary rule.105

To determine whether the intrusion by the port personnel in this case was committed by private or public
persons, we revisit the history and organizational structure of the Philippine Ports Authority.

Port security measures are consistent with the country's aim to develop transportation and trade in
conjunction with national and economic growth. In 1974, the Philippine Ports Authority was created for the
reorganization of port administration and operation functions.106 The Philippine Ports Authority's Charter was
later revised through Presidential Decree No. 857. The Revised Charter provided that the Authority may

after consultation with relevant Government agencies, make rules or regulations for the planning,
development, construction, maintenance, control, supervision and management of any Port or Port District
and the services to be provided therein, and for the maintenance of good order therein, and generally for
carrying out the process of this Decree.107cra lawlawlib ra ry

The Philippine Ports Authority was subsequently given police authority through Executive Order No.
513,108 which provides

Sec. 2. Section 6 is hereby amended by adding a new paragraph to read as follows

Section 6-c. Police Authority - The Authority shall have such police authority within the ports administered
by it as may be necessary to carry out its powers and functions and attain its purposes and objectives,
without prejudice to the exercise of the functions of the Bureau of Customs and other law enforcement
bodies within the area. Such police authority shall include the following

a) To provide security to cargoes, port equipment, structure, facilities, personnel and documents: Provided,
however, That in ports of entry, physical security to import and export cargoes shall be exercised jointly
with the Bureau of Customs;

b) To regulate the entry to, exit from, and movement within the port, of persons and vehicles, as well as
movement within the port of watercraft;

c) To maintain peace and order inside the port, in coordination with local police authorities;

d) To supervise private security agencies operating within the port area; and

e) To enforce rules and regulations promulgated by the Authority pursuant to law. (Emphasis supplied)
cralawlawl ibra ry

In 1992, the Cebu Port Authority was created to specifically administer all ports located in the Province of
Cebu.109 The Cebu Port Authority is a "public-benefit corporation . . . under the supervision of the
Department of Transportation and Communications for purposes of policy coordination."110 Control of the
ports was transferred to the Cebu Port Authority on January 1, 1996, when its operations officially began.111

In 2004, the Office for Transportation Security was designated as the "single authority responsible for the
security of the transportation systems [in] the country[.]"112 Its powers and functions included providing
security measures for all transportation systems in the country

b. Exercise operational control and supervision over all units of law enforcement agencies and agency
personnel providing security services in the transportation systems, except for motor vehicles in land
transportation, jointly with the heads of the bureaus or agencies to which the units or personnel organically
belong or are assigned;

c. Exercise responsibility for transportation security operations including, but not limited to, security
screening of passengers, baggage and cargoes, and hiring, retention, training and testing of security
screening personnel;

d. In coordination with the appropriate agencies and/or instrumentalities of the government, formulate,
develop, promulgate and implement comprehensive security plans, policies, measures, strategies and
programs to ably and decisively deal with any threat to the security of transportation systems, and
continually review, assess and upgrade such security plans, policies, measures, strategies and programs, to
improve and enhance transportation security and ensure the adequacy of these security measures;

e. Examine and audit the performance of transportation security personnel, equipment and facilities, and,
thereafter, establish, on a continuing basis, performance standards for such personnel, equipment and
facilities, including for the training of personnel;

f. Prepare a security manual/master plan or programme which shall prescribe the rules and regulations for
the efficient and safe operation of all transportation systems, including standards for security screening
procedures, prior screening or profiling of individuals for the issuance of security access passes, and
determination of levels of security clearances for personnel of the OTS, the DOTC and its attached agencies,
and other agencies of the government;

g. Prescribe security and safety standards for all transportation systems in accordance with existing laws,
rules, regulations and international conventions;

h. Subject to the approval of the Secretary of the DOTC, issue Transportation Security Regulations/Rules
and amend, rescind or revise such regulations or rules as may be necessary for the security of the
transportation systems of the country[.]113 (Emphasis supplied) c ralawlawli bra ry

The Cebu Port Authority has adopted security measures imposed by the Office for Transportation Security,
including the National Security Programme for Sea Transport and Maritime Infrastructure.114

The Cebu Port Authority is clothed with authority by the state to oversee the security of persons and
vehicles within its ports. While there is a distinction between port personnel and port police officers in this
case, considering that port personnel are not necessarily law enforcers, both should be considered agents of
government under Article III of the Constitution. The actions of port personnel during routine security
checks at ports have the color of a state-related function.

In People v. Malngan,115 barangay tanod and the Barangay Chairman were deemed as law enforcement
officers for purposes of applying Article III of the Constitution.116 In People v. Lauga,117this court held that a
"bantay bayan," in relation to the authority to conduct a custodial investigation under Article III, Section
12118 of the Constitution, "has the color of a state-related function and objective insofar as the entitlement
of a suspect to his constitutional rights[.]"119

Thus, with port security personnel's functions having the color of state-related functions and deemed agents
of government, Marti is inapplicable in the present case. Nevertheless, searches pursuant to port security
measures are not unreasonable per se. The security measures of x-ray scanning and inspection in domestic
ports are akin to routine security procedures in airports.

In People v. Suzuki,120 the accused "entered the pre-departure area of the Bacolod Airport Terminal."121 He
was "bound for Manila via flight No. 132 of the Philippine Airlines and was carrying a small traveling bag and
a box marked 'Bongbong's piaya."122 The accused "proceeded to the 'walk through metal detector,' a
machine which produces a red light and an alarm once it detects the presence of metallic substance or
object."123 "Thereupon, the red light switched on and the alarm sounded, signifying the presence of metallic
substance either in his person or in the box he was carrying."124 When the accused was asked to open the
content of the box, he answered "open, open."125 Several packs of dried marijuana fruiting tops were then
found inside the box.126 Suzuki argued that the box was only given to him as "pasalubong" by a certain
Pinky, whom he had sexual relations with the night before.127 He did not know the contents of the box.128

This court in Suzuki found that the search conducted on the accused was a valid exception to the prohibition
against warrantless searches as it was pursuant to a routine airport security procedure129 cha nro blesvi rtua llawli bra ry

It is axiomatic that a reasonable search is not to be determined by any fixed formula but is to be resolved
according to the facts of each case. Given the circumstances obtaining here, we find the search conducted
by the airport authorities reasonable and, therefore, not violative of his constitutional rights. Hence, when
the search of the box of piaya revealed several marijuana fruiting tops, appellant is deemed to have been
caught in flagrante delicto, justifying his arrest even without a warrant under Section 5(a), Rule 113 of the
Rules of Criminal Procedure. The packs of marijuana obtained in the course of such valid search are thus
admissible as evidence against appellant.130 (Citations omitted) c ralawlawli bra ry
The reason behind it is that there is a reasonable reduced expectation of privacy when coming into airports
or ports of travel

Persons may lose the protection of the search and seizure clause by exposure of their persons or property to
the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is
prepared to recognize as reasonable. Such recognition is implicit in airport security procedures. With
increased concern over airplane hijacking and terrorism has come increased security at the nation's airports.
Passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage
as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the
presence of suspicious objects, physical searches are conducted to determine what the objects are. There is
little question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety
interests involved, and the reduced privacy expectations associated with airline travel. Indeed, travelers are
often notified through airport public address systems, signs and notices in their airline tickets that they are
subject to search and, if any prohibited materials or substances are found, such would be subject to seizure.
These announcements place passengers on notice that ordinary constitutional protections against
warrantless searches and seizures do not apply to routine airport procedures.131(Emphasis supplied, citations
omitted)c ralawlawli bra ry

This rationale was reiterated more recently in Sales v. People.132 This court in Sales upheld the validity of
the search conducted as part of the routine security check at the old Manila Domestic Airportnow Terminal
1 of the Ninoy Aquino International Airport.133

Port authorities were acting within their duties and functions when it used x-ray scanning machines for
inspection of passengers' bags.134 When the results of the x-ray scan revealed the existence of firearms in
the bag, the port authorities had probable cause to conduct a search of petitioner's bag. Notably, petitioner
did not contest the results of the x-ray scan.

IV

Was the search rendered unreasonable at the second point of intrusionwhen the baggage inspector
opened petitioner's bag and called the attention of the port police officer?

We rule in the negative.

The port personnel's actions proceed from the authority and policy to ensure the safety of travelers and
vehicles within the port. At this point, petitioner already submitted himself and his belongings to inspection
by placing his bag in the x-ray scanning machine.

The presentation of petitioner's bag for x-ray scanning was voluntary. Petitioner had the choice of whether
to present the bag or not. He had the option not to travel if he did not want his bag scanned or inspected. X-
ray machine scanning and actual inspection upon showing of probable cause that a crime is being or has
been committed are part of reasonable security regulations to safeguard the passengers passing through
ports or terminals. Probable cause is

reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to induce a


cautious man to believe that the person accused is guilty of the offense charged. It refers to the existence of
such facts and circumstances that can lead a reasonably discreet and prudent man to believe that an offense
has been committed, and that the items, articles or objects sought in connection with said offense or subject
to seizure and destruction by law are in the place to be searched.135 cralawlaw lib rary

It is not too burdensome to be considered as an affront to an ordinary person's right to travel if weighed
against the safety of all passengers and the security in the port facility.

As one philosopher said, the balance between authority and an individual's liberty may be confined within
the harm that the individual may cause others. John Stuart Mill's "harm principle" provides

[T]he sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of
action of any of their number, is self-protection. That the only purpose for which power can be rightfully
exercised over any member of a civilised community, against his will, is to prevent harm to others. His own
good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear
because it will be better for him to do so, because it will make him happier, because, in the opinions of
others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or
reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with
any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be
calculated to produce evil to someone else. The only part of the conduct of any one, for which he is
amenable to society, is that which concerns others. In the part which merely concerns himself, his
independence is, of right, absolute. Over himself, over his own body and mind, the individual is
sovereign.136c ralawlawl ibrary

Any perceived curtailment of liberty due to the presentation of person and effects for port security measures
is a permissible intrusion to privacy when measured against the possible harm to society caused by lawless
persons.

A third point of intrusion to petitioner's right to privacy occurred during petitioner's submission to port
security measures. This court should determine whether the requirements for a valid waiver against
unreasonable searches and seizures were met.

After detection of the firearms through the x-ray scanning machine and inspection by the baggage inspector,
Officer Abregana was called to inspect petitioner's bag.

The Constitution safeguards a person's right against unreasonable searches and seizures.137 A warrantless
search is presumed to be unreasonable.138 However, this court lays down the exceptions where warrantless
searches are deemed legitimate: (1) warrantless search incidental to a lawful arrest; (2) seizure in "plain
view"; (3) search of a moving vehicle; (4) consented warrantless search; (5) customs search; (6) stop and
frisk; and (7) exigent and emergency circumstances.139

In Caballes v. Court of Appeals140chan roble svirtual lawlib rary

In case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it is
fundamental that to constitute a waiver, it must first appear that (1) the right exists; (2) that the person
involved had knowledge, either actual or constructive, of the existence of such right; and (3) the said person
had an actual intention to relinquish the right.141 cra lawlawlib rary

Petitioner anchors his case on the claim that he did not validly consent to the search conducted by the port
authorities. He argues that he did not have an actual intention to relinquish his right against a warrantless
search.

In cases involving the waiver of the right against unreasonable searches and seizures, events must be
weighed in its entirety. The trial court's findings show that petitioner presented his bag for scanning in the
x-ray machine.142 When his bag went through the x-ray machine and the firearms were detected, he
voluntarily submitted his bag for inspection to the port authorities

Prosecutor Narido

Q. What did he tell you?

A. I asked him if I can check his bag?

Q. What was his response?

A. He consented and cooperated. I checked the bag.143 cralawlawlibra ry

It was after the port personnel's inspection that Officer Abregana's attention was called and the bag was
inspected anew with petitioner's consent.144

"[A]ppellate courts accord the highest respect to the assessment of witnesses' credibility by the trial court,
because the latter was in a better position to observe their demeanor and deportment on the witness
stand." We do not find anything erroneous as to the findings of fact of both the trial court and the Court of
Appeals.
There was probable cause that petitioner was committing a crime leading to the search of his personal
effects. As the trial court found

Given the circumstances obtaining here, the court finds the search conducted by the port authorities
reasonable and, therefore, not violative of the accused's constitutional rights. Hence, when the search of the
bag of the accused revealed the firearms and ammunitions, accused is deemed to have been caught in
flagrante delicto, justifying his arrest even without a warrant under Section 5(a), Rule 113 of the Rules of
Criminal Procedure. The firearms and ammunitions obtained in the course of such valid search are thus
admissible as evidence against [the] accused.146 cralawlawlib rary

Similar to the accused in People v. Kagui Malasugui174 and People v. Omaweng148 who permitted authorities
to search their persons and premises without a warrant, petitioner is now precluded from claiming an invalid
warrantless search when he voluntarily submitted to the search on his person. In addition, petitioner's
consent to the search at the domestic port was not given under intimidating or coercive circumstances.149

This case should be differentiated from that of Aniag, Jr. v. Commission on Elections,150 which involved the
search of a moving vehicle at a checkpoint.151 In that case, there was no implied acquiescence to the search
since the checkpoint set up by the police authorities was conducted without proper consultation, and it left
motorists without any choice except to subject themselves to the checkpoint

It may be argued that the seeming acquiescence of Arellano to the search constitutes an implied waiver of
petitioner's right to question the reasonableness of the search of the vehicle and the seizure of the firearms.

While Resolution No. 2327 authorized the setting up of checkpoints, it however stressed that "guidelines
shall be made to ensure that no infringement of civil and political rights results from the implementation of
this authority," and that "the places and manner of setting up of checkpoints shall be determined in
consultation with the Committee on Firearms Ban and Security Personnel created under Sec. 5, Resolution
No. 2323." The facts show that PNP installed the checkpoint at about five o'clock in the afternoon of 13
January 1992. The search was made soon thereafter, or thirty minutes later. It was not shown that news of
impending checkpoints without necessarily giving their locations, and the reason for the same have been
announced in the media to forewarn the citizens. Nor did the informal checkpoint that afternoon carry signs
informing the public of the purpose of its operation. As a result, motorists passing that place did not have
any inkling whatsoever about the reason behind the instant exercise. With the authorities in control to stop
and search passing vehicles, the motorists did not have any choice but to submit to the PNP's scrutiny.
Otherwise, any attempt to turnabout albeit innocent would raise suspicion and provide probable cause for
the police to arrest the motorist and to conduct an extensive search of his vehicle.

In the case of petitioner, only his driver was at the car at that time it was stopped for inspection. As
conceded by COMELEC, driver Arellano did not know the purpose of the checkpoint. In the face of fourteen
(14) armed policemen conducting the operation, driver Arellano being alone and a mere employee of
petitioner could not have marshalled the strength and the courage to protest against the extensive search
conducted in the vehicle. In such scenario, the "implied acquiescence," if there was any, could not be more
than a mere passive conformity on Arellano's part to the search, and "consent" given under intimidating or
coercive circumstances is no consent within the purview of the constitutional guaranty.152 (Emphasis
supplied, citations omitted)
cra lawlawli brary

We also cannot subscribe to petitioner's argument that there was no . valid consent to the search because
his consent was premised on his belief that there were no prohibited items in his bag. The defendant's belief
that no incriminating evidence would be found does not automatically negate valid consent to the search
when incriminating items are found. His or her belief must be measured against the totality of the
circumstances.153 Again, petitioner voluntarily submitted himself to port security measures and, as he
claimed during trial, he was familiar with the security measures since he had been traveling back and forth
through the sea port.

Consequently, we find respondent's argument that the present petition falls under a valid consented search
and during routine port security procedures meritorious. The search conducted on petitioner's bag is valid.

VI

The consented search conducted on petitioner's bag is different from a customs search.

Customs searches, as exception to the requirement of a valid search warrant, are allowed when "persons
exercising police authority under the customs law . . . effect search and seizure ... in the enforcement of
customs laws."154 The Tariff and Customs Code provides the authority for such warrantless search, as this
court ruled in Papa, et at. v. Mago, et al.155
chanroblesv irt uallawl ibra ry

The Code authorizes persons having police authority under Section 2203 of the Tariff and Customs Code to
enter, pass through or search any land, inclosure, warehouse, store or building, not being a dwelling house;
and also to inspect, search and examine any vessel or aircraft and any trunk, package, box or envelope or
any person on board, or stop and search and examine any vehicle, beast or person suspected of holding or
conveying any dutiable or prohibited article introduced into the Philippines contrary to law, without
mentioning the need of a search warrant in said cases.156 (Citation omitted)
cralawlawl ibra ry

The ruling in Papa was echoed in Salvador v. People,157 in that the state's policy to combat smuggling must
not lose to the difficulties posed by the debate on whether the state has the duty to accord constitutional
protection to dutiable articles on which duty has not been paid, as with a person's papers and/or effects.158

Hence, to be a valid customs search, the requirements are: (1) the person/s conducting the search
was/were exercising police authority under customs law; (2) the search was for the enforcement of customs
law; and (3) the place searched is not a dwelling place or house. Here, the facts reveal that the search was
part of routine port security measures. The search was not conducted by persons authorized under customs
law. It was also not motivated by the provisions of the Tariff and Customs Code or other customs laws.
Although customs searches usually occur within ports or terminals, it is important that the search must be
for the enforcement of customs laws.

VII

In violations of the Gun Ban, the accused must be "in possession of a firearm . . . outside of his residence
within the period of the election gun ban imposed by the COMELEC sans authority[.]"159

In Abenes v. Court of Appeals,160 this court enumerated the elements for a violation of the Gun Ban: "1) the
person is bearing, carrying, or transporting firearms or other deadly weapons; 2) such possession occurs
during the election period; and, 3) the weapon is carried in a public place."161 This court also ruled that
under the Omnibus Election Code, the burden to show that he or she has a written authority to possess a
firearm is on the accused.162

We find that the prosecution was able to establish all the requisites for violation of the Gun Ban. The
firearms were found inside petitioner's bag. Petitioner did not present any valid authorization to carry the
firearms outside his residence during the period designated by the Commission on Elections. He was
carrying the firearms in the Cebu Domestic Port, which was a public place.

However, petitioner raised the following circumstances in his defense: (1) that he was a frequent traveler
and was, thus, knowledgeable about the security measures at the terminal; (2) that he left his bag with a
porter for a certain amount of time; and (3) that he voluntarily put his bag on the x-ray machine for
voluntary inspection. All these circumstances were left uncontested by the prosecution.

This court is now asked to determine whether these circumstances are sufficient to raise reasonable doubt
on petitioner's guilt.

When petitioner claimed that someone planted the illegal firearms in his bag, the burden of evidence to
prove this allegation shifted to him. The shift in the burden of evidence does not equate to the reversal of
the presumption of innocence. In People v. Villanueva,163 this court discussed the difference between burden
of proof and burden of evidence, and when the burden of evidence shifts to the accused

Indeed, in criminal cases, the prosecution bears the onus to prove beyond reasonable doubt not only the
commission of the crime but likewise to establish, with the same quantum of proof, the identity of the
person or persons responsible therefor. This burden of proof does not shift to the defense but remains in the
prosecution throughout the trial. However, when the prosecution has succeeded in discharging the burden of
proof by presenting evidence sufficient to convince the court of the truth of the allegations in the information
or has established a prima facie case against the accused, the burden of evidence shifts to the accused
making it incumbent upon him to adduce evidence in order to meet and nullify, if not to overthrow, that
prima facie case.164(Emphasis supplied, citation omitted) cralawlawl ibra ry

Petitioner failed to negate the prosecution's evidence that he had animus possidendi or the intent to possess
the illegal firearms. In People v. De Gracia, this court elucidated on the concept of animus possidendi and
the importance of the intent to commit an act prohibited by law as differentiated from criminal intent.166 The
accused was charged with the qualified offense of illegal possession of firearms in furtherance of rebellion
under Presidential Decree No. 1866 resulting from the coup d'etat staged in 1989 by the Reform Armed
Forces Movement - Soldiers of the Filipino People.167 This court held that the actions of the accused
established his intent to possess the illegal firearms

When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is
sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to
commit the crime and intent to perpetrate the act must be distinguished. A person may not have
consciously intended to commit a crime; but he did intend to commit an act, and that act is, by the very
nature of things, the crime itself. In the first (intent to commit the crime), there must be criminal intent; in
the second (intent to perpetrate the act) it is enough that the prohibited act is done freely and consciously.

In the present case, a distinction should be made between criminal intent and intent to possess. While mere
possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it
must still be shown that there was animus possidendi or an intent to possess on the part of the
accused. Such intent to possess is, however, without regard to any other criminal or felonious intent which
the accused may have harbored in possessing the firearm. Criminal intent here refers to the intention of the
accused to commit an offense with the use of an unlicensed firearm. This is not important in convicting a
person under Presidential Decree No. 1866. Hence, in order that one may be found guilty of a violation of
the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he
intended to possess the same, even if such possession was made in good faith and without criminal intent.

Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot be


considered a violation of a statute prohibiting the possession of this kind of weapon, such as Presidential
Decree No. 1866. Thus, although there is physical or constructive possession, for as long as the animus
possidendi is absent, there is no offense committed.

Coming now to the case before us, there is no doubt in our minds that appellant De Gracia is indeed guilty
of having intentionally possessed several firearms, explosives and ammunition without the requisite license
or authority therefor. Prosecution witness Sgt. Oscar Abenia categorically testified that he was the first one
to enter the Eurocar Sales Office when the military operatives raided the same, and he saw De Gracia
standing in the room and holding the several explosives marked in evidence as Exhibits D to D-4. At first,
appellant denied any knowledge about the explosives. Then, he alternatively contended that his act of
guarding the explosives for and in behalf of Col. Matillano does not constitute illegal possession thereof
because there was no intent on his part to possess the same, since he was merely employed as an errand
boy of Col. Matillano. His pretension of impersonal or indifferent material possession does not and cannot
inspire credence.

Animus possidendi is a state of mind which may be determined on a case to case basis, taking into
consideration the prior and coetaneous acts of the accused and the surrounding circumstances. What exists
in the realm of thought is often disclosed in the range of action. It is not controverted that appellant De
Gracia is a former soldier, having served with the Philippine Constabulary prior to his separation from the
service for going on absence without leave (AWOL). We do not hesitate, therefore, to believe and conclude
that he is familiar with and knowledgeable about the dynamites, "molotov" bombs, and various kinds of
ammunition which were confiscated by the military from his possession. As a former soldier, it would be
absurd for him not to know anything about the dangerous uses and power of these weapons. A fortiori, he
cannot feign ignorance on the import of having in his possession such a large quantity of explosives and
ammunition. Furthermore, the place where the explosives were found is not a military camp or office, nor
one where such items can ordinarily but lawfully be stored, as in a gun store, an arsenal or armory. Even an
ordinarily prudent man would be put on guard and be suspicious if he finds articles of this nature in a place
intended to carry out the business of selling cars and which has nothing to do at all, directly or indirectly,
with the trade of firearms and ammunition.168 (Emphasis supplied, citations omitted) cralawlaw lib rary

The disquisition in De Gracia on the distinction between criminal intent and intent to possess, which is
relevant to convictions for illegal possession of firearms, was reiterated in Del Rosario v. People.169This court
ruled that "[i]n the absence of animus possidendi, the possessor of a Firearms incurs no criminal liability.170

In this case, petitioner failed to prove that his possession of the illegal firearms seized from his bag was
temporary, incidental, casual, or harmless possession[.]171 As put by the trial court, petitioners claim that
anyone could have planted the firearms in his bag while it was unattended is flimsy.172There are dire
consequences in accepting this claim at face value, particularly that no one will be caught and convicted of
illegal possession of firearms.

Courts must also weigh the accuseds claim against the totality of the evidence presented by the
prosecution. This includes determination of: (1) the motive of whoever allegedly planted the illegal
firearms(s); (2) whether there was opportunity to plant the illegal firearms(s); and (3) reasonableness of
the situation creating the opportunity.

Petitioner merely claims that someone must have planted the firearms when he left his bag with the porter.
He did not identify who this person could have been and he did not state any motive for this person to plant
the firearms in his possession, even if there was indeed an opportunity to plant the firearms.

However, this court is mindful that, owing to the nature of his work, petitioner was a frequent traveler who
is well-versed with port security measure. We cannot accept that an average reasonable person aware of
travel security measures would leave his belongings with a stranger for a relatively long period of time. Also,
records show that petitioner had only (1) bag. There was no evidence to show that a robust young man like
petitioner would have been need of the porters services. The defense did not identify nor present this porter
with whom petitioner left his bag.

VIII

The trial court was correct when it dismissed Criminal Case No. CBU-80084 for violation of Republic Act no.
8294, otherwise known as illegal possession of firearms. Section 1 of Republic Act No. 8294 provides

SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as
follows

SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or


Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. - The penalty
of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000)
shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess
any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part
of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of
any firearm or ammunition

Provided, That no other crime was committed. (Emphasis supplied) cra lawlawlib ra ry

Agote v. Judge Lorenzo173 already settled the question of whether there can be a "separate offense of illegal
possession of firearms and ammunition if there is another crime committed[.]"174 In that case, the petitioner
was charged with both illegal possession of firearms and violation of the Gun Ban under Commission on
Elections Resolution No. 2826.175 This court acquitted petitioner in the case for illegal possession of firearms
since he simultaneously violated the Gun Ban.176 This court also held that the unlicensed firearm need not
be actually used in the course of committing the other crime for the application of Section 1 of Republic Act
No. 8294.177

Similarly, Madrigal v. People178 applied the ruling in Agote and held that Section 1 of Republic Act No. 8294
is express in its terms that a person may not be convicted for illegal possession of firearms if another crime
was committed.179

IX

We note that the trial court imposed the penalty of imprisonment for a period of one (1) year and to suffer
disqualification to hold public office and deprivation of the right to suffrage. Under Section 264 of Batas
Pambansa Blg. 881, persons found guilty of an election offense "shall be punished with imprisonment of not
less than one year but not more than six years and shall not be subject to probation."180 The Indeterminate
Sentence Law applies to offenses punished by both the Revised Penal Code and special laws.181

The penalty to be imposed is a matter of law that courts must follow. The trial court should have provided
minimum and maximum terms for petitioner's penalty of imprisonment as required by the Indeterminate
Sentence Law.182 Accordingly, we modify the penalty imposed by the trial court. Based on the facts, we
deem it reasonable that petitioner be penalized with imprisonment of one (1) year as minimum to two (2)
years as maximum.183
X

The records are unclear whether petitioner is currently detained by the state or is out on bail. Petitioner's
detention is relevant in determining whether he has already served more than the penalty imposed upon
him by the trial court as modified by this court, or whether he is qualified to the credit of his preventive
imprisonment with his service of sentence.

Article 29184 of the Revised Penal Code states

ART. 29. Period of preventive imprisonment deducted from term of imprisonment. - Offenders or accused
who have undergone preventive imprisonment shall be credited in the service of their sentence consisting of
deprivation of liberty, with the full time during which they have undergone preventive imprisonment if the
detention prisoner agrees voluntarily in writing after being informed of the effects thereof and with the
assistance of counsel to abide by the same disciplinary rules imposed upon convicted prisoners, except in
the following cases

1. When they are recidivists, or have been convicted previously twice or more times of any crime; and

2. When upon being summoned for the execution of their sentence they have failed to surrender voluntarily.

If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted
prisoners, he shall do so in writing with the assistance of a counsel and shall be credited in the service of his
sentence with four-fifths of the time during which he has undergone preventive imprisonment.

Credit for preventive imprisonment for the penalty of reclusion perpetua shall be deducted from thirty (30)
years.

Whenever an accused has undergone preventive imprisonment for a period equal to the possible maximum
imprisonment of the offense charged to which he may be sentenced and his case is not yet terminated, he
shall be released immediately without prejudice to the continuation of the trial thereof or the proceeding on
appeal, if the same is under review. Computation of preventive imprisonment for purposes of immediate
release under this paragraph shall be the actual period of detention with good conduct time allowance:
Provided, however, That if the accused is absent without justifiable cause at any stage of the trial, the court
may motu proprio order the rearrest of the accused: Provided, finally, That recidivists, habitual delinquents,
escapees and persons charged with heinous crimes are excluded from the coverage of this Act. In case the
maximum penalty to which the accused may be sentenced is lestierro [sic], he shall be released after thirty
(30) days of preventive imprisonment. cralawlawl ibra ry

In case credit of preventive imprisonment is due, petitioner must first signify his agreement to the
conditions set forth in Article 29 of the Revised Penal Code.185 If petitioner has already served more than the
penalty imposed upon him by the trial court, then his immediate release from custody is in order unless
detained for some other lawful cause.186

WHEREFORE, the Petition is DENIED. The Court of Appeals Decision dated September 8, 2012 and the
Resolution dated August 23, 2013 in CA-GR CEB CR No. 01606 are AFFIRMED with MODIFICATIONS.
Petitioner Erwin Libo-On Dela Cruz is sentenced to imprisonment of one (1) year as minimum to two (2)
years as maximum in accordance with the Indeterminate Sentence Law. The period of his preventive
imprisonment shall be credited in his favor if he has given his written conformity to abide by the disciplinary
rules imposed upon convicted prisoners in accordance with Article 29 of the Revised Penal Code, as
amended, and if he is not out on bail.

SO ORDERED.

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Warrantless arrest and search: peeping vs.
plain view
In the old case of PEOPLE OF THE PHILIPPINES, vs. ZENAIDA BOLASA YNAKOBOAN and ROBERTO
DELOS REYES, G.R. No. 125754, December 22, 1999, the Supreme Court sustained the appeal and
stated that the case clearly illustrated how constitutional guarantees against illegal arrests and seizures
could be violated by overzealous police officers in the arrest of suspected drug offenders.

An anonymous caller tipped off PO3 Dante Salonga and PO3 Albert Carizon in the early evening of 11
September 1995 that a man and a woman were repacking prohibited drugs at a certain house in Sta.
Brigida St., Karuhatan, Valenzuela, Metro Manila. PO3 Salonga and PO3 Carizon together with SPO1
Fernando Arenas immediately proceeded to the house of the suspects and parked their car some three
hundred (300) meters away. They walked towards their quarry's lair accompanied this time by their
unnamed informer. When they reached the house they "peeped (inside) through a small window and
x x x saw one man and a woman repacking suspected marijuana." They entered the house and
introduced themselves as police officers to the occupants and thereupon confiscated the tea bags and
some drug paraphernalia. They arrested the two (2) who turned out to be the accused Zenaida
Bolasa y Nakoboan and Roberto delos Reyes. Subsequent examination of the tea bags by NBI Forensic
Chemist Rubie Calalo confirmed the suspicion that the tea bags contained marijuana.

According to the Court, the tea bags containing marijuana were not seized in plain view or
inadvertently discovered. There was no valid intrusion and the accused were illegally arrested.
The police officers intentionally peeped first through the window before they saw and ascertained
the activities of accused inside the room.

The Court held that the apprehending officers should have conducted first a
surveillance considering that the identities and address of the suspected culprits were already
ascertained. After conducting the surveillance and determining the existence of probable cause for
arresting accused, they should have secured a search warrant prior to effecting a valid arrest and
seizure. The Court stated that the arrest being illegal ab initio, the accompanying search was
likewise illegal. Every evidence thus obtained during the illegal search cannot be used against
accused.

The Court cited Section 2, Art. III, of the 1987 Constitution:

The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.

The Court held that the State cannot in a cavalier fashion intrude into the persons of its citizens as well
as into their houses, papers and effects. The constitutional provision protects the privacy and sanctity
of the person himself against unlawful arrests and other forms of restraint.

The Court enumeraed the exceptions as follows:

1. Warrantless search incidental to a lawful arrest;

2. Search of evidence in plain view.

The elements of the plain view doctrine are: (a) a prior valid intrusion based on the valid warrantless
arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence
was inadvertently discovered by the police who have the right to be where they are; (c) the evidence
must be immediately apparent; and, (d) "plain view" justified mere seizure of evidence without
further search.

3. Search of a moving vehicle. Highly regulated by the government, the vehicles inherent mobility
reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly
reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;

4. Consented warrantless search;

5. Customs search;

6. Stop and Frisk; and

7. Exigent and emergency circumstances.

Citing the Rules of Criminal Procedure on lawful warrantless arrest, the Court stated that an arrest is
lawful even in the absence of a warrant:

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

(b) when an offense has in fact been committed and he has reasonable ground to believe that the
person to be arrested has committed it; and,

(c) when the person to be arrested is a prisoner who has escaped from a penal establishment or place
where he is serving final judgment or temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another. (A person charged with an offense may be
searched for dangerous weapons or anything which may be used as proof of the commission of the
offense).

-------------------------------------------------------------------------------------------------------------------------------------

he following are the well-recognized instances where searches and seizures are
allowed even without a valid warrant: (1) Warrantless search incidental to a lawful
arrest: (2) [Seizure] of evidence in "plain view."The elements are: a) a prior valid intrusion based
on the valid warrantless arrest in which the police are legally present in the pursuit of their
official duties; b) the evidence was inadvertently discovered by the police who have the right to
be where they are; c) the evidence must be immediately apparent; and d) "plain view" justified
mere seizure of evidence without further search; (3) Search of a moving vehicle. Highly
regulated by the government, the vehicles inherent mobility reduces expectation of privacy
especially when its transit in public thoroughfares furnishes a highly reasonable suspicion
amounting to probable cause that the occupant committed a criminal activity; (4) Consented
warrantless search; (5) Customs search; (6) Stop and Frisk; (7) Exigent and emergency
circumstances; (8) Search of vessels and aircraft; [and] (9) Inspection of buildings and other
premises for the enforcement of fire, sanitary and building regulations. x x x

In the exceptional instances where a warrant is not necessary to effect a valid search or
seizure, what constitutes a reasonable or unreasonable search or seizure is purely a judicial
question, determinable from the uniqueness of the circumstances involved, including the
purpose of the search or seizure, the presence or absence of probable cause, the manner in
which the search and seizure was made, the place or thing searched, and the character of the
articles procured (VALEROSO VS. COURT OF APPEALS, G.R. NO. 164815, SEPTEMBER 3, 2009,
3RD DIV, NACHURA, J.).

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G.R. No. 200334 July 30, 2014

THE PEOPLE OF THE PHILIPPINES, Respondent-Appellee,


vs.
VICTOR COGAED y ROMANA, Accused-Appellant.

DECISION

LEONEN, J.:

The mantle of protection upon one's person and one's effects through Article III, Section 2 of the
Constitution is essential to allow citizens to evolve their autonomy and, hence, to avail themselves of
their right to privacy. The alleged compromise with the battle against dangerous drugs is more
apparent than real. Often, the compromise is there because law enforcers neglect to perform what
could have been done to uphold the Constitution as they pursue those who traffic this scourge of
society.

Squarely raised in this appeal1 is the admissibility of the evidence seized as a result of a warrantless
arrest. The police officers identified the alleged perpetrator through facts that were not based on
their personal knowledge. The information as to the accuseds whereabouts was sent through a text
message. The accusedwho never acted suspicious was identified by a driver. The bag that allegedly
contained the contraband was required to be opened under intimidating circumstances and without
the accused having been fully apprised of his rights. This was not a reasonable search within the
meaning of the Constitution. There was no reasonable suspicion that would allow a legitimate "stop
and frisk" action. The alleged waiver of rights by the accused was not done intelligently, knowingly,
and without improper pressure or coercion.

The evidence, therefore, used against the accused should be excluded consistent with Article III,
Section 3 (2) of the Constitution. There being no possible admissible evidence, the accused should
be acquitted.

According to the prosecution, at about 6:00 a.m. of November 25, 2005, Police Senior Inspector
Sofronio Bayan (PSI Bayan) of the San Gabriel Police Station in San Gabriel,La Union, "received a
text message from an unidentified civilian informer"2 that one Marvin Buya (also known as Marvin
Bugat) "[would]be transporting marijuana"3 from Barangay LunOy, San Gabriel, La Union to the
Poblacion of San Gabriel, La Union.4

PSI Bayan organized checkpoints in order "to intercept the suspect."5 PSI Bayan ordered SPO1
Jaime Taracatac, Jr. (SPO1 Taracatac), a member of the San Gabriel Police, to set up a checkpoint
in the waiting area of passengers from San Gabriel bound for San Fernando City.6 A passenger
jeepney from Barangay Lun-Oy arrived at SPO1 Taracatacs checkpoint.7 The jeepney driver
disembarked and signalled to SPO1 Taracatac indicating the two male passengers who were
carrying marijuana.8 SPO1 Taracatac approached the two male passengers who were later identified
as Victor RomanaCogaed and Santiago Sacpa Dayao.9 Cogaed was carrying a blue bag and a sack
while Dayao was holding a yellow bag.10

SPO1 Taracatac asked Cogaed and Dayao about the contents of their bags.11 Cogaed and Dayao
told SPO1 Taracatac that they did not know since they were transporting the bags as a favor for their
barriomatenamed Marvin.12 After this exchange, Cogaed opened the blue bag, revealing three bricks
of what looked like marijuana.13 Cogaed then muttered, "nagloko daytoy nga Marvinen, kastoymet
gayam ti nagyanna,"which translates to "Marvin is a fool, this is what [is] contained in the
bag."14 "SPO1 Taracatac arrested [Cogaed] and . . . Dayao and brought them to the police
station."15 Cogaed and Dayao "were still carrying their respective bags"16inside the station.17

While at the police station, the Chief of Police and Investigator PO3 Stanley Campit (PO3 Campit)
requested Cogaed and Dayao to empty their bags.18 Inside Cogaeds sack was "four (4) rolled pieces
of suspected marijuana fruiting tops,"19 and inside Dayaos yellow bag was a brick of suspected
marijuana.20

PO3 Campit prepared the suspected marijuana for laboratory testing.21 PSI Bayan personally
delivered the suspected marijuana to the PNP Crime Laboratory.22 Forensic Chemical Officer Police
Inspector Valeriano Panem Laya II performed the tests and found that the objects obtained were
indeed marijuana.23 The marijuana collected from Cogaeds blue bag had a total weight of 8,091.5
grams.24 The marijuana from Cogaeds sack weighed 4,246.1 grams.25 The marijuana collected from
Dayaos bag weighed 5,092 grams.26 A total of 17,429.6 grams werecollected from Cogaeds and
Dayaos bags.27

According to Cogaeds testimony during trial, he was at Balbalayan, La Union, "waiting for a jeepney
to take him"28to the Poblacion of San Gabriel so he could buy pesticide.29 He boarded a jeepney and
recognized Dayao, his younger brothers friend.30 Upon arrival at the Poblacion of San Gabriel,
Dayao and Cogaed alighted from the jeepney.31 Dayao allegedly "asked for [Cogaeds] help in
carrying his things, which included a travelling bag and a sack."32 Cogaed agreed because they were
both going to the market.33 This was when SPO1 Taracatac approached them, and when SPO1
Taracatac asked Cogaed what was inside the bags, Cogaed replied that he did not know.34 SPO1
Taracatac then talked to Dayao, however, Cogaed was not privy to their conversation.35Thereafter,
SPO1 Taracatac arrested Dayao and Cogaed and brought them to the police station.36 These facts
were corroborated by an eyewitness,Teodoro Nalpu-ot, who was standing across the parking lot
where Cogaed was apprehended.37

At the police station, Cogaed said that "SPO1 Taracatac hit [him] on the head."38 The bags were also
opened, but Cogaed never knew what was inside.39

It was only later when Cogaed learned that it was marijuana when he and Dayao were charged with
illegal possession of dangerous drugs under Republic Act No. 9165.40 The information against them
states:

That on or about the 25th day of November, 2005, in the Municipality of San Gabriel, Province of La
Union, and within the jurisdiction of this Honorable Court, the above-named accused VICTOR
COGAED Y ROMANA and SANTIAGO DAYAO Y SACPA (who acted with discernment) and JOHN
DOE,conspiring, confederating and mutually helping one another, did then there wilfully, unlawfully,
feloniously and knowingly, without being authorized by law, have in their control, custody and
possession dried marijuana, a dangerous drug, with a total weight of seventeen thousand,four
hundred twenty-nine and sixtenths (17, 429.6) grams.

CONTRARY TO Section 11 (Possession of Dangerous Drugs), Article II, of Republic Act No. 9165
(otherwise known as the "Comprehensive Dangerous Drugs Act of 2002").41

The case was raffled to Regional Trial Court, Branch 28 of San Fernando City, La Union.42 Cogaed
and Dayao pleaded not guilty.43 The case was dismissed against Dayao because he was only 14
years old at that time and was exempt from criminal liability under the Juvenile Justice and Welfare
Act of 2006 or Republic Act No. 9344.44Trial against Cogaed ensued. In a decision45 dated May 21,
2008, the Regional Trial Court found Cogaed guilty. The dispositive portion of the decision states:

WHEREFORE, the Court finds accused Victor Cogaed y Romana GUILTY beyond reasonable doubt
for Violation of Section 11, Article II of Republic Act No. 9165 (otherwise known as the
"Comprehensive Dangerous Drugs Act of 2002") and sentences him to suffer life imprisonment, and
to pay a fine of one million pesos (Php 1,000,000.00).46

The trial court judge initiallyfound Cogaeds arrest illegal considering that "Cogaed at that time was
not, at the moment of his arrest, committing a crime nor was shown that hewas about to do so or
that had just done so. He just alighted from the passenger jeepney and there was no outward
indication that called for his arrest."47 Since the arrest was illegal, the warrantless search should also
be considered illegal.48 However, the trial court stated that notwithstanding the illegality of the arrest,
Cogaed "waived his right to object to such irregularity"49 when "he did not protest when SPO1
Taracatac, after identifying himself, asked him to open his bag."50

Cogaed appealed51 the trial courts decision.However, the Court of Appeals denied his appeal and
affirmed the trial courts decision.52 The Court of Appeals found that Cogaed waived his right against
warrantless searches when "[w]ithout any prompting from SPO1 Taracatac, [he] voluntarily opened
his bag."53 Hence, this appeal was filed.

The following errors were assigned by Cogaed in his appellants brief:

I
THE TRIAL COURT GRAVELY ERRED IN ADMITTING THE SEIZED DANGEROUS DRUGS AS
EVIDENCE AGAINST THE ACCUSED-APPELLANT DESPITE BEING THE RESULT OF AN
UNLAWFUL WARRANTLESS SEARCH AND SEIZURE.

II

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE


THE ARRESTING OFFICERS NON-COMPLIANCE WITH THE REQUIREMENTS FOR THE
PROPER CUSTODY OF SEIZED DANGEROUS DRUGS UNDER REPUBLIC ACT NO. 9165.

III

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE


THE ARRESTING OFFICERS FAILURE TO PRESERVE THE INTEGRITY AND EVIDENTIARY
VALUE OF THE SEIZED DANGEROUS DRUGS.54

For our consideration are the following issues: (1) whether there was a valid search and seizure of
marijuana as against the appellant; (2) whether the evidence obtained through the search should be
admitted; and (3) whether there was enough evidence to sustain the conviction of the accused.

In view of the disposition of this case, we deem that a discussion with respect to the requirements on
the chain of custody of dangerous drugs unnecessary.55

We find for the accused.

II

The right to privacy is a fundamental right enshrined by implication in our Constitution. It has many
dimensions. One of its dimensions is its protection through the prohibition of unreasonable searches
and seizures in Article III, Section 2 of the Constitution:

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
determinedpersonally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to be searched and the
persons or things to be seized.

This provision requires that the court examine with care and diligence whether searches and
seizures are "reasonable." As a general rule, searches conducted with a warrant that meets all the
requirements of this provision are reasonable. This warrant requires the existence of probable cause
that can only be determined by a judge.56 The existence of probable cause must be established by
the judge after asking searching questions and answers.57 Probable cause at this stage can only
exist if there is an offense alleged to be committed. Also, the warrant frames the searches done by
the law enforcers. There must be a particular description of the place and the things to be
searched.58

However, there are instances when searches are reasonable even when warrantless.59 In the Rules
of Court, searchesincidental to lawful arrests are allowed even without a separate warrant.60 This
court has taken into account the "uniqueness of circumstances involved including the purpose of the
search or seizure, the presence or absence of probable cause, the manner in which the search and
seizure was made, the place or thing searched, and the character of the articles procured."61 The
known jurisprudential instances of reasonable warrantless searches and seizures are:

1. Warrantless search incidental to a lawful arrest. . . ;

2. Seizure of evidence in "plain view," . . . ;

3. Search of a moving vehicle. Highly regulated by the government, the vehicles inherent
mobility reduces expectation of privacy especially when its transit in public thoroughfares
furnishes a highly reasonable suspicion amounting to probable cause that the occupant
committed a criminal activity;

4. Consentedwarrantless search;

5. Customs search;

6. Stop and frisk; and

7. Exigent and emergency circumstances.62 (Citations omitted)

III

One of these jurisprudential exceptionsto search warrants is "stop and frisk". "Stop and frisk"
searches are often confused with searches incidental to lawful arrests under the Rules of
Court.63 Searches incidental to a lawful arrest require that a crime be committed in flagrante delicto,
and the search conducted within the vicinity and withinreach by the person arrested is done to
ensure that there are no weapons, as well as to preserve the evidence.64

On the other hand, "stop and frisk"searches are conducted to prevent the occurrence of a crime. For
instance, the search in Posadas v. Court of Appeals65 was similar "to a stop and frisk situation
whose object is either to determine the identity of a suspicious individual or to maintain the status
quomomentarily while the police officer seeks to obtain more information."66 This court stated that the
"stop and frisk" search should be used "[w]hen dealing with a rapidly unfolding and potentially
criminal situation in the city streets where unarguably there is no time to secure . . . a search
warrant."67

The search involved in this case was initially a "stop and frisk" search, but it did not comply with all
the requirements of reasonability required by the Constitution.

"Stop and frisk" searches (sometimes referred to as Terrysearches68) are necessary for law
enforcement. That is, law enforcers should be given the legal arsenal to prevent the commission of
offenses. However, this should be balanced with the need to protect the privacy of citizens in
accordance with Article III, Section 2 of the Constitution.

The balance lies in the concept of"suspiciousness" present in the situation where the police officer
finds himself or herself in. This may be undoubtedly based on the experience ofthe police officer.
Experienced police officers have personal experience dealing with criminals and criminal behavior.
Hence, they should have the ability to discern based on facts that they themselves observe
whether an individual is acting in a suspicious manner. Clearly, a basic criterion would be that the
police officer, with his or her personal knowledge, must observe the facts leading to the suspicion of
an illicit act.
In Manalili v. Court of Appeals,69 the police officers were initially informed about a place frequented
by people abusing drugs.70 When they arrived, one of the police officers saw a man with "reddish
eyes and [who was] walking in a swaying manner."71 The suspicion increased when the man avoided
the police officers.72 These observations led the police officers to conclude that the man was high on
drugs.73 These were sufficient facts observed by the police officers "to stop[the] petitioner [and]
investigate."74

In People v. Solayao,75 police officers noticed a man who appeared drunk.76 This man was also
"wearing a camouflage uniform or a jungle suit."77 Upon seeing the police, the man fled.78 His flight
added to the suspicion.79After stopping him, the police officers found an unlicensed "homemade
firearm"80 in his possession.81 This court ruled that "[u]nder the circumstances, the government
agents could not possibly have procured a search warrant first."82 This was also a valid search.

In these cases, the police officers using their senses observed facts that led to the suspicion. Seeing
a man with reddish eyes and walking in a swaying manner, based on their experience, is indicative
of a person who uses dangerous and illicit drugs. A drunk civilian in guerrilla wear is probably hiding
something as well.

The case of Cogaed was different. He was simply a passenger carrying a bag and traveling aboarda
jeepney. There was nothing suspicious, moreover, criminal, about riding a jeepney or carrying a bag.
The assessment of suspicion was not made by the police officer but by the jeepney driver. It was the
driver who signalled to the police that Cogaed was "suspicious."

This is supported by the testimony of SPO1 Taracatac himself:

COURT:

Q So you dont know what was the content while it was still being carried by him in the passenger
jeep?

WITNESS:

A Not yet, Your Honor.83

SPO1 Taracatac likewise stated:

COURT:

Q If the driver did not make a gesture pointing to the accused, did you have reason to believe that
the accused were carrying marijuana?

WITNESS:

A No, Your Honor.84

The jeepney driver had to point toCogaed. He would not have been identified by the police officers
otherwise.

It is the police officer who should observe facts that would lead to a reasonable degree of suspicion
of a person. The police officer should not adopt the suspicion initiated by another person. This is
necessary to justify that the person suspected be stopped and reasonably searched.85 Anything less
than this would be an infringementupon ones basic right to security of ones person and effects.

IV

Normally, "stop and frisk" searches do not give the law enforcer an opportunity to confer with a judge
to determine probable cause. In Posadas v. Court of Appeals,86 one of the earliest cases adopting
the "stop and frisk" doctrine in Philippine jurisprudence, this court approximatedthe suspicious
circumstances as probable cause:

The probable causeis that when the petitioner acted suspiciously and attempted to flee with the buri
bag there was a probable cause that he was concealing something illegal in the bag and it was the
right and duty of the police officers to inspect the same.87 (Emphasis supplied)

For warrantless searches, probable cause was defined as "a reasonable ground of
suspicionsupported by circumstances sufficiently strong in themselves to warrant a cautious man to
believe that the person accused is guilty of the offense with which he is charged."88

Malacat v. Court of Appeals89 clarifies the requirement further. It does not have to be probable
cause,but it cannot be mere suspicion.90 It has to be a "genuine reason"91 to serve the purposes of
the "stop and frisk" exception:92

Other notable points of Terryare that while probable cause is not required to conduct a "stop and
frisk," it nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A
genuine reason must exist, in light of the police officers experience and surrounding conditions, to
warrant the belief that the person detained has weapons concealed about him.93 (Emphasis supplied,
footnotes omitted)

In his dissent for Esquillo v. People,94 Justice Bersamin reminds us that police officers must not rely
on a single suspicious circumstance.95 There should be "presence of more than oneseemingly
innocent activity, which, taken together, warranted a reasonable inference of criminal activity."96 The
Constitution prohibits "unreasonable searches and seizures."97 Certainly, reliance on only one
suspicious circumstance or none at all will not result in a reasonable search.98

There was not a single suspicious circumstance in this case, and there was no approximation for the
probable cause requirement for warrantless arrest. The person searched was noteven the person
mentioned by the informant. The informant gave the name of Marvin Buya, and the person searched
was Victor Cogaed. Even if it was true that Cogaed responded by saying that he was transporting
the bag to Marvin Buya, this still remained only as one circumstance. This should not have been
enough reason to search Cogaed and his belongings without a valid search warrant.

Police officers cannot justify unbridled searches and be shielded by this exception, unless there is
compliance with the "genuine reason" requirement and that the search serves the purpose of
protecting the public. As stated in Malacat:

[A] "stop-and-frisk" serves a two-fold interest: (1) the general interest of effective crime prevention
and detection, which underlies the recognition that a police officer may, under appropriate
circumstances and in an appropriate manner, approach a person for purposes of investigating
possible criminal behavior even without probable cause; and (2) the more pressing interest of safety
and self-preservationwhich permit the police officer to take steps to assure himself that the person
with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used
against the police officer.99 (Emphasis supplied)

The "stop and frisk" searchwas originally limited to outer clothing and for the purpose of detecting
dangerous weapons.100 As in Manalili,101 jurisprudence also allows "stop and frisk" for cases involving
dangerous drugs.

The circumstances of thiscase are analogous to People v. Aruta.102 In that case, an informant told the
police that a certain "Aling Rosa" would be bringing in drugs from Baguio City by bus.103 At the bus
terminal, the police officers prepared themselves.104 The informant pointed at a woman crossing the
street105 and identified her as "Aling Rosa."106 The police apprehended "Aling Rosa," and they alleged
that she allowed them to look inside her bag.107The bag contained marijuana leaves.108

In Aruta, this court found that the search and seizure conducted was illegal.109 There were no
suspicious circumstances that preceded Arutas arrest and the subsequent search and seizure.110 It
was only the informant that prompted the police to apprehend her.111 The evidence obtained was not
admissible because of the illegal search.112 Consequently, Aruta was acquitted.113

Arutais almost identical to this case, except that it was the jeepney driver, not the polices informant,
who informed the police that Cogaed was "suspicious."

The facts in Arutaare also similar to the facts in People v. Aminnudin.114 Here, the National Bureau
ofInvestigation (NBI) acted upon a tip, naming Aminnudin as somebody possessing drugs.115 The NBI
waited for the vessel to arrive and accosted Aminnudin while he was disembarking from a
boat.116 Like in the case at bar, the NBI inspected Aminnudins bag and found bundles of what
turnedout to be marijuana leaves.117 The court declared that the searchand seizure was
illegal.118 Aminnudin was acquitted.119

People v. Chua120 also presents almost the same circumstances. In this case, the police had been
receiving information that the accused was distributing drugs in "different karaoke bars in Angeles
City."121 One night, the police received information that thisdrug dealer would be dealing drugs at the
Thunder Inn Hotel so they conducted a stakeout.122 A car "arrived and parked"123 at the hotel.124The
informant told the police that the man parked at the hotel was dealing drugs.125 The man alighted
from his car.126 He was carrying a juice box.127 The police immediately apprehended him and
discovered live ammunition and drugs in his person and in the juice box he was holding.128

Like in Aruta, this court did not find anything unusual or suspicious about Chuas situation when the
police apprehended him and ruled that "[t]here was no validstop-and-frisk."129

VI

None of the other exceptions to warrantless searches exist to allow the evidence to be
admissible.The facts of this case do not qualify as a search incidental to a lawful arrest.

Rule 126, Section 13 of the Rules of Court allows for searches incidental to a lawful arrest. For there
to be a lawful arrest, there should be either a warrant of arrest or a lawful warrantless arrest as
enumerated in Rule 113, Section 5 of the Rules of Court:

Section 5. Arrest without warrant; when lawful. A peace officer or a private person may, withouta
warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based
on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while his
case is pending, or has escaped while being transferred from one confinement to another.

The apprehension of Cogaed was not effected with a warrant of arrest. None of the instances
enumerated in Rule 113, Section 5 of the Rules of Court were present whenthe arrest was made. At
the time of his apprehension, Cogaed has not committed, was not committing, or was about to
commit a crime. As in People v. Chua, for a warrantless arrest of in flagrante delictoto be affected,
"two elements must concur: (1) the person to bearrested must execute anovert act indicating that he
has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act
is done inthe presence or within the view of the arresting officer."130 Both elements were missing
when Cogaed was arrested.131 There were no overt acts within plain view of the police officers that
suggested that Cogaed was in possession of drugs at that time.

Also, Cogaed was not an escapee prisoner that time; hence, he could not have qualified for the last
allowable warrantless arrest.

VII

There can be no valid waiver of Cogaeds constitutional rights even if we assume that he did not
object when the police asked him to open his bags. As this court previously stated:

Appellants silence should not be lightly taken as consent to such search. The implied acquiescence
to the search, if there was any, could not have been more than mere passive conformity given under
intimidating or coercive circumstances and is thus considered no consent at all within the purview of
the constitutional guarantee.132(Citations omitted) Cogaeds silence or lack of aggressive objection
was a natural reaction to a coercive environment brought about by the police officers excessive
intrusion into his private space. The prosecution and the police carry the burden of showing that the
waiver of a constitutional right is one which is knowing, intelligent, and free from any coercion. In all
cases, such waivers are not to be presumed.

The coercive atmosphere created by the presence of the police officer can be discerned again from
the testimony of SPO1 Taracatac during cross-examination:

ATTY. BINWAG:

Q Now, Mr. witness, you claimed that you only asked them what are the contents of their bags, is it
not?

WITNESS:

A Yes, maam.

Q And then without hesitation and voluntarily they just opened their bags, is it not?
A Yes, maam.

Q So that there was not any order from you for them to open the bags?

A None, maam.

Q Now, Mr. witness when you went near them and asked them what were the contents ofthe bag,
you have not seen any signs of hesitation or fright from them, is it not?

A It seems they were frightened, maam.

Q But you actually [claimed] that there was not any hesitation from them in opening the bags, is it
not?

A Yes, maam but when I went near them it seems that they were surprised.133 (Emphasis supplied)

The state of mind of Cogaed was further clarified with SPO1 Taracatacs responses to Judge
Florendos questions:

COURT:

....

Q Did you have eye contact with Cogaed?

A When I [sic] was alighting from the jeepney, Your Honor I observed that he was somewhat
frightened. He was a little apprehensive and when he was already stepping down and he put down
1wphi 1

the bag I asked him, "whats that," and he answered, "I dont know because Marvin only asked me to
carry."134

For a valid waiver by the accused of his or her constitutional right, it is not sufficient that the police
officerintroduce himself or herself, or be known as a police officer. The police officer must also
1w phi 1

inform the person to be searched that any inaction on his orher part will amount to a waiver of any of
his or her objections that the circumstances do not amount to a reasonable search. The police officer
must communicate this clearly and in a language known to the person who is about to waive his or
her constitutional rights. There must be anassurance given to the police officer that the accused fully
understands his or her rights. The fundamental nature of a persons constitutional right to privacy
requires no less.

VIII
The Constitution provides:

Any evidence obtained in violation of [the right against unreasonable searches and seizures] shall be
inadmissible for any purpose in any proceeding.135

Otherwise known as the exclusionary rule or the fruit of the poisonous tree doctrine, this
constitutional provision originated from Stonehill v. Diokno.136 This rule prohibits the issuance of
general warrants that encourage law enforcers to go on fishing expeditions. Evidence obtained
through unlawful seizures should be excluded as evidence because it is "the only practical means of
enforcing the constitutional injunction against unreasonable searches and seizures."137 It ensures that
the fundamental rights to ones person, houses, papers, and effects are not lightly infringed upon
and are upheld.

Considering that the prosecution and conviction of Cogaed were founded on the search of his bags,
a pronouncement of the illegality of that search means that there is no evidence left to convict
Cogaed.

Drugs and its illegal traffic are a scourgeto our society. In the fight to eradicate this menace, law
enforcers should be equipped with the resources to be able to perform their duties better. However,
we cannot, in any way, compromise our societys fundamental values enshrined in our Constitution.
Otherwise, we will be seen as slowlydismantling the very foundations of the society that we seek to
protect.

WHEREFORE, the decisions of the Regional Trial Court, Branch 28, San Fernando City, La Union
and of the Court of Appeals in CA-G.R. CR-HC No. 03394 are hereby REVERSEDand SET ASIDE.
For lack of evidence to establish his guilt beyond reasonable doubt, accused-appellant VICTOR
COGAED Y ROMANA is hereby ACQUITTED and ordered RELEASED from confinement unless he
is being heldfor some other legal grounds. No costs.

SO ORDERED.

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CRIMINAL LAW IN THE PHILIPPINES
Posted on Saturday, December 26, 2009. Filed under: PHILIPPINE LAW AND JURISPRUDENCE | Tags: criminal
law, Philippine Criminal law, principles of criminal law |

The term law refers to the set of rules and regulations or orders, usually written, created
and enacted by the people that must be abided by the people themselves. The aim of the
passage of laws is social control, that is, people binded by the laws will know what acts
should be done and what acts that should not be done.
One classification of law is the criminal law. Criminal law is defined as that branch or
division of public law which defines crimes, treats of their nature, and provides for their
punishment it.
Crime is a general term that refers to acts or omissions punishable by criminal law. An act
or omission is punishable only if there is a law prohibiting the performance of the act or a
law that commands a person to do an act but he failed to perform. In the Philippines, we
follow the legal maxim of NULLUM CRIMEN, NULLA POENA SINE LEGE which means there is
no crime if there is no penal law punishing it. Therefore, in order for an act or omission to
be punished, there must be a law that forbids it and that law at the same time must provide
for a penalty violating it.

The sources of criminal law in the Philippines are: 1) The Revised Penal Code (RA 3815) and
its amendments; 2) Republic Acts; 3) Presidential Decrees, and 4) other Special Penal laws
passed by the Philippine Commission, Philippine Assembly, Philippine Legislature, National
Assembly, the Congress of the Philippines, and the Batasang Pambansa.

The basic of all criminal laws where some of the special laws were patterned is the Revised
Penal Code (RA 3815) that took effect on January 1, 1932. Presidential Decrees and
Republic Acts are the two (2) well known names of special criminal laws in the
Philippines. Presidential Decrees are special laws which were passed during the Martial
Law era wherein the Philippine was placed under a Parliamentary system of
government. Republic Acts are special laws which were passed after the 1987 Philippine
Constitution was enacted where the system of our government is now democratic and
republican.
At present, the national law making body of the Philippines is the (House of) Congress
which is composed of the Senators and the Representatives. Both belong to the legislative
branch of the government and they exercise legislative power, which is the authority
under the Constitution to make, amend, modify, or to repeal laws (Section 1, Article
VI). Any law passed by the Congress is national in scope and application.
The legislative power is shared by the Congress with the local legislatives or the local law
making bodies of the different political divisions of the Philippines which are the provinces,
cities, municipalities, and barangays. A law passed by a local legislative is termed as
ordinance and is only applicable within their respective political jurisdiction.
Specifically, violation of the Revised Penal Code is termed as felony while violation of
special criminal laws and ordinances is termed as offense. Any person who committed a
crime may be held liable criminally, civilly, administratively, both or all of the
above. Criminal liability means imprisonment with the duration is usually provided by the
law violated. Civil liability is the payment of damages in the form of
money. Administrative liability is a penalty associated with the principal penalty and
usually bestowed if the offender is a public official or employee like suspension in the
performance of functions, demotioninf rank, or dismissal from service
Principles of Philippine Criminal Law and the Exemptions in its Application
1. Principle of Generality Criminal law is binding on all persons who live or sojourn in the
Philippine territory.

Exceptions: The following are not subject to the operation of the Philippine criminal laws
based to the well established principles of international law:

a) Sovereigns and other chiefs of state.

b) Ambassadors, ministers plenipotentiary, ministers resident, and charges daffaires

1. Principle of Territoriality Criminal laws undertake to punish crimes committed within


Philippine territory.

Exceptions: The provisions of the Revised Penal Code shall be applicable in the following
cases even if the felony is committed outside of the Philippines:

a) When the offender should commit an offense while on a Philippine ship or airship.

A Philippine vessel or aircraft must be understood as that which is registered in the


Philippine Bureau of Customs.

b) When the offender should forge or counterfeit any coin or currency note of the
Philippines or obligations and securities issued by the (Philippine) Government.

c) When the offender should be liable for acts connected with the introduction into the
Philippines of the obligations and securities mentioned in the preceding number.

d) When the offender, while being a public officer or employee, should commit an offense
in the exercise of his functions.

Some crimes that may be committed in the exercise of public functions are direct bribery
(Art. 210), indirect bribery (Art. 211), and malversation of public funds or property (Art
217).

e) When the offender should commit any of the crimes against the national security and
the law of nations.

Some of the crimes under this title are treason (Art. 114), espionage (Art. 117) and piracy
and mutiny in the high seas (Art. 122).

3) Principle of Prospectivity Penal laws cannot make an act punishable in a manner in


which it was not punishable when committed.

Exception: A new law can be given a retroactive effect if it is favorable to the accused.

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SEARCH (AND SEIZURE) WITHOUT WARRANT, WHEN LAWFUL
Posted on Saturday, December 26, 2009. Filed under: PHILIPPINE LAW AND JURISPRUDENCE |
Tags: search, seizure, warrantless search |

Section 13, Rule 126 of the Rules of Court and some cases decided by the Supreme Court
provide the instances when search is lawful without search warrant:
1. In times of war within the area of military operation.
(People v. de Gracia, 233 SCRA 716, Guanzon v. de Villa, 181 SCRA 623)
2. As an incident of a lawful arrest.

Section 13, Rule 126 of the Rules of Court states that a person lawfully arrested may be
searched for dangerous weapons or anything which may have been used or constitute proof
in the commission of an offense without a search warrant.

Requisites: a) arrest must be lawful; b) search and seizure must be contemporaneous with
arrest; c) search must be within permissible area (People v. Estella, G.R. Nos. 138539 40,
January 21, 2003)
3. When there are prohibited articles open to the eye and hand of an officer (Plain
View Doctrine).

The plain view doctrine is usually applied where the police officer is not searching for
evidence against the accused, but nonetheless inadvertently comes upon an
incriminationatory object (People v. Musa, 217 SCRA 597).

Requisites: a) a prior valid intrusion based on the valid warrantless arrest in which the
police are legally present in the pursuit of their official duties; 2) the evidence was
accidentally discovered by the police who have the right to be where they are; c) the
evidence must be immediately visible; and d) plain view justified the seizure of the
evidence without any further search (People v. Sarap, G.R. No. 132165, March 26, 2003).
4. When there is consent which is voluntary (consented search)
Requisites: a) there is a right; b) there must be knowledge of the existence of such right;
and c) there must be intention to waive (De Gracia v. Locsin, 65 Phil 689).
5. When it is incident to a lawful inspection.
Example of this kind of search is the searches of passengers at airports, ports or bus
terminals. Republic Act 6235 provides that luggage and baggage of airline passengers shall
be subject to search
6. Under the Tariff and Customs Code for purposes of enforcing the customs and
tariff laws;
The purpose is to prevent violations of smuggling or immigration laws.
7. Searches and seizures of vessels and aircraft; this extends to the warrantless
search of motor vehicle for contraband.
Examples of this is the seizure without warrant of a fishing vessel found to be violating
fishery laws and the stop and search without a warrant at military or police checkpoints
which are legal. Warrantless search and seizure in these instances are justified on the
ground that it is not practicable to secure a warrant because the vehicles, vessels, or
aircrafts can be moved quickly out of the locality or jurisdiction in which the warrant may be
sought.
8. When there is a valid reason to stop and frisk.

Stop and frisk is defined as the particular designation of the right of a police officer to
stop a citizen on the street, interrogate him and pat him for weapons whenever he observes
unusual conduct which leads him to conclude that criminal activity may be afoot (Terry v.
Ohio).

Requisites: a) that there is a person who manifests unusual and suspicious conduct; b) that
the police officer should properly introduce himself and make initial inquiries; c) that the
police officer approached and restrained the person in order to check the latters outer
clothing for possibly concealed weapon; and d) that the apprehending officer must have a
genuine reason to warrant the belief that the person to be held has weapon or contraband
concealed about him People v. Sy Chua, G.R. Nos. 136066 67, February 4, 2003)

NOTE: SEARCH AND SEIZURE SHOULD PRECEDE THE ARREST.


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SEARCH WARRANT AND ISSUES SURROUNDING ITS PROCUREMENT


AND IMPLEMENTATION
Posted on Saturday, December 26, 2009. Filed under: PHILIPPINE LAW AND JURISPRUDENCE | Tags: search
warrant, search with warrant |

Parallel to the rule on warrant of arrest is the rule on search and seizure. These two
warrants are safeguards to the possible abuses that may be committed by public officers or
employees against the constitutional rights of every Filipino citizens or aliens who live
permanently or temporarily stay in the Philippines.

Section 2, Article III of the 1987 Philippine Constitution provides that the right of the
people to be secure in their 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 a probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the
persons or things to be seized.

The said constitutional provision simply means that search and seizure to the house and
property of a person can only be made if there is a lawful reason and if the person
conducting the search and seizure is authorized to do so, that is, if he is armed with a
search warrant.
The term search in relation to searches and seizures is an examination of a mans
dwelling or his other premises, or an examination to the man himself with the purpose of
discovering property which is considered as contraband, illegal, or stolen or which can be
used as an evidence to prove his guilt in the prosecution of a criminal offense that which he
was charged.
On the other hand, seizure is the physical taking of the property subject of a valid search
into the custody of the law.
Search warrant is defined as an order issued in the name of the People of the Philippines,
signed by a judge and directed to a peace officer, commanding him to search for personal
property described therein and bring it before the court (Section 1).

The prime law in the Philippines in relation to search and seizure and search warrant is Rule
126 of the Rules of Court.

Section 4 provides for the requisites for issuing search warrant: 1) it must be based upon a
probable cause; 2) probable cause must be determined by the issuing judge personally; 3)
the judge must have personally examined, in the form of searching questions and answers,
the applicant and his witnesses and taken down their written depositions; 4) the search
warrant must particularly describe or identify the property to be seized as far as the
circumstances will ordinarily allow; 5) the warrant issued must particularly describe the
place to be searched and the persons or things to be seized; 6) it shall issue only for one
specific purpose; and 7) it must not have been issued more than 10 days prior to the search
made pursuant thereto.

The law states that one search warrant shall only be issued for one specific purpose, that is
one single warrant for one single offense committed. It shall also describe with particularity
the personal properties to be seized. A search warrant which was issued for more than one
offense is called a scatter shot warrant. A general warrant is a search warrant which
vaguely describes and does not particularize the personal properties to be seized. Both
warrants are not valid since they violate the constitutional and law provisions specifically the
fifth and the sixth requisites of a valid search warrant.

In the enforcement of the search warrant, officers implementing it must remember the
Knock and Announce Principle. They must announce their presence, identify themselves to
the accused or to the person who was given the authority to allow the officers search the
premises, show the warrant to be implemented, and explain to them said warrant in a
language or dialect known and understood by them.

The officer has the right to break door or window to effect search, if after executing the
knock and announce principle, he was refused admittance thereto (Section 7).

It is also required and mandated by law that the conduct of the search should be done in
the presence of any of the following: 1) lawful occupant of the place to be searched, or 2)
any member of his family; or 3) in their absence, in the presence of two witnesses of
sufficient age or discretion residing in the same locality. Officers conducting search without
the said requisite could be held liable for violating Article 130 of the Revised Penal Code that
is (Searching Domicile without Witnesses).

A public officer or employee who procured a search warrant without just cause or who
exceeded his authority or used unnecessary severity in executing a search warrant legally
procured like maliciously destroying or breaking of objects or things that do not hinder the
implementation of the search could be held liable for violating Article 129 of the Revised
Penal Code (Search Warrants Maliciously Obtained and Abuse in the Service of Those
Legally Obtained).

A public officer or employee who entered without authority the dwelling and/or to make a
search for papers and for other effects could be held liable for violating Article 128 of the
Revised Penal Code (Violation of Domicile).

As a general rule, search warrants could only be served at day time (Section 7, Rule 113,
Rules of Court), except when it is positively asserted in the affidavit that the property is on
the person or in the place to be searched only at night (Alvares vs. CFI of Tayabas, 64 Phil.
33).

Unlike a warrant of arrest, search warrant is only valid 10 days from its date, and could only
be used once. Thereafter, it becomes void.

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WHAT IS WARRANTLESS ARREST?


Posted on Saturday, December 26, 2009. Filed under: PHILIPPINE LAW AND JURISPRUDENCE | Tags: arbitrary
detention, arrest without warrant, citizen arrest, illegal detention, warrantless arrest |

A deviation to the general rule that no person may be arrested without warrant of arrest is
found on Rule 113, Rule 115 of the Rules or Court. Said law enumerates the instances when
arrest without warrant is lawful (also called a warrant less arrest), to wit:

1. When, in the presence of the arresting officer or individual, the person to be


arrested HAS COMMITTED, IS ACTUALLY COMMITTING, OR IS ATTEMPTING TO
COMMIT A CRIME;
This arrest is termed under the law as in flagrante delicto (caught in the act) arrest.
This means that if the arresting officer or individual has caught in the act the suspect of
committing a crime for instance, he can arrest the suspect even without the needed warrant
of arrest. This kind of arrest is best exemplified in a buy-bust operation
1. When an offense has in fact just been committed, and the arresting officer or
individual has probable cause to believe based on PERSONAL KNOWLEDGE of
facts and circumstances that the person to be arrested has committed it; and,
This is also called doctrine of hot pursuit. Unlike the circumstances enumerated in the
preceding item, the arresting officer or individual did not see the actual commission of the
crime by the suspect. However, he can still arrest the suspect if 1) the offender just
committed the crime AND 2) the arresting officer has probable cause to believe based on
personal knowledge of fact and circumstances that the person to be arrested has committed
it.

Personal knowledge is something that which will make the arresting believe that a person
has committed a crime and thus needs to be arrested. Personal knowledge can be acquired
from the testimonies or statements of eyewitnesses in a crime that was committed
describing the perpetrator and his direction after the commission of the crime. If after a
follow-up operation the arresting officer found the suspect, he can arrest the suspect even
without warrant of arrest.

However, take note of the word just in the rule. The word just means that the arrest
should be done immediately after the commission of the crime in order for the arrest under
this rule will be valid. If not, a warrant of arrest should already be secured before the
suspect could be arrested. What is immediate is left on the discretion of the court. However,
a Supreme Court decision states that the warrant less arrest of the suspect only three hours
after the commission of the crime was held valid People v. Gerente, 219 SCRA 756 while
another SC decision states that warrant less arrest after two (2) days after the discovery of
the crime was held unlawful (People vs. Olivarez, G.R. No. 77865, December 5, 1998).

3. When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.
Other instance of warrantless arrests

1. Where a person who has been lawfully arrested escapes or is rescued (Sec 13, Rule 113,
Rules of Court).

2. By the bondman for the purpose of surrendering the accused (Sec 23, Rule 114, Rules
of Court) and,

3. Where the accused attempts to leave the country without permission of the court (Sec
23, Rule 114, Rules of Court)

What is a citizen arrest?

Warrant less arrest can be effected by a private individual giving the term citizen arrest. A
warrant less arrest can also be termed as citizen arrest since it can be effected by private
individuals or citizens.

Duty of the arresting officer or individual after a warrantless arrest


Article 125 of the Revised Penal Code requires the arresting officer or individual to deliver to
the proper judicial authorities a person arrested and detained by virtue of warrant less
arrest within the prescribed hours:

1. 12 hours for offenses punishable by light penalties or their equivalent;

2. 18 hours for offenses punishable by correctional penalties or their equivalent; and

3. 36 hours for offenses punishable by afflictive penalties or their equivalent.

Deliver to the proper judicial authorities simply means that appropriate charges should be
filed in court against the accused and thus it should be within the prescribed hours
mentioned depending upon the gravity of the offense committed.

If after the prescribed hours, the arresting officer who is a public officer or employee did not
file charges against the suspect within the ambit of Article 125, he can be charged for delay
in the delivery of the proper persons to the proper judicial authorities under Article 125 of
the Revised Penal Code. If the arresting person is a private individual, the charged can be
illegal detention under Article 267 of the revised Penal Code.

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ARREST and WARRANT OF ARREST explained


Posted on Wednesday, December 16, 2009. Filed under: PHILIPPINE LAW AND JURISPRUDENCE | Tags: arrest, warrant of
arrest |

Arrest is the taking of a person into custody of the law so that he may be bound to answer
(questions relevant to) the commission of an offense.

A person may be arrested for the commission of an offense and for other lawful reasons. In
most instances, he may only be arrested if a warrant of arrest was issued against him. The
prime law on arrest in the Philippines can be found in Rule 113 of the Rules of Court issued
by the Supreme Court.

A warrant of arrest is an order coming from a court commanding a law enforcement


officer or any public officer with the enforcement of a law to take a person named therein in
the custody of the law for matters relevant to the commission of the offense.

Thus, only the court through the judge can issue a warrant of arrest. A warrant of arrest is
valid if: 1) it was based upon a probable cause; 2) the probable cause was determined
personally by the judge himself; 3) the determination of the probable cause was done after
a careful examination by the judge of the complainant and of the witnesses he produced,
and 4) the warrant described with particularity the person to be arrested.

As herein used, probable cause may be defined as those facts or circumstances known by
the judge after a careful examination of the complainant and the witnesses the complainant
produced that induced the judge to believe without doubt that a crime was committed and a
warrant of arrest should be issued.
Only law enforcement officers and public officers charged with the enforcement of the law
are allowed to enforce a warrant of arrest but they can request other individuals to assist
them serve the warrant (Sec.10). Arrest can be made even if the arresting officer is not in
the possession of the warrant since exhibition of the warrant prior to arrest is not
necessary. However, he should show the warrant as soon as practicable after the person
arrested so requires (Mallari vs. Court of Appeals, 265 SCRA 456).

Arrest can be made by an actual restraint of the person to be arrested or by submission to


the custody of the person making the arrest (Sec. 2). A reasonable amount of force may be
used to effect arrest and the arresting officer is left with the discretion in determining the
degree of force that may be properly exerted. The enforcing officer has the right to break
into a building or enclosure if the person to be arrested is or is reasonably believed to be in
said building and after announcing his authority and request for entering therein, he has
been denied admittance (Sec. 11)

A warrant of arrest should be executed within the period of ten (10) days from the receipt
thereof and at any hour of the day or night.

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STATE OF EMERGENCY in the PHILIPPINES


Posted on Tuesday, December 15, 2009. Filed under: PHILIPPINE LAW AND JURISPRUDENCE | Tags: state of
emergency, state of emergency in the philippines |

Now that Proclamation Number 1959 (declaring martial law.in the Province of
Maguindanao, Philippines) was lifted by President Gloria Macapagal Arroyo, many people
and political leaders were still asking for an alternative measure to quell what they deemed
continuous existence of lawless violence in Maguindanao and in places near that area.
They are requesting, instead, that a state of emergency be declared.

A state of emergency is a declaration from a states government that may have the
effect of suspending the normal function of the national government and/or its entities and
will require its people to prepare to meet an emergency situation like the existence of war of
calamity. It may also have the effect of suspending some rights granted to its citizens or to
any people within its jurisdiction while the emergency is going on to give the national
government leeway in solving it.

The state of emergency may be declared covering the entire state or only a portion of it.
When only a portion of the state was placed under a state of emergency, the National
Government may run the affairs of the local government affected temporarily.
Of course, the declaration of a state of emergency will be subjected to the existing laws of
the concerned state. In the Philippines, the prime law covering this act of the government is
the 1987 Philippine Constitution.

Section 23, Article VI of the 1987 Philippine Constitution states:

1) The Congress, by vote of two thirds of both Houses in joint session assembled, voting
separately, shall have the sole power to declare the existence of a state of war.

2) In times of war or other national emergency, the Congress may, by law, authorize the
President, for a limited period of time and subject to such restrictions as it may prescribe, to
exercise powers necessary and proper to carry out a declared national policy. Unless sooner
withdrawn by resolution of the Congress, such powers shall cease upon the next
adjournment thereof.

The power to declare as a state of war (or emergency) belongs to the Congress. Before they
could exercise this power, the concurrence of the two thirds of both Houses in joint
session assembled, voting separately, not jointly, is required.

Section 23 (2) however, provides that said power (also called as emergency power) of the
Congress may be delegated to the President. Because of the impracticability and
impossibility of Congress to meet instantly during emergencies (by its nature are abrupt),
the Constitution allows the Congress to grant this legislative power to the President, subject
to these certain conditions:

1) It may be granted by law only in times of war (whether declared or not) or other national
emergency (rebellion, invasion, war);

2) It must be exercised only during a limited period of time;

3) It must be exercised subject to restrictions to be prescribed by the Congress;

4) It must be exercised to carry out national policy; and

5) It shall automatically cease upon the next adjournment of the Congress, unless sooner
withdrawn.

It is only the Congress that can determine whether there is a war or a state of emergency. .
If later on in its opinion that the emergency has ceased, the declaration can be withdrawn
through a resolution.

Effects of the Declaration of a State of Emergency

Article XII, Section 17 of the 1987 Philippine Constitution states that: In times of national
emergency, when the public interests so requires, the State may, during the emergency and
under reasonable terms prescribed by it, temporarily take over or direct the operation of
any privately owned public utility or business affected with public interest.

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(WHAT ARE NOT) THE EFFECTS OF THE PROCLAMATION OF MARTIAL LAW


Posted on Monday, December 14, 2009. Filed under: PHILIPPINE LAW AND JURISPRUDENCE | Tags: effects of martial
law, martial law |

1. It does not suspend the Constitution.

The civil government and its entities continue its operation. The military authorities will not
take the reign of the government but only to help in the performance of its functions. The
rights of every citizen provided under the Constitution are not suspended and any
interference into must be justified in civil courts.

2. It does not replace the operation of the civil courts or legislative assemblies.

Criminal and civil actions as a result for the violation of the existing laws during martial law
should still be filed to, tried, and decided to by the regular courts. The Congress (and the
local legislatives) is not prohibited from performing their given functions like to conduct
investigations in aid of legislation or to conduct joint sessions to determine whether or not
to revoke or extend the martial law.

3. It does not authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function.

Violators of the law are still to be tried by the civil courts (municipal trial courts, regional
trails courts, Sandiganbayan, etc.) and not military courts. Warrants of arrest or search
warrants should be only be issued by and no person may be arrested and detained without
orders coming from these civil courts.

4. It does not automatically suspend the privilege of the writ of habeas corpus.

The privilege of the writ of habeas corpus may only be suspended upon proclamation of the
President, subject to the restrictions imposed by the Constitution. If suspended, it shall only
apply to persons who are judicially charged for rebellion or offenses inherent in or directly
connected with invasion. If an arrested or detained person shall not be judicially charged
with three (3) days, he shall be released. (Section 18, Article VII, 1987 Philippine
Constituion)
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HABEAS CORPUS IN THE PHILIPPINE CONTEXT
Posted on Wednesday, December 9, 2009. Filed under: PHILIPPINE LAW AND JURISPRUDENCE | Tags: habeas
corpus, habeas corpus Philippines, privilege of the writ, privilege of the writ of habeas corpus, proclamation
1959, suspension of the privilege of the writ, suspension of the privilege of the writ of habeas corpus |

Proclamation No. 1959 did not only place the Province of Mindanao under martial law but
also it suspended the privilege of the writ of habeas corpus in the said place. This article
aims to explain in the most common understanding what the suspension of the privilege of
the writ of habeas corpus is all about under the Philippine laws.

When a person was detained without legal cause, one of the legal remedies that he can
resort to is to file a petition for writ of habeas corpus in a court with competent jurisdiction.
Once approved, the court will issue an order known as writ of habeas corpus or privilege of
the writ of habeas corpus. These two legal terms differ in some ways.

The writ of habeas corpus is an order issued by a competent court, directed to a person
detaining another, commanding him to produce the body of the prisoner at a designated
time and place, to explain the time and cause of the caption and detention, and to follow
what the court or judge awarding the writ shall consider in behalf of the prisoner. The
purpose of the issuance of the writ is to inquire on the legality of the restraint or detention
without necessarily ordering the release of the prisoner.
The privilege of the writ of habeas corpus, on the other hand, is an order coming from
the court to (immediately) release the prisoner if the court finds that the detention is
without legal cause or authority.
A return is a written explanation of the cause of the caption and detention of the prisoner.
The judge will have to study the return to determine whether the detention is authorized. If
so, the prisoner will be sent back to jail. If not, the prisoner will be freed by the judge. The
principal purpose of the writ, therefore, is to restore the liberty of the person subjected to
physical restraint.

However, there is an instance when the privilege of the writ may be suspended. Section 15,
Article III of the 1987 Philippine Constitution states that the privilege of the writ of habeas
corpus shall not be suspended except in cases of rebellion when the public safety requires
it.

What does the suspension of the privilege of the writ habeas corpus means?

When the privilege of the writ of habeas corpus is suspended, the courts are momentarily
prevented from determining the legality of a detention. This is true most especially in
martial law proclaimed areas like in Maguindanao. This means that people who have
committed the crime of rebellion (or even suspected ones) may be arrested without warrant
of arrest and objects that were used in the commission of the crime of rebellion may be
seized without search warrant.
The purpose of the law, therefore, in suspending the privilege of the writ is to hold in
preventive imprisonment persons who plotted or committed acts that endanger the
existence of the State pending their investigation and trial (Padilla vs. Ponce Enrile, L-
61388, April 20, 1983).

Grounds for the suspension of the privilege of the writ of habeas corpus

Section 15, Article III of the 1987 Philippine Constitution states that the privilege of the
writ of habeas corpus shall not be suspended except in cases of rebellion when the public
safety requires it.

Section 18, Article VII of the same Constitution provides that the suspension of the privilege
of the writ is one of the military powers of the President, meaning that just like martial law,
it is only the President of the Philippines who could suspend the privilege of the writ and it
must be based on the following conditions:

1) There must be invasion or rebellion; AND

2) The public safety requires it

The other conditions for the suspension of the privilege of the writ of habeas corpus are also
the same as that with the proclamation of martial law (please refer to the related article in
this site: Martial Law in Maguindanao [Philippines]: To Fear or Not to Fear).

However, it shall only apply to persons judicially charged for rebellion or inherent in or
directly connected with invasion and not to those who are only suspected of committing
rebellion or invasion.

A person arrested or detained must be released if not judicially charged within three (3)
days (1987 Philippine Constitution, Section 18, Article VII, last par)

The proclamation of martial law does not automatically suspend the privilege of the writ.

Is the suspension of the privilege of the writ of habeas corpus under Proclamation
No. 1959 constitutional?

My answer is NO.

Going back to the conditions before its suspension which is similar to the proclamation of
martial law, no actual case of rebellion or invasion exists in the Province of Maguindanao,
therefore, the suspension of the privilege of the writ is unconstitutional (please read related
article in this site: Defining the Crime of Rebellion in Relation to Proclamation 1959).

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DEFINING THE CRIME OF REBELLION IN RELATION TO
PROCLAMATION 1959
Posted on Wednesday, December 9, 2009. Filed under: PHILIPPINE LAW AND JURISPRUDENCE | Tags: martial
law, proclamation 1959, rebellion, what is rebellion |

The proclamation of martial law in Maguindanao drew negative feedbacks and comments
from different groups of people and some legal experts. According to the critics, the
proclamation is unconstitutional and unlawful because the proclamation did not meet the
criteria as set forth by the 1987 Constitution. Thus, they are calling for the immediate
revocation of the proclamation.

Section 18, Article VII of the 1987 Philippine Constitution requires that before martial law
can be declared, two (2) requisites MUST be present: 1) There MUST be (actual) invasion or
rebellion, AND, 2) public safety requires the proclamation.

Note the word and between the two requisites. This means that these two requisites must
both be present in order that the proclamation will stay.

The proclamation did not meet the first requisite, that is, there MUST be (actual) invasion or
rebellion.

Article 134 of the Revised Penal Code of the Philippines (Act No. 3815, as amended the
law that defines acts or omissions that are punishable in the Philippines that took effect on
January 1, 1932) enumerates the requisites for crime of REBELLION:

Elements:

1. That there be

a) Public uprising AND

b) Taking up of arms AGAINST THE GOVERNMENT;

1. For the PURPOSE OF

a) REMOVING from the allegiance to said Government or its laws

1. The territory of the Philippines, or any part thereof.

2. Any body of land, naval, or other armed forces, or

b) DEPRIVING the Chief Executive or Congress, wholly or partially, of any of their


powers or prerogatives.
Rebellion is an immeasurable movement of men and a multifaceted system of machinations
and conspiracy and the object is completely to overthrow and supersede the existing
government.

It is now a public knowledge that the massacre was politically motivated and an election
related incident. The primary suspects are members of a political clan who are mostly
incumbent elected government officials. The victims were relatives of another political clan,
members of the media, and other innocent persons who were just on their way to the filing
of the certificate of candidacy of a relative who will challenge the post of the incumbent
political leader of their place who is a member of the suspect clan.

Although there was public uprising and taking of arms, but is it addressed against the
government, to the Chief Executive, or Congress? Did the suspect meet any of the purpose
in committing the crime of rebellion? On the other hand, the current (local) government of
that place was the defendant, while the people were the victims.

As bright as the morning sun, my answer is NO.

No crime of rebellion was committed therefore the proclamation of martial law is uncalled
for and should be revoked because it is unconstitutional and unlawful as it did not meet the
requirements set forth by the constitution and by the Revised Penal Code, aside from other
relevant reasons. #

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PROCLAMATION NO. 1959 (FULL TEXT)


Posted on Tuesday, December 8, 2009. Filed under: PHILIPPINE LAW AND JURISPRUDENCE | Tags: proclamation no.
1959 |

PROCLAMATION NO. 1959


PROCLAIMING A STATE OF MARTIAL LAW AND
SUSPENDING THE PRIVILEGE OF THE WRIT OF
HABEAS CORPUS IN THE PROVINCE OF
MAGUINDANAO, EXCEPT FOR CERTAIN AREAS
WHEREAS, Proclamation 1946 was issued on 24 November 2009 declaring a state of
emergency in the provinces of Maguindanao, Sultan Kudarat and the City of Cotabato for
the purpose of preventing and suppressing lawless violence in the aforesaid areas;
WHEREAS, Section 18 , Article VII of the Constitution provides that x x x In case of
invasion or rebellion, when the public safety so requires it, (the President) may, for a period
not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law, x x x
WHEREAS, R.A. No. 6986 provides that the crime of rebellion or insurrection is committed
by rising publicly and taking arms against the Government for the purpose of xxx depriving
the Chief Executive or the Legislature, wholly or partially, of any of their powers or
prerogatives.
WHEREAS, heavily armed groups in the province of Maguindanao have established
positions to resist government troops, thereby depriving the Executive of its powers and
prerogatives to enforce the laws of the land and to maintain public order and safety;
WHEREAS, the condition of peace and order in the province of Maguindanao has
deteriorated to the extent that the local judicial system and other government mechanisms
in the province are not functioning, thus endangering public safety;
WHEREAS, the Implementing Operational Guidelines of the GRP-MILF Agreement on the
General Cessation of Hostilities dated 14 November 1997 provides the following is
considered a prohibited act: x x x establishment of checkpoints except those necessary for
the GRPs enforcement and maintainance of peace and order; and for the defense and
security of the MILF in their identified areas, as jointly determined by the GRP and the MILF,
xxx
NOW, THEREFORE, I , GLORIA MACAPAGAL-ARROYO, President of the Republic of the
Philippines, by virtue of the powers vested in me by the Constitution and by law, do hereby
proclaim as follows:
SECTION 1. There is hereby declared a state of martial law in the province of
Maguindanao, except for the identified areas of the Moro Islamic Liberation Front as referred
to in the Implementing Operational Guidelines of the GRP-MILF Agreement on the General
Cessation of Hostilities.
SECTION 2. The privilege of the writ of habeas corpus shall likewise be suspended in the
aforesaid area for the duration of the state of martial law.

DONE in the City of Manila, this 4th day of December in the year of our Lord, Two
Thousand and Nine.

GLORIA MACAPAGAL ARROYO

By the President:

EDUARDO R. ERMITA
Executive Secretary
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