G.R. No.

L-68955 September 4, 1986

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RUBEN BURGOS y TITO, defendant-appellant.

GUTIERREZ, JR., J.:

This is an appeal from the decision of the Regional Trial Court of Davao del Sur, 11 th Judicial Region, Digos,
Davao del Sur convicting defendant- appellant Ruben Burgos y Tito of The crime of Illegal Possession of Firearms
in Furtherance of Subversion. The dispositive portion of the decision reads:

WHEREFORE, finding the guilt of accused Ruben Burgos sufficiently established beyond
reasonable doubt, of the offense charges , pursuant to Presidential Decree No. 9, in relation to
General Order No. 6, dated September 22, 1972, and General Order No. 7, dated September 23,
1972, in relation further to Presidential Decree No. 885, and considering that the firearm subject of
this case was not used in the circumstances as embraced in paragraph I thereof, applying the
provision of indeterminate sentence law, accused Ruben Burgos is hereby sentenced to suffer an
imprisonment of twenty (20) years of reclusion temporal maximum, as minimum penalty, to reclusion
perpetua, as maximum penalty, pursuant to sub-paragraph B, of Presidential Decree No. 9, as
aforementioned, with accessory penalties, as provided for by law.

As a result of this judgment, the subject firearm involved in this case (Homemade revolver, caliber
.38, Smith and Wesson, with Serial No. 8.69221) is hereby ordered confiscated in favor of the
government, to be disposed of in accordance with law. Likewise, the subversive documents, leaflets
and/or propaganda seized are ordered disposed of in accordance with law.

The information charged the defendant-appellant with the crime of illegal possession of firearm in furtherance of
subversion in an information which reads as follows:

That in the afternoon of May 13, 1982 and thereabout at Tiguman, Digos, Davao del Sur,
Philippines, within the jurisdiction of this Court, the above- named accused with intent to possess
and without the necessary license, permit or authority issued by the proper government agencies,
did then and there wilfully, unlawfully and feloniously keep, possess, carry and have in his
possession, control and custody one (1) homemade revolver, caliber .38, make Smith and Wesson,
with Serial No. 8.69221, which firearm was issued to and used by the accused at Tiguman, Digos,
Davao del Sur, his area of operations by one Alias Commander Pol for the New People's Army
(NPA), a subversive organization organized for the purpose of overthrowing the Government of the
Republic of the Philippines through lawless and violent means, of which the accused had
knowledge, and which firearm was used by the accused in the performance of his subversive tasks
such as the recruitment of New Members to the NPA and collection of contributions from the
members.

CONTRARY TO LAW.

The evidence for the prosecution is summarized in the decision of the lower court as follows:

xxx xxx xxx

. . . Through the testimony of Pat. Pepito Bioco, and Sgt. Romeo Taroy, it appears that by virtue of
an intelligent information obtained by the Constabulary and INP units, stationed at Digos, Davao del
Sur, on May 12, 1982, one Cesar Masamlok personally and voluntarily surre0ndered to the
authorities at about 9:00 o'clock A.M. at Digos, Davao del Sur Constabulary Headquarters, stating
that he was forcibly recruited by accused Ruben Burgos as member of the NPA, threatening him
with the use of firearm against his life, if he refused.
Along with his recruitment, accused was asked to contribute one (1) chopa of rice and one peso
(P1.00) per month, as his contribution to the NPA TSN, page 5, Hearing-October 14, 1982).

Immediately, upon receipt of said information, a joint team of PC-INP units, composed of fifteen (15)
members, headed by Captain Melchesideck Bargio, (PC), on the following day, May 13, 1982, was
dispatched at Tiguman; Davao del Sur, to arrest accused Ruben Burgos. The team left the
headquarter at 1:30 P.M., and arrived at Tiguman, at more or less 2:00 o'clock PM where through
the help of Pedro Burgos, brother of accused, the team was able to locate accused, who was
plowing his field. (TSN, pages 6-7, Hearing-October 14, 1982).

Right in the house of accused, the latter was caned by the team and Pat. Bioco asked accused
about his firearm, as reported by Cesar Masamlok. At first accused denied possession of said
firearm but later, upon question profounded by Sgt. Alejandro Buncalan with the wife of the accused,
the latter pointed to a place below their house where a gun was buried in the ground. (TSN, page 8,
Hearing-October 14, 1982).

Pat. Bioco then verified the place pointed by accused's wife and dug the grounds, after which he
recovered the firearm, Caliber .38 revolver, marked as Exhibit "A" for the prosecution.

After the recovery of the firearm, accused likewise pointed to the team, subversive documents which
he allegedly kept in a stock pile of qqqcogon at a distance of three (3) meters apart from his house.
Then Sgt. Taroy accordingly verified beneath said cogon grass and likewise recovered documents
consisting of notebook colored maroon with spiral bound, Exhibit "B" for the prosecution; a pamphlet
consisting of eight (8) leaves, including the front and back covers entitled Ang Bayan, Pahayagan ng
Partido Komunista ng Pilipinas, Pinapatnubayan ng Marxismo, Leninismo Kaisipang Mao
qqqZedong dated December 31, 1980, marked as Exhibit "C", and another pamphlet Asdang
Pamantalaang Masa sa Habagatang Mindanao, March and April 1981 issue, consisting of ten (10)
pages, marked as Exhibit "D" for the prosecution.

Accused, when confronted with the firearm Exhibit "A", after its recovery, readily admitted the same
as issued to him by Nestor Jimenez, otherwise known as a certain Alias Pedipol, allegedly team
leader of the sparrow unit of New People's Army, responsible in the liquidation of target
personalities, opposed to NPA Ideological movement, an example was the killing of the late Mayor
Llanos and Barangay Captain of Tienda Aplaya Digos, Davao del Sur. (TSN, pages 1-16, Hearing-
October 14,1982).

To prove accused's subversive activities, Cesar Masamlok, a former NPA convert was presented,
who declared that on March 7, 1972, in his former residence at Tiguman Digos, Davao del Sur,
accused Ruben Burgos, accompanied by his companions Landrino Burgos, Oscar Gomez and
Antonio Burgos, went to his house at about 5:00 o'clock P.M. and called him downstair. Thereupon,
accused told Masamlok, their purpose was to ask rice and one (1) peso from him, as his contribution
to their companions, the NPA of which he is now a member. (TSN, pages 70, 71, 72, Hearing-
January 4, 1983).

Accused and his companions told Masamlok, he has to join their group otherwise, he and his family
will be killed. He was also warned not to reveal anything with the government authorities. Because of
the threat to his life and family, Cesar Masamlok joined the group. Accused then told him, he should
attend a seminar scheduled on April 19, 1982. Along with this invitation, accused pulled gut from his
waistline a .38 caliber revolver which Masamlok really saw, being only about two (2) meters away
from accused, which make him easily Identified said firearm, as that marked as Exhibit "A" for the
prosecution. (TSN, pages 72, 73, and 74, Hearing-January 4, 1983).

On April 19, 1982, as previously invited, Masamlok, accompanied by his father, Matuguil Masamlok,
Isabel Ilan and Ayok Ides went to the house of accused and attended the seminar, Those present in
the seminar were: accused Ruben Burgos, Antonio Burgos, Oscar Gomez, Landrino Burgos, alias
Pedipol and one alias Jamper.
 The first speaker was accused Ruben Burgos, who said very distinctly that he is an NPA together
with his companions, to assure the unity of the civilian. That he encouraged the group to overthrow
the government, emphasizing that those who attended the seminar were already members of the
NPA, and if they reveal to the authorities, they will be killed.

Accused, while talking, showed to the audience pamphlets and documents, then finally shouted, the
NPA will be victorious. Masamlok likewise Identified the pamphlets as those marked as Exh. exhibits
"B", "C", and "D" for the prosecution. (TSN, pages 75, 76 and 77, Hearing-January 4, 1983)

Other speakers in said meeting were Pedipol, Jamper and Oscar Gomez, who likewise expounded
their own opinions about the NPA. It was also announced in said seminar that a certain Tonio
Burgos, will be responsible for the collection of the contribution from the members. (TSN, pages 78-
79, Hearing- January 4, 1983)

On May 12, 1982, however, Cesar Masamlok surrendered to Captain Bargio of the Provincial
Headquarters of the Philippine Constabulary, Digos, Davao del Sur.

Assistant Provincial Fiscal Panfilo Lovitos was presented t prove that on May 19, 1982, he
administered the subscription of th extra-judicial confession of accused Ruben Burgos, marked as
Exhibit "E " for the prosecution, consisting of five (5) pages.

Appearing voluntarily in said office, for the subscription of his confession, Fiscal Lovitos, realizing
that accused was not represented by counsel, requested the services of Atty. Anyog, whose office is
adjacent to the Fiscal's Office, to assist accused in the subscription of his extra-judicial statement.

Atty. Anyog assisted accused in the reading of his confession from English to Visayan language,
resulting to the deletion of question No. 19 of the document, by an inserted certification of Atty.
Anyog and signature of accused, indicating his having understood, the allegations of his extra-
judicial statement.

Fiscal Lovitos, before accused signed his statement, explained to him his constitutional rights to
remain silent, right to counsel and right to answer any question propounded or not.

With the aid of Atty. Anyog, accused signed his confession in the presence of Atty. Anyog and Fiscal
Lovitos, without the presence of military authorities, who escorted the accused, but were sent
outside the cubicle of Fiscal Lovitos while waiting for the accused. (TSN, pages 36-40, nearing
November 15, 1982)

Finally, in order to prove illegal possession by accused of the subject firearm, Sgt. Epifanio Comabig
in-charge of firearms and explosives, NCO Headquarter, Philippine Constabulary, Digos, Davao del
Sur, was presented and testified, that among the lists of firearm holders in Davao del Sur, nothing
was listed in the name of accused Ruben Burgos, neither was his name included among the lists of
persons who applied for the licensing of the firearm under Presidential Decree No. 1745.

After the above-testimony the prosecution formally closed its case and offered its exhibits, which
were all admitted in evidence, despite objection interposed by counsel for accused, which was
accordingly overruled.

On the other hand, the defendant-appellant's version of the case against him is stated in the decision as follows:

From his farm, the military personnel, whom he said he cannot recognize, brought him to the PC
Barracks at Digos, Davao del Sur, and arrived there at about 3:00 o'clock, on the same date. At
about 8:00 o'clock P.M., in the evening, he was investigated by soldiers, whom he cannot Identify
because they were wearing a civilian attire. (TSN, page 14 1, Hearing-June 15, 1983)

The investigation was conducted in the PC barracks, where he was detained with respect to the
subject firearm, which the investigator, wished him to admit but accused denied its ownership.
Because of his refusal accused was mauled, hitting him on the left and right side of his body which
rendered him unconscious. Accused in an atmosphere of tersed solemnity, crying and with
emotional attachment, described in detail how he was tortured and the ordeals he was subjected.

He said, after recovery of his consciousness, he was again confronted with subject firearm, Exhibit
"A", for him to admit and when he repeatedly refused to accept as his own firearm, he was subjected
to further prolong (sic) torture and physical agony. Accused said, his eyes were covered with wet
black cloth with pungent effect on his eyes. He was undressed, with only blindfold, pungent water
poured in his body and over his private parts, making his entire body, particularly his penis and
testicle, terribly irritating with pungent pain.

All along, he was investigated to obtain his admission, The process of beating, mauling, pain and/or
ordeal was repeatedly done in similar cycle, from May 13 and 14, 1982. intercepted only whenever
he fell unconscious and again repeated after recovery of his senses,

Finally on May 15, 1982, after undergoing the same torture and physical ordeal he was seriously
warned, if he will still adamantly refuse to accept ownership of the subject firearm, he will be
salvaged, and no longer able to bear any further the pain and agony, accused admitted ownership of
subject firearm.

After his admission, the mauling and torture stopped, but accused was made to sign his affidavit
marked as Exhibit "E" for the prosecution, consisting of five (5) pages, including the certification of
the administering officer, (TSN, pages 141-148, Hearing-June 15, 1983)

In addition to how he described the torture inflicted on him, accused, by way of explanation and
commentary in details, and going one by one, the allegations and/or contents of his alleged
extrajudicial statement, attributed his answers to those questions involuntarily made only because of
fear, threat and intimidation of his person and family, as a result of unbearable excruciating pain he
was subjected by an investigator, who, unfortunately he cannot Identify and was able to obtain his
admission of the subject firearm, by force and violence exerted over his person.

To support denial of accused of being involved in any subversive activities, and also to support his
denial to the truth of his alleged extra-judicial confession, particularly questions Nos. 35, 38, 41, 42,
43, 44, 45, 46 and 47, along with qqqs answers to those questions, involving Honorata Arellano
ahas Inday Arellano, said Honorata Arellano appeared and declared categorically, that the above-
questions embraced in the numbers allegedly stated in the extrajudicial confession of accused,
involving her to such NPA personalities, as Jamper, Pol, Anthony, etc., were not true because on the
date referred on April 28, 1982, none of the persons mentioned came to her house for treatment,
neither did she meet the accused nor able to talk with him. (TSN, pages 118- 121, Hearing-May 18,
1983)

She, however, admitted being familiar with one Oscar Gomez, and that she was personally charged
with subversion in the Office of the Provincial Commander, Philippine Constabulary, Digos, Davao
del Sur, but said charge was dismissed without reaching the Court. She likewise stated that her son,
Rogelio Arellano, was likewise charged for subversion filed in the Municipal Trial Court of Digos,
Davao del Sur, but was likewise dismissed for lack of sufficient evidence to sustain his conviction.
(TSN, pages 121-122, in relation to her cross-examination, Hearing-May 18, 1983)

To support accused's denial of the charge against him, Barangay Captain of Tiguman, Digos, Davao
del Sur, Salvador qqqGalaraga was presented, who declared, he was not personally aware of any
subversive activities of accused, being his neighbor and member of his barrio. On the contrary, he
can personally attest to his good character and reputation, as a law abiding citizen of his barrio,
being a carpenter and farmer thereat. (TSl pages 128-129, Hearing-May 18, 1983)

He however, admitted in cross-examination, that there were a lot of arrests made by the authorities
in his barrio involving subversive activities but they were released and were not formally charged in
Court because they publicly took their oath of allegiance with the government. (TSN, pages 133-134,
in relation to page 136, Hearing-May 18, 1983)
 Finally, to support accused's denial of the subject firearm, his wife, Urbana Burgos, was presented
and who testified that the subject firearm was left in their house by Cesar Masamlok and one Pedipol
on May 10, 1982. It was night time, when the two left the gun, alleging that it was not in order, and
that they will leave it behind, temporarily for them to claim it later. They were the ones who buried it.
She said, her husband, the accused, was not in their house at that time and that she did not inform
him about said firearm neither did she report the matter to the authorities, for fear of the life of her
husband. (TSN, page 24, November 22, 1983)

On cross-examination, she said, even if Masamlok during the recovery of the firearm, was wearing a
mask, she can still Identify him. (TSN, page 6, Hearing-November 22, 1983)

After the above-testimony, accused through counsel formally rested his case in support of accused's
through counsel manifestation for the demurrer to evidence of the prosecution, or in the alternative
for violation merely of simple illegal possession of firearm, 'under the Revised Administrative Code,
as amended by Republic Act No. 4, reflected in the manifestation of counsel for accused. (TSN,
pages 113-114, Hearing-May 18, 1983)

Accused-appellant Ruben Burgos now raises the following assignments of error, to wit:

I THE TRIAL COURT ERRED IN HOLDING THAT (SIC) THE ARREST OF ACCUSED-APPELLANT
WITHOUT VALID WARRANT TO BE LAWFUL.

II THE TRIAL COURT ERRED IN HOLDING THE SEARCH IN THE HOUSE OF ACCUSED-
APPELLANT FOR FIREARM WITHOUT VALID WARRANT TO BE LAWFUL.

III THE TRIAL COURT ERRED IN HOLDING ACCUSED-APPELLANT GUILTY BEYOND

REASONABLE DOUBT FOR VIOLATION OF P.D. No. 9 IN RELATION TO GENERAL ORDERS
NOS. 6 AND 7

Was the arrest of Ruben Burgos lawful? Were the search of his house and the subsequent confiscation of a firearm
and documents allegedly found therein conducted in a lawful and valid manner? Does the evidence sustaining the
crime charged meet the test of proving guilt beyond reasonable doubt?

The records of the case disclose that when the police authorities went to the house of Ruben Burgos for the purpose
of arresting him upon information given by Cesar Masamlok that the accused allegedly recruited him to join the New
People's Army (NPA), they did not have any warrant of arrest or search warrant with them (TSN, p. 25, October 14,
1982; and TSN, p. 61, November 15, 1982).

Article IV, Section 3 of the Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall not be violated,
and no search warrant or warrant of arrest shall issue except upon probable cause to be determined
by the judge, or such other responsible officer as may be authorized by law, after examination under
oath or affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched, and the persons or things to be seized.

The constitutional provision is a safeguard against wanton and unreasonable invasion of the privacy and liberty of a
citizen as to his person, papers and effects. This Court explained in Villanueva vs. Querubin (48 SCRA 345) why
this right is so important:

It is deference to one's personality that lies at the core of this right, but it could be also looked upon
as a recognition of a constitutionally protected area, primarily one's home, but not necessarily
thereto confined. (Cf. Hoffa v. United States, 385 US 293 [19661) What is sought to be guarded is a
man's prerogative to choose who is allowed entry to his residence. In that haven of refuge, his
individuality can assert itself not only in the choice of who shall be welcome but likewise in the kind
of objects he wants around him. There the state, however powerful, does not as such have access
 except under the circumstances above noted, for in the traditional formulation, his house, however
humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is called
upon to refrain from any invasion of his dwelling and to respect the privacies of his life, (Cf.
Schmerber v. California, 384 US 757 [1966], Brennan, J. and Boyd v. United States, 116 US 616,
630 [1886]). In the same vein, Landynski in his authoritative work (Search and Seizure and the
Supreme Court [1966], could fitly characterize this constitutional right as the embodiment of a
'spiritual concept: the belief that to value the privacy of home and person and to afford its
constitutional protection against the long reach of government is no legs than to value human
dignity, and that his privacy must not be disturbed except in case of overriding social need, and then
only under stringent procedural safeguards.' (Ibid, p. 47).

The trial court justified the arrest of the accused-appelant without any warrant as falling under one of the instances
when arrests may be validly made without a warrant. Rule 113, Section 6 * of the Rules of Court, provides the
exceptions as follows:

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;

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 Court stated that even if there was no warrant for the arrest of Burgos, the fact that "the authorities received an
urgent report of accused's involvement in subversive activities from a reliable source (report of Cesar Masamlok) the
circumstances of his arrest, even without judicial warrant, is lawfully within the ambit of Section 6-A of Rule 113 of
the Rules of Court and applicable jurisprudence on the matter."

If the arrest is valid, the consequent search and seizure of the firearm and the alleged subversive documents would
become an incident to a lawful arrest as provided by Rule 126, Section 12, which states:

A person charged with an offense may be searched for dangerous weapons or anything which may
be used as proof of the commission of the offense.

The conclusions reached by the trial court are erroneous.

Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is committing, or is about to
commit an offense must have personal knowledge of that fact. The offense must also be committed in his presence
or within his view. (Sayo v. Chief of Police, 80 Phil. 859).

There is no such personal knowledge in this case. Whatever knowledge was possessed by the arresting officers, it
came in its entirety from the information furnished by Cesar Masamlok. The location of the firearm was given by the
appellant's wife.

At the time of the appellant's arrest, he was not in actual possession of any firearm or subversive document. Neither
was he committing any act which could be described as subversive. He was, in fact, plowing his field at the time of
the arrest.

The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is
a most basic and fundamental one. The statute or rule which allows exceptions to the requirement of warrants of
arrest is strictly construed. Any exception must clearly fall within the situations when securing a warrant would be
absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the rule on arrests
without warrant or extend its application beyond the cases specifically provided by law. To do so would infringe upon
personal liberty and set back a basic right so often violated and so deserving of full protection.
The Solicitor General is of the persuasion that the arrest may still be considered lawful under Section 6(b) using the
test of reasonableness. He submits that. the information given by Cesar Masamlok was sufficient to induce a
reasonable ground that a crime has been committed and that the accused is probably guilty thereof.

In arrests without a warrant under Section 6(b), however, it is not enough that there is reasonable ground to believe
that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first.
That a crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may
have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground
applies only to the identity of the perpetrator.

In this case, the accused was arrested on the sole basis of Masamlok's verbal report. Masamlok led the authorities
to suspect that the accused had committed a crime. They were still fishing for evidence of a crime not yet
ascertained. The subsequent recovery of the subject firearm on the basis of information from the lips of a frightened
wife cannot make the arrest lawful, If an arrest without warrant is unlawful at the moment it is made, generally
nothing that happened or is discovered afterwards can make it lawful. The fruit of a poisoned tree is necessarily also
tainted.

More important, we find no compelling reason for the haste with which the arresting officers sought to arrest the
accused. We fail to see why they failed to first go through the process of obtaining a warrant of arrest, if indeed they
had reasonable ground to believe that the accused had truly committed a crime. There is no showing that there was
a real apprehension that the accused was on the verge of flight or escape. Likewise, there is no showing that the
whereabouts of the accused were unknown,

The basis for the action taken by the arresting officer was the verbal report made by Masamlok who was not
required to subscribe his allegations under oath. There was no compulsion for him to state truthfully his charges
under pain of criminal prosecution. (TSN, p. 24, October 14, 1982). Consequently, the need to go through the
process of securing a search warrant and a warrant of arrest becomes even more clear. The arrest of the accused
while he was plowing his field is illegal. The arrest being unlawful, the search and seizure which transpired
afterwards could not likewise be deemed legal as being mere incidents to a valid arrest.

Neither can it be presumed that there was a waiver, or that consent was given by the accused to be searched
simply because he failed to object. To constitute a waiver, it must appear first that the right exists; secondly, that the
person involved had knowledge, actual or constructive, of the existence of such a right; and lastly, that said person
had an actual intention to relinquish the right (Pasion Vda. de Garcia v. Locsin, 65 Phil. 689). The fact that the
accused failed to object to the entry into his house does not amount to a permission to make a search therein
(Magoncia v. Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. de Garcia V. Locsin
(supra)

xxx xxx xxx

. . . As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts
do not place the citizen in the position of either contesting an officer's authority by force, or waiving
his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is
not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of
the law. (56 C.J., pp. 1180, 1181).

We apply the rule that: "courts indulge every reasonable presumption against waiver of fundamental constitutional
rights and that we do not presume acquiescence in the loss of fundamental rights." (Johnson v. Zerbst 304 U.S.
458).

That the accused-appellant was not apprised of any of his constitutional rights at the time of his arrest is evident
from the records:

A CALAMBA:

Q When you went to the area to arrest Ruben Burgos, you were not armed with an
arrest warrant?
 A None Sir.

Q Neither were you armed with a search warrant?

A No Sir.

Q As a matter of fact, Burgos was not present in his house when you went there?

A But he was twenty meters away from his house.

Q Ruben Burgos was then plowing his field?

A Yes Sir.

Q When you called for Ruben Burgos you interviewed him?

A Yes Sir.

Q And that you told him that Masamlok implicated him?

A No Sir.

Q What did you tell him?

A That we received information that you have a firearm, you surrender that firearm,
first he denied but when Sgt. Buncalan interviewed his wife, his wife told him that it is
buried, I dug the firearm which was wrapped with a cellophane.

Q In your interview of Burgos you did not remind him of his rights under the
constitution considering that he was purposely under arrest?

A I did not.

Q As a matter of fact, he denied that he has ever a gun?

A Yes Sir.

Q As a matter of fact, the gun was not in his possession?

A It was buried down in his horse.

Q As a matter of fact, Burgos did not point to where it was buried?

A Yes Sir.

(TSN, pp. 25-26, Hearing-October 14, 1982)

Considering that the questioned firearm and the alleged subversive documents were obtained in violation of the
accused's constitutional rights against unreasonable searches and seizures, it follows that they are inadmissible as
evidence.

There is another aspect of this case.

In proving ownership of the questioned firearm and alleged subversive documents, the prosecution presented the
two arresting officers who testified that the accused readily admitted ownership of the gun after qqqs wife pointed to
the place where it was buried. The officers stated that it was the accused himself who voluntarily pointed to the
place where the alleged subversive documents were hidden.

Assuming this to be true, it should be recalled that the accused was never informed of his constitutional rights at the
time of his arrest. So that when the accused allegedly admitted ownership of the gun and pointed to the location of
the subversive documents after questioning, the admissions were obtained in violation of the constitutional right
against self-incrimination under Sec. 20 of Art. IV of the Bill of Rights winch provides:

No person shall be compelled to be a witness against himself. Any person under investigation for the
commission of an offense shall have the right to remain silent and to counsel, and to be informed of
such right.. . .

The Constitution itself mandates that any evidence obtained in violation of this right is inadmissible in evidence.
Consequently, the testimonies of the arresting officers as to the admissions made by the appellant cannot be used
against him.

The trial court validly rejected the extra-judicial confession of the accused as inadmissible in evidence. The court
stated that the appellant's having been exhaustively subjected to physical terror, violence, and third degree
measures may not have been supported by reliable evidence but the failure to present the investigator who
conducted the investigation gives rise to the "provocative presumption" that indeed torture and physical violence
may have been committed as stated.

The accused-appellant was not accorded his constitutional right to be assisted by counsel during the custodial
interrogation. The lower court correctly pointed out that the securing of counsel, Atty. Anyog, to help the accused
when he subscribed under oath to his statement at the Fiscal's Office was too late. It could have no palliative effect.
It cannot cure the absence of counsel at the time of the custodial investigation when the extrajudicial statement was
being taken.

With the extra-judicial confession, the firearm, and the alleged subversive documents inadmissible in evidence
against the accused-appellant, the only remaining proof to sustain the charge of Illegal Possession of Firearm in
Furtherance of Subversion is the testimony of Cesar Masamlok.

We find the testimony of Masamlok inadequate to convict Burgos beyond reasonable doubt. It is true that the trial
court found Masamlok's testimony credible and convincing. However, we are not necessarily bound by the credibility
which the trial court attaches to a particular witness. As stated in People vs.. Cabrera (100 SCRA 424):

xxx xxx xxx

. . .Time and again we have stated that when it comes to question of credibility the findings of the
trial court are entitled to great respect upon appeal for the obvious reason th+at it was able to
observe the demeanor, actuations and deportment of the witnesses during the trial. But we have
also said that this rule is not absolute for otherwise there would be no reversals of convictions upon
appeal. We must reject the findings of the trial court where the record discloses circumstances of
weight and substance which were not properly appreciated by the trial court.

The situation under which Cesar Masamlok testified is analogous to that found in People vs. Capadocia (17 SCRA
98 1):

. . . The case against appellant is built on Ternura's testimony, and the issue hinges on how much
credence can be accorded to him. The first consideration is that said testimony stands
uncorroborated. Ternura was the only witness who testified on the mimeographing incident. . . .

xxx xxx xxx

. . .He was a confessed Huk under detention at the time. He knew his fate depended upon how
much he cooperated with the authorities, who were then engaged in a vigorous anti-dissident
 campaign. As in the case of Rodrigo de Jesus, whose testimony We discounted for the same
reason, that of Ternura cannot be considered as proceeding from a totally unbiased source. . . .

In the instant case, Masamlok's testimony was totally uncorroborated. Considering that Masamlok surrendered to
the military certainly his fate depended on how eagerly he cooperated with the authorities. Otherwise, he would also
be charged with subversion. The trade-off appears to be his membership in the Civil Home Defense Force. (TSN, p.
83, January 4, 1983). Masamlok may be considered as an interested witness. It can not be said that his testimony is
free from the opportunity and temptation to be exaggerated and even fabricated for it was intended to secure his
freedom.

Despite the fact that there were other persons present during the alleged NPA seminar of April 19, 1982 i.e.,
Masamlok's father ,Matuguil Masamlok, Isabel Ilan and Ayok Ides (TSN, p. 74, January 4, 1983) who could have
corroborated Cesar Masamlok's testimony that the accused used the gun in furtherance of subversive activities or
actually engaged in subversive acts, the prosecution never presented any other witness.

This Court is, therefore, constrained to rule that the evidence presented by the prosecution is insufficient to prove
the guilt of the accused beyond reasonable doubt.

As held in the case of People vs. Baia (34 SCRA 347):

It is evident that once again, reliance can be placed on People v. Dramayo (42 SCRA 59), where
after stressing that accusation is not, according to the fundamental law, synonymous with guilt, it
was made clear: 'Only if the judge below and the appellate tribunal could arrive at a conclusion that
the crime had been committed precisely by the person on trial under such an exacting test should
the sentence be one of conviction. It is thus required that every circumstance favoring his innocence
be duly taken into account. The proof against him must survive the test of reason; the strongest
suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the
defendant could be laid the responsibility for the offense charged; that not only did he perpetrate the
act but that it amounted to a crime. What is required then is moral certainty.' (Ibid, 64. Cf. People v.
Alvarez, 55 SCRA 81; People v. Joven, 64 SCRA 126; People vs. Ramirez, 69 SCRA 144; People
vs. Godov 72 SCRA 69; People v. Lopez, 74 SCRA 205; People v. Poblador, 76 SCRA 634; People
v. Quiazon, 78 SCRA 513; People v. Nazareno, 80 SCRA 484; People vs. Gabilan 115 SCRA 1;
People v. Gabiana, 117 SCRA 260; and People vs. Ibanga 124 SCRA 697).

We are aware of the serious problems faced by the military in Davao del Sur where there appears to be a well-
organized plan to overthrow the Government through armed struggle and replace it with an alien system based on a
foreign ideology. The open defiance against duly constituted authorities has resulted in unfortunate levels of
violence and human suffering publicized all over the country and abroad. Even as we reiterate the need for all
freedom loving citizens to assist the military authorities in their legitimate efforts to maintain peace and national
security, we must also remember the dictum in Morales vs. Enrile (1 21 SCRA 538, 569) when this Court stated:

While the government should continue to repel the communists, the subversives, the rebels, and the
lawless with an the means at its command, it should always be remembered that whatever action is
taken must always be within the framework of our Constitution and our laws.

Violations of human rights do not help in overcoming a rebellion. A cavalier attitude towards constitutional liberties
and protections will only fan the increase of subversive activities instead of containing and suppressing them.

WHEREFORE, the judgment of conviction rendered by the trial court is REVERSED and SET ASIDE. The accused-
appellant is hereby ACQUITTED, on grounds of reasonable doubt, of the crime with which he has been charged.

The subject firearm involved in this case (homemade revolver, caliber .38, Smith and Wesson, with Serial No.
8.69221) and the alleged subversive documents are ordered disposed of in accordance with law.

Cost de oficio.

SO ORDERED.
Feria (Chairman), Fernan, Alampay and Paras, JJ., concur.

Footnotes

* The 1985 Rules on Criminal Procedure have made clearer the exceptions when an arrest may be
made without warrant. Rule 113, Section 5 provides:

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

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

(b) When an offense has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it; and

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

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be
forthwith delivered to the nearest Police station or i jail and he shall be proceeded against in
accordance with Rule 11 2, Section 7. 6a 17a).
 [G.R. No. 109287. April 18, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTOLIN CUIZON y

ORTEGA, STEVE PUA y CLOFAS alias STEPHEN P0 y UY or TOMMY SY and
PAUL LEE y WONG alias PAUL LEUNG, accused-appellants.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; LAWFUL ARRESTS WITHOUT
WARRANT; REQUIREMENTS; NOT PRESENT IN CASE AT BAR. - Re-assessing the
factual backdrop of the case at bench, this Court cannot agree with and accept the
conclusion of the trial court that the appellants were caught in flagrante delicto which
would justify the search without a warrant. The shaky reasoning of the court a quo gives
away the baselessness of its findings and conclusion: x x x the search conducted on
their bags in the hotel room could still be regarded as valid for being incidental to a lawful
arrest. x x x The arrest of accused Pua and Lee without a warrant of arrest was lawful,
as they could be considered to have committed the crime of transporting shabu in the
presence of the arresting officers from the time they received the bags containing the
regulated drug in the airport up to the time they brought the bags to the hotel. Or their
arrest without a warrant was legal as falling under the situation where an offense had in
fact just been committed, and the arresting officers had personal knowledge of facts
indicating that the said accused were the ones who committed it. x x x Scrutinizing the
provisions of Sec. 5 of Rule 113 of the Rules of Court on lawful arrests without warrant,
we note that par. (c) of said section is obviously inapplicable, the appellants not being
escapees from a penal institution at the time of arrest. Par. (a) on the other hand requires
that the person be arrested (1) after he has committed or while he is actually committing
or is at least attempting to commit an offense, (ii) in the presence of the arresting
officer(s). These requirements are not present in the case at bench, for at the time of
their arrest, appellants Pua and Lee were merely resting in their hotel room, and
appellant Cuizon for his part was in bed resting with his wife and child inside his home.
No offense had just been committed, or was being actually committed or being
attempted by any of the accused in the presence of the lawmen.
2. ID.; ID.; RULE 113, SECTION 5; PARAGRAPH (b) THEREOF; NOT APPLICABLE IN
CASE AT BAR. - Par. (b) of Rule 113, Section 5 is likewise inapplicable since its equally
exacting requirements have also not been met. The prosecution failed to establish that
at the time of the arrest, an offense had in fact just been committed and the arresting
officers had personal knowledge of facts indicating that the accused-appellants had
committed it. Appellant Cuizon could not, by the mere act of handing over four pieces of
luggage to the other two appellants, be considered to have committed the offense of
carrying and transporting prohibited drugs. Under the circumstances of the case, there
was no sufficient probable cause for the arresting officers to believe that the accused
were then and there committing a crime. The act per se of handing over the baggage,
assuming the prosecutions version to be true, cannot in any way be considered a
criminal act. It was not even an act performed under suspicious circumstances as
indeed, it took place in broad daylight, practically at high noon, and out in the open, in
 full view of the public. Furthermore, it can hardly be considered unusual, in an airport
setting, for travellers and/or their welcomers to be passing, handing over and delivering
pieces of baggage, especially considering the somewhat obsessive penchant of our
fellow countrymen for sending along (pakikipadala) things and gifts through friends and
relatives. Moreover, one cannot determine from the external appearance of the luggage
that they contained shabu hidden beneath some secret panel or false bottom. The only
reason why such act of parting with luggage took on the color and dimensions of a
felonious deed, at least as far as the lawmen were concerned, was the alleged tip that
the NBI agents purportedly received that morning, to the effect that appellant Cuizon
would be arriving that same day with a shipment of shabu. To quote from another
decision of like import, (A)ll they had was hearsay information (from the telephone
caller), and about a crime that had yet to be committed.
3. ID.; ID.; ID.; PROBABLE CAUSE; NOT ESTABLISHED IN CASE AT BAR. - We
therefore hold that under the circumstances obtaining, the prosecution failed to establish
that there was sufficient and reasonable ground for the NBI agents to believe that
appellants had committed a crime at the point when the search and arrest of Pua and
Lee were made; hence, said search and arrest do not come under the exception in par.
(b) of Sec. 5 of Rule 113, and therefore should be deemed illegal.
4. CRIMINAL LAW; CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY;
CONSPIRACY; NOT ESTABLISHED IN CASE AT BAR. - Because of the way the
operation actually turned out, there is no sufficient proof of conspiracy between Pua and
Lee on the one hand, and Cuizon on the other, inasmuch as there is no clear and
convincing evidence that the four (4) bags handed by Cuizon to Pua and Lee at the
airport were the very same ones found in the possession of the latter in Room 340 of
the Peninsula Hotel. Not one of the NBI agents when testifying could definitely and
positively state that the bags seized from Room 340 were the very same ones passed
by Cuizon at the airport; at best, they could only say that they looked like the ones they
saw at the airport. And even assuming them to be the same bags, there remains doubt
and uncertainty as to the actual ownership of the said bags at the alleged turnover vis-
a-vis the time they were seized by the agents. For these reasons, we cannot sustain the
finding of conspiracy as between Cuizon on the one hand and Pua and Lee on the other.
Well-settled is the rule that conspiracy must be proved independently and beyond
reasonable doubt.
5. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNLAWFUL
SEARCHES AND SEIZURES; DEEMED WAIVED BY FAILURE TO CHALLENGE ITS
VALIDITY; CASE AT BAR. - What has been said for Cuizon cannot, alas, be said for
appellant Pua. While the search and arrest carried out on him and Lee may have been
illegal for not being incident to a lawful warrantless arrest, the unfortunate fact is that
appellant Pua failed to challenge the validity of his arrest and search, as well as the
admission of the evidence obtained thereby; he did not raise the issue or assign the
same as an error before this Court. Accordingly, any possible challenge thereto based
on constitutional grounds is deemed waived. This Court has upheld and recognized
waivers of constitutional rights, including, particularly, the right against unreasonable
 searches and seizures, in cases such as People vs. Malasugui (63 Phil. 221 [1936])
and De Garcia vs. Locsin (65 Phil. 689 [1938]).
6. ID.; ID.; THE JUDICIARY WHOSE MAIN FUNCTION IS THE ADMINISTRATION OF
JUSTICE WOULD HAVE NO RIGHT TO EXPECT ORDINARY PEOPLE TO BE LAW
ABIDING IF WE DO NOT INSIST ON THE FULL PROTECTION OF THEIR RIGHTS.
- It is evident and clear to us that the NBI agents gravely mishandled the drug bust
operation and in the process violated the constitutional guarantees against unlawful
arrests and illegal searches and seizures. Because of the large haul of illegal drugs that
the government officers claimed to have recovered, this Court agonized over the case
before us and struggled to apply the law with an even hand. In the final analysis, we in
the administration of justice would have no right to expect ordinary people to be law-
abiding if we do not insist on the full protection of their rights.
7. ID.; ID.; LAW ENFORCERS MUST ACT WITH DELIBERATE CARE AND WITHIN THE
PARAMETERS SET BY CONSTITUTION AND THE LAW. Some lawmen, prosecutors
and judges may still tend to gloss over an illegal search and seizures as long as the law
enforcers show the alleged evidence of the crime regardless of the methods by which
they were obtained. This kind of attitude condones law-breaking in the name of law
enforcement. Ironically, it only fosters the more rapid breakdown of our system of justice,
and the eventual denigration of society. While this Court appreciates and encourages
the efforts of law enforcers to uphold the law and to preserve the peace and security of
society, we nevertheless admonish them to act with deliberate care and within the
parameters set by the Constitution and the law. Truly, the end never justifies the means.
APPEARANCES OF COUNSEL
The Solicitor General for plaintiff-appellee.
Public Attorneys Office and The Law Firm of Ross B. Bautista for Antolin Cuizon.
Marcial P. Pe Benito for Steve Pua and Paul Lee.

DECISION
PANGANIBAN, J.:

In deciding the case at bench, the Court reiterates doctrines on illegal searches and
seizures, and the requirements for a valid warrantless search incident to a valid warrantless
arrest. While the Court appreciates and encourages pro-active law enforcement, it
nonetheless upholds the sacredness of constitutional rights and repeats the familiar maxim,
the end never justifies the means.
This is an appeal from the Decision1 dated January 5, 1993 Criminal Case No. 92-0230)
of the Regional Trial Court, Branch 116,2 Pasay City finding appellants guilty of violating
Section 15 of R.A. 6425, otherwise known as the Dangerous rugs Act of 1972.
On March 10, 1992, an Information3 was filed against the appellants charging them as
follows:

That on or about February 21, 1992 in Pasay City, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating and mutually helping one
another, did then and there, willfully, unlawfully and feloniously carry and transport into the
country, without lawful authority, 16 kilograms, more or less, of METHAMPHETAMINE
HYDROCHLORIDE, also popularly known as SHABU, a regulated drug.

CONTRARY TO LAW.

Upon arraignment, appellant Antolin Cuizon, assisted by counsel de parte, pleaded not
guilty. During the arraignment of appellants Paul Lee and Steve Pua, the latter translated
the Information into Chinese-Cantonese for the understanding of appellant Lee, who does
not speak nor understand English, Pilipino or any other Philippine dialect. Both of them, duly
assisted by their counsel, also pleaded not guilty.4 Trial ensued and on January 5, 1993, the
court a quo found appellants guilty as charged and rendered the following disposition:5

WHEREFORE, accused Antolin Cuizon y Ortega, Steve Pua y Clofas alias Stephen Po y Uy or
Tommy Sy, and Paul Lee y Wong, alias Paul Leung, are found guilty beyond reasonable doubt of
transporting, without legal authority, methamphetamine hydrochloride, or shabu, a regulated drug,
as charged in the aforequoted Information; and they are each sentenced to suffer the penalty of life
imprisonment and to pay a fine of P20,000.00.

The methamphetamine hydrochloride or shabu involved in this case is declared forfeited in favor of
the government and is ordered turned over to the Dangerous Drug Board for proper disposal.

The Facts
According to the Prosecution

The facts as summarized by the trial court and adopted by the Solicitor General, who
added the page references to the transcript of stenographic notes as indicated in brackets,
are as follows:6

In January 1992, the Reaction Group of the National Bureau of Investigation (NBI) gathered an
information regarding the drug activities of accused Antolin Cuizon y Ortega and his wife, Susan
Cuizon. A surveillance was conducted on them. The residence of the spouses was traced
to Caloocan City (tsn, May 19, 1992, pp. 17-18, 21).

In the morning of February 21, 1992, the Reaction Group received a report from its informant
in Hong Kong that accused Cuizon, together with his wife, was arriving on the same day at the
Ninoy Aquino International Airport (NAIA) in Pasay City, Metro Manila, from the British crown
colony, carrying with him a big quantity of shabu. A team was organized to intercept the suspects.
Heading the team was Jose Yap, with Ernesto Dio, Marcelino Amurao, Jose Bataller and Alfredo
Jacinto, as members. Some belonged to the Narcotics Division and the others to the Reaction
Group of the NBI (tsn, May 19, 1992, pp. 4, 18).

Arriving at the NAIA shortly before 12:00 noon of February 21, 1992, Dio positioned himself at
the Arrival Area, while Yap and the other members of the team posted themselves at the parking
area of the airport. At about 12:45 in the afternoon of the same date, accused Cuizon and his wife,
who had just returned from Hong Kong, after passing through the Immigration and Customs Areas
at the NAIA, proceeded to the Arrival Area of the airport preparatory to their boarding a car. While
there, accused Cuizon, together with his wife, handed four (4) travelling bags to accused Steve Pua
y Clofas and accused Paul Lee y Wong, who were at the vicinity of the Arrival Area. Accused Pua
and Lee loaded the bags in a taxicab which they boarded in leaving the airport. Accused Cuizon
and his wife took another vehicle (tsn, May 19, 1992, pp. 4-5, 8-9).

At this juncture, Dio, who was observing the activities of the accused, radioed the group of Yap at
the parking area, describing the vehicle boarded by accused Pua and Lee so that Yap and his
companions could apprehend the two. However, the message of Dio was not completely received
by his teammates as the radio he was using ran short of battery power (tsn, May 19, 1992, pp. 25-
26).

Immediately after the vehicle boarded by Pua and Lee had left, Dio proceeded to the place where
his companions were stationed for the purpose of giving assistance to them, believing that they
were already in the process of apprehending accused Pua and Lee. When he realized that the two
accused were not apprehended, Dio told the group of Yap to follow him as he was following the
vehicle taken by Pua and Lee which, according to an earlier tip he learned, was proceeding to the
Manila Peninsula Hotel in Makati, Metro Manila (tsn, May 19, 1992 pp. 25-26; tsn, May 21, 1992
pp. 6, 15).

Upon arriving at about 2:00 p.m. of the same date of February 21, 1992, in the Manila Peninsula
Hotel, in whose premises the taxicab boarded by accused Pua and Lee entered, Dio and the other
members of the team coordinated with Cot. Regino Arellano, Chief Security Officer of the hotel,
for the purpose of apprehending the two accused. A verification made by the Chief Security Officer
showed that accused Pua and Lee occupied Room 340 of the hotel. The two accused allowed Dio
and Yap, together with Col. Arellano, to enter their room. Found inside Room 340 were four (4)
travelling bags, which were similar to the ones handed by accused Cuizon to accused Pua and Lee
at the Arrival Area of the NAIA. After having introduced themselves as NBI agents, Dio
and Yap were permitted by accused Pua and Lee to search their bags in the presence of Col.
Arellano. The permission was made in writing.(Exh. I). Three (3) of the four (4) bags each yielded
a plastic package containing a considerable quantity of white crystalline substance suspected to be
methamphetamine hydrochloride or shabu. Each package was sandwiched between two (2) pieces
of board which appear to be lawanit placed at the bottom of each of the three (3) bags. The
suspected shabu contained in one bag weighed 2.571 kilos, that found in the other had a weight of
2.768 kilos, and the suspected shabu retrieved from the third bag weighed 2.970 kilos. Pua and Lee
were then apprehended by Dio and his companions (tsn, May 20, 1992, pp. 9-13; tsn, May 7, 1992,
p. 9, Exh. F-2, p. 75, Records).

Immediately thereafter, Dio and the other members of the team proceeded to the house of accused
Cuizon in Caloocan City, taking with them accused Pua and Lee and the bags with their contents of
suspected dangerous drugs. They reached the place at about 5:50 in the afternoon of the same date
of February 21, 1992. Retrieved from accused Cuizon in his residence was another bag also
containing a white crystalline substance weighing 2.695 kilos, likewise believed to be
methamphetamine hydrochloride or shabu. In addition, a .38 Cal. firearm was taken from accused
Cuizon (tsn, May 19, 1992, pp. 10-11).
Pua, Lee, Cuizon and his wife were then brought by the arresting officers to the NBI headquarters
at Taft Avenue, Manila, for further investigation. They were subsequently referred to the
Prosecution Division of the Department of Justice for inquest. However, only the present three
accused were charged in court (tsn, May 19, 1992, pp. 12-13, 16-17).

In the meantime, at about 5:30 p.m. of the same date of February 21, 1992, Joselito Soriano,
roomboy of the Manila Peninsula Hotel, while cleaning Room 340, observed that a portion of the
ceiling was misaligned. While fixing it, he discovered in the ceiling a laundry bag containing
suspected shabu of more than five (5) kilos (Exh. X, p. 110). Informed of the discovery while they
were already in their office in the NBI, Yap and some companions returned to the hotel. The
suspected shabu was turned over to them (tsn, May 20, 1992, pp. 19-22).

When examined in the Forensic Chemistry Section of the NBI, the white crystalline substance
taken from the three (3) travelling bags found in the room of accused Pua and Lee in the Manila
Peninsula Hotel, the white crystalline substance retrieved from the bag confiscated from accused
Cuizon in his house in Caloocan City, and the white crystalline substance hidden in the ceiling of
Room 340 of the hotel were confirmed to be methamphetamine hydrochloride or shabu, a regulated
drug. (Board Regulation No. 6, dated December 11, 1972, of the Dangerous Drugs Board)
(tsn, May 7, 1992, p. 12).

The Defenses Version(s)

Appellant Pua, on his part, interposed the defense of alibi. On direct examination, he
testified that at the time of the alleged commission of the offense, he and his co-appellant
Lee were in their room at the Manila Peninsula Hotel.7 His version of what happened
on February 21, 1992 can be summarized as follows:
At around 9:30 in the morning, he accompanied appellant Paul Lee to check-in at the
Manila Peninsula Hotel for and in behalf of the latters personal friend named Leong Chong
Chong or Paul Leung, who was expected to arrive that evening because of a delayed flight.
Appellant Pua was engaged by appellant Lee to act as interpreter as Lee does not know
how to speak English and the local language.8
While in Room 340, past 1:00 in the afternoon, they received a call from the lobby
informing them of the arrival of Paul Leungs luggage. At Puas instructions, the said luggage
were brought to the room by a bellboy. Thereafter, two persons knocked on their door,
accompanied by a tomboy and a thin man with curly hair. The two men identified themselves
as NBI agents and asked appellant Pua to let them in. He declined since he did not know
who they were. However, when Col. Arellano, the Chief Security Officer of the hotel, arrived
and identified the two NBI agents, he and Lee relented and permitted them to enter.
Thereafter, he and Lee were told by the agents to sign a piece of paper. Made to understand
that they were merely giving their consent for the agents to enter their room, Pua and Lee
signed the same. Whereupon, the agents told them that they will open Paul Leungs bags.
Again appellant Pua refused, saying that the bags did not belong to them. Just the same,
the agents, without appellants Pua and Lees consent, opened the bags and found the
shabu. Pua and Lee were then apprehended and brought to the NBI headquarters.9
 Appellant Cuizon, on the other hand, flatly rejected the prosecutions version of the
incident. While admitting that on February 21, 1992, he and his wife Susan did arrive
from Hong Kongwith several pieces of luggage, he denied that he met Pua and Lee at the
arrival area of the airport, much less passed to them the four pieces of luggage. According
to him, only his two-year old son, accompanied by his cousin, Ronald Allan Ong, met them
outside the airport. Ong fetched them from the airport and brought them to their home
in Caloocan City. They arrived at their house around 3:00 in the afternoon.10
About two hours later, while he was resting together with his wife and son on his bed,
two NBI agents suddenly barged in and poked a gun at him. They manhandled him in front
of his wife and son. His hands were tied with a necktie and he was forcibly brought out of
their house while the NBI agents ransacked the place without any warrant. He, his wife
Susan, and his cousin Ronald Allan Ong, were afterwards brought to the NBI Headquarters
in Manila and there the NBI agents continued mauling him.11
Appellant Cuizons wife Susan, his cousin Ronald Allan Ong, and his nephew Nestor
Dalde, testified in his favor basically reiterating or confirming his testimony.12
Unfortunately, appellant Paul Lee, who does not speak or understand a word of English
or Pilipino and only knows Chinese-Cantonese, was not able to take the witness stand for
lack of an interpreter who would translate his testimony to English. In the hearing set on
October 28, 1992, the last trial date allotted to the defense for the reception of Lees
testimony, his counsel, although notified of the proceedings, did not appear. Thus, the trial
court deemed him and Pua to have waived their right to present additional evidence,13 and
the case was considered submitted for decision after the filing of memoranda. The counsel
for Pua and Lee did not ask for the reconsideration of such ruling; neither did he submit any
memorandum. Only accused Cuizon, who was assisted by another counsel, was able to
submit his memorandum.

The Issues

In their brief, appellants Pua and Lee made the following assignments of errors:14

I. The trial court erred in finding conspiracy among the accused.

II. The trial court erred in giving credence to the testimonies of prosecution witnesses Marcelino
Amurao, Jose Yap and Ernesto Dio despite contradictions made on material points.

III. The trial court erred in not giving accused Paul Lee the opportunity to present his evidence in
his defense in violation of his constitutional right to due process.

Appellant Cuizon, in a separate brief, essentially reiterates the first two assignments of
errors above-quoted, and in addition challenges the legality and validity of his warrantless
arrest and the search and seizure incidental thereto.15
As this Court sees it, the resolution of this case hinges on the pivotal question of the
legality of the arrest and search of herein appellants effected by the NBI operatives. Put
differently, were the warrantless arrests and the warrantless searches conducted by the NBI
legal and constitutional?
The answer to this threshold question determines whether the judgment of the court
a quo will stand or fall. Consequently, there is a need to resolve first this issue before
endeavoring to consider the other issues raised by appellants.
A necessary side issue to be considered is, assuming the searches and arrests to have
been illegal, whether failure by appellants Pua and Lee to explicitly assign the same as
errors before this Court amounted to a waiver of their constitutional rights against such
illegal searches and arrests.

The Courts Ruling

General Rule on Warrantless

Arrests, Searches, & Seizures
Well entrenched in this country is the rule that no arrest, search and seizure can be
made without a valid warrant issued by a competent judicial authority. So sacred is this right
that no less than the fundamental law of the land16 ordains it:

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

It further decrees that any evidence obtained in violation of said right shall be inadmissible for any
purpose in any proceeding. 17

However, the right against warrantless arrest and search and seizure is not absolute.
Thus, under Section 5 of Rule 113 of the Revised Rules of Court, an arrest without a warrant
may be lawfully made by a peace officer or a private person:

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

(b) When an offense has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it; and

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

On the occasion of any of the aforementioned instances of legitimate arrest without

warrant, the person arrested may be subjected to a search of his body and of his personal
effects or belongings, for dangerous weapons or anything which may be used as proof of
the commission of an offense, likewise without need of a search warrant.18
However, where a person is searched without a warrant, and under circumstances other
than those justifying a warrantless arrest, as discussed above, upon a mere suspicion that
he has embarked on some criminal activity, and/or for the purpose of discovering if indeed
a crime has been committed by him, then the search made of such person as well as his
arrest are deemed illegal.19 Consequently, any evidence which may have been obtained
during such search, even if tending to confirm or actually confirming such initial suspicion,
is absolutely inadmissible for any purpose and in any proceeding,20 the same being the fruit
of the poisonous tree.21 Emphasis is to be laid on the fact that the law requires that the
search be incident to a lawful arrest, in order that the search itself may likewise be
considered legal. Therefore, it is beyond cavil that a lawful arrest must precede the search
of a person and his belongings. Were a search first undertaken, then an arrest effected
based on evidence produced by the search, both such search and arrest would be unlawful,
for being contrary to law.
The Instant Case Does Not Fall Under
The Exceptions for Warrantless Searches, etc.
Re-assessing the factual backdrop of the case at bench, this Court cannot agree with
and accept the conclusion of the trial court that the appellants were caught in flagrante
delicto which would justify the search without a warrant. The shaky reasoning of the court a
quo gives away the baselessness of its findings and conclusion:

x x x the search conducted on their bags in the hotel room could still be regarded as valid for being
incidental to a lawful arrest. x x x The arrest of accused Pua and Lee without a warrant of arrest
was lawful, as they could be considered to have committed the crime of transporting shabu in the
presence of the arresting officers from the time they received the bags containing the regulated drug
in the airport up to the time they brought the bags to the hotel. Or their arrest without a warrant was
legal as falling under the situation where an offense had in fact just been committed, and the
arresting officers had personal knowledge of facts indicating that the said accused were the ones
who committed it. x x x22

Scrutinizing the provisions of Sec. 5 of Rule 113 of the Rules of Court on lawful arrests
without warrant, we note that par. (c) of said section is obviously inapplicable, the appellants
not being escapees from a penal institution at the time of arrest. Par. (a) on the other hand
requires that the person be arrested (i) after he has committed or while he is actually
committing or is at least attempting to commit an offense, (ii) in the presence of the arresting
officer(s). These requirements are not present in the case at bench, for at the time of their
arrest, appellants Pua and Lee were merely resting in their hotel room, and appellant Cuizon
for his part was in bed resting with his wife and child inside his home. No offense had just
been committed, or was being actually committed or being attempted by any of the accused
in the presence of the lawmen.23
Par. (b) of the same provision is likewise inapplicable since its equally exacting
requirements have also not been met. The prosecution failed to establish that at the time of
the arrest, anoffense had in fact just been committed and the arresting officers had personal
knowledge of facts indicating that the accused-appellants had committed it. Appellant
Cuizon could not, by the mere act of handing over four pieces of luggage to the other two
appellants, be considered to have committed the offense of carrying and transporting
prohibited drugs. Under the circumstances of the case, there was no sufficient probable
cause for the arresting officers to believe that the accused were then and there committing
a crime. The act per se of handing over the baggage, assuming the prosecutions version to
be true, cannot in any way be considered a criminal act. It was not even an act performed
under suspicious circumstances as indeed, it took place in broad daylight, practically at high
noon, and out in the open, in full view of the public.24 Furthermore, it can hardly be
considered unusual, in an airport setting, for travellers and/or their welcomers to be passing,
handing over and delivering pieces of baggage, especially considering the somewhat
obsessive penchant of our fellow countrymen for sending along (pakikipadala) things and
gifts through friends and relatives. Moreover, one cannot determine from the external
appearance of the luggage that they contained shabu hidden beneath some secret panel
or false bottom. The only reason why such act of parting with luggage took on the color and
dimensions of a felonious deed, at least as far as the lawmen were concerned, was the
alleged tip that the NBI agents purportedly received that morning, to the effect that appellant
Cuizon would be arriving that same day with a shipment of shabu. To quote from another
decision of like import, (A)ll they had was hearsay information (from the telephone caller),
and about a crime that had yet to be committed.25
In the leading case of People vs. Burgos,26 this Court laid down clear guidelines, as
follows:

Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is
committing, or is about to commit an offense must have personal knowledge of that fact. The
offense must also be committed in his presence or within his view. (Sayo v. Chief of Police, 80
Phil. 859).

The same decision is highly instructive as it goes on to state:

The Solicitor General is of the persuasion that the arrest may still be considered lawful under
Section 6(b) using the test of reasonableness. He submits that the information given by Cesar
Masamlok was sufficient to induce a reasonable ground (for belief) that a crime has been
committed and that the accused is probably guilty thereof.

In arrests without a warrant under Section 6(b), however, it is not enough that there is reasonable
ground to believe that the person to be arrested has committed a crime. A crime must in fact
or actually have been committed first. That a crime has actually been committed is an essential
precondition. It is not enough to suspect that a crime may have been committed. The fact of the
commission of the offense must be undisputed. The test of reasonable ground applies only to the
identity of the perpetrator.

In this case, the accused was arrested on the sole basis of Masamlok s verbal report. Masamlok led
the authorities to suspect that the accused had committed crime. They were still fishing for
evidence of a crime not yet ascertained. The subsequent recovery of the subject firearm on the basis
of information from the lips of a frightened wife cannot make the arrest lawful. x x x
 The foregoing doctrine was affirmed in the case of Alih vs. Castro,27 where this Court
ruled that x x x under the Revised Rule 113, Section 5(b), the officer making the arrest must
have personal knowledge of the ground therefor as stressed in the recent case of
People v. Burgos.
In the case at bench, not only did the NBI agents rely merely on hearsay information
(tips), but they were completely uncertain that anything was really going down that day. That
much is undisputed, from a reading of the testimony of Agent Dio:
Q - Now, but you were informed by the personnel of the airport that the spouses Cuizon were going to
bring in or transport into the country shabu on February 21, 1992?
A - Yes, sir.
Q - Now, you were not sure or your group was not sure that they indeed would bring in shabu, is it not?
That was only the information relayed to your group?
A - Yes, sir.

xxx xxx xxx

Q - But then you were jumping ahead. You were not sure is it not that they were bringing in shabu?
A - Yes, sir. (TSN, May 19, 1992, pp. 37-38.)
In his testimony, NBI Investigator Jose Justo Yap, who was with Agent Dio during the
operation, likewise admitted in substantially the same tenor their uncertainty regarding the
commission of the offense (cf. TSN, May 20, 1992, pp. 29 & 34).
We therefore hold that under the circumstances obtaining, the prosecution failed to
establish that there was sufficient and reasonable ground for the NBI agents to believe that
appellants had committed a crime at the point when the search and arrest of Pua and Lee
were made; hence, said search and arrest do not come under the exception in par. (b) of
Sec. 5 of Rule 113, and therefore should be deemed illegal. We might add that the search
conducted on Pua and Lee was not incident to a lawful warrantless arrest, having preceded
the same and produced the justification therefor. On the other hand, the search on Cuizon
s residence, without the benefit of a search warrant, was clearly illegal and the shabu seized
thereat cannot but be considered inadmissible in evidence. More on these points later.

Comparison Between The Present Case

and Earlier Decisions of This Court
For claritys sake, it is imperative to compare the foregoing holding with previous
decisions by this Court in various drug cases, in which apparently different conclusions were
reached, in order to distinguish them from the instant case and avoid any potential
misunderstanding of the foregoing holding as well as the constitutional and legal principles
on which it is based.
1. In People vs. Claudio,28 the accused, a passenger on a bus bound for Baguio City,
was arrested by a policeman on the same bus because of the distinctive odor of marijuana
emanating from the plastic bag she was carrying. The Court held the warrantless arrest
under the circumstances to be lawful, the search justified and the evidence thus discovered
admissible in evidence.
 2. In People vs. Tangliben,29 the accused, carrying a travelling bag at a bus terminal,
was noticed by lawmen to be acting suspiciously, and was also positively fingered by an
informer as carrying marijuana, and so he was accosted by policemen who happened to be
on a surveillance mission; the lawmen asked him to open the bag, in which was found a
package of marijuana leaves. It was held that there was a valid warrantless arrest and
search incident thereto. The Court in effect considered the evidence on hand sufficient to
have enabled the law enforcers to secure a search warrant had there been time, but as the
case presented urgency, and there was actually no time to obtain a warrant since the
accused was about to board a bus, and inasmuch as an informer had given information on
the spot that the accused was carrying marijuana, the search of his person and effects was
thus considered valid.
3. In Posadas vs. Court of Appeals,30 the accused was seen acting suspiciously, and
when accosted by two members of the Davao INP who identified themselves as lawmen,
he suddenly fled, but was pursued, subdued and placed in custody. The buri bag he was
carrying yielded an unlicensed revolver, live ammunition and a tear gas grenade. This Court
upheld his conviction for illegal possession of firearms, holding that there was under the
circumstances sufficient probable cause for a warrantless search.
4. In People vs. Moises Maspil, Jr., et al.,31 agents of the Narcotics Command set up a
checkpoint on a highway in Atok, Benguet, to screen vehicular traffic on the way
to Baguio Citydue to confidential reports from informers that Maspil and a certain Bagking
would be transporting a large quantity of marijuana. At about 2 a.m. of November 1, 1986,
the two suspects, riding a jeepney, pulled up to the checkpoint and were made to stop. The
officers noticed that the vehicle was loaded with some sacks and tin cans, which, when
opened, were seen to contain marijuana leaves. The Court upheld the search thus
conducted as being incidental to a valid warrantless arrest.
5. In People vs. Lo Ho Wing, et al.,32 the Court ruled that the search of the appellants
moving vehicles and the seizure of shabu therefrom was legal, in view of the intelligence
information, including notably, clandestine reports by a planted deep penetration agent or
spy who was even participating in the drug smuggling activities of the syndicate, to the effect
that appellants were bringing in prohibited drugs into the country. The Court also held that
it is not practicable to secure a search warrant in cases of smuggling with the use of a
moving vehicle to transport contraband, because the vehicle can be quickly moved out of
the locality or jurisdiction in which the warrant must be sought.
6. In People vs. Malmstedt,33 NARCOM agents stationed at Camp Dangwa, Mountain
Province, set up a temporary checkpoint to check vehicles coming from the Cordillera
Region, due to persistent reports that vehicles from Sagada were transporting marijuana
and other drugs, and because of particular information to the effect that a Caucasian would
be travelling from Sagada that day with prohibited drugs. The bus in which accused was
riding was stopped at the checkpoint. While conducting an inspection, one of the NARCOM
men noticed that accused, the only foreigner on board, had a bulge at the waist area.
Thinking it might be a gun, the officer sought accuseds passport or other identification
papers. When the latter failed to comply, the lawman directed him to bring out whatever it
was that was bulging at his waist. It was a pouch bag which, when opened by the accused,
was found to contain packages of hashish, a derivative of marijuana. Invited for questioning,
the accused disembarked from the bus and brought along with him two pieces of luggage;
found inside were two teddy bears stuffed with more hashish. The Court held that there was
sufficient probable cause in the premises for the lawmen to believe that the accused was
then and there committing a crime and/or trying to hide something illegal from the
authorities. Said probable cause arose not only from the persistent reports of the transport
of prohibited drugs from Sagada, and the tip received by the NARCOM that same day that
a Caucasian coming from Sagada would be bringing prohibited drugs, but also from the
failure of the accused to present his passport or other identification papers when confronted
by the lawmen, which only triggered suspicion on the part of the law enforcers that accused
was trying to hide his identity, it being the normal thing expected of an innocent man with
nothing to hide, that he readily present identification papers when asked to do so. The
warrantless arrest and search were thus justified.
In all the cases discussed hereinabove, there were facts which were found by the Court
to provide probable cause justifying warrantless arrests and searches, i.e., distinct odor of
marijuana, reports about drug transporting or positive identification by informers, suspicious
behaviour, attempt to flee, failure to produce identification papers, and so on. Too, urgency
attended the arrests and searches because each of the above-mentioned cases involved
the use of motor vehicles and the great likelihood that the accused would get away long
before a warrant can be procured. And, lest it be overlooked, unlike in the case before us
now, the law enforcers in the aforementioned cases acted immediately on the information
received, suspicions raised, and probable causes established, and effected the arrests and
searches without any delay.

Unexplained Matters in the Instant Case

In the case before us, the NBI agents testified that they purportedly decided against
arresting the accused-appellants inside the airport as they allegedly wanted to discover the
identities of the airport immigration, security or customs personnel who might be protecting
the accused or otherwise involved in the drug smuggling activities, and also in order to avoid
the possibility of an armed encounter with such protectors, which might result in injuries to
innocent bystanders. These excuses are simply unacceptable. They are obviously after-
thoughts concocted to justify their rank failure to effect the arrest within constitutional limits.
Indeed, the NBI men failed to explain how come they did not apprehend the appellants at
the moment Cuizon handed over the baggage to Pua and Lee, or even afterwards, in
relative safety. Such arrest would have been consistent with the settled constitutional, legal
and jurisprudential precedents earlier cited.
The spouses Cuizon had already passed through the airport security checks allegedly
with their contraband cargo undetected in their luggage. Apparently, the NBI agents did not
see (as indeed they did not testify that they saw) anyone from the airport immigration,
security or customs who could have escorted the spouses Cuizon, and therefore, there was
no danger of any live ammo encounter with such group(s). The alleged drug couriers had
already made their way outside the NAIA, had allegedly made contact with the accused Pua
and Lee, and were in the very act of handing over the luggage to the latter. Why the NBI
men did not move in and pounce on them at that very instant has not been satisfactorily
explained. Instead, one of the agents, Dio, merely watched as Pua and Lee loaded the
luggage into a cab and took off for Makati. Furthermore, it taxes the imagination too much
to think that at the most critical and climactic moment, when agent Dio radioed his
companions for help to close in on the suspects, the most amazing and stupendous thing
actually happened: Murphys Law kicked in - whatever could go wrong, did, and at the worst
possible time - the batteries in Agent Dios hand-held radio supposedly went dead and his
message was not transmitted. Thus the departing Pua and Lee proceeded merrily and
unimpeded to the Peninsula Hotel, while the spouses Cuizon simultaneously sped off to
their residence in Caloocan City, leaving the lawmen empty-handed and scampering madly
to catch up. Such absolutely astounding and incredible happenstance might find a place in
a fourth-rate movie script, but expecting the courts to swallow it- hook, line and sinker - is
infinite naivete, if not downright malevolence.
Even granting arguendo that the radio really went dead, nevertheless, the agents were
not thereby rendered helpless or without recourse. The NBI agents, numbering five in all,
not counting their so-called informant, claimed to have piled into three cars (TSN, May 19,
1992) and tailed the suspects Pua and Lee into Makati, keeping a safe two-car distance
behind (TSN, May 20, 1992). The lawmen and the prosecutors failed to explain why the
agents did not intercept the vehicle in which Pua and Lee were riding, along the way, pull
them over, arrest them and search the luggage. And since the agents were in three (3) cars,
they also could have easily arranged to have agents in one vehicle follow, intercept and
apprehend the Cuizons while the others went after Pua and Lee. All or any of these possible
moves are mere ordinary, common-sense steps, not requiring a great deal of intelligence.
The NBI men who testified claimed to have conducted or participated in previous drug busts
or similar operations and therefore must have been familiar with contingency planning, or
at least should have known what to do in this situation where their alleged original plan fell
through. At any rate, what the lawmen opted to do, i.e., allow Pua and Lee to freely leave
the airport, allegedly bringing the drug cache to the hotel, and Cuizon to leave unimpededly
the airport and reach his residence with one of the luggage, increased significantly the risk
of the suspects (and/or the drugs) slipping through the lawmens fingers, and puts into
question the regularity of performance of their official functions. The agents alleged actions
in this case compare poorly with the forthright and decisive steps taken by lawmen in the
cases earlier cited where this Court held the arrests and seizures to be valid.
Had the arrests and searches been made in transitu, i.e., had the agents intercepted
and collared the suspects on the way to Makati and Caloocan, or better yet, at the very
moment of the hand-over, then there would not have been any question at all as to the
legality of their arrest and search, as they would presumably have been caught red-handed
with the evidence, and consequently for that reason and by the very nature and manner of
commission of the offense charged, there would have been no doubt also as to the
existence of conspiracy among the appellant to transport the drugs. However, because of
the way the operation actually turned out, there is no sufficient proof of conspiracy between
Pua and Lee on the one hand, and Cuizon on the other, inasmuch as there is no clear and
convincing evidence that the four (4) bags handed by Cuizon to Pua and Lee at the airport
were the very same ones found in the possession of the latter in Room 340 of the Peninsula
Hotel. Not one of the NBI agents when testifying could definitely and positively state that the
bags seized from Room 340 were the very same ones passed by Cuizon at the airport; at
best, they could only say that they looked like the ones they saw at the airport. And even
assuming them to be the same bags, there remains doubt and uncertainty as to the actual
ownership of the said bags as at the alleged turnover vis-a-vis the time they were seized by
the agents. For these reasons, we cannot sustain the finding of conspiracy as between
Cuizon on the one hand and Pua and Lee on the other. Well-settled is the rule that
conspiracy must be proved independently and beyond reasonable doubt.34
Additionally, in light of the foregoing discussion, we find it extremely difficult to subscribe
to the trial courts finding as to the existence and sufficiency of probable cause in this case,
one major component of which would have been the alleged information or tip purportedly
received by the agents as to the expected arrival of the spouses Cuizon that fateful day with
a large cache of shabu. The question that defies resolution in our minds is why, if indeed
the information or tip was genuine and from a highly reliable source as claimed by the
government agents, did they not act on it? Throw in the alleged month-long surveillance
supposedly conducted by some of the NBI people on the Cuizon couple, and the mystery
only deepens. Even with the so-called tip and the results of surveillance, the government
officers were still seemingly hesitant, reluctant, uncertain, or perhaps afraid, to arrest and
search the accused appellants, so much so that the NBI agents who went after Pua and
Lee at the Peninsula Hotel, instead of outrightly cuffing and searching them, as they were
supposed to, opted instead to play it safe and meekly beseeched the two to sign a written
consent for the agents to search their personal effects! Indeed, this is one for the books. If
this is how confident the agents were about their hot tips, reliable informers and undercover
surveillance, then we cannot be blamed for failing to appreciate the existence/sufficiency of
probable cause to justify a warrantless arrest and search in this case. There is a whole lot
more that can be said on this score, but we shall leave it at that for now. We shall now
dispose of the appeals of the accused-appellants individually.

Re: Appellant Antolin Cuizon

The search of the house of appellant Cuizon, having been conducted without any
warrant, and not on the occasion or as an incident of a valid warrantless arrest, was
indubitably illegal, and the shabu seized thereat could not be admissible in evidence. That
is why even the trial judge did not make an effort to hold him liable under such seizure. He
lamely argued: (A)t any rate, accused Cuizon is not held criminally liable in this case in
connection with the bag containing shabu confiscated from his residence. His responsibility
is based on the bags containing shabu which he handed to Pua and Lee at the NAIA.
Consequently, even if the bag and its contents of shabu taken from his house were not
admitted in evidence, the remaining proofs of the prosecution would still be sufficient to
establish the charge against him. However, contrary to the trial judges conclusion, we hold
that insofar as Cuizon is concerned, all the evidence seized are considered fruit of the
poisonous tree and are inadmissible as against him, and thus, he should be acquitted, since,
as shown hereinabove, (i) the warrantless search conducted on Pua and Lee was clearly
illegal per se, not being incident to a valid warrantless arrest either; (ii) and even if the search
on Pua and Lee were not illegal, conspiracy as between Cuizon on the one hand and
appellants Pua and Lee on the other had not been established by sufficient proof beyond
reasonable doubt; and (iii) appellant Cuizon had timely raised before this Court the issue of
the illegality of his own arrest and the search and seizure conducted at his residence, and
questioned the admission of the seized shabu in evidence.

Re: Appellant Steve Pua @ Tommy Sy

What has been said for Cuizon cannot, alas, be said for appellant Pua. While the search
and arrest carried out on him and Lee may have been illegal for not being incident to a lawful
warrantless arrest, the unfortunate fact is that appellant Pua failed to challenge the validity
of his arrest and search as well as the admission of the evidence obtained thereby; he did
not raise the issue or assign the same as an error before this Court. Accordingly, any
possible challenge thereto based on constitutional grounds is deemed waived. This Court
has upheld and recognized waivers of constitutional rights, including, particularly, the right
against unreasonable searches and seizures, in cases such as People vs.
Malasugui35 and De Garcia vs. Locsin.36
Additionally, the prosecution had argued and the trial court agreed that by virtue of the
handwritten consent (Exhibit I) secured by the arresting officers from appellants Pua and
Lee, the latter freely gave their consent to the search of their baggage, and thus, the drugs
discovered as a result of the consented search is admissible in evidence. The said written
permission is in English, and states plainly that they (Pua and Lee) freely consent to the
search of their luggage to be conducted by NBI agents to determine if Pua and Lee are
carrying shabu. It appears that appellant Pua understands both English and Tagalog; he is
born of a Filipino mother, had resided in Vito Cruz, Manila, and gave his occupation as that
of salesman. He admitted that he was asked to sign the written consent, and that he did in
fact sign it (TSN, May 28, 1992, pp. 33-34). His barefaced claim made during his direct and
cross-examinations to the effect that he did not really read the consent but signed it right
away, and that by signing it he only meant to give permission for the NBI agents to enter
the room (and not to search) is hardly worthy of belief, considering that prior to the search,
he seemed to have been extra careful about who to let into the hotel room.
Thus, the full weight of the prosecutions testimonial evidence plus the large amount of
prohibited drugs found, must be given full force vis-a-vis Puas claim of innocent presence
in the hotel room, which is weak and not worthy of credence.

Re: Appellant Paul Lee @ Paul Leung

Appellant Lees situation is different from that of Pua. We agree with the Solicitor General
when he noted that the trial judge did not exert sufficient effort to make available compulsory
process and to see to it that accused appellant Lee was given his day in court. It is clear
that appellant Lee was effectively denied his right to counsel, for although he was provided
with one, he could not understand and communicate with him concerning his defense such
that, among other things, no memorandum was filed on his behalf; further, he was denied
his right to have compulsory process to guarantee the availability of witnesses and the
production of evidence on his behalf, including the services of a qualified and competent
interpreter to enable him to present his testimony.37 In sum, he was denied due process. For
this reason, we hold that the case as against Lee must be remanded to the court of origin
for a re-trial.

Epilogue

It is evident and clear to us that the NBI agents gravely mishandled the drug bust
operation and in the process violated the constitutional guarantees against unlawful arrests
and illegal searches and seizures. Because of the large haul of illegal drugs that the
government officers claimed to have recovered, this Court agonized over the case before
us and struggled to apply the law with an even hand. In the final analysis, we in the
administration of justice would have no right to expect ordinary people to be law-abiding if
we do not insist on the full protection of their rights. Some lawmen, prosecutors and judges
may still tend to gloss over an illegal search and seizure as long as the law enforcers show
the alleged evidence of the crime regardless of the methods by which they were obtained.
This kind of attitude condones law-breaking in the name of law enforcement. Ironically, it
only fosters the more rapid breakdown of our system of justice, and the eventual denigration
of society. While this Court appreciates and encourages the efforts of law enforcers to
uphold the law and to preserve the peace and security of society, we nevertheless admonish
them to act with deliberate care and within the parameters set by the Constitution and the
law. Truly, the end never justifies the means.
WHEREFORE, in view of the foregoing considerations, accused-appellant Antolin
Cuizon y Ortega is hereby ACQUITTED on constitutional grounds. His immediate release
is ordered unless he is detained for other valid causes. Accused-appellant Steve Pua y
Clofas is hereby found GUILTY of the crime of Illegal Transport of Regulated Drugs,
penalized under Section 15, R.A. No. 6425, as amended, and is hereby sentenced to suffer
the penalty of reclusion perpetua; the Decision appealed from, as herein modified, is hereby
affirmed as to appellant Pua. Finally, the case as to appellant Lee is hereby ordered
REMANDED to the trial court in order that said accused may be given his day in court. The
Decision appealed from is also AFFIRMED with respect to the disposition of the prohibited
drugs involved in the case.
SO ORDERED.
399 U.S. 42
Chambers v. Maroney (No. 830)
Argued: April 27, 1970
Decided: June 22, 1970
___

Syllabus
Opinion, White
Concurrence, Stewart
CDInPart, Harlan

Syllabus
Petitioner was one of four men arrested after the auto in which they were riding was
stopped by police shortly after an armed robbery of a service station. The arrests
resulted from information supplied by the service station attendant and bystanders. The
car was driven to a police station, where a search disclosed two revolvers, one loaded
with dumdum bullets, and cards bearing the name of an attendant at another service
station who had been robbed at gunpoint a week earlier. In a warrant-authorized search
of petitioner's home the next day, police found and seized ammunition, including
dumdum bullets similar to those found in one of the guns in the car. At his first trial,
which ended in a mistrial, petitioner was represented by a Legal Aid Society attorney.
Another Legal Aid Society attorney, who represented him at the second trial, did not
confer with petitioner until a few minutes before that trial began. The materials taken
from the car and the bullets seized from petitioner's home were introduced in evidence,
and petitioner was convicted of robbery of both service stations. Petitioner did not take a
direct appeal, but sought, unsuccessfully, a writ of habeas corpus in the Pennsylvania
courts and in the federal courts, challenging the admissibility of the materials taken from
the car and the ammunition seized in his home, and claiming that he was denied the
effective assistance of counsel. The Court of Appeals dealt with the claim that the
attorney's lack of preparation resulted in the failure to exclude the guns and ammunition
by finding harmless error in the admission of the bullets and ruling that the materials
seized from the car were admissible in evidence, and concluded that the claim of
prejudice from substitution of counsel was without substantial basis.
Held:
1. The warrantless search of the automobile was valid, and the materials seized
therefrom were properly introduced in evidence. Pp. 46-52.
(a) The search, made at the police station some time after the arrest, cannot be justified
as incident to the arrest. Pp. 46-47. [p43]
(b) Just as there was probable cause to arrest the occupants of the car, there was
probable cause to search the car for guns and stolen money. Pp. 47-48.
(c) If there is probable cause, an automobile, because of its mobility, may be searched
without a warrant in circumstances that would not justify a warrantless search of a
house or office. Carroll v. United States, 267 U.S. 132. Pp. 48-51.
(d) Given probable cause, there is no difference under the Fourth Amendment between
(1) seizing and holding a car before presenting the issue of probable cause to a
magistrate, and (2) carrying out an immediate warrantless search. Pp. 51-52.
2. The findings of the District Court and the Court of Appeals that, if there was error in
admitting in evidence the ammunition seized from petitioner's house, it was harmless
error beyond a reasonable doubt, are affirmed on the basis of the Court's review of the
record. Pp. 52-53.
3. Based on a careful examination of the state court record, the Court of Appeals'
judgment denying a hearing a to the adequacy of representation by counsel, is not
disturbed. Pp. 53-54.
408 F.2d 1186, affirmed.

TOP

Opinion
WHITE, J., Opinion of the Court
MR. JUSTICE WHITE delivered the opinion of the Court.
The principal question in this case concerns the admissibility of evidence seized from an
automobile, in which petitioner was riding at the time of his arrest, after the automobile
was taken to a police station and was there thoroughly searched without a warrant. The
Court of Appeals for the Third Circuit found no violation of petitioner's Fourth
Amendment rights. We affirm. [p44]
I
During the night of May 20, 1963, a Gulf service station in North Braddock,
Pennsylvania, was robbed by two men, each of whom carried and displayed a gun. The
robbers took the currency from the cash register; the service station attendant, one
Stephen Kovacich, was directed to place the coins in his right-hand glove, which was
then taken by the robbers. Two teenagers, who had earlier noticed a blue compact
station wagon circling the block in the vicinity of the Gulf station, then saw the station
wagon speed away from a parking lot close to the Gulf station. About the same time,
they learned that the Gulf station had been robbed. They reported to police, who arrived
immediately, that four men were in the station wagon and one was wearing a green
sweater. Kovacich told the police that one of the men who robbed him was wearing a
green sweater and the other was wearing a trench coat. A description of the car and the
two robbers was broadcast over the police radio. Within an hour, a light blue compact
station wagon answering the description and carrying four men was stopped by the
police about two miles from the Gulf station. Petitioner was one of the men in the station
wagon. He was wearing a green sweater, and there was a trench coat in the car. The
occupants were arrested, and the car was driven to the police station. In the course of a
thorough search of the car at the station, the police found concealed in a compartment
under the dashboard two .38-caliber revolvers (one loaded with dumdum bullets), a
right-hand glove containing small change, and certain cards bearing the name of
Raymond Havicon, the attendant at a Boron service station in McKeesport, Pennsylvania,
who had been robbed at gunpoint on May 13, 1963. In the course of a warrant-
authorized search of petitioner's home the day after petitioner's arrest, police found
and [p45] seized certain .38-caliber ammunition, including some dumdum bullets
similar to those found in one of the guns taken from the station wagon.
Petitioner was indicted for both robberies. [n1] His first trial ended in a mistrial, but he
was convicted of both robberies at the second trial. Both Kovacich and Havicon identified
petitioner as one of the robbers.[n2] The materials taken from the station wagon were
introduced into evidence, Kovacich identifying his glove and Havicon the cards taken in
the May 13 robbery. The bullets seized at petitioner's house were also introduced over
objections of petitioner's counsel. [n3] Petitioner was sentenced to a term of four to eight
years' imprisonment for the May 13 robbery and to a term of two to seven years'
imprisonment for the May 20 robbery, the sentences to run consecutively. [n4] Petitioner
did not take a direct appeal from these convictions. In 1965, petitioner sought a writ of
habeas corpus in the state court, which denied the writ after a brief evidentiary hearing;
the denial of [p46] the writ was affirmed on appeal in the Pennsylvania appellate
courts. Habeas corpus proceedings were then commenced in the United States District
Court for the Western District of Pennsylvania. An order to show cause was issued.
Based on the State's response and the state court record, the petition for habeas corpus
was denied without a hearing. The Court of Appeals for the Third Circuit affirmed, 408
F.2d 1186, and we granted certiorari,396 U.S. 900 (1969). [n5]
II
We pass quickly the claim that the search of the automobile was the fruit of an unlawful
arrest. Both the courts below thought the arresting officers had probable cause to make
the arrest. We agree. Having talked to the teen-age observers and to the victim
Kovacich, the police had ample cause to stop a light blue compact station wagon
carrying four men and to arrest the occupants, one of whom was wearing a green
sweater [p47] and one of whom had a trench coat with him in the car. [n6]
Even so, the search that produced the incriminating evidence was made at the police
station some time after the arrest, and cannot be justified as a search incident to an
arrest:
Once an accused is under arrest and in custody, then a search made at another place,
without a warrant, is simply not incident to the arrest.
Preston v. United States, 376 U.S. 364, 367 (1964). Dyke v. Taylor Implement Mfg.
Co., 391 U.S. 216 (1968), is to the same effect; the reasons that have been thought
sufficient to justify warrantless searches carried out in connection with an. arrest no
longer obtain when the accused is safely in custody at the station house.
There are, however, alternative grounds arguably justifying the search of the car in this
case. In Preston, supra, the arrest was for vagrancy; it was apparent that the officers
had no cause to believe that evidence of crime was concealed in the auto. In Dyke,
supra, the Court expressly rejected the suggestion that there was probable cause to
search the car, 391 U.S. at 221-222. Here, the situation is different, for the police had
probable cause to believe that the robbers, carrying guns and the fruits of the crime,
had fled the scene in a light blue compact station wagon which would be carrying four
men, one wearing a green sweater and another wearing a trench coat. As the state
courts correctly held, there was probable cause to arrest the occupants of the station
wagon that the officers stopped; just as obviously was [p48] there probable cause to
search the car for guns and stolen money.
In terms of the circumstances justifying a warrantless search, the Court has long
distinguished between an automobile and a home or office. In Carroll v. United
States, 267 U.S. 132 (1925), the issue was the admissibility in evidence of contraband
liquor seized in a warrantless search of a car on the highway. After surveying the law
from the time of the adoption of the Fourth Amendment onward, the Court held that
automobiles and other conveyances may be searched without a warrant in
circumstances that would not justify the search without a warrant of a house or an
office, provided that there is probable cause to believe that the car contains articles that
the officers are entitled to seize. The Court expressed its holding as follows:
We have made a somewhat extended reference to these statutes to show that the
guaranty of freedom from unreasonable searches and seizures by the Fourth
Amendment has been construed, practically since the beginning of the Government, as
recognizing a necessary difference between a search of a store, dwelling house or other
structure in respect of which a proper official warrant readily may be obtained, and a
search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not
practicable to secure a warrant because the vehicle can be quickly moved out of the
locality or jurisdiction in which the warrant must be sought.
Having thus established that contraband goods concealed and illegally transported in an
automobile or other vehicle may be searched for without a warrant, we come now to
consider under what circumstances such search may be made. . . . [T]hose lawfully
within the country, entitled to use [p49] the public highways, have a right to free
passage without interruption or search unless there is known to a competent official
authorized to search, probable cause for believing that their vehicles are carrying
contraband or illegal merchandise. . . .
****
The measure of legality of such a seizure is, therefore, that the seizing officer shall have
reasonable or probable cause for believing that the automobile which he stops and
seizes has contraband liquor therein which is being illegally transported.
267 U.S. at 153-154, 155-156. The Court also noted that the search of an auto on
probable cause proceeds on a theory wholly different from that justifying the search
incident to an arrest:
The right to search and the validity of the seizure are not dependent on the right to
arrest. They are dependent on the reasonable cause the seizing officer has for belief that
the contents of the automobile offend against the law.
267 U.S. at 158-159. Finding that there was probable cause for the search and seizure
at issue before it, the Court affirmed the convictions.
Carroll was followed and applied in Husty v. United States, 282 U.S. 694 (1931),
and Scher v. United States, 305 U.S. 251 (1938). It was reaffirmed and followed
in Brinegar v. United States, 338 U.S. 160 (1949). In 1964, the opinion in Preston,
supra, cited both Brinegar and Carroll with approval, 376 U.S. at 366-367. In Cooper v.
California, 386 U.S. 58 (1967), [n7] [p50] the Court read Preston as dealing primarily
with a search incident to arrest, and cited that case for the proposition that the mobility
of a car may make the search of a car without a warrant reasonable "although the result
might be the opposite in a search of a home, a store, or other fixed piece of property."
386 U.S. at 59. The Court's opinion in Dyke, 391 U.S. at 221, recognized that
[a]utomobiles, because of their mobility, may be searched without a warrant upon facts
not justifying a warrantless search of a residence or office,
citing Brinegar and Carroll, supra. However, because there was insufficient reason to
search the car involved in the Dyke case, the Court did not reach the question of
whether those cases
extend to a warrantless search, based upon probable cause, of an automobile which,
having been stopped originally on a highway, is parked outside a courthouse.
391 U.S. at 222. [n8] Neither Carroll, supra, nor other cases in this Court require or
suggest that, in every conceivable circumstance, the search of an auto even with
probable cause may be made without the extra protection for privacy that a warrant
affords. But the circumstances that [p51] furnish probable cause to search a particular
auto for particular articles are most often unforeseeable; moreover, the opportunity to
search is fleeting, since a car is readily movable. Where this is true, as in Carroll and the
case before us now, if an effective search is to be made at any time, either the search
must be made immediately without a warrant or the car itself must be seized and held
without a warrant for whatever period is necessary to obtain a warrant for the
search. [n9]
In enforcing the Fourth Amendment's prohibition against unreasonable searches and
seizures, the Court has insisted upon probable cause as a minimum requirement for a
reasonable search permitted by the Constitution. As a general rule, it has also required
the judgment of a magistrate on the probable cause issue and the issuance of a warrant
before a search is made. Only in exigent circumstances will the judgment of the police
as to probable cause serve as a sufficient authorization for a search. Carroll,
supra, holds a search warrant unnecessary where there is probable cause to search an
automobile stopped on the highway; the car is movable, the occupants are alerted, and
the car's contents may never be found again if a warrant must be obtained. Hence, an
immediate search is constitutionally permissible. Arguably, because of the preference for
a magistrate's judgment, only the immobilization of the car should be permitted until a
search warrant is obtained; arguably, only the "lesser" intrusion is permissible until the
magistrate authorizes the "greater." But which is the "greater" and which the "lesser"
intrusion is itself a debatable question, and the answer may depend on a
variety [p52] of circumstances. For constitutional purposes, we see no difference
between, on the one hand, seizing and holding a car before presenting the probable
cause issue to a magistrate and, on the other hand, carrying out an immediate search
without a warrant. Given probable cause to search, either course is reasonable under the
Fourth Amendment.
On the facts before us, the blue station wagon could have been searched on the spot
when it was stopped, since there was probable cause to search and it was a fleeting
target for a search. The probable cause factor still obtained at the station house, and so
did the mobility of the car, unless the Fourth Amendment permits a warrantless seizure
of the car and the denial of its use to anyone until a warrant is secured. In that event,
there is little to choose in terms of practical consequences between an immediate search
without a warrant and the car's immobilization until a warrant is obtained. [n10] The same
consequences may not follow where there is unforeseeable cause to search a
house. Compare Vale v. Louisiana, ante, p. 30. But, as Carroll, supra, held, for the
purposes of the Fourth Amendment, there is a constitutional difference between houses
and cars.
III
Neither of petitioner's remaining contentions warrants reversal of the judgment of the
Court of Appeals. One of them challenges the admissibility at trial of the .38 caliber
ammunition seized in the course of a search of petitioner's house. The circumstances
relevant to this [p53] issue are somewhat confused, involving as they do questions of
probable cause, a lost search warrant, and the Pennsylvania procedure for challenging
the admissibility of evidence seized. Both the District Court and the Court of Appeals,
however, after careful examination of the record, found that, if there was error in
admitting the ammunition, the error was harmless beyond a reasonable doubt. Having
ourselves studied this record, we are not prepared to differ with the two courts
below. See Harrington v. California, 395 U.S. 250 (1969).
The final claim is that petitioner was not afforded the effective assistance of counsel. The
facts pertinent to this claim are these: the Legal Aid Society of Allegheny County was
appointed to represent petitioner prior to his first trial. A representative of the society
conferred with petitioner, and a member of its staff, Mr. Middleman, appeared for
petitioner at the first trial. There is no claim that petitioner was not then adequately
represented by fully prepared counsel. The difficulty arises out of the second trial.
Apparently, no one from the Legal Aid Society again conferred with petitioner until a few
minutes before the second trial began. The attorney who then appeared to represent
petitioner was not Mr. Middleman, but Mr. Tamburo, another Legal Aid Society attorney.
No charge is made that Mr. Tamburo was incompetent or inexperienced; rather, the
claim is that his appearance for petitioner was so belated that he could not have
furnished effective legal assistance at the second trial. Without granting an evidentiary
hearing, the District Court rejected petitioner's claim. The Court of Appeals dealt with
the matter in an extensive opinion. After carefully examining the state court record,
which it had before it, the court found ample grounds for holding that the appearance of
a different attorney at the second trial had not resulted in prejudice to petitioner. The
claim that Mr. Tamburo [p54] was unprepared centered around his allegedly inadequate
efforts to have the guns and ammunition excluded from evidence. But the Court of
Appeals found harmless any error in the admission of the bullets, and ruled that the
guns and other materials seized from the car were admissible evidence. Hence, the
claim of prejudice from the substitution of counsel was without substantial basis. [n11] In
this posture of the case, we are not inclined to disturb the judgment of the Court of
Appeals as to what the state record shows with respect to the adequacy of counsel.
Unquestionably, the courts should make every effort to effect early appointments of
counsel in all cases. But we are not disposed to fashion a per se rule requiring reversal
of every conviction following tardy appointment of counsel or to hold that, whenever a
habeas corpus petition alleges a belated appointment, an evidentiary hearing must be
held to determine whether the defendant has been denied his constitutional right to
counsel. The Court of Appeals reached the right result in denying a hearing in this case.
Affirmed.
MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case.
1.
Petitioner was indicted separately for each robbery. One of the other three men was
similarly indicted, and the other two were indicted only for the Gulf robbery. All
indictments and all defendants were tried together. In a second trial following a mistrial,
the jury found all defendants guilty as charged.

2.
Kovacich identified petitioner at a pretrial stage of the proceedings, and so testified, but
could not identify him at the trial. Havicon identified petitioner both before trial and at
trial.

3.
The bullets were apparently excluded at the first trial. The grounds for the exclusion do
not clearly appear from the record now before us.

4.
The four-to-eight-year sentence was to be served concurrently with another sentence,
for an unrelated armed robbery offense, imposed earlier but vacated subsequent to
imposition of sentence in this case. The two-to-seven-year term was to be consecutive
to the other sentences. It appears that the offenses here at issue caused revocation of
petitioner's parole in connection with a prior conviction. Apparently petitioner has now
begun to serve the first of the two sentences imposed for the convictions here
challenged.

5.
Since Mapp v. Ohio, 367 U.S. 643 (1961), the federal courts have regularly entertained
and ruled on petitions for habeas corpus filed by state prisoners alleging that
unconstitutionally seized evidence was admitted at their trials. See, e.g., Mancusi v.
DeForte, 392 U.S. 364 (1968); Carafas v. LaVallee, 391 U.S. 234 (1968); Warden v.
Hayden, 387 U.S. 294 (1967). As for federal prisoners, a divided Court held that relief
under 28 U.S.C. 2255 was available to vindicate Fourth Amendment rights. Kaufman
v. United States, 394 U.S. 217 (1969). Right-to-counsel claims, of course, have
regularly been pressed and entertained in federal habeas corpus proceedings.
It is relevant to note here that petitioner Chambers, at trial, made no objection to the
introduction of the items seized from the car; however, his Fourth Amendment claims
with respect to the auto search were raised and passed on by the Pennsylvania courts in
the state habeas corpus proceeding. His objection to the search of his house was raised
at his trial and rejected both on the merits and because he had not filed a motion to
suppress; similar treatment was given the point in the state collateral proceedings,
which took place before the same judge who had tried the criminal case. The counsel
claim was not presented at trial, but was raised and rejected in the state collateral
proceedings.

6.
In any event, as we point out below, the validity of an arrest is not necessarily
determinative of the right to search a car if there is probable cause to make the search.
Here, as will be true in many cases, the circumstances justifying the arrest are also
those furnishing probable cause for the search.

7.
Cooper involved the warrantless search of a car held for forfeiture under state law.
Evidence seized from the car in that search was held admissible. In the case before us,
no claim is made that state law authorized that the station wagon be held as evidence or
as an instrumentality of the crime; nor was the station wagon an abandoned or stolen
vehicle. The question here is whether probable cause justifies a warrantless search in
the circumstances presented.

8.
Nothing said last term in Chimel v. California, 395 U.S. 752 (1969), purported to modify
or affect the rationale of Carroll. As the Court noted:
Our holding today is of course entirely consistent with the recognized principle that,
assuming the existence of probable cause, automobiles and other vehicles may be
searched without warrants
where it is not practicable to secure a warrant because the vehicle can be quickly moved
out of the locality or jurisdiction in which the warrant must be sought.
Carroll v. United States, 267 U.S. 132, 153; see Brinegar v. United States, 338 U.S.
160.
395 U.S. at 764 n. 9.

9.
Following the car until a warrant can be obtained seem an impractical alternative since,
among other things, the car may be taken out of the jurisdiction. Tracing the car and
searching it hours or days later would, of course, permit instruments or fruits of crime to
be removed from the car before the search.

10.
It was not unreasonable in this case to take the car to the station house. All occupants
in the car were arrested in a dark parking lot in the middle of the night. A careful search
at that point was impractical, and perhaps not safe for the officers, and it would serve
the owner's convenience and the safety of his car to have the vehicle and the keys
together at the station house.

11.
It is pertinent to note that each of the four defendants was represented by separate
counsel. The attorney for Lawson, who was the car owner and who was the only
defendant to take the stand, appears to have been the lead counsel. As far the record
before us reveals, no counsel made any objection at the trial to the admission of the
items taken from the car. Petitioner's counsel objected to the introduction of the bullets
seized from petitioner's house.

TOP

Concurrence
STEWART, J., Concurring Opinion
MR. JUSTICE STEWART, concurring.
I adhere to the view that the admission at trial of evidence acquired in alleged violation
of Fourth Amendment [p55] standards is not, of itself, sufficient ground for a collateral
attack upon an otherwise valid criminal conviction, state or federal. See Harris v.
Nelson, 394 U.S. 286, 307 (dissenting opinion); Kaufman v. United States, 394 U.S.
217, 242 (dissenting opinion). But until the Court adopts that view, I regard myself as
obligated to consider the merits of the Fourth and Fourteenth Amendment claims in a
case of this kind. Upon that premise, I join the opinion and judgment of the Court.

TOP

CDInPart
HARLAN, J., Concurring and Dissenting Opinion
MR. JUSTICE HARLAN, concurring in part and dissenting in part.
I find myself in disagreement with the Court's disposition of this case in two respects.
I
I cannot join the Court's casual treatment of the issue that has been presented by both
parties as the major issue in this case: petitioner's claim that he received ineffective
assistance of counsel at his trial. As the Court acknowledges, petitioner met Mr.
Tamburo, his trial counsel, for the first time en route to the courtroom on the morning of
trial. Although a different Legal Aid Society attorney had represented petitioner at his
first trial, apparently neither he nor anyone else from the society had conferred with
petitioner in the interval between trials. Because the District Court did not hold an
evidentiary hearing on the habeas petition, there is no indication in the record of the
extent to which Mr. Tamburo may have consulted petitioner's previous attorney, the
attorneys for the other defendants, or the files of the Legal Aid Society. What the record
does disclose on this claim is essentially a combination of two factors: the entry of
counsel into the case immediately [p56] before trial, and his handling of the issues that
arose during the trial. [n1]
As respondent must concede, counsel's last-minute entry into the case precluded his
compliance with the state rule requiring that motions to suppress evidence be made
before trial, even assuming that he had sufficient acquaintance with the case to know
what arguments were worth making. Furthermore, the record suggests that he may
have had virtually no such acquaintance.
In the first place, he made no objection to the admission in evidence of the objects
found during the search of the car at the station house after the arrest of its occupants,
although that search was of questionable validity under Fourth Amendment
standards, see infra.
Second, when the prosecution offered in evidence the bullets found in the search of
petitioner's home, which had been excluded on defense objection at the first trial, Mr.
Tamburo objected to their admission, but in a manner that suggested that he was a
stranger to the facts of the case. While he indicated that he did know of the earlier
exclusion, he apparently did not know on what ground the bullets had been excluded,
and based his [p57] objection only on their asserted irrelevance. [n2] Later in the trial, he
renewed his objection on the basis of the inadequacy of the warrant, stating, "I didn't
know a thing about the search Warrant until this morning." App. 130. [n3]
Third, when prosecution witness Havicon made an in-court identification of petitioner as
the man who had [p58] threatened him with a gun during one of the robberies, Mr.
Tamburo asked questions in cross-examination that suggested that he had not had time
to settle upon a trial strategy or even to consider whether petitioner would take the
stand. Mr. Tamburo asked whether, at a pretrial lineup, a detective had not told Havicon
that petitioner "was the man with the gun." After Havicon's negative answer, this
colloquy ensued:
THE COURT: I take it you will be able to disprove that, will you?
MR. TAMBURO: What?
THE COURT: You shouldn't ask that question unless you are prepared to disprove that,
contradict him.
MR. TAMBURO: I have the defendant's testimony.
THE COURT: Disprove it in any way at all.
MR. MEANS [the prosecutor]: I don't understand how the defendant would know what
the detectives told him.
THE COURT: He said he is going to disprove it by the defendant, that's all right, go
ahead.
App. 34. The next witness was a police officer who had been present at the lineup, and
who testified that no one had told Havicon whom to pick out. Petitioner's counsel did not
cross-examine, and petitioner never took the stand.
On this state of the record, the Court of Appeals ruled that, although the late
appointment of counsel necessitated close scrutiny into the effectiveness of his
representation, petitioner "was not prejudiced by the late appointment of counsel"
because neither of the Fourth Amendment claims belatedly raised justified reversal
of [p59] the conviction. 408 F.2d 1186, 1196. I agree that the strength of the search
and seizure claims is an element to be considered in the assessment of whether counsel
was adequately prepared to make an effective defense, but I cannot agree that the
relevance of those claims in this regard disappears upon a conclusion by an appellate
court that they do not invalidate the conviction.
This Court recognized long ago that the duty to provide counsel
is not discharged by an assignment at such a time or under such circumstances as to
preclude the giving of effective aid in the preparation and trial of the case.
Powell v. Alabama, 287 U.S. 45, 71 (1932); Hawk v. Olson, 326 U.S. 271, 278 (1945).
While "the Constitution nowhere specifies any period which must intervene between the
required appointment of counsel and trial," the Court has recognized that
the denial of opportunity for appointed counsel to confer, to consult with the accused,
and to prepare his defense could convert the appointment of counsel into a sham, and
nothing more than a formal compliance with the Constitution's requirement that an
accused be given the assistance of counsel.
Avery v. Alabama, 308 U.S. 444, 446 (1940). Where counsel has no acquaintance with
the facts of the case and no opportunity to plan a defense, the result is that the
defendant is effectively denied his constitutional right to assistance of counsel.
It seems to me that what this record reveals about counsel's handling of the search and
seizure claims and about the tenor of his cross-examination of the government witness
Havicon, when coupled with his late entry into the case, called for more exploration by
the District Court before petitioner's ineffective assistance of counsel claim could be
dismissed. Such an exploration should [p60] have been directed to ascertaining
whether the circumstances under which Mr. Tamburo was required to undertake
petitioner's defense at the second trial were such as to send him into the courtroom with
so little knowledge of the case as to render him incapable of affording his client
adequate representation. The event of that exploration would turn, not on a mere
assessment of particular missteps or omissions of counsel, whether or not caused by
negligence, cf. McMann v. Richardson, 397 U.S. 759 (1970), but on the District Court's
evaluation of the total picture, with the objective of determining whether petitioner was
deprived of rudimentary legal assistance. See Williams v. Beto, 354 F.2d 698 (C.A. 5th
Cir.1965). And, of course, such an exploration would not be confined to the three
episodes that, in my opinion, triggered the necessity for a hearing.
It is not an answer to petitioner's claim for a reviewing court simply to conclude that he
has failed after the fact to show that, with adequate assistance, he would have prevailed
at trial. Glasser v. United States, 315 U.S. 60, 75-76 (1942); cf. White v. Maryland, 373
U.S. 59 (1963); Reynolds v. Cochran,365 U.S. 525, 530-533 (1961). Further inquiry
might show, of course, that counsel's opportunity for preparation was adequate to
protect petitioner's interests, [n4] but petitioner did, in my view, raise a sufficient doubt
on that score to be entitled to an evidentiary hearing. [n5] [p61]
II
In sustaining the search of the automobile, I believe the Court ignores the framework of
our past decisions circumscribing the scope of permissible search without a warrant. The
Court has long read the Fourth Amendment's proscription of "unreasonable" searches as
imposing a general principle that a search without a warrant is not justified by the mere
knowledge by the searching officers of facts showing probable cause. The "general
requirement that a search warrant be obtained" is basic to the Amendment's protection
of privacy, and "the burden is on those seeking [an] exemption . . . to show the need
for it.'" E.g., Chimel v. California, 395 U.S. 752, 762 (1969); Katz v. United States, 389
U.S. 347, 356-358 (1967); Warden v. Hayden, 387 U.S. 294, 299 (1967); Preston v.
United States, 376 U.S. 364, 367 (1964); United States v. Jeffers, 342 U.S. 48, 51
(1951); McDonald v. United States, 335 U.S. 451, 455-456 (1948); Agnello v. United
States, 269 U.S. 20, 33 (1925).
Fidelity to this established principle requires that, where exceptions are made to
accommodate the exigencies of particular situations, those exceptions be no broader
than necessitated by the circumstances presented. For example, the Court has
recognized that an arrest creates an emergency situation justifying a warrantless search
of the arrestee's person and of "the area from within which he might gain possession of
a weapon or destructible evidence"; however, because the exigency giving rise to this
exception extends only that far, the search may go no further. Chimel v. California, 395
U.S. at 763; Trupiano v. United States, 334 U.S. 699, 705, 708 (1948). Similarly, we
held in Terry v. Ohio, 392 U.S. 1 (1968), that a warrantless search in a "stop and frisk"
situation must "be strictly circumscribed [p62] by the exigencies which justify its
initiation." Id. at 26. Any intrusion beyond what is necessary for the personal safety of
the officer or others nearby is forbidden.
Where officers have probable cause to search a vehicle on a public way, a further limited
exception to the warrant requirement is reasonable because "the vehicle can be quickly
moved out of the locality or jurisdiction in which the warrant must be sought." Carroll v.
United States, 267 U.S. 132, 153 (1925). Because the officers might be deprived of
valuable evidence if required to obtain a warrant before effecting any search or seizure,
I agree with the Court that they should be permitted to take the steps necessary to
preserve evidence and to make a search possible. [n6] Cf. ALI, Model Code of Pre-
Arraignment Procedure 6.03 (Tent.Draft No. 3, 1970). The Court holds that those
steps include making a warrantless search of the entire vehicle on the highway -- a
conclusion reached by the Court in Carroll without discussion -- and indeed appears to
go further and to condone the removal of the car to the police station for a warrantless
search there at the convenience of the police. [n7] I cannot agree that this result is
consistent [p63] with our insistence in other areas that departures from the warrant
requirement strictly conform to the exigency presented.
The Court concedes that the police could prevent removal of the evidence by temporarily
seizing the car for the time necessary to obtain a warrant. It does not dispute that such
a course would fully protect the interests of effective law enforcement; rather, it states
that whether temporary seizure is a "lesser" intrusion than warrantless search "is itself a
debatable question, and the answer may depend on a variety of circumstances." Ante at
51-52. [n8] I believe it clear that a warrantless search involves the greater sacrifice of
Fourth Amendment values.
The Fourth Amendment proscribes, to be sure, unreasonable "seizures," as well as
"searches." However, in the circumstances in which this problem is likely to occur, the
lesser intrusion will almost always be the simple seizure of the car for the period --
perhaps a day -- necessary to enable the officers to obtain a search warrant. In the first
place, as this case shows, the very facts establishing probable cause to search will
often [p64] also justify arrest of the occupants of the vehicle. Since the occupants
themselves are to be taken into custody, they will suffer minimal further inconvenience
from the temporary immobilization of their vehicle. Even where no arrests are made,
persons who wish to avoid a search -- either to protect their privacy or to conceal
incriminating evidence -- will almost certainly prefer a brief loss of the use of the vehicle
in exchange for the opportunity to have a magistrate pass upon the justification for the
search. To be sure, one can conceive of instances in which the occupant, having nothing
to hide and lacking concern for the privacy of the automobile, would be more deeply
offended by a temporary immobilization of his vehicle than by a prompt search of it.
However, such a person always remains free to consent to an immediate search, thus
avoiding any delay. Where consent is not forthcoming, the occupants of the car have an
interest in privacy that is protected by the Fourth Amendment even where the
circumstances justify a temporary seizure. Terry v. Ohio, supra. The Court's
endorsement of a warrantless invasion of that privacy where another course would
suffice is simply inconsistent with our repeated stress on the Fourth Amendment's
mandate of "adherence to judicial processes.'" E.g., Katz v. United States, 389 U.S. at
357. [n9]
Indeed, I believe this conclusion is implicit in the opinion of the unanimous Court
in Preston v. United[p65] States, 376 U.S. 364 (1964). The Court there purported to
decide whether a factual situation virtually identical to the one now before us was "such
as to fall within any of the exceptions to the constitutional rule that a search warrant
must be had before a search may be made." Id. at 367 (emphasis added). The Court
concluded that no exception was available, stating that,
since the men were under arrest at the police station, and the car was in police custody
at a garage, [there was no] danger that the car would be moved out of the locality or
jurisdiction.
Id. at 368. The Court's reliance on the police custody of the car as its reason for holding
"that the search of the car without a warrant failed to meet the test of reasonableness
under the Fourth Amendment," ibid., can only have been based on the premise that the
more reasonable course was for the police to retain custody of the car for the short time
necessary to obtain a warrant. The Court expressly did not rely, as suggested today, on
the fact that an arrest for vagrancy provided "no cause to believe that evidence of crime
was concealed in the auto." Ante at 47; see 376 U.S. at 368; Wood v. Crouse, 417 F.2d
394, 397-398 (C.A. 10th Cir.1969). The Court now discards the approach taken
in Preston, and creates a special rule for automobile searches that is seriously at odds
with generally applied Fourth Amendment principles.
III
The Court accepts the conclusion of the two courts below that the introduction of the
bullets found in petitioner's home, if error, was harmless. Although, as explained above,
I do not agree that this destroys the relevance of the issue to the ineffectiveness of
counsel claim, I agree that the record supports the lower courts' conclusion that this
item of evidence, taken alone, was harmless beyond a reasonable doubt.

1.
Respondent concedes in this Court that
no other facts are available to determine the amount and the quality of the preparation
for trial pursued by Mr. Tamburo or the amount of evidentiary material known by and
available to him in determining what, if any, evidentiary objection were mandated or
what, if any, defenses were available to petitioner.
Brief for Respondent 13. The Court of Appeals stated:
We do not know what preparation, if any, counsel was able to accomplish prior to the
date of the trial as he did not testify in the state habeas corpus proceeding and there
was no evidentiary hearing in the district court. From the lower court opinion, as will
appear later, we are led to believe that counsel was not wholly familiar with all aspects
of the case before trial.
408 F.2d 1186, 1191.

2.
Mr. Tamburo stated to the trial court:
Your Honor, at the first trial, the District Attorney attempted to introduce into evidence
some .38 calibre bullets that were found at the Chambers' home after his arrest. . . . At
that trial, it was objected to, and the objection was sustained, and I would also like to
object to it now -- I don't think it is good for the Jury to hear it. I don't feel there is any
relevancy or connection between the fact there were .38 calibre bullets at his home and
the fact that a .38 calibre gun was found, not on the person of Chambers, but in the
group.
App. 82. This was the only instance in which Mr. Tamburo expressed any knowledge of
what had transpired at the first trial, and it does not appear whether he learned of the
exclusion from his brief talk with petitioner en route to the courtroom or from sources
within the Legal Aid Society. The record does not disclose the reason for the exclusion of
the bullets at the first trial.

3.
This colloquy followed the renewed objection:
THE COURT: Well, of course, you have known about this from the other trial three weeks
ago.
MR. TAMBURO: I wasn't the attorney at the other trial.
THE COURT: But, you knew about it?
MR. TAMBURO: I didn't know a thing about the search Warrant until this morning.
THE COURT: You knew about the evidence about to be introduced, you told me about it.
MR. TAMBURO: It wasn't admitted.
THE COURT: That doesn't mean I have to exclude it now.
Id. at 130.
The court proceeded to overrule the objection on the ground that it had not been made
in a pretrial motion, adding that "I think there is reasonable ground for making a search
here, even without a Warrant." Id. at 130-131.

4.
In Avery, this Court concluded on the basis of a hearing:
That the examination and preparation of the case, in the time permitted by the trial
judge, had been adequate for counsel to exhaust its every angle is illuminated by the
absence of any indication, on the motion and hearing for new trial, that they could have
done more had additional time been granted.
308 U.S. at 452.

5.
The absence of any request by counsel for a continuance of the trial should not, in my
opinion, serve to vitiate petitioner's claim at this juncture.

6.
Where a suspect is lawfully arrested in the automobile, the officers may, of course,
perform a search within the limits prescribed by Chimel as an incident to the lawful
arrest. However, as the Court recognizes, the search here exceeded those limits. Nor
was the search here within the limits imposed by pre-Chimel law for searches incident to
arrest; therefore, the retroactivity of Chimel is not drawn into question in this case. See
Preston v. United States, 376 U.S. 364 (1964).

7.
The Court disregards the fact that Carroll, and each of this Court's decisions upholding a
warrantless vehicle search on its authority, involved a search for contraband. Brinegar v.
United States, 338 U.S. 160 (1949); Scher v. United States, 305 U.S. 251 (1938); Husty
v. United States, 282 U.S. 694 (1931); see United States v. Di Re, 332 U.S. 581, 584-
586 (1948). Although subsequent dicta have omitted this limitation, see Dyke v. Taylor
Implement Mfg. Co., 391 U.S. 216, 221 (1968); United States v. Ventresca, 380 U.S.
102, 107 n. 2 (1965); United States v. Rabinowitz, 339 U.S. 56, 61 (1950), id. at 73
(Frankfurter, J., dissenting), the Carroll decision has not until today been held to
authorize a general search of a vehicle for evidence of crime, without a warrant, in every
case where probable cause exists.

8.
The Court, unable to decide whether search or temporary seizure is the "lesser"
intrusion, in this case authorizes both. The Court concludes that it was reasonable for
the police to take the car to the station, where they searched it once to no avail. The
searching officers then entered the station, interrogated petitioner and the car's owner,
and returned later for another search of the car -- this one successful. At all times, the
car and its contents were secure against removal or destruction. Nevertheless, the Court
approves the searches without even an inquiry into the officers' ability promptly to take
their case before a magistrate.

9.
Circumstances might arise in which it would be impracticable to immobilize the car for
the time required to obtain a warrant -- for example, where a single police officer must
take arrested suspects to the station, and has no way of protecting the suspects' car
during his absence. In such situations, it might be wholly reasonable to perform an on-
the-spot search based on probable cause. However, where nothing in the situation
makes impracticable the obtaining of a warrant, I cannot join the Court in shunting aside
that vital Fourth Amendment safeguard.
 [G.R. No. 4680. January 9, 1909. ]

ROBERTO MORENO, Plaintiff-Appellant, v. AGO CHI (alias Go CAY CHI), Defendant-Appellee.

Roberto Moreno, in his own behalf.

No appearance for Appellee.

SYLLABUS

1. ARREST; RIGHT OF OFFICER TO TAKE POSSESSION OF PROPERTY FOUND ON THE PERSON OF THE DEFENDANT AT THE
TIME OF ARREST. An officer making an arrest may take from the person arrested any money or property found upon his
person, which was used in the commission of the crime or was the fruit of the crime or which may furnish the person
arrested with the means of committing violence or of escaping, or which may be used as evidence on the trial of the cause.
Unless the property is of this description, the officer is not justified in taking possession of the same.

2. PROPERTY TAKEN FROM THE PERSON OF ONE ARRESTED, HOW DISPOSED OF. Property Consisting of money or other
things taken from the person of one arrested, which belongs to him, remains the property of the arrested person and should
be returned to him at the close of the trial, when it appears that such property was in no way connected with the crime with
which such person was charged, and it is the duty of the court to make an order to that effect.

3. PROPERTY TAKEN FROM ONE ARRESTED, LIENS UPON. Third persons, creditors, etc., can not acquire any claim or lien
upon property taken from the person of one arrested, charged with a crime, which property was in no way connected with
the commission of the crime, which he might not have acquired against such property in the actual possession of the
defendant. One can not use a criminal process ill this way to aid n civil action for the collection of debts.

DECISION

JOHNSON, J. :

The facts presented in this case seem to be as follows: chanro b1es vi rtu al 1aw lib rary

In the month of May, 1904, a complaint was presented against the defendant charging him with the crime of assassination.
He was arrested and tried for said crime in the court of First Instance in the city of Manila. The plaintiff and appellant was
appointed by the court to defend the defendant de oficio during the progress of the trial. The defendant at the close of the
trial was found guilty of the crime charged and was sentenced with the penalty of death. From that sentence the defendant
appealed to the Supreme Court. That court, after a consideration of the case, on the 30th day of April, 1906, modified the
finding of the lower court and sentenced the defendant to be imprisoned for a period of twenty;years of reclusion temporal. 1
The defendant was represented in the Supreme Court by another lawyer.

At the time the defendant was arrested under the complaint presented in the Court of First Instance, the officer making the
arrest found upon his person about P700, which said officer took possession of and deposited the same with the clerk of the
court.

On the 30th day of October, 1906, the plaintiff presented a petition in the Court of First Instance setting up that his services
in defending the defendant de oficio in said court were reasonably worth the sum of P600, and prayed the court to make an
order directing the clerk to turn over to him (the plaintiff and appellant), of the money which had been taken from the
defendant, the sum of P600. No action was taken upon this petition of the plaintiff and appellant until the 3d day of January,
1907, when the plaintiff and appellant filed with the Court of First Instance a copy of an execution which had been issued by
Jose M. Quintero, justice of the peace of Manila, from which copy of the writ of execution it appears that said justice had
rendered a judgment against the defendant and in favor of the plaintiff, on the 27th day of December, 1906, for the sum of
P550 and costs. At the time of this judgment by the justice of the peace it is to be supposed, at least, that the defendant was
in Bilibid Prison, serving the sentence of the Supreme Court, and the record does not disclose whether or not he was present
during the trial or had received any notice of the action pending against him in said court of the justice of the peace.

On the same day (the 3d day of January, 1907) the plaintiff and appellant presented another petition to the Court of First
Instance, praying that the court order the clerk to pay to him, out of the money in his hands, the sum of P559.24, to apply
on said judgment obtained before the justice of the peace. On the 4th day of January, 1907, the judge of the said Court of
First Instance fixed the 5th day of January for the hearing on the said petition and ordered that the defendant be brought
into court for the purpose of being heard upon said motion. The record discloses that the defendant was brought into court
on the day fixed for the hearing and then and there stated to the court that he was willing that a portion of the money
originally taken from him by the officer making the arrest might be applied upon the execution, but that he wished some of it
reserved for his own use.

After hearing the respective parties, the judge of the lower court ordered that the clerk pay to the plaintiff and appellant, out
of said money, the sum of P50 and further ordered that the balance should be retained by the clerk for the benefit of the
defendant.

From this order of the lower court the plaintiff appealed.

The plaintiff and appellant makes two assignments of error as follows: cha nrob 1es vi rtua l 1aw lib rary

First. That the court erred in arbitrarily fixing the value of the services rendered by him in the trial of said cause at the sum
of P50, and in not ordering the clerk to pay to him the sum of P550.

Second. That the lower court erred in not ordering the clerk of the court to pay to the plaintiff or to the sheriff of the said
court, a sum equal to the amount mentioned in said execution.

The fact is not denied that the money which the plaintiff and appellant is attempting to secure was taken from the defendant
at the time of his arrest and was by such officer turned over to the clerk of the court.

An officer making an arrest may take from the person arrested any money or property found upon his person which was
used in the commission of the crime or was the fruit of the crime or which might furnish the prisoner with the means of
committing violence or of escaping, or which may be used as evidence in the trial of the cause; but there is very serious
doubt whether an officer making an arrest has the right to take from the defendant any property found upon his person,
unless for some of the reasons just mentioned. (Rex v. Burgis, 7 Carrington and Payne, English Reports, 488; Houghton v.
Bachman, 47 Barber, N. Y., 388; 1st Bishops Criminal Procedure, secs. 210-212.)

Unless some of these special reasons exist the officer should not deprive the defendant of the possession of his property.
(Rex v. Johnson, 11 Modern Reports, English, 62; Rex v. Jones, 6 Carrington and Payne, 343.)

To deprive the defendant of his money or property under other circumstances than those mentioned above is to deprive him,
perhaps, of the lawful means of defense. (Rex v. Jones, supra; Clark s Criminal Procedure, 71; 1st Bishops Criminal
Procedure, secs. 210-212.)

But what becomes of the property of the person arrested when the officer making the arrest has taken possession of the
same and after the termination of the trial it appears conclusively that such property was in no way connected with the
commission of the offense for which the defendant was arrested? If the property was in no way connected with the
commission of the offense, at the termination of the trial it is the duty of the court to order the officer in possession of the
same to return it to the defendant. The custody of the officer of such property in no way deprives the defendant of his right
therein and such custody should be considered as the custody of the defendant under these circumstances.

But the question arises, may third persons, creditors for example of the defendant, obtain a lien or claim upon such property
while it is in the possession of such officer? We are of the opinion, and so hold, that third persons, creditors, etc., can not
acquire any claim or lien upon such property while thus in the hands of the officer, which they might not acquire had the
property remained in the custody of the defendant himself. To hold otherwise would lead to unlawful and forcible searches of
the person under cover of criminal process as an aid to civil actions for the collection of debts. When it is fully shown that the
property so taken was in no way connected with the crime charged, the court should not permit any advantage to be taken
of the defendant, by reason of the fact that he had been deprived of his property by the officer and against his will.
(Commercial Exchange Bank v. Mc-Leod, 65 Iowa, 665; 54 American Reports, 36;1 Archibald Criminal Pleading and
Procedure, 34, 35; Whartons Criminal Pleading and Practice, sec. 61.)

It is therefore, the duty of the judge, under facts such as existed in this case, at the close of the trial to order such property
returned to the defendant.

The judgment of the lower court is therefore hereby reversed and it is hereby ordered that the cause be remanded to the
lower court with direction that an order be issued returning to the defendant the money or property which was taken from
his person at the time of his arrest. So ordered.

Arellano, C.J., Torres and Mapa, JJ., concur.

Carson and Tracey, JJ., concur in the result.

Willard, J., dissents.

G.R. No. 91107 June 19, 1991

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MIKAEL MALMSTEDT, *defendant-appellant.

The Solicitor General for plaintiff-appellee.

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

PADILLA, J.:

In an information dated 15 June 1989, accused-appellant Mikael Malmstedt (hereinafter referred to as the accused)
was charged before the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch 10, in Criminal Case No. 89-
CR-0663, for violation of Section 4, Art. II of Republic Act 6425, as amended, otherwise known as the Dangerous
Drugs Act of 1972, as amended. The factual background of the case is as follows:

Accused Mikael Malmstedt, a Swedish national, entered the Philippines for the third time in December 1988 as a
tourist. He had visited the country sometime in 1982 and 1985.

In the evening of 7 May 1989, accused left for Baguio City. Upon his arrival thereat in the morning of the following
day, he took a bus to Sagada and stayed in that place for two (2) days.

At around 7:00 o'clock in the morning of 11 May 1989, accused went to the Nangonogan bus stop in Sagada to
catch the first available trip to Baguio City. From Baguio City, accused planned to take a late afternoon trip to
Angeles City, then proceed to Manila to catch his flight out of the country, scheduled on 13 May 1989. From
Sagada, accused took a Skyline bus with body number 8005 and Plate number AVC 902.1

At about 8: 00 o'clock in the morning of that same day (11 May 1989), Captain Alen Vasco, the Commanding Officer
of the First Regional Command (NARCOM) stationed at Camp Dangwa, ordered his men to set up a temporary
checkpoint at Kilometer 14, Acop, Tublay, Mountain Province, for the purpose of checking all vehicles coming from
the Cordillera Region. The order to establish a checkpoint in the said area was prompted by persistent reports that
vehicles coming from Sagada were transporting marijuana and other prohibited drugs. Moreover, information was
received by the Commanding Officer of NARCOM, that same morning, that a Caucasian coming from Sagada had
in his possession prohibited drugs.2

The group composed of seven (7) NARCOM officers, in coordination with Tublay Police Station, set up a checkpoint
at the designated area at about 10:00 o'clock in the morning and inspected all vehicles coming from the Cordillera
Region.

At about 1:30 o'clock in the afternoon, the bus where accused was riding was stopped. Sgt. Fider and CIC Galutan
boarded the bus and announced that they were members of the NARCOM and that they would conduct an
inspection. The two (2) NARCOM officers started their inspection from the front going towards the rear of the bus.
Accused who was the sole foreigner riding the bus was seated at the rear thereof.

During the inspection, CIC Galutan noticed a bulge on accused's waist. Suspecting the bulge on accused's waist to
be a gun, the officer asked for accused's passport and other identification papers. When accused failed to comply,
the officer required him to bring out whatever it was that was bulging on his waist. The bulging object turned out to
be a pouch bag and when accused opened the same bag, as ordered, the officer noticed four (4) suspicious-looking
objects wrapped in brown packing tape, prompting the officer to open one of the wrapped objects. The wrapped
objects turned out to contain hashish, a derivative of marijuana.

Thereafter, accused was invited outside the bus for questioning. But before he alighted from the bus, accused
stopped to get two (2) travelling bags from the luggage carrier.
Upon stepping out of the bus, the officers got the bags and opened them. A teddy bear was found in each bag.
Feeling the teddy bears, the officer noticed that there were bulges inside the same which did not feel like foam
stuffing. It was only after the officers had opened the bags that accused finally presented his passport.

Accused was then brought to the headquarters of the NARCOM at Camp Dangwa, La Trinidad, Benguet for further
investigation. At the investigation room, the officers opened the teddy bears and they were found to also contain
hashish. Representative samples were taken from the hashish found among the personal effects of accused and the
same were brought to the PC Crime Laboratory for chemical analysis.

In the chemistry report, it was established that the objects examined were hashish. a prohibited drug which is a
derivative of marijuana. Thus, an information was filed against accused for violation of the Dangerous Drugs Act.

During the arraignment, accused entered a plea of "not guilty." For his defense, he raised the issue of illegal search
of his personal effects. He also claimed that the hashish was planted by the NARCOM officers in his pouch bag and
that the two (2) travelling bags were not owned by him, but were merely entrusted to him by an Australian couple
whom he met in Sagada. He further claimed that the Australian couple intended to take the same bus with him but
because there were no more seats available in said bus, they decided to take the next ride and asked accused to
take charge of the bags, and that they would meet each other at the Dangwa Station.

Likewise, accused alleged that when the NARCOM officers demanded for his passport and other Identification
papers, he handed to one of the officers his pouch bag which was hanging on his neck containing, among others,
his passport, return ticket to Sweden and other papers. The officer in turn handed it to his companion who brought
the bag outside the bus. When said officer came back, he charged the accused that there was hashish in the bag.
He was told to get off the bus and his picture was taken with the pouch bag placed around his neck. The trial court
did not give credence to accused's defense.

The claim of the accused that the hashish was planted by the NARCOM officers, was belied by his failure to raise
such defense at the earliest opportunity. When accused was investigated at the Provincial Fiscal's Office, he did not
inform the Fiscal or his lawyer that the hashish was planted by the NARCOM officers in his bag. It was only two (2)
months after said investigation when he told his lawyer about said claim, denying ownership of the two (2) travelling
bags as well as having hashish in his pouch bag.

In a decision dated 12 October 1989, the trial court found accused guilty beyond reasonable doubt for violation of
the Dangerous Drugs Act, specifically Section 4, Art. II of RA 6425, as amended.3 The dispositive portion of the
decision reads as follows:

WHEREFORE, finding the guilt of the accused Mikael Malmstedt established beyond reasonable doubt, this
Court finds him GUILTY of violation of Section 4, Article 11 of Republic Act 6425, as amended, and hereby
sentences him to suffer the penalty of life imprisonment and to pay a fine of Twenty Thousand Pesos
(P20,000.00), with subsidiary imprisonment in case of insolvency and to pay the costs.

Let the hashish subject of this case be turned over to the First Narcotics Regional Unit at Camp Bado;
Dangwa, La Trinidad Benguet for proper disposition under Section 20, Article IV of Republic Act 6425, as
amended.

SO ORDERED.4

Seeking the reversal of the decision of the trial court finding him guilty of the crime charged, accused argues that the
search of his personal effects was illegal because it was made without a search warrant and, therefore, the
prohibited drugs which were discovered during the illegal search are not admissible as evidence against him.

The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures.5 However, where the search is made pursuant to a lawful arrest, there
is no need to obtain a search warrant. A lawful arrest without a warrant may be made by a peace officer or a private
person under the following circumstances.6
 Sec. 5 Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant,
arrest a person:

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

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that
the person to be arrested has committed it; and

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

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith
delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule
112, Section 7. (6a 17a).

Accused was searched and arrested while transporting prohibited drugs (hashish). A crime was actually being
committed by the accused and he was caught in flagrante delicto. Thus, the search made upon his personal effects
falls squarely under paragraph (1) of the foregoing provisions of law, which allow a warrantless search incident to a
lawful arrest.7

While it is true that the NARCOM officers were not armed with a search warrant when the search was made over
the personal effects of accused, however, under the circumstances of the case, there was sufficient probable cause
for said officers to believe that accused was then and there committing a crime.

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

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

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

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

It must be observed that, at first, the NARCOM officers merely conducted a routine check of the bus (where accused
was riding) and the passengers therein, and no extensive search was initially made. It was only when one of the
officers noticed a bulge on the waist of accused, during the course of the inspection, that accused was required to
present his passport. The failure of accused to present his identification papers, when ordered to do so, only
managed to arouse the suspicion of the officer that accused was trying to hide his identity. For is it not a regular
norm for an innocent man, who has nothing to hide from the authorities, to readily present his identification papers
when required to do so?
The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited drugs in his
possession, plus the suspicious failure of the accused to produce his passport, taken together as a whole, led the
NARCOM officers to reasonably believe that the accused was trying to hide something illegal from the authorities.
From these circumstances arose a probable cause which justified the warrantless search that was made on the
personal effects of the accused. In other words, the acts of the NARCOM officers in requiring the accused to open
his pouch bag and in opening one of the wrapped objects found inside said bag (which was discovered to contain
hashish) as well as the two (2) travelling bags containing two (2) teddy bears with hashish stuffed inside them, were
prompted by accused's own attempt to hide his identity by refusing to present his passport, and by the information
received by the NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession. To deprive
the NARCOM agents of the ability and facility to act accordingly, including, to search even without warrant, in the
light of such circumstances, would be to sanction impotence and ineffectiveness in law enforcement, to the
detriment of society.

WHEREFORE, premises considered, the appealed judgment of conviction by the trial court is hereby AFFIRMED.
Costs against the accused-appellant.

SO ORDERED.

Melencio-Herrera, Paras, Feliciano, Bidin, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.
Sarmiento, J., is on leave.

Separate Opinions

NARVASA, J., concurring and dissenting:

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

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

It further ordains that any evidence obtained in violation of said right, among others, "shall be inadmissible for any
purpose in any proceeding."3

The rule is that no person may be subjected by the police or other government authority to a search of his body, or
his personal effects or belongings, or his residence except by virtue of a search warrant or on the occasion of a
legitimate arrest.4

An arrest is legitimate, of course, if effected by virtue of a warrant of arrest. Even without a warrant, an arrest may
also be lawfully made by a peace officer or a private person:5

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

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that
the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place
where he is serving final judgment or temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
 In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith
delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule
112, Section 7.

In any of these instances of a lawful arrest, the person arrested "may be searched for dangerous weapons or
anything which may be used as proof of the commission of an offense, without a search warrant."6 And it has been
held that the search may extend to the area "within his immediate control," i.e., the area from which said person
arrested might gain possession of a weapon or destructible evidence.7

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The most recent decision treating of warrantless search and seizure appears to be People v. Lo Ho Wing; et al.,
G.R. No. 88017, decided on January 21, 1991 (per Gancayco, J.). In that case, an undercover or "deep penetration"
agent, Tia, managed somehow to gain acceptance into a group of suspected drug smugglers, which included Peter
Lo and Lim Ching Huat. Tia accompanied Peter Lo to Guangzhou, China, where he saw him and other person
empty the contents of six (6) tins of tea and replace them with white powder. On their return to Manila with the cans
of substituted "tea," they were met at the airport by Lim. As they were leaving the airport in separate vehicles, they
were intercepted by officers and operatives of the Narcotics Command (NARCOM), who had earlier been tipped off
by Tia, and placed under arrest. As search of the luggage brought in by Tia and Peter Lo, loaded on the group's
vehicles, quickly disclosed the six (6) tin cans containing fifty-six (56) bags of white crystalline powder which, upon
analysis, was identified as metamphetamine. Tia, Lo and Lim were indicted for violation of the Dangerous Drugs Act
of 1972. Tia was discharged as state witness. Lo and Lim were subsequently convicted and sentenced to life
imprisonment. One of the questions raised by them in this Court on appeal was whether the warrantless search of
their vehicles and personal effects was legal. The Court, citingManipon, Jr. v. Sandiganbayan, 143 SCRA 267
(1986),26 held legal the search of the appellants' moving vehicles and the seizure therefrom of the dangerous drug,
considering that there was intelligence information, including clandestine reports by a planted spy actually
participating in the activity, that the appellants were bringing prohibited drugs into the country; that the requirement
of obtaining a search warrant "borders on the impossible in the case of smuggling effected by the use of a moving
vehicle that can transport contraband from one place to another with impunity," and "it is not practicable to secure a
warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be
sought.27

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

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

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

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

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

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

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

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

CRUZ, J., dissenting:

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

I write this separate opinion merely to remark on an observation made during the deliberation on this case that some
members of the Court seem to be coddling criminals instead of extending its protection to society, which deserves
our higher concern. The inference is that because of our wrong priorities, criminals are being imprudently let free, to
violate our laws again; and it is all our fault.
Believing myself to be among those alluded to, I will say without apology that I do not consider a person a criminal,
until he is convicted by final judgment after a fair trial by a competent and impartial court. Until then, the Constitution
bids us to presume him innocent. He may seem boorish or speak crudely or sport tattoos or dress weirdly or
otherwise fall short of our own standards of propriety and decorum. None of these makes him a criminal although he
may look like a criminal.

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

On the question before us, it seems to be the inclination of some judges to wink at an illegal search and seizure as
long as the suspect has been actually found in possession of a prohibited article That fact will retroactively validate
the violation of the Bill of Rights for after all, as they would rationalize, the suspect is a criminal. What matters to
them is the fact of illegal possession, not the fact of illegal search and seizure.

This kind of thinking takes us back to the intolerant days of Moncado v. People's Court, 80 Phil. 1, which was
discredited in Stonehill v. Diokno, 20 SCRA 383, even before it was definitely rejected by an express provision in the
1973 Constitution. That provision, which has been retained in the present Constitution, again explicitly declares that
any evidence illegally obtained "shall be inadmissible for any purpose in any proceeding."

The fruit of the poisonous tree should not be allowed to poison our system of criminal justice. In the case at bar, the
1wphi1

search was made at a checkpoint established for the preposterous reason that the route was being used by
marijuana dealers and on an individual who had something bulging at his waist that excited the soldier's suspicion.
Was that probable cause? The ponencia notes that the military had advance information that a Caucasian was
coming from the Sagada with prohibited drugs in his possession. This is what the military says now, after the fact, to
justify the warrantless search. It is so easy to make such a claim, and I am surprised that the majority should readily
accept it.

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

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

. . . It is desirable that criminals should be detected, and to that end that all available evidence should be
used. It is also desirable that the government should not itself foster and pay for other crimes, when they
1avvphi1

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

If by deterring the government from playing "an ignoble part," I am "coddling criminals," I welcome the accusation
and take pride in it. I would rather err in favor of the accused who is impaled with outlawed evidence than exalt order
at the price of liberty.
G.R. No. 72564 April 15, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANITA CLAUDIO Y BAGTANG, accused-appellant.

The Solicitor General for plaintiff-appellee.

Romeo C. Alinea for accused-appellant.

GUTIERREZ, JR., J.:

This is an appeal from the decision of the Regional Trial Court of Olongapo City, Branch 73 finding the accused
Anita Claudio y Bagtang guilty beyond reasonable doubt of violating Sec. 4, Rep. Act No. 6425 (Dangerous Drugs
Act of 1972 as amended) and sentencing her to serve the penalty of reclusion perpetua, to pay a fine of P
20,000.00, and to pay the costs.

The information filed against the accused alleged:

That on or about the 21st day of July 1981, in the City of Olongapo, Philippines and within the
jurisdiction of this Honorable Court, the above-named ACCUSED without being lawfully authorized,
did then and there wilfully, unlawfully and knowingly transport 1.1 kilos of Marijuana dried leaves,
which are prohibited drugs for the purpose of selling the same from Baguio City to Olongapo City.
(Rollo, p. 13)

The lower court established her guilt beyond reasonable doubt on the basis of the prosecution's evidence as
follows:

To prove the guilt of the accused, the prosecution offered the following document and testimonial
evidence as follows: Exhibit "A" Letter request for Examination of suspected marijuana dried leaves
weighing approximately 1.1 kilos dated July 25, 1981; "B" plastic container; "B- 1"-marijuana
contained in the plastic container; "B-1-a"another plastic container; "C"Chemistry Report No. D-
668-81;"C-1" Findings: Positive for marijuana; "D,","D-1," "D-2"and "D-3; "E" and "E-1" photographs
of accused with Pat. Daniel Obia and Pauline Tiongco showing the marijuana, "F"Victory Liner
Ticket No. 84977;"G"Sworn Statement of Pat. Daniel Obia, "H" Request for Field Test on
suspected marijuana from accused by P/Lt. Antonio V. Galindo;"H-1"date of of the request; "L"
Certificate of Field Test dated July 22, 1981; "B-2" and "B-2a" additional Wrapping paper; and the
testimonies of witnesses of the prosecution, Theresa Ann Bugayong; Pat. Daniel Obio, Cpl. Paulino
Tiongco, Cpl. Ernesto Abello and Sgt. Leoncio Bagang.

Theresa Ann Bugayong22 years old, single, Forensic Chemist and a resident of 1150 Sampaloc,
Metro Manila testified that she received a request from the Task Force Bagong Buhay, Olongapo
City, dated July 25, 1981, on specimen marijuana submitted for examination. The specimen
consisted of 900 grams of suspected dried marijuana flowering tops wrapped in a newspaper placed
in a plastic bag with a marking "MB Store" (Exh. "B").

The examination conducted by her proved to be positive for marijuana. After her examination, she
prepared Chemistry Report No. D-668-81 dated July 29,1981 (Exhs. "C" and "C-l"). She conducted
three eliminations; microscopic examination, the duguenoi levine test and thirdly, the confirmatory
examination of thin layer chromatographic test. The said specimen was submitted to them by OIC
Danilo Santiago, a representative of the CANU, Olongapo City.

The second witness for the prosecution was Daniel Obia, 37 years old, married, policeman and
residing at 34 Corpuz St., East Tapinac, Olongapo City. Obia testified that he has been a member
of the INP, since 1970 up to the present. He was assigned in June, 1972 at the Investigation Division
as operative. His job then was among other things to follow up reports in their office, recover stolen
items and apprehend suspects. On July 21,1981, he was on Detached Service with the ANTI-
NARCOTICS Unit; and that on that date, he came from Baguio City and arrived in Olongapo City at
about 1:30 o'clock in the afternoon having left Baguio at about 8:30 o'clock in the morning. He took
the Victory Liner in going back to Olongapo City. His family lives in Baguio City. On board the Victory
Liner, he was seated on the second seat at the back. While he was thus seated, suspect Anita
Claudio boarded the same bus and took the seat in front of him after putting a bag which she was
carrying at the back of the seat of Obia. The bag placed by suspect behind his seat was a wooven
buri bag made of plastic containing some vegetables. The act of the accused putting her bag behind
Pat. Obia's seat aroused his suspicion and made him felt (sic) nervous. With the feeling that there
was some unusual, he had the urge to search the woven plastic bag. But it was only at San
Fernando, Pampanga when he was able to go to the bag. He inserted one of his fingers in a plastic
bag located at the bottom of the woven bag and smelt marijuana. The plastic woven bag appearing
to contain camote tops on the top has a big bundle of plastic of marijuana at the bottom. He could
recognize the smell of marijuana because he was assigned at that time at the ANTI-NARCOTICS
Unit. He did not, however, do anything after he discovered that there was marijuana inside the
plastic bag of the accused until they reached Olongapo City and the accused alighted from the bus
in front of the Caltex Gasoline Station in Sta. Rita. Right after the accused alighted from the bus,
policeman Obina intercepted her and showed her his Id Identifying himself as a policeman and told
her he will search her bag because of the suspicion that she was carrying marijuana inside said bag.
In reply, accused told him, "Please go with me, let us settle this at home." However, the witness did
not heed her plea and instead handcuffed her right hand and with her, boarded a tricycle right away
and brought the suspect to the police headquarters with her bag appearing to contain vegetables.

At the police headquarters Investigation Section, the bag was searched in the presence of
Investigator Cpl. Tiongco; Pat. Obia, the accused and Sgt. Leoncio Bagang. Inside the plastic bag
was found a big bundle of plastic containing marijuana weighing about one kilo. Witness stated that
he could detect marijuana even before the application of chemicals because of one year and a half
assignment with the CANU. After the marijuana was taken from the bag of the accused, photographs
were taken of the accused and the marijuana confiscated from her possession with Pat. Obia and
that of Investigator Tiongco, accused and himself Identified photographs shown to him in open
Court. (Exhs. "D," "D-l," "D-2" and "D-3"). Witness was likewise shown a plastic bag of marijuana
contained in a plastic container (Exhs. "B," "B-1" and "B-1 -a") and Identified it as the one
confiscated from the accused and pointed to his initials on the newspaper wrapping which also
shows the date and time, although the wrapper at the time he testified appeared to be soiled
already. The marijuana was allegedly still fresh when confiscated.

To prove further that the accused transported the confiscated marijuana from Baguio City to
Olongapo City, witness Identified Victory Liner Ticket No. 684977 which was confiscated from the
accused and for Identification purposes, the witness presented the body number of the bus he wrote
at the back of the ticket which is "309" (Exhs. "F" and "F-l"). Regarding himself, he did not pay his
fare from Baguio City because as a policeman, he used his badge and a free ride.

On cross-examination, witness stated that he went to Baguio City on July 15,1981 and underwent
treatment of his heart while he was there. He was given a furlough for medical treatment. He stayed
in Baguio City for about five days and returned to Olongapo City on July 21, 1981. Prior to July 21,
1981, witness never knew the accused, and the first time he saw her was in Baguio when she
boarded the same Victory Liner he took. When the accused who was bringing with her a woven
plastic bag placed the bag right behind his seat instead of placing it in front of her or beside her seat.
Witness Obia became suspicious and his suspicion was confirmed when they reached San
Fernando, Pampanga, after he checked the buri bag. The bus stopped at said town to load some
gasoline. Witness inserted one of his fingers inside the buri bag and thereafter smelt marijuana. He
confirmed his testimony on direct that when witness confronted accused he was invited to go with
her in order to settle the matter to which he refused. Accused further testified that from the time the
accused placed her bag behind his seat from Baguio City, he felt so nervous and had to take his
medicine at the Tarlac Station. It was only after having taken his medicine that his apprehension was
contained and thus was able to insert his right hand inside the buri bag in San Fernando,
Pampanga. His fingers reached the very bottom of the bag. He Identified his sworn statement
regarding this incident given on July 21, 1981 which is Exhibit "G." Witness likewise Identified
accused Anita Claudio in open court.

Paulino Tiongco, 52 years old, married and resident of 31 Canada St., East Bajac Bajac, Olongapo
City, testified that as a policeman on the afternoon of July 21, 1981, he was inside the Investigation
Division of the Police Station, Olongapo City. As Duty Investigator, between 1:45 and 2:00 o'clock in
the afternoon of the same day, Pat. Daniel Obia arrived at the Police Station with a woman and
Identified her in the courtroom as Anita Claudio. Pat. Obia reported to him that he apprehended
Anita Claudio inside the Victory Liner bus for possession of marijuana dried leaves. The marijuana
leaves were contained in a buri bag with some vegetables such as camote tops, bananas and some
other vegetables. The marijuana was placed in a plastic wrapper with the name National Book Store
colored black and white. Witness Identified the wrapper (Exh. "B-2"). The bag contained the
markings of Pat. Obia which are his initials, (Exhs. "B-2-a"), and numbers 210781 representing the
date which was placed by Pat. Obia after Cpl. Tiongco examined the suspected marijuana.

After examining and seeing the marijuana together with the vegetables, he interviewed
apprehending officer Obia and reduced his statements in writing. Cpl. Tiongco Identifled the sworn
statement of Obia (Exh. "G"). He also interviewed accused Anita Claudio who was all the while
inside the Investigation room seated on a chair. After appraising her of her constitutional rights, he
asked the accused whether she was willing to give her written statements to which the accused
refused. Hence, no statements were taken of her. However, pictures were taken inside the
investigation room. Exhs. "D" and "E," series which were already previously Identified by Pat. Obia,
Witness Identified the persons appearing in the pictures as that of Pat. Obia and the accused and
also of himself. Thereafter, the marijuana contained in the plastic bag were turned over to Lt.
Galindo and Anita Claudio was detained.

Ernesto Abello, 41 years old, married and residing at No. 29 Alba Street, East Tapinac, Olongapo
City, testified he was since March 1972 a policeman and was stationed at Police Station 21,
Olongapo City, Metrodiscom. However, in 1981, he was already assigned to the CANU General
Anti-NARCOTICS Unit. On July 22, 1981, he reported for work at the CANU and received from Lt.
Galindo more than a kilo of suspected marijuana dried leaves. As requested by Lt. Galindo he
conducted a field test on this marijuana which he received from Lt. Galindo, as evidenced by a
request signed by him dated July 22,1981 (Exh. "H").

In connection with the field test conducted by him on the specimen, he prepared a Certificate of Fleld
Test dated July 22,1981 (Exhs. "I"). The Certificate of Field Test indicated the presence of tetra-
hydrocannabinol (THC), an active substance that can be only be found in marijuana, a prohibited
drug. Cpl. Abello Identified a plastic bag of marijuana received from Lt. Galindo which he later give to
CIC Danilo Santiago, the Evidence Custodian, for the latter to bring the specimen to the PC Crime
Laboratory.

The last witness for the prosecution was Leoncio Bagang, 40 years old, married, residing at No. 27
Jones St., East Tapinac, Olongapo City, a policeman of Olongapo City, assigned with Police Station
"21." He has been a policeman since 1966 up to the present. In July, 1981, he was then assigned at
the Patrol Division and his duty was to patrol the city proper from Magsaysay Drive up to east Bajac
Bajac.

He narrated that on July 21,1981, between the hours of 1:00 and 2:00 o'clock in the afternoon, he
was at the Caltex Gasoline Station, East Bajac Bajac, Olongapo City along Rizal Avenue. He was
then on duty patrol using a motorcycle. While he was at the said place, he saw Pat. Obia alighted
from the Victory Liner bus ordering somebody to alight from the same bus. When he heard Pat.
Obia he approached him and asked him what was happening. Pat. Obia told him he apprehended
a certain woman possessing dried marijuana. The woman was still then inside the bus. Pat. Obia
then brought the woman to the police department who was bringing with her a buri bag. They
boarded a tricycle, the woman riding inside the tricycle while Pat. Obia sat behind the driver. He
then followed in his motorcycle the said tricycle to police station. He went inside the Investigation
Section of the Police Station and he was there when Pat. Obia reported to Cpl. Tiongco his
apprehension of the woman possessing marijuana. He saw the marijuana for the first time inside the
 Investigation Section placed in a buri bag covered with newspaper. He witnessed the taking out of
the marijuana from inside the bag by Pat. Obia in the presence of Cpl. Tiongco and the woman or
the accused in this case, and himself. Policeman Bagang Identified the accused in open Court.
When asked about the nature of the marijuana when it was brought out from the bag, he said that
the marijuana was dried but not well dried. Aside from the marijuana inside the buri bag, there were
vegetables and bananas, Witness Identified in open Court, the marijuana he saw found in the buri
bag of the accused. His means of Identification was the signature of Pat. Obia, (Exh. "B-1"). He
likewise Identified a newspaper wrapping which was already torn.

While in the Investigation Division, witness Bagang heard the accused's answer to Cpl. Tiongco's
questions that she was going to deliver the marijuana to Sta. Rita. He, however, did not linger long at
the investigation Division. After he saw the marijuana and heard the answer of the accused to Cpl.
Tiongcos question the place of delivery of the marijuana, he left the police station. Witness likewise
Identified an initial DO-21-07-81 already marked as Exhibit "B-2." DO which is an initial, and not a
signature, stands for Daniel Obia. After the testimony of Leoncio Bagang, the prosecution rested its
case. (Rollo, pp. 42-47)

Accused Claudio raised the following assignments of errors in this appeal:

CONVICTION UNDER SECTION 4, ART. II OF R.A. 6425 IS IMPROPER IF ONE OR SOME OF

THE ELEMENTS OF THE OFFENSE IS OR ARE ABSENT.

II

CONVICTION CAN NOT BE HAD UNDER SECTION 4, ART. II OF R.A. 6425 IF THE ALLEGED
BUYMAN WAS NOT PRESENTED TO TESTIFY.

III

APPELLANTS CONVICTION FOR DELIVERY (SEC. 4, ART II, OF R.A. 6424) IS WRONG
BECAUSE SOME MATERIAL FACTS WERE OVERLOOKED AND NOT CONSIDERED IN FAVOR
OF APPELLANT. (Rollo, p. 91)

The accused alleges that she is only liable, at the most, for possession under Sec. 8, Art. II of Rep. Act No. 6425
and not for violating Sec. 4 of the same Act.

The latter section, Sec. 4 provides:

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.

Claudio contends that there was no delivery as there was no recipient of the prohibited drugs. Therefore, she may
not be convicted under Sec. 4 of Rep. Act No. 6425.

The contention is without merit. A closer perusal of the subject provision shows that it is not only delivery which is
penalized but also the sale, administration, distribution and transportation of probihited drugs. Claudio was caught
transporting 1.1 kilos of marijuana, thus the lower court did not err in finding her guilty of violating Sec. 4.

The accused also alleges that before the completion of delivery, the intention of the possessor is unknown.
This allegation is also unavailing. It is undisputed that Claudio had in her possession 1.1 kilos of marijuana. This is a
considerable quantity. As held in the case of People v. Toledo, (140 SCRA 259, 267) "the possession of such
considerable quantity as three plastic bags of marijuana leaves and seeds coupled with the fact that he is not a user
of prohibited drugs cannot indicate anything except the intention of the accused to sell, distribute and deliver said
marijuana.

The accused next contends the warrantless search, seizure and apprehension as unlawful.

The applicable provisions on this issue are found in the 1985 Rules on Criminal Procedure.

Rule 113, Sec. 5(a) of the said Rules provides:

.. A peace officer or a private person may, without a warrant, arrest a person:

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

xxx xxx xxx

Meanwhile, its Rule 126, Sec. 12 provides:

Section 12. Search incident to lawful arrest. A person lawfully arrested may be searched for
dangerous weapons or anything which may be used as proof of the commission of an offense,
without a search warrant. (12a)

Appellant Claudio was caught transporting prohibited drugs. Pat. Daniel Obia did not need a warrant to arrest
Claudio as the latter was caught in flagrante delicto. The warrantless search being an incident to a lawful arrest is in
itself lawful. (Nolasco v. Pano, 147 SCRA 509). Therefore, there was no infirmity in the seizure of the 1.1 kilos of
marijuana.

The accused takes inconsistent positions in her appellant's brief. At first, she does not deny having had with her
marijuana at the time of her arrest. Instead, she claims that she should just be guilty of possession. In a complete
turnabout, in the latter portion of said brief, she claims that the evidence against her were mere fabrications and the
marijuana allegedly found in her possession was only planted.

We have carefully examined the records of the case and we find no ground to alter the trial court's findings and
appreciation of the evidence presented.

Credence is accorded to the prosecution's evidence, more so as it consisted mainly of testimonies of policemen.
Law enforcers are presumed to have regularly performed their duty in the absence of proof to the contrary (People
v. De Jesus, 145 SCRA 521). We also find no reason from the records why the prosecution witnesses should
fabricate their testimonies and implicate appellant in such a serious crime (See People v. Bautista, 147 SCRA 500).

The accused testified that she was not on that bus that came from Baguio City but rather she was in Olongapo City
all that time. She alleged that she was arrested by Pat. Obia for no reason at all.

In the case at bar, alibi does not deserve much credit as it was established only by the accused herself (People v.
De la Cruz, 148 SCRA 582).

Moreover, it is a well-established rule that alibi cannot prevail over positive testimony (People v. De La Cruz, supra).

WHEREFORE, the judgment appealed from is AFFIRMED.

SO ORDERED.
G.R. No. L-63630 April 6, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MEDEL TANGLIBEN Y BERNARDINO, defendant-appellant.

The Office of the Solicitor General for plaintiff-appellee.

Katz N. Tierra for defendant-appellant.

GUTIERREZ, JR., J.:

This is an appeal from the decision of the Regional Trial Court, Branch 41, Third Judicial Region at San Fernando,
Pampanga, Branch 41, finding appellant Medel Tangliben y Bernardino guilty beyond reasonable doubt of violating
Section 4, Article II of Republic Act 6425 (Dangerous Drugs Act of 1972 as amended) and sentencing him to life
imprisonment, to pay a fine of P20,000 and to pay the costs.

The information filed against the appellant alleged:

That on or about the 2nd day of March, 1982, in the municipality of San Fernando, Province of Pampanga,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused MEDEL
TANGLIBEN y BERNARDINO, knowing fully well that Marijuana is a prohibited drug, did then and there
willfully, unlawfully and feloniously have his possession, control and custody one (1) bag of dried marijuana
leaves with an approximate weight of one (1) kilo and to transport (sic) the same to Olongapo City, without
authority of law to do so. (At p. 6, Rollo)

The prosecution's evidence upon which the finding of guilt beyond reasonable doubt was based is narrated by the
trial court as follows:

It appears from the evidence presented by the prosecution that in the late evening of March 2, 1982,
Patrolmen Silverio Quevedo and Romeo L. Punzalan of the San Fernando Police Station, together with
Barangay Tanod Macario Sacdalan, were conducting surveillance mission at the Victory Liner Terminal
compound located at Barangay San Nicolas, San Fernando, Pampanga; that the surveillance was aimed not
only against persons who may commit misdemeanors at the said place but also on persons who may be
engaging in the traffic of dangerous drugs based on informations supplied by informers; that it was around
9:30 in the evening that said Patrolmen noticed a person caring a traveling bag (Exhibit G) who was acting
suspiciously and they confronted him; that the person was requested by Patrolmen Quevedo and Punzalan
to open the red traveling bag but the person refused, only to accede later on when the patrolmen identified
themselves; that found inside the bag were marijuana leaves (Exhibit B) wrapped in a plastic wrapper and
weighing one kilo, more or less; that the person was asked of his name and the reason why he was at the
said place and he gave his name as Medel Tangliben and explained that he was waiting for a ride to
Olongapo City to deliver the marijuana leaves; that the accused was taken to the police headquarters at San
Fernando, Pampanga, for further investigation; and that Pat. Silverio Quevedo submitted to his Station
Commander his Investigator's Report (Exhibit F).

It appears also from the prosecution's evidence that in the following morning or on March 3, 1982, Pat.
Silverio Quevedo asked his co-policeman Pat. Roberto Quevedo, who happens to be his brother and who
has had special training on narcotics, to conduct a field test on a little portion of the marijuana leaves and to
have the remaining portion examined by the PCCL at Camp Olivas, San Fernando, Pampanga; that Pat.
Roberto Quevedo conducted a field test (Exhibit H) on the marijuana leaves and found positive result for
marijuana (Exhibit E); that the remaining bigger quantity of the marijuana leaves were taken to the PCCL at
Camp Olivas by Pat. Roberto Quevedo that same day of March 3, 1982 (Exhibit A and A-1) and when
examined, the same were also found to be marijuana (Exhibit C and C-1). (At pp. 9-10, Rollo)

Only the accused testified in his defense. His testimony is narrated by the trial court as follows:
 The accused declared that he got married on October 25, 1981 and his wife begot a child on June 10, 1982;
that he was formerly employed in the poultry farm of his uncle Alejandro Caluma in Antipolo, Rizal; that he is
engaged in the business of selling poultry medicine and feeds, including chicks, and used to conduct his
business at Taytay, Rizal; that he goes to Subic at times in connection with his business and whenever he is
in Subic, he used to buy C-rations from one Nena Ballon and dispose the same in Manila; that he never left
his residence at Antipolo, Rizal, on March 2, 1982; that on March 3, 1982, he went to Subic to collect a
balance of P100.00 from a customer thereat and to buy C-rations; that he was able to meet Nena Ballon at
6:00 o'clock in the evening and he stayed in Nena's house up to 8:00 o'clock because he had a drinking
spree with Nena's son; that he tried to catch the 8:00 o'clock trip to Manila from Olongapo City but he failed
and was able to take the bus only by 9:00 o'clock that evening that it was a Victory Liner Bus that he rode
and because he was tipsy, he did not notice that the bus was only bound for San Fernando, Pampanga; that
upon alighting at the Victory Liner Compound at San Fernando, Pampanga he crossed the street to wait for
a bus going to Manila; that while thus waiting for a bus, a man whom he came to know later as Pat.
Punzalan, approached him and asked him if he has any residence certificate; that when he took out his
wallet, Pat. Punzalan got the wallet and took all the money inside the wallet amounting to P545.00; that Pat.
Punzalan told him that he'll be taken to the municipal building for verification as he may be an NPA member;
that at the municipal building, he saw a policeman, identified by him later as Pat. Silverio Quevedo, sleeping
but was awakened when he arrived that Pat. Quevedo took him upstairs and told him to take out everything
from his pocket saying that the prisoners inside the jail may get the same from him; that inside his pocket
was a fifty-peso bill and Pat. Quevedo took the same, telling him that it shall be returned to him but that it
was never returned to him; that he was thereafter placed under detention and somebody told him that he is
being charged with possession of marijuana and if he would like to be bailed out, somebody is willing to help
him; and, that when he was visited by his wife, he told his wife that Patrolman Silverio Quevedo took away
all his money but he told his wife not to complain anymore as it would be useless. (Rollo, pp. 10-11)

Appellant, through counsel de oficio Atty. Enrique Chan, raised the lone assignment of error in his appeal:

THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANT AND FINDING HIM GUILTY
OF THE CRIME CHARGED ON INSUFFICIENT AND DOUBTFUL EVIDENCE. (At p. 48, Rollo)

The Solicitor-General likewise filed his brief, basically reiterating ating the lower court's findings.

However, before this Court had the chance to act on appeal, counsel de oficio Atty. Enrique Chan died. Thereafter,
this court appointed a new counsel de oficio, Atty. Katz Tierra and pursuant thereto, the Deputy Clerk of Court, in
behalf of the Clerk of Court, required the new counsel to file her appellant's brief. The latter complied and, in her
brief, raised the following assignment of errors:

THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE THE PACKAGE OF MARIJUANA

ALLEGEDLY SEIZED FROM DEFENDANT-APPELLANT AS IT WAS A PRODUCT OF AN UNLAWFUL
SEARCH WITHOUT A WARRANT.

II

THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE THE ALLEGED PACKAGE OF MARIJUANA
LEAVES AS THE LEAVES SUPPOSEDLY SEIZED FROM ACCUSED WHEN IT WAS NEVER
AUTHENTICATED.

III

THE LOWER COURT ERRED IN NOT RULING THAT THE PROSECUTION FAILED TO PROVE THE
GUILT OF DEFENDANT-APPELLANT. (At pp. 92-93, Rollo)

It is contended that the marijuana allegedly seized from the accused was a product of an unlawful search without a
warrant and is therefore inadmissible in evidence.
This contention is devoid of merit.

One of the exceptions to the general rule requiring a search warrant is a search incident to a lawful arrest. Thus,
Section 12 of Rule 126 of the 1985 Rules on Criminal Procedure provides:

Section 12. Search incident to a lawful arrest. A person lawfully arrested may be searched for dangerous
weapons or anything which may be used as proof of the commission of an offense, without a search
warrant.

Meanwhile, Rule 113, Sec. 5(a) provides:

. . . A peace officer or a private person may, without a warrant, arrest a person:

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

Accused was caught in flagrante, since he was carrying marijuana at the time of his arrest. This case therefore falls
squarely within the exception. The warrantless search was incident to a lawful arrest and is consequently valid.

In the case of People v. Claudia, 160 SCRA 646, [1988] this Court, confronted with the same issue, held that:

Appellant Claudio was caught transporting prohibited drugs. Pat. Daniel did not need a warrant to arrest
Claudio as the latter was caught in flagrante delicto. The warrantless search being an incident to a lawful
arrest is in itself lawful. (Nolasco V. Pao, 147 SCRA 509). Therefore, there was no infirmity in the seizure of
the 1.1 kilos of marijuana.

We are not unmindful of the decision of this Court in People v. Amininudin, 163 SCRA 402 [1988]. In that case the
PC officers had earlier received a tip from an informer that accused-appellant. was on board a vessel bound for Iloilo
City and was carrying marijuana. Acting on this tip, they waited for him one evening, approached him as he
descended from the gangplank, detained him and inspected the bag he was carrying. Said bag contained marijuana
leaves. The Court held that the marijuana could not be admitted in evidence since it was seized illegally. The
records show, however, that there were certain facts, not sing in the case before us, which led the Court to declare
the seizure as invalid. As stated therein:

The present case presented no such urgency From the conflicting declarations of the PC witnesses, it is
clear that they had at react two days within which they could have obtained a warrant of arrest and search
Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was identified.
The date of its arrival was certain. And from the information they had received, they could have persuaded a
judge that there was probable cause, indeed, to justify the issuance of a warrant. Yet they did nothing. No
effort was made to comply with the law. The Bill of Rights was ignored altogether because the PC lieutenant
who was the head of the arresting team, had determined on his own authority that a "search warrant was not
necessary."

In contrast, the case before us presented urgency. Although the trial court's decision did not mention it, the
transcript of stenographic notes reveals that there was an informer who pointed to the accused-appellant as carrying
marijuana. (TSN, pp. 52-53) Faced with such on-the-spot information, the police officers had to act quickly. There
was not enough time to secure a search warrant. We cannot therefore apply the ruling in Aminnudin to the case at
bar. To require search warrants during on-the-spot apprehensions of drug pushers, illegal possessors of firearms,
jueteng collectors, smugglers of contraband goods, robbers, etc. would make it extremely difficult, if not impossible
to contain the crimes with which these persons are associated.

Accused-appellant likewise asserts that the package of marijuana leaves supposedly seized from him was never
authenticated and therefore should not have been admitted as evidence. He capitalizes on the fact that the
marijuana package brought by patrolman Roberto Quevedo to the PC Crime Laboratory for examination did not
contain a tag bearing the name of the accused. We rule, however, that since Patrolman Quevedo testified that he
gave the marijuana package together with a letter-request for examination, and the forensic chemist Marilene
Salangad likewise testified that she received the marijuana together with the letter-request and said letter-request
bore the name of the accused, then the requirements of proper authentication of evidence were sufficiently complied
with. The marijuana package examined by the forensic checklist was satisfactorily identified as the one seized from
accused.

Even assuming arguendo that the marijuana sent to the PC Crime Laboratory was not properly authenticated, still,
we cannot discount the separate field test conducted by witness Roberto Quevedo which yielded positive results for
marijuana.

Lastly, the appellant claims that the evidence upon which he was convicted was insufficient and doubtful and that
the prosecution failed to prove his guilt.

In attacking the sufficiency of evidence, the appellant avers that the informer should have been presented before the
lower court. We discard this argument as a futile attempt to revive an already settled issue. This Court has ruled in
several cases that non-presentation of the informer, where his testimony would be merely corroborative or
cumulative, is not fatal to the prosecution's case. (People v. Asio, G.R. No. 84960, September 1, 1989; (People v.
Viola, G.R. No. 64262, March 16, 1989; People v. Capulong, 160 SCRA 533 [1988]; People v. Cerelegia, 147 SCRA
538).

As to doubtfulness of evidence, well-settled is the rule that findings of the trial court on the issue of credibility of
witnesses and their testimonies are entitled to great respect and accorded the highest consideration by the appellate
court. Since credibility is a matter that is peculiarly within the province of the trial judge, who had first hand
opportunity to watch and observe the demeanor and behavior of witnesses both for the prosecution and the defense
at the time of their testimony (People v. Tejada, G.R. No. 81520, February 21, 1989; People v. Turla, 167 SCRA
278), we find no reason to disturb the following findings:

The testimony of prosecution witnesses Patrolmen Silverio Quevedo and Romeo Punzalan are positive and
sufficiently clean to show the commission by the accused of the offense herein chatted. These prosecution
witnesses have no motive to fabricate the facts and to foist a very serious offense against the accused. The
knowledge on what these witnesses testified to were (sic) acquired by them in the official performance of
their duties and then, (sic) being no showing that they are prejudiced against the accused, their testimonies
deserve full credit.

The testimonies of the afore-mentioned petitioner that what they found in the possession of the accused
were marijuana leaves were corroborated by the examination findings conducted by Pat. October to
Salangad of the PCCL, with station at camp Olivas, San Fernando, Pampanga (Exhibits C and C-1). (Rollo,
p. 11)

Moreover, if there is truth in the testimony of the accused to the effect that Pat. Punzalan got all the money
from his wallet when he was accosted at the Victory Liner Terminal and was told just to keep quiet otherwise
he will be "salvaged" why will Pat. Punzalan still bring the accused to the municipal Building for interrogation
and/or verification? Would not Pat. Punzalan be exposing his identity to the accused? This is unnatural. And
this is also true on the testimony to the accused that Pat. Silverio Quevedo got his fifty-peso bill arid never
returned the same to him. If the policemen really got any money from the accused and that the marijuana
leaves do not belong to the accused, why will the two policemen still produce in Court as evidence that
expensive-looking traveling red bag (Exhibit G) taken from the accused and which contained the marijuana
in question if the instant case is a mere fabrication?

As already stated, all the evidence, oral and documentary, presented by the prosecution in this case were all
based on personal knowledge acquired by the prosecution witnesses in the regular performance of their
official duties and there is nothing in their testimonies to show that they are bias (sic) or that they have any
prejudice against the herein accused. Between the testimonies of these prosecution witnesses and that of
the uncorroborated and self-serving testimony of the accused, the former should prevail. (Rollo, p. 13)

Likewise, the appellant chose to limit his defense to his own testimony. He could have availed himself through
compulsory court processes of several witnesses to buttress his defense. Since not one other witness was
presented nor was any justification for the non-appearance given, the inadequacy of his lone and uncorroborated
testimony remains. It cannot prevail vis-a-vis the positive testimonies given by the prosecution witnesses.
Moreover, the appellant's having jumped bail is akin to flight which, as correctly observed by the lower court, is an
added circumstance tending to establish his guilt.

We take exception, however, to the trial court's finding that:

The dried marijuana leaves found in the possession of the accused weighs one (1) kilo, more or less. The
intent to transport the same is clear from the testimony of Pat. Silverio Quevedo who declared, among other
things, that when he confronted the accused that night, the latter told him that he (accused) is bringing the
marijuana leaves to Olongapo City. Moreover, considering the quantity of the marijuana leaves found in the
possession of the accused and the place he was arrested which is at San Fernando, Pampanga, a place
where the accused is not residing, it can be said that the intent to transport the marijuana leaves has been
clearly established. (Rollo, pp. 13-14)

The alleged extrajudicial confession of the accused which, on the other hand, he categorically denied in court, that
he is transporting the marijuana leaves to Olongapo City cannot be relied upon. Even assuming it to be true, the
extrajudicial confession cannot be admitted because it does not appear in the records that the accused, during
custodial investigation, was apprised of his rights to remain silent and to counsel and to be informed of such rights.
In People v. Duero 104 SCRA 379 [1981], the Court pronounced that "inasmuch as the prosecution failed to prove
that before Duero made his alleged oral confession he was informed of his rights to remain silent and to have
counsel and because there is no proof that he knowingly and intelligently waived those rights, his confession is
inadmissible in evidence. This ruling was reiterated in People v. Tolentino, 145 SCRA 597 [1986], where the Court
added that:

In effect, the Court not only abrogated the rule on presumption of regularity of official acts relative to
admissibility of statements taken during in-custody interrogation but likewise dispelled any doubt as to the
full adoption of the Miranda doctrine in this jurisdiction. It is now incumbent upon the prosecution to prove
during a trial that prior to questioning, the confessant was warned of his constitutionally protected rights.

The trial judge likewise found the marijuana to weigh one kilo, more or less, and from this finding extracted a clear
intent to transport the marijuana leaves. It may be pointed out, however, that although the information stated the
weight to be approximately one kilo, the forensic chemist who examined the marijuana leaves testified that the
marijuana weighed only 600 grams Such amount is not a considerable quantity as to conclusively confer upon the
accused an intent to transport the marijuana leaves.

Nor can it be said that the intent to transport is clearly established from the fact that the accused was arrested at
San Fernando, Pampanga, a place which is not his residence. Conviction of a crime with an extremely severe
penalty must be based on evidence which is clearer and more convincing than the inferences in this case.

What was therefore proved beyond reasonable doubt is not his intent to transport the marijuana leaves but his
actual session.

The offense committed by the appellant is possession of marijuana under Section 8 of Republic Act No. 6425
(Dangerous Drugs Act of 1972 as amended).

WHEREFORE, the judgment of conviction by the trial court is hereby AFFIRMED but MODIFIED. The appellant is
sentenced to suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and
fine of Six Thousand (P6,000.00) Pesos.

SO ORDERED.

Fernan, C.J., Feliciano, Bidin and Cortes, JJ., concur.

G.R. No. 97143 October 2, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ARTURO FIGUEROA, accused-appellant.

VITUG, J.:

Arturo Figueroa was charged with Illegal Possession of Firearm and Ammunition in an information that read:

The undersigned Assistant City Prosecutor accuses ARTURO FIGUEROA of the crime of Illegal
Possession of the Firearm and Ammunition, committed as follows:

That on or about the 10th day of November 1989 at San Francisco Subdivision, Brgy. San Juan,
Municipality of Gen. Trias, Province of Cavite, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, did, then and there, wilfully, unlawfully and feloniously
have in his possession and control one (1) pistol cal. 45 with defaced serial number with one
magazine and seven (7) live ammunitions for the said firearm without first having obtained the
necessary permit or license from competent authority to possess the same. 1

When arraigned, the accused entered a plea of "Not Guilty," thereupon, trial ensued.

It would appear that on 10 November 1989, at around seven o'clock in the morning, Captain Lodivino Rosario, the
Executive Officer of the 215th PC Company, and his men arrived at the residence of accused Arturo Figueroa at
Barangay San Juan, San Francisco Subdivision, General Trias, Cavite, to serve a warrant for his arrest issued by
the Regional Trial Court of Makati, Branch 56, in Criminal Case No. 411 and Criminal Case No. 412 (for the crime of
Illegal Possession of Ammunitions and for Violation of Section 16, Art. III, Republic Act 6425). While serving the
warrant of arrest, the officers noticed, strewn around, aluminum foil packages of different sizes in the sala.
Suspecting thus the presence of "shabu" in the premises, the arresting officers requested appellant, as well as his
brother and sister, to acquiesce to a search of the house. The search yielded a .45 caliber pistol, a magazine, seven
live ammunitions, and a match box containing an aluminum foil package with "shabu." Confronted, Figueroa denied
ownership of the items. An inventory was conducted by the PC team, attested to by Barangay Captain Bigornia, of
the seized items.

The accused, besides assailing the credibility of the witnesses for the prosecution, questioned the admissibility in
evidence of the firearm and rounds of ammunition which, he claims, were discovered and taken during a warrantless
search.

On 30 October 1990, the trial court rendered a decision finding the accused Arturo Figueroa guilty.

From the judgment, the decretal portion of which reads

WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the crime charged
and is hereby sentenced to suffer the penalty of reclusion perpetua (life imprisonment) and to pay
the costs.

The firearm and ammunitions are confiscated and forfeited in favor of the government.

Capt. Lodivino Rosario, Executive Officer, 215th PC Coy, is hereby ordered to return to Arturo
Figueroa the motorcycle with Motor Engine
No. KIE 073574 taken from the house of the Figueroas on November 10, 1989. 2

this appeal is interposed by Arturo Figueroa (a) reiterating his argument against the admissibility against him
of evidence seized following a warrantless search and (b) challenging anew the credibility of the prosecution
witnesses.
The appeal cannot be sustained.

The .45 caliber pistol, magazine and rounds of ammunition were not unlawfully obtained. While we might concede
difficulty in readily accepting the statement of the prosecution that the search was conducted with
consent freely given by appellant and members of his household, it should be pointed out, in any case, that the
search and seizure was done admittedly on the occasion of a lawful arrest. 3

A significant exception from the necessity for a search warrant is when the search and seizure is effected as an
incident to a lawful arrest 4 and so, in People vs. Musa, 5 this Court elaborated; thus

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

Appellant faults the trial court for giving credence to the testimony given by witnesses for the prosecution despite
what he claims to be inconsistencies in their declarations. Appellant particularly calls attention to the assertion of
prosecution witness Sgt. Atas, to the effect that appellant was with a companion inside a room when arrested and
that the seized firearm was found under the cushion of the bed, against the statement of Capt. Rosario, another
prosecution witness, that appellant was alone when arrested and that the gun was found under appellant's bed. We
do not consider these discrepancies to be so major as to warrant a complete rejection of their questioned testimony.
It is not unnatural for witnesses of the same incident to somehow perceive differently and to thereby vary in their
respective accounts of the event. 6 The contradiction of witnesses on minor details is nothing unusual and should be
expected. 7 We see no cogent reason for not according due respect to the findings of the trial court on the credibility of the
witnesses.

Finally, it is claimed that appellant was just "framed-up." The conduct of the appellant following his arrest would belie
this allegation. Appellant himself admitted that he failed to complain about this matter when he was apprehended.
Neither did he report the so-called "planting of the gun" to the police authorities nor did he bring it up before the
Metropolitan Trial Judge when he appeared for preliminary investigation. In fact, it would seem that the only time
appellant mentioned the alleged "frame-up" was when he testified at the trial of this case. No plausible reason was
given by appellant that would have prompted police authorities to falsely impute a serious crime against him. Absent
a strong showing to the contrary, we must accept the presumption of regularity in the performance of official duty. 8

WHEREFORE, the appealed decision is AFFIRMED in toto. Costs against accused-appellant.

SO ORDERED.
 [G.R. No. 121917. March 12, 1997]

ROBIN CARIO PADILLA @ ROBINHOOD PADILLA, petitioner, vs. COURT OF

APPEALS and PEOPLE of the PHILIPPINES, respondents.

DECISION
FRANCISCO, J.:

On October 26, 1992, high-powered firearms with live ammunitions were found in the
possession of petitioner Robin Padilla @ Robinhood Padilla, i.e.:
"(1) One .357 Caliber revolver, Smith and Wesson, SN-32919 with six (6) live
ammunitions;
"(2) One M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one (1) short
magazine with ammunitions;
"(3) One .380 Pietro Beretta, SN-A 35723 Y with clip and eight (8) ammunitions; and
"(4) Six additional live double action ammunitions of .38 caliber revolver." [1]

Petitioner was correspondingly charged on December 3, 1992, before the Regional Trial
Court (RTC) of Angeles City with illegal possession of firearms and ammunitions under P.D.
1866 thru the following Information:
[2] [3]

"That on or about the 26th day of October, 1992, in the City of Angeles, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, did then and
there willfully, unlawfully and feloniously have in his possession and under his custody and
control one (1) M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one (1)
short magazines with ammunitions, one (1) .357 caliber revolver Smith and Wesson, SN-
32919 with six (6) live ammunitions and one (1) .380 Pietro Beretta, SN-A35723Y with
clip and eight (8) ammunitions, without having the necessary authority and permit to carry
and possess the same.
ALL CONTRARY TO LAW." [4]

The lower court then ordered the arrest of petitioner, but granted his application for
[5]

bail. During the arraignment on January 20, 1993, a plea of not guilty was entered for
[6]

petitioner after he refused, upon advice of counsel, to make any plea. Petitioner waived
[7] [8] [9]

in writing his right to be present in any and all stages of the case. [10]

After trial, Angeles City RTC Judge David Rosete rendered judgment dated April 25,
1994 convicting petitioner of the crime charged and sentenced him to an "indeterminate
penalty from 17 years, 4 months and 1 day of reclusion temporal as minimum, to 21 years
of reclusion perpetua, as maximum". Petitioner filed his notice of appeal on April 28,
[11]

1994. Pending the appeal in the respondent Court of Appeals, the Solicitor-General,
[12] [13]

convinced that the conviction shows strong evidence of guilt, filed on December 2, 1994 a
motion to cancel petitioner's bail bond. The resolution of this motion was incorporated in the
now assailed respondent court's decision sustaining petitioner's conviction, the dispositive
[14]

portion of which reads:

"WHEREFORE, the foregoing circumstances considered, the appealed decision is hereby
AFFIRMED, and furthermore, the P200,000.00 bailbond posted by accused-appellant for
his provisional liberty, FGU Insurance Corporation Bond No. JCR (2) 6523, is hereby
cancelled. The Regional Trial Court, Branch 61, Angeles City, is directed to issue the Order
of Arrest of accused-appellant and thereafter his transmittal to the National Bureau of
Prisons thru the Philippine National Police where the said accused-appellant shall remain
under confinement pending resolution of his appeal, should he appeal to the Supreme
Court. This shall be immediately executory. The Regional Trial Court is further directed to
submit a report of compliance herewith.

SO ORDERED." [15]

Petitioner received a copy of this decision on July 26, 1995. On August 9, 1995 he filed a
[16]

"motion for reconsideration (and to recall the warrant of arrest)" but the same was denied
[17]

by respondent court in its September 20, 1995 Resolution, copy of which was received by
[18]

petitioner on September 27, 1995. The next day, September 28, petitioner filed the instant
petition for review on certiorari with application for bail followed by two "supplemental
[19]

petitions" filed by different counsels, a "second supplemental petition" and an urgent

[20] [21]

motion for the separate resolution of his application for bail. Again, the Solicitor-
General sought the denial of the application for bail, to which the Court agreed in a
[22]

Resolution promulgated on July 31, 1996. The Court also granted the Solicitor-General's
[23]

motion to file a consolidated comment on the petitions and thereafter required the petitioner
to file his reply. However, after his vigorous resistance and success on the intramural of
[24]

bail (both in the respondent court and this Court) and thorough exposition of petitioner's guilt
in his 55-page Brief in the respondent court, the Solicitor-General now makes a complete
turnabout by filing a "Manifestation In Lieu Of Comment" praying for petitioner's acquittal. [25]

The People's detailed narration of facts, well-supported by evidence on record and given
credence by respondent court, is as follows: [26]

"At about 8:00 o'clock in the evening of October 26, 1992, Enrique Manarang and his
compadre Danny Perez were inside the Manukan sa Highway Restaurant in Sto. Kristo,
Angeles City where they took shelter from the heavy downpour (pp. 5-6, TSN, February
15, 1993) that had interrupted their ride on motorcycles (pp. 5-6, ibid.) along McArthur
Highway (ibid). While inside the restaurant, Manarang noticed a vehicle, a Mitsubishi
Pajero, running fast down the highway prompting him to remark that the vehicle might get
into an accident considering the inclement weather. (p. 7, Ibid) In the local vernacular, he
said thus: 'Ka bilis na, mumuran pa naman pota makaaksidente ya.' (p. 7, ibid). True
enough, immediately after the vehicle had passed the restaurant, Manarang and Perez heard
a screeching sound produced by the sudden and hard braking of a vehicle running very fast
(pp. 7-8, ibid) followed by a sickening sound of the vehicle hitting something (p.
8, ibid).Danny Cruz, quite sure of what had happened, remarked 'oy ta na' signifying that
Manarang had been right in his observation (pp. 8-9, ibid).
"Manarang and Cruz went out to investigate and immediately saw the vehicle occupying
the edge or shoulder of the highway giving it a slight tilt to its side (pp. 9-
10, ibid). Manarang, being a member of both the Spectrum, a civic group and the Barangay
Disaster Coordinating Council, decided to report the incident to the Philippine National
Police of Angeles City (p. 10, ibid). He took out his radio and called the Viper, the radio
controller of the Philippine National Police of Angeles City (p. 10, ibid). By the time
Manarang completed the call, the vehicle had started to leave the place of the accident
taking the general direction to the north (p. 11, ibid).
"Manarang went to the location of the accident and found out that the vehicle had hit
somebody (p. 11, ibid).
"He asked Cruz to look after the victim while he went back to the restaurant, rode on his
motorcycle and chased the vehicle (p. 11 ibid). During the chase he was able to make out
the plate number of the vehicle as PMA 777 (p. 33, TSN, February 15, 1993). He called
the Viper through the radio once again (p. 34, ibid) reporting that a vehicle heading north
with plate number PMA 777 was involved in a hit and run accident (p. 20, TSN, June 8,
1993). The Viper, in the person of SPO2 Ruby Buan, upon receipt of the second radio call
flashed the message to all units of PNP Angeles City with the order to apprehend the
vehicle (p. 20, ibid). One of the units of the PNP Angeles City reached by the alarm was its
Patrol Division at Jake Gonzales Street near the Traffic Division (pp. 5-7, TSN, February
23, 1993). SPO2 Juan C. Borja III and SPO2 Emerlito Miranda immediately borded a
mobile patrol vehicle (Mobile No. 3) and positioned themselves near the south approach of
Abacan bridge since it was the only passable way going to the north (pp. 8-9, ibid). It took
them about ten (10) seconds to cover the distance between their office and the Abacan
bridge (p. 9, ibid).
"Another PNP mobile patrol vehicle that responded to the flash message from SPO2 Buan
was Mobile No. 7 of the Pulongmaragal Detachment which was then conducting patrol
along Don Juico Avenue (pp. 8-9, TSN, March 8, 1993). On board were SPO Ruben
Mercado and SPO3 Tan and SPO2 Odejar (p. 8, ibid). SPO Ruben Mercado immediately
told SPO3 Tan to proceed to the MacArthur Highway to intercept the vehicle with plate
number PMA 777 (p. 10, ibid).
"In the meantime, Manarang continued to chase the vehicle which figured in the hit and run
incident, even passing through a flooded portion of the MacArthur Highway two (2) feet
deep in front of the Iglesia ni Kristo church but he could not catch up with the same vehicle
(pp. 11-12, February 15, 1993). When he saw that the car he was chasing went towards
Magalang, he proceeded to Abacan bridge because he knew Pulongmaragal was not
passable (pp. 12-14, ibid). When he reached the Abacan bridge, he found Mobile No. 3 and
SPO2 Borja and SPO2 Miranda watching all vehicles coming their way (p. 10, TSN,
February 23, 1993). He approached them and informed them that there was a hit and run
incident (p. 10, ibid). Upon learning that the two police officers already knew about the
incident, Manarang went back to where he came from (pp. 10-11; ibid). When Manarang
was in front of Tina's Restaurant, he saw the vehicle that had figured in the hit and run
incident emerging from the corner adjoining Tina's Restaurant (p. 15, TSN, February 15,
1993). He saw that the license plate hanging in front of the vehicle bore the identifying
number PMA 777 and he followed it (p. 15, ibid) towards the Abacan bridge.
"Soon the vehicle was within sight of SPO2 Borja and SPO2 Miranda of Mobile No. 3 (p.
10, TSN, February 23, 1993). When the vehicle was about twelve (12) meters away from
their position, the two police officers boarded their Mobile car, switched on the engine,
operated the siren and strobe light and drove out to intercept the vehicle (p. 11, ibid). They
cut into the path of the vehicle forcing it to stop (p. 11, ibid).
"SPO2 Borja and SPO2 Miranda alighted from Mobile No. 3 (P. 12, TSN, February 23,
1993). SPO2 Miranda went to the vehicle with plate number PMA 777 and instructed its
driver to alight (p. 12, ibid). The driver rolled down the window and put his head out while
raising both his hands. They recognized the driver as Robin C. Padilla, appellant in this
case (p. 13, ibid). There was no one else with him inside the vehicle (p. 24). At that
moment, Borja noticed that Manarang arrived and stopped his motorcycle behind the
vehicle of appellant (p. 14, ibid). SPO2 Miranda told appellant to alight to which appellant
complied. Appellant was wearing a short leather jacket (p. 16, TSN, March 8, 1993) such
that when he alighted with both his hands raised, a gun (Exhibit 'C') tucked on the left side
of his waist was revealed (p. 15, TSN, February 23, 1993), its butt protruding (p.
15, ibid). SPO2 Borja made the move to confiscate the gun but appellant held the former's
hand alleging that the gun was covered by legal papers (p. 16, ibid). SPO2 Borja, however,
insisted that if the gun really was covered by legal papers, it would have to be shown in the
office (p. 16, ibid). After disarming appellant, SPO2 Borja told him about the hit and run
incident which was angrily denied by appellant (p. 17, ibid). By that time, a crowd had
formed at the place (p. 19, ibid). SPO2 Borja checked the cylinder of the gun and find six
(6) live bullets inside (p. 20, ibid).
"While SPO2 Borja and appellant were arguing, Mobile No. 7 with SPO Ruben Mercado,
SPO3 Tan and SPO2 Odejar on board arrived (pp. 11-12, TSN, March 8, 1993). As the
most senior police officer in the group, SPO Mercado took over the matter and informed
appellant that he was being arrested for the hit and run incident (p. 13, ibid). He pointed out
to appellant the fact that the plate number of his vehicle was dangling and the railing and
the hood were dented (p. 12, ibid). Appellant, however, arrogantly denied his misdeed and,
instead, played with the crowd by holding their hands with one hand and pointing to SPO3
Borja with his right hand saying 'iyan, kinuha ang baril ko' (pp. 13-15, ibid). Because
appellant's jacket was short, his gesture exposed a long magazine of an armalite rifle tucked
in appellant's back right pocket (p. 16, ibid). SPO Mercado saw this and so when appellant
turned around as he was talking and proceeding to his vehicle, Mercado confiscated the
magazine from appellant (pp. 16-17, ibid). Suspecting that appellant could also be carrying
a rifle inside the vehicle since he had a magazine, SPO2 Mercado prevented appellant from
going back to his vehicle by opening himself the door of appellant's vehicle (16-
17, ibid). He saw a baby armalite rifle (Exhibit D) lying horizontally at the front by the
driver's seat. It had a long magazine filled with live bullets in a semi-automatic mode (pp.
17-21, ibid). He asked appellant for the papers covering the rifle and appellant answered
angrily that they were at his home (pp. 26-27, ibid). SPO Mercado modified the arrest of
appellant by including as its ground illegal possession of firearms (p. 28, ibid). SPO
Mercado then read to appellant his constitutional rights (pp. 28-29, ibid).
"The police officers brought appellant to the Traffic Division at Jake Gonzales Boulevard
(pp. 31-32, ibid) where appellant voluntarily surrendered a third firearm, a pietro berreta
 pistol (Exhibit 'L') with a single round in its chamber and a magazine (pp. 33-35, ibid)
loaded with seven (7) other live bullets. Appellant also voluntarily surrendered a black bag
containing two additional long magazines and one short magazine (Exhibits M, N, and O,
pp. 36-37, ibid). After appellant had been interrogated by the Chief of the Traffic Division,
he was transferred to the Police Investigation Division at Sto. Rosario Street beside the City
Hall Building where he and the firearms and ammunitions were turned over to SPO2 Rene
Jesus Gregorio (pp. 5-10, TSN, July 13, 1993). During the investigation, appellant admitted
possession of the firearms stating that he used them for shooting (p. 14, ibid). He was not
able to produce any permit to carry or memorandum receipt to cover the three firearms (pp.
16-18, TSN, January 25, 1994).
"On November 28, 1992, a certification (Exhibit 'F') was issued by Captain, Senior
Inspector Mario Espino, PNP, Chief, Record Branch of the Firearms and Explosives Office
(pp. 7-8, TSN, March 4, 1993). The Certification stated that the three firearms confiscated
from appellant, an M-16 Baby armalite rifle SN-RP 131280, a .357 caliber revolver Smith
and Wesson SN 32919 and a .380 Pietro Beretta SN-A35720, were not registered in the
name of Robin C. Padilla (p. 6, ibid). A second Certification dated December 11, 1992
issued by Captain Espino stated that the three firearms were not also registered in the name
of Robinhood C. Padilla (p. 10, ibid)."
Petitioner's defenses are as follows: (1) that his arrest was illegal and consequently, the
firearms and ammunitions taken in the course thereof are inadmissible in evidence under
the exclusionary rule; (2) that he is a confidential agent authorized, under a Mission Order
and Memorandum Receipt, to carry the subject firearms; and (3) that the penalty for simple
illegal possession constitutes excessive and cruel punishment proscribed by the 1987
Constitution.
After a careful review of the records of this case, the Court is convinced that petitioner's
[27]

guilt of the crime charged stands on terra firma, notwithstanding the Solicitor-General's
change of heart.
Anent the first defense, petitioner questions the legality of his arrest. There is no
dispute that no warrant was issued for the arrest of petitioner, but that per se did not make
his apprehension at the Abacan bridge illegal.
Warrantless arrests are sanctioned in the following instances: [28]

"Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge
of facts indicating that the person to be arrested has committed it.
(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.
Paragraph (a) requires that the person be arrested (i) after he has committed or while he is
actually committing or is at least attempting to commit an offense, (ii) in the presence of the
arresting officer or private person. Both elements concurred here, as it has been
[29]

established that petitioner's vehicle figured in a hit and run - an offense committed in the
"presence" of Manarang, a private person, who then sought to arrest petitioner. It must be
stressed at this point that "presence" does not only require that the arresting person sees
the offense, but also when he "hears the disturbance created thereby AND proceeds at
once to the scene." As testified to by Manarang, he heard the screeching of tires followed
[30]

by a thud, saw the sideswiped victim (balut vendor), reported the incident to the police and
thereafter gave chase to the erring Pajero vehicle using his motorcycle in order to
apprehend its driver. After having sent a radio report to the PNP for assistance, Manarang
proceeded to the Abacan bridge where he found responding policemen SPO2 Borja and
SPO2 Miranda already positioned near the bridge who effected the actual arrest of
petitioner.
[31]

Petitioner would nonetheless insist on the illegality of his arrest by arguing that the
policemen who actually arrested him were not at the scene of the hit and run. We beg to[32]

disagree.That Manarang decided to seek the aid of the policemen (who admittedly were
nowhere in the vicinity of the hit and run) in effecting petitioner's arrest, did not in any way
affect the propriety of the apprehension. It was in fact the most prudent action Manarang
could have taken rather than collaring petitioner by himself, inasmuch as policemen are
unquestionably better trained and well-equipped in effecting an arrest of a suspect (like
herein petitioner) who , in all probability, could have put up a degree of resistance which an
untrained civilian may not be able to contain without endangering his own life. Moreover, it
is a reality that curbing lawlessness gains more success when law enforcers function in
collaboration with private citizens. It is precisely through this cooperation, that the offense
herein involved fortunately did not become an additional entry to the long list of unreported
and unsolved crimes.
It is appropriate to state at this juncture that a suspect, like petitioner herein, cannot
defeat the arrest which has been set in motion in a public place for want of a warrant as the
police was confronted by an urgent need to render aid or take action. The exigent
[33]

circumstances of - hot pursuit, a fleeing suspect, a moving vehicle, the public place and
[34]

the raining nighttime - all created a situation in which speed is essential and delay
improvident. The Court acknowledges police authority to make the forcible stop since
[35]

they had more than mere "reasonable and articulable" suspicion that the occupant of the
vehicle has been engaged in criminal activity. Moreover, when caught in flagrante
[36]

delicto with possession of an unlicensed firearm (Smith & Wesson) and ammunition (M-16
magazine), petitioner's warrantless arrest was proper as he was again actually committing
another offense (illegal possession of firearm and ammunitions) and this time in the
presence of a peace officer. [37]

Besides, the policemen's warrantless arrest of petitioner could likewise be justified under
paragraph (b) as he had in fact just committed an offense. There was no supervening event
or a considerable lapse of time between the hit and run and the actual
apprehension. Moreover, after having stationed themselves at the Abacan bridge in
response to Manarang's report, the policemen saw for themselves the fast approaching
Pajero of petitioner, its dangling plate number (PMA 777 as reported by Manarang), and
[38]

the dented hood and railings thereof. These formed part of the arresting police officer's
[39]

personal knowledge of the facts indicating that petitioner's Pajero was indeed the vehicle
involved in the hit and run incident. Verily then, the arresting police officers acted upon
verified personal knowledge and not on unreliable hearsay information. [40]

Furthermore, in accordance with settled jurisprudence, any objection, defect or

irregularity attending an arrest must be made before the accused enters his
plea. Petitioner's belated challenge thereto aside from his failure to quash the information,
[41]

his participation in the trial and by presenting his evidence, placed him in estoppel to assail
the legality of his arrest. Likewise, by applying for bail, petitioner patently waived such
[42]

irregularities and defects. [43]

We now go to the firearms and ammunitions seized from petitioner without a search
warrant, the admissibility in evidence of which, we uphold.
The five (5) well-settled instances when a warrantless search and seizure of property is
valid, are as follows:
[44]

1. warrantless search incidental to a lawful arrest recognized under Section 12, Rule
126 of the Rules of Court and by prevailing jurisprudence ,
[45] [46]

2. Seizure of evidence in "plain view", the elements of which are: [47]

(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 had 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. [48]

3. search of a moving vehicle. Highly regulated by the government, the vehicle's

[49]

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. [50]

4. consented warrantless search, and

5. customs search.

In conformity with respondent court's observation, it indeed appears that the authorities
stumbled upon petitioner's firearms and ammunitions without even undertaking any active
search which, as it is commonly understood, is a prying into hidden places for that which is
concealed. The seizure of the Smith & Wesson revolver and an M-16 rifle magazine was
[51]

justified for they came within "plain view" of the policemen who inadvertently discovered the
revolver and magazine tucked in petitioner's waist and back pocket respectively, when he
raised his hands after alighting from his Pajero. The same justification applies to the
confiscation of the M-16 armalite rifle which was immediately apparent to the policemen as
they took a casual glance at the Pajero and saw said rifle lying horizontally near the driver's
seat. Thus it has been held that:
[52]

"(W)hen in pursuing an illegal action or in the commission of a criminal offense, the . . .

police officers should happen to discover a criminal offense being committed by any
person, they are not precluded from performing their duties as police officers for the
apprehension of the guilty person and the taking of the corpus delicti." [53]

"Objects whose possession are prohibited by law inadvertently found in plain view are
subject to seizure even without a warrant."[54]

With respect to the Berreta pistol and a black bag containing assorted magazines, petitioner
voluntarily surrendered them to the police. This latter gesture of petitioner indicated a
[55]

waiver of his right against the alleged search and seizure , and that his failure to quash the
[56]

information estopped him from assailing any purported defect. [57]

Even assuming that the firearms and ammunitions were products of an active search
done by the authorities on the person and vehicle of petitioner, their seizure without a search
warrant nonetheless can still be justified under a search incidental to a lawful arrest (first
instance). Once the lawful arrest was effected, the police may undertake a protective
search of the passenger compartment and containers in the vehicle which are within
[58] [59]

petitioner's grabbing distance regardless of the nature of the offense. This satisfied the
[60]

two-tiered test of an incidental search: (i) the item to be searched (vehicle) was within the
arrestee's custody or area of immediate control and (ii) the search was contemporaneous
[61]

with the arrest. The products of that search are admissible evidence not excluded by the
[62]

exclusionary rule. Another justification is a search of a moving vehicle (third instance). In

connection therewith, a warrantless search is constitutionally permissible when, as in this
case, the officers conducting the search have reasonable or probable cause to believe,
before the search, that either the motorist is a law-offender (like herein petitioner with
respect to the hit and run) or the contents or cargo of the vehicle are or have been
instruments or the subject matter or the proceeds of some criminal offense. [63]

Anent his second defense, petitioner contends that he could not be convicted of
violating P.D. 1866 because he is an appointed civilian agent authorized to possess and
carry the subject firearms and ammunition as evidenced by a Mission Order and [64]

Memorandum Receipt duly issued by PNP Supt. Rodialo Gumtang, the deputy commander
of Task Force Aguila, Lianga, Surigao del Sur. The contention lacks merit.
In crimes involving illegal possession of firearm, two requisites must be
established, viz.: (1) the existence of the subject firearm and, (2) the fact that the accused
who owned or possessed the firearm does not have the corresponding license or permit to
possess. The first element is beyond dispute as the subject firearms and
[65]

ammunitions were seized from petitioner's possession via a valid warrantless search,
[66]

identified and offered in evidence during trial. As to the second element, the same was
convincingly proven by the prosecution.Indeed, petitioner's purported Mission Order and
Memorandum Receipt are inferior in the face of the more formidable evidence for the
prosecution as our meticulous review of the records reveals that the Mission Order and
Memorandum Receipt were mere afterthoughts contrived and issued under suspicious
circumstances. On this score, we lift from respondent court's incisive observation. Thus:
 "Appellant's contention is predicated on the assumption that the Memorandum Receipts and
Mission Order were issued before the subject firearms were seized and confiscated from
him by the police officers in Angeles City. That is not so. The evidence adduced indicate
that the Memorandum Receipts and Mission Order were prepared and executed long after
appellant had been apprehended on October 26, 1992.
"Appellant, when apprehended, could not show any document as proof of his authority to
possess and carry the subject firearms. During the preliminary investigation of the charge
against him for illegal possession of firearms and ammunitions he could not, despite the
ample time given him, present any proper document showing his authority. If he had, in
actuality, the Memorandum Receipts and Missions Order, he could have produced those
documents easily, if not at the time of apprehension, at least during the preliminary
investigation. But neither appellant nor his counsel inform the prosecutor that appellant is
authorized to possess and carry the subject firearms under Memorandum Receipt and
Mission Order. At the initial presentation of his evidence in court, appellant could have
produced these documents to belie the charged against him. Appellant did not. He did not
even take the witness stand to explain his possession of the subject firearms.
"Even in appellant's Demurrer to Evidence filed after the prosecution rested contain no
allegation of a Memorandum Receipts and Mission Order authorizing appellant to possess
and carry the subject firearms.
"At the initial presentation of appellant's evidence, the witness cited was one James Neneng
to whom a subpoena was issued. Superintendent Gumtang was not even mentioned. James
Neneng appeared in court but was not presented by the defense. Subsequent hearings were
reset until the defense found Superintendent Gumtang who appeared in court without
subpoena on January 13, 1994." [67]

The Court is baffled why petitioner failed to produce and present the Mission Order and
Memorandum Receipt if they were really issued and existing before his
apprehension.Petitioner's alternative excuses that the subject firearms were intended for
theatrical purposes, or that they were owned by the Presidential Security Group, or that his
Mission Order and Memorandum Receipt were left at home, further compound their
irregularity. As to be reasonably expected, an accused claiming innocence, like herein
petitioner, would grab the earliest opportunity to present the Mission Order and
Memorandum Receipt in question and save himself from the long and agonizing public trial
and spare him from proffering inconsistent excuses. In fact, the Mission Order itself, as well
as the Letter-Directive of the AFP Chief of Staff, is explicit in providing that:
"VIII. c. When a Mission Order is requested for verification by enforcement
units/personnels such as PNP, Military Brigade and other Military Police Units of
AFP, the Mission Order should be shown without resentment to avoid embarrassment
and/or misunderstanding.
"IX. d. Implicit to this Mission Order is the injunction that the confidential instruction
will be carried out through all legal means and do not cover an actuation in violation
of laws. In the latter event, this Mission Order is rendered inoperative in respect to
such violation."[68]

which directive petitioner failed to heed without cogent explanation.

 The authenticity and validity of the Mission Order and Memorandum Receipt, moreover,
were ably controverted. Witness for the prosecution Police Supt. Durendes denied under
oath his signature on the dorsal side of the Mission Order and declared further that he did
not authorize anyone to sign in his behalf. His surname thereon, we note, was glaringly
[69]

misspelled as "Durembes." In addition, only Unit Commanders and Chief of Offices have
[70]

the authority to issue Mission Orders and Memorandum Receipts under the Guidelines on
the Issuance of MOs, MRs, & PCFORs. PNP Supt. Rodialo Gumtang who issued
[71]

petitioner's Mission Order and Memorandum Receipt is neither a Unit Commander nor the
Chief of Office, but a mere deputy commander. Having emanated from an unauthorized
source, petitioner's Mission Order and Memorandum Receipt are infirm and lacking in force
and effect. Besides, the Mission Order covers "Recom 1-12-Baguio City," areas outside
[72]

Supt. Gumtang's area of responsibility thereby needing prior approval "by next higher
Headquarters" which is absent in this case. The Memorandum Receipt is also
[73]

unsupported by a certification as required by the March 5, 1988 Memorandum of the

Secretary of Defense which pertinently provides that:
"No memorandum receipt shall be issued for a CCS firearms without corresponding
certification from the corresponding Responsible Supply Officer of the appropriate
AFP unit that such firearm has been officially taken up in that units property book,
and that report of such action has been reported to higher AFP authority."
Had petitioner's Memorandum Receipt been authentic, we see no reason why he cannot
present the corresponding certification as well.
What is even more peculiar is that petitioner's name, as certified to by the Director for
Personnel of the PNP, does not even appear in the Plantilla of Non-Uniform Personnel or
in the list of Civilian Agents or Employees of the PNP which could justify the issuance of a
Mission Order, a fact admitted by petitioner's counsel. The implementing rules of P.D.
[74]

1866 issued by the then PC-INP Chief and Director-General Lt. Gen. Fidel V. Ramos are
clear and unambiguous, thus:
"No Mission Order shall be issued to any civilian agent authorizing the same to carry
firearms outside residence unless he/she is included in the regular plantilla of the
government agencyinvolved in law enforcement and is receiving regular compensation
for the services he/she is rendering in the agency. Further, the civilian agent must be
included in a specific law enforcement/police/intelligence project proposal or special
project which specifically required the use of firearms(s) to insure its accomplishment and
that the project is duly approved at the PC Regional Command level or its equivalent level
in other major services of the AFP, INP and NBI, or at higher levels of command." [75]

Circular No. 1, dated January 6, 1986, of the then Ministry of Justice likewise provides as
follows:
"If mission orders are issued to civilians (not members of the uniformed service), they must
be civilian agents included in the regular plantilla of the government agency involved in
law enforcement and are receiving regular compensation for the service they are
rendering."
That petitioner's Mission Order and Memorandum Receipt were fabricated pieces of
evidence is accentuated all the more by the testimony and certification of the Chief of the
Records Branch of the firearms and Explosives Office of the PNP declaring that petitioner's
confiscated firearms are not licensed or registered in the name of the petitioner. Thus: [76]

"Q. In all these files that you have just mentioned Mr. Witness, what did you find, if any?
"A. I found that a certain Robin C. Padilla is a licensed registered owner of one 9 mm pistol, Smith
and Wesson with Serial No. TCT 8214 and the following firearms being asked whether it is
registered or not, I did not find any records, the M-16 and the caliber .357 and the caliber
.380 but there is a firearm with the same serial number which is the same as that licensed
and/or registered in the name of one Albert Villanueva Fallorina.
"Q. So in short, the only licensed firearms in the name of accused Robin C. Padilla is a pistol,
Smith and Wesson, caliber 9 mm with Serial No. TCT 8214?
"A. Yes, sir.
"Q. And the firearms that were the subject of this case are not listed in the names of the accused
in this case?
"A. Yes, sir.[77]

xxx xxx xxx

And the certification which provides as follows:

Republic of the Philippines

Department of the Interior and Local Government
GENERAL HEADQUARTERS PHILIPPINE NATIONAL POLICE
FIREARMS AND EXPLOSIVES OFFICE
Camp Crame, Quezon City

"PNPFEO5 28 November 1992

"C E R T I F I C A T I O N

"TO WHOM IT MAY CONCERN:

"THIS IS TO CERTIFY that Robin C. Padilla of 59 Labo St., Quezon City is a licensed/registered
holder of Pistol Smith and Wesson Cal 9mm with serial number TCT8214 covered by License No.
RL M76C4476687.

"Further certify that the following firearms are not registered with this Office per
verification from available records on file this Office as of this date:

M16 Baby Armalite SN-RP131120

Revolver Cal 357 SN-3219
Pistol Cal 380 Pietro Beretta SN-35723

"However, we have on file one Pistol Cal 380, Beretta with serial number 35723Y,
licensed/registered to one Albert Villanueva Fallorina of 29 San Juan St., Capitol Pasig, MM under
Re-Registered License.

"This certification is issued pursuant to Subpoena from City of Angeles.

"FOR THE CHIEF, FEO:

(Sgd.)

JOSE MARIO M. ESPINO

Sr. Inspector, PNP
Chief, Records Branch" [78]

In several occasions, the Court has ruled that either the testimony of a representative
of, or a certification from, the PNP Firearms and Explosives Office (FEO) attesting that a
person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the
second element of illegal possession of firearm. In People vs. Tobias, we reiterated that
[79] [80]

such certification is sufficient to show that a person has in fact no license. From the
foregoing discussion, the fact that petitioner does not have the license or permit to possess
was overwhelmingly proven by the prosecution. The certification may even be dispensed
with in the light of the evidence that an M-16 rifle and any short firearm higher than a .38
[81]

caliber pistol, akin to the confiscated firearms, cannot be licensed to a civilian, as in the [82]

case of petitioner. The Court, therefore, entertains no doubt in affirming petitioner's

conviction especially as we find no plausible reason, and none was presented, to depart
from the factual findings of both the trial court and respondent court which, as a rule, are
accorded by the Court with respect and finality. [83]

Anent his third defense, petitioner faults respondent court "in applying P.D. 1866 in a
democratic ambience (sic) and a non-subversive context" and adds that respondent court
should have applied instead the previous laws on illegal possession of firearms since the
reason for the penalty imposed under P.D. 1866 no longer exists. He stresses that the
[84]

penalty of 17 years and 4 months to 21 years for simple illegal possession of firearm is cruel
and excessive in contravention of the Constitution. [85]

The contentions do not merit serious consideration. The trial court and the respondent
court are bound to apply the governing law at the time of appellant's commission of the
offense for it is a rule that laws are repealed only by subsequent ones. Indeed, it is the[86]

duty of judicial officers to respect and apply the law as it stands. And until its repeal,
[87]

respondent court can not be faulted for applying P.D. 1866 which abrogated the previous
statutes adverted to by petitioner.
Equally lacking in merit is appellant's allegation that the penalty for simple illegal
possession is unconstitutional. The penalty for simple possession of firearm, it should be
stressed, ranges from reclusion temporal maximum to reclusion perpetua contrary to
appellant's erroneous averment. The severity of a penalty does not ipso facto make the
same cruel and excessive.

"It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be
obnoxious to the Constitution. 'The fact that the punishment authorized by the statute is severe does
not make it cruel and unusual.' (24 C.J.S., 1187-1188). Expressed in other terms, it has been held
that to come under the ban, the punishment must be 'flagrantly and plainly oppressive', 'wholly
disproportionate to the nature of the offense as to shock the moral sense of the community' " [88]
It is well-settled that as far as the constitutional prohibition goes, it is not so much the extent
as the nature of the punishment that determines whether it is, or is not, cruel and unusual
and that sentences of imprisonment, though perceived to be harsh, are not cruel or unusual
if within statutory limits.
[89]

Moreover, every law has in its favor the presumption of constitutionality. The burden of
proving the invalidity of the statute in question lies with the appellant which burden, we note,
was not convincingly discharged. To justify nullification of the law, there must be a clear and
unequivocal breach of the Constitution, not a doubtful and argumentative implication, as [90]

in this case. In fact, the constitutionality of P.D. 1866 has been upheld twice by this
Court. Just recently, the Court declared that "the pertinent laws on illegal possession of
[91]

firearms [are not] contrary to any provision of the Constitution. . ." Appellant's grievance
[92]

on the wisdom of the prescribed penalty should not be addressed to us. Courts are not
concerned with the wisdom, efficacy or morality of laws. That question falls exclusively
within the province of Congress which enacts them and the Chief Executive who approves
or vetoes them. The only function of the courts, we reiterate, is to interpret and apply the
laws.
With respect to the penalty imposed by the trial court as affirmed by respondent court
(17 years 4 months and 1 day of reclusion temporal, as minimum, to 21 years of reclusion
perpetua, as maximum), we reduce the same in line with the fairly recent case of People v.
Lian where the Court en banc provided that the indeterminate penalty imposable for
[93]

simple illegal possession of firearm, without any mitigating or aggravating circumstance,

should be within the range of ten (10) years and one (1) day to twelve years (12) of prision
mayor, as minimum, to eighteen (18) years, eight (8) months and one (1) day to twenty (20)
of reclusion temporal, as maximum. This is discernible from the following explanation by the
Court:
"In the case at bar, no mitigating or aggravating circumstances have been alleged or proved, In
accordance with the doctrine regarding special laws explained in People v. Simon, although
[94]

Presidential Decree No. 1866 is a special law, the penalties therein were taken from the Revised
Penal Code, hence the rules in said Code for graduating by degrees or determining the proper
period should be applied. Consequently, the penalty for the offense of simple illegal possession of
firearm is the medium period of the complex penalty in said Section 1, that is, 18 years, 8 months
and 1 day to 20 years.
"This penalty, being that which is to be actually imposed in accordance with the rules therefor and
not merely imposable as a general prescription under the law, shall be the maximum of the range of
the indeterminate sentence. The minimum thereof shall be taken, as aforesaid, from any period of
the penalty next lower in degree, which is, prision mayor in its maximum period to reclusion
temporal in its medium period. [95]

WHEREFORE, premises considered, the decision of the Court of Appeals sustaining

petitioner's conviction by the lower court of the crime of simple illegal possession of firearms
and ammunitions is AFFIRMED EXCEPT that petitioner's indeterminate penalty is
MODIFIED to ten (10) years and one (1) day, as minimum, to eighteen (18) years, eight (8)
months and one (1) day, as maximum.
SO ORDERED
Narvasa, C.J. (Chairman), Davide, Jr., Melo, and Panganiban, concur.
 [A.M. No. RTJ 98-1420. October 8, 1998]

OFFICE OF THE COURT ADMINISTRATOR (OCA), complainant, vs. FLORENCIO

S. BARRON, Presiding Judge, Branch 35, Regional Trial Court of Dumaguete
City, respondent.

DECISION
PER CURIAM.:

This administrative case takes its roots from an entrapment operation conducted by the National
Bureau of Investigation (NBI) sub-office based in Dumaguete City, wherein respondent Judge Florencio
S. Barron was apprehended for having been found in possession of the marked money utilized by the
NBI in the aforementioned operation.
Judge Barron was designated as Acting President Judge of Branch 41, whereat a civil case entitled
Mainit Marine Resources Corporation, Inc. (MMRC) vs. Alex J. Amor, Jr., and the Register of Deeds of
Negros Oriental, was pending.[1]
In the morning of June 4, 1996, at around 9:00 oclock, Casildo Gabo, a retired court employee,
went to the hatchery of MMRC to see David Crear, the president. Introducing himself as Sheriff Gabo
of RTC, Branch 36, he told David Crear that Judge Barron wanted to see him at Salawaki Beach in
Zamboanguita, Negros Oriental. Crear replied that the was not feeling well but added that he would go
to Salawaki at around 3:00 oclock in the afternoon. Sensing that there was more than meets the eye in
the message of Gabo, Crear instructed Gemma Briones, the bookkeeper of MMRC, to call the NBI
office. Crear talked to Special Investigator Teodoro M. Saavedra, that he (Crear) and Judge Barron
were to meet at Salawaki Beach Resort at around 3:00 oclock in that afternoon. [2]
Agent-in-Charge Nicetas B. Hontucan instructed Special Investigator Teodoro M. Saavedra, SRA
Paterno O. Reserva and SRA Dominador D. Cimafranca[3] to proceed to the beach resort that afternoon
to conduct discreet surveillance to conform the veracity of the information communicated to them by
Crear.
Crear arrived at Salawaki on the appointed hour astride a motorcycle driven by Rosendo
Paculanang, a technician at MMRC.[4] Thereat, Judge Barron and Gabo were waiting, and so were the
NBI agents who observed them through the use of binoculars. Both Crear and Judge Barron were seen
talking at the far end of the beach, while Gabo, serving as a look out, stayed in one of the sheds.
According to Crear, he was met by Sheriff Gabo who directed him (Crear) to sit in the chair directly
outside the door of the last cottage on the southern side of the resort. Crear had hardly warmed the
chair for about five minutes when Judge Barron emerged from the cottage, casually
dressed. Respondent judge then asked Crear to sit with him at a bench out of the beach.
After the meeting, Crear went back to his office and entered on his computer his recollection of
events before and during his talk with Judge Barron as follows:

A (sic) individual identifying himself as Sheriff Cresaldo R. Gabo came to the Mainit Prawn
Hatchery at about 0900 hours on Tuesday, 4 June 1996. The man was asked what he
wanted by both Rosendo Paculanang and Gemma Briones but he refused to speak to
anyone except the kano. Mr. David Crear thereupon approached the visitor who
identified (sic) himself as the Sheriff from RTC Branch 36. The Sheriff asked Mr. Crear if
he was party to a legal dispute concerning the ownership of the land under the
hatchery. Mr. Crear replied in the affirmative.Thereupon the Sheriff indicated that he had
been directed by Judge Barron to deliver the message that Judge was waiting for me at
Salawaki Beach Resort because he wanted to talk with you about the case. A meeting
was arranged for 0300 hours for that afternoon. The Sheriff showed his laminated I.D.
card to Mr. Crear with the name Cresaldo R. Gabo and a photo that looked like a man
about 20 years younger.

That afternoon, Mr. Crear was driven to Salawaki Beach Resort on the motorbike of
Rosendo Paculanang. Upon arrival Mr. Crear was greeted by Sheriff Gabo who directed
Mr. Crear to sit in the chair directly outside the door of the last cottage on the southern
side of the resort. Mr. Crear occupied the appointed chair for a period of about five
minutes before the Judge emerged from the cottage, casually dressed. The Judge
directed Mr. Crear to accompany him to sit at the bench out on the beach. The following is
a reconstruction of the conversation that took place.

Barron: Ive asked you to come here because I want to talk to you about your case. You
see I need your help. It is clear to me as God is my witness, that you have been
wronged. I can see this from that one document that Alex Amor did not purchase the
land. And again I need your help because my wife and daughter are preparing to travel to
the United States.

Crear: Travelling to the U.S. is quite costly.

Barron: Yes, and I need your help. You see we are in a symbiotic relationship. I can help
you and you can help me. I can clearly see that it would be easy for me to write a decision
for your case that would be favorable for your situation. But I will need your help. You
know, I like working with foreigners because they understand that the salaries here in the
Philippines are very low. Honestly, if I werent a Judge I would have already gone to the
United States where I could earn more money. So, I can see that I will have to write a
decision in this case against my good friend Attorney Amor but I will do it but reluctantly
so. Of course he will appeal the decision so we have to make sure that the decision is
good. You should tell your lawyer that you must complete your testimony as soon as
possible so that it will be certain that I will be the Judge to write the decision. Maybe Judge
Villarete will return to Branch 41 but I dont think so because Ive heard that he is being
transferred to Manila. Now, I dont want you to tell either your wife or your lawyer about our
arrangement. This must be strictly confidential between the two of us. Yes, I like working
with foreigners because they understand about these things. I also like working with
Sheriff Gabo, well, we have had an understanding and have been workingtogether for
about 20 years! I often come down here to Salawaki and I can work on my legal decisions
in a quiet, clean environment. Im like you I enjoy living by the beach. You know I am
disappointed in Atty. Amor and his son Alex. They have clearly, as God is my witness,
wronged you. I also notice that Attorney Amor made a serious legal error. He notarized
(sic) the signature of his (sic) on the extra-judicial deed-of-sale. This was foolish.
Crear: Attorney Amor is guilty of much more. He has consistently aided and abetted the
theft of documents, money, and equipment committed by his son, Alex Amor, Jr. But
never mind that now.

Barron: Yes. Now you understand that we have a symbiotic arrangement and an
agreement can be arrived at to effect a favorable decision on your case. In this instance I
will have to write a decision against my good friend Attorney Amor and I will do so
reluctantly.

Crear: So what are the mechanics of this arraignment?

Barron: Well, as I said my wife and daughter will be flying to the U.S. and I think that they
will need $2,000 each.

Crear: Okay but when is all this supposed to happen?

Baron: Well, my wife and daughter are ready now.

Crear: So you are saying sooner or rather than later.

Barron: Yes

Crear: Well, how about on Saturday right here.

Barron: That would be good. Lets make it for four oclock on Saturday afternoon right here.

Crear: Okay, Ill see you next Saturday. [5]

On June 6, 1996, David Crear, along with Gemma Briones and Rosendo Paculanang executed
their respective sworn statements[6] at the NBI Dumaguete City Sub-Office. Thereafter, on June 8, 1996,
Rosendo Paculanang and David Crear gave their supplemental sworn statements. [7] Crear also filed a
complaint sheet with the NBI.[8]
Subsequently, the NBI agents drew up an entrapment plan for the respondent judge and Casildo
Gabo. Since David Crear did not have the $4,000.00 cash which the respondent asked, the NBI agents
had to improvise. The amount of P30,000.00 in 100, 50, 20 and 10 peso bills were sorted into eleven
(11) bundles to make it appear as containing P10,000.00 each thus purportedly totaling
P110,000.00[9] roughly the equivalent of $4,000.00 which respondent judge requested. The NBI
Regional Chemist, Cesar Cagalawan, marked and treated the eleven (11) bundles with fluorescent
powder at the NBI Dumaguete Sub-Office.
In the morning of June 8, 1996, the NBI operatives occupied strategic places at the Salawaki Beach
Resort. At around 4:00 P.M., Crear headed for Salawaki Beach Resort, again aboard Rosendo
Paculanangs motorcycle. At the vicinity of Mag-abo in the town of Zamboanguita, they met Judge
Barrons Mitsubishi Lancer bearing plate No. 16-G35, heading in the direction of Dumaguete City. The
car blinked its headlights signaling them to stop. Consistent with the entrapment plan, Crear was able
to convince Judge Barron to go back as Crear had left the money at Salawaki. Crear rode in Judge
Barrons car while Gabo was Paculanangs passenger on the motorcycle.
Upon their arrival at Salawaki, Crear alighted from the car and discreetly informed the NBI
operatives that the money would be delivered to Judge Barron inside the latters car. The NBI agents
then positioned themselves and waited for the pre-arranged signal. Crear returned to the car carrying
a black leatherette clutch bag containing the eleven (11) bundles of marked money amounting to
P30,000.00. Immediately after boarding the car, Crear gave the pre-arranged signal of opening the
door on his side twice, indicating that the money had been handed to and received by Judge Barron.
The NBI reported the arrest as follows:

NBI operatives then rushed up toward the car and caught Subject Barron in flagrante
delicto in possession of the marked money in the act of putting the same underneath the
drivers seat from a black leatherette clutch bag. During the arrest, Subject BARRON tried
to draw his gun from his shoulder holster but was prevented from doing so.

Subject BARRON was handcuffed and was informed of the reason for his arrest and was
likewise informed of his right under the Constitution as well as his rights under R.A. 7438.

Recovered underneath the drivers seat were the eleven (11) bundles of marked money
and a black leatherette clutch bag. Confiscated likewise from his possession was a 9mm
Cal. Browning Short Pistol with Serial No. 9203338 from his shoulder holster. [10]

After the arrest was made, respondent judge was taken to the NBI Office, were he was booked,
photographed, and fingerprinted.[11] The ultra violet light examination[12] conducted on his hands yielded
residues of the flourescent yellow powder used earlier to mark the bundles of money. The peso bills
with serial numbers and denominations were duly listed [13] by the bundle. Respondent Judge was then
turned over to the Dumaguete City police station for temporary custody and safekeeping. An
information[14] for the crime of DIRECT BRIBERY was filed before the Sandiganbayan against
Respondent Judge, as principal and Casildo Gabo, as accomplice.
On June 11, 1996, the Philippine Daily Inquirer,[15] on page 18 carried the news story NBI Arrests
Negros Judge for getting P30,000.00 bribe. Likewise, the incident came out in the Negros Chronicle on
June 16, 1996.[16]
The Office of the Court Administrator (OCA) sought[17] the assistance of NBI Director Santiago
Toledo to verify the authenticity of the news report. The OCA was then furnished with a certified copy
of the radio message received from the NBI at Dumaguete City and media Release[18] containing a case
summary and photographs of respondent judge being examined, and pictures of his car and marked
money.
In a memorandum[19] addressed to the Chief Justice, Deputy Court Administrator Bernardo P.
Abesamis recommended that respondent judge be placed under suspension and that the case be
referred to a Justice of the Court of Appeals for investigation, report and recommendation. The Court
referred[20] the case to Justice Portia Alio-Hormachuelos of the Court of Appeals.
Judge Barron, in his verified comment dated September 20, 1996 rendered his revision of the
incident as follows:

Sometime in the month of April 1996, David Crear chanced to hold my audience privately
at Lab-as Restaurant in Dumaguete City, where he frankly offered me money in exchange
for a favorable decision in Civil Case No. 10104. He offered something like P30,000.00. In
deferance to his being a foreigner, I patiently and politely told him that what he was doing
was against the law, and that besides, I was only an acting presiding judge who could be
replaced anytime by a regular judge before the case could even be decided. Thereafter,
he made more indecent calls increasing his bribe offer to P50,000.00, thence to
P100,000.00 which upset me. It was his insolent remark that even Justices are receiving
offers that made me decide that I had (sic) had enough of this mans impudence (sic). I
then referred the matter to Judge Teopisto Calumpang of RTC Branch 39, and he adviced
me to report the bribe offer to the PNP and set the entrapment of Mr. Crear (Annex D).

On May 4, 1996, I officially reported Mr. Crears bribe offer to the Dumaguete City PNP
and the same was entered in the Police Blotter (Annex E). SPO1 Burlaza and I agreed to
set the entrapment after I could get Mr. Crear to agree on the time and place of pay off. It
was our understanding that the PNP through SPO1 Burlaza, would wait for my go signal
(Annex F).

Thus, on June 4, 1996 I sent Criseldo Gabo to David Crear to inform the latter that I
wanted to meet him at Salawaki Beach Resort at Dauin, Negros Oriental. In the afternoon
of said date David Crear met me at the beach resort. There we talked about his offer. But
we could not agree on the amount even as I pretended to haggle with him. Neither could I
get a definite commitment from him as to where and when the pay-off would be made so
that I could relay it to SPO1 Burlaza. David Crear expressed surprise, though, why
suddenly I was interested in his offer which I firmly refused before. He warily said he
would like to meet me to finalize the project on June 8, 1996 at Salawaki Beach at 4:00
p.m. It was my impression that on June 8, 1996 we would agree on the amount, the place
and the time of the pay-off would be made. Thus, I went to Salawaki Beach on that day for
the purpose of obtaining said information for our planned entrapment. (At this juncture, per
affidavits with the NBI, Mr. Crear and the NBI prepared a shocking reception for me.)

I went to Salawaki Beach on June 8, 1996, a Saturday, day of the alleged entrapment and
arrest with Criseldo Gabo. After past 4:00 p.m. with no Crear on sight, I decided to go
home. On the way home I encountered Mr. Crear riding a motorcycle. He stopped me and
I went with him back to Salawaki Beach to have a talk and a drink or two.

Crear rode with me. In my car we had a chance to talk abut his offer. He told me that since
the case was scheduled for hearing on June 13, 1996 at 2:30 p.m. that would be the time
he would produce the amount of P100,000.00 at the place of my convenience in
Dumaguete City. With that information, I did not feel the need to talk with Mr. Crear any
further. The entrapment would be set.

Thus upon arriving at Salawaki Beach I did not anymore get out of my car and I told Mr.
Crear we could have our drinks some other time as I was going back to Dumaguete City
and would just see him on June 13, 1996. At this juncture, Mr. Crear frantically told me to
wait as he hurriedly went out of the car. I thought he was going back with me. After a while
I saw Mr. Crear hurrying back. He went straight inside my car, opened his black bag and
unceremoniously tossed some bundles of money to me. In reflex action I caught some
bundles while some fell on the floor. Before I could comprehend Crears act, almost
simultaneously an NBI agent opened the door of my car, pointed a gun at me, and
announced an arrest. I was then pulled out of my car and handcuffed. Then they searched
my car.
Thereafter, I was taken to the NBI office. I was not allowed to call my lawyer and was
forcibly examined for flourescent powder on my hands. They would have found some of
the powder on my lap, steering wheel, my shoes and on the hands of Mr. Crear.

After the foregoing incident David Crear reportedly left the country. [21]

In his defense, respondent judge proferred several arguments to support his innocence to
wit: (1) what happened was not an entrapment but a frame-up; (2) that he never made any gesture of
voluntarily accepting the bribe money flourescent powder notwithstanding; (3) the NBI relied on the
signal of David Crear, not on their personal discernment of what transpired in the car; and (4) that his
car was subjected to an illegal search by the NBI agents.[22] In addition to the aforementioned arguments,
the respondent judge also presented the affidavits[23] of Judge Teopisto Calumpang and SPO Avelino
Burlaza.
After Justice Hormachuelos completed her investigation, she submitted her report and
recommendation dated November 3, 1997, containing the following evaluation of the evidence
adduced, to wit:

The undersigned respectfully submits that this defense, which is in line with the thinking
that the best defense is a good offense, can not be accorded credence for the following
reasons:

1. The NBI operatives has no bias nor ill-motives against the respondent judge. As law
enforcement officers, they are presumed to have acted regularly in their performance of
their duties (Rule 31, sec.(m) Revised Rules on Evidence). Respondent attempted to
show that these NBI officers prosecuted some cases in his sala but it was not clear why
they should be aggrieved at the way this cases were handled, much less that they were so
aggrieved that they would go to the extent of cooperating with a foreigner David Crear to
manufacture evidence against a judge, who is moreover a native of Dumaguete and a
graduate of Dumaguetes prestigious Siliman University.

2. The testimony of NBI Agent Atty. Cimafranca was marked by spontaneity and
candor. At some points during his cross examination by respondent himself, Cimafranca
even engaged the latter in a frank, matter-of-fact, straightforward recall of the June 8,
1996 entrapment mentioning minutiae of the incident which could not be easily concocted
(TSN, July 8, 1997, pp. 99-138).

3. Respondents witness Judge Calumpang is his close friend and compadre while
respondent Judge Barron once served as a lawyer of the family of witness SPO1 Burlasa

4. The police blotter entry dated May 4, 1996 (Exhibit 4 for Respondent, Rollo, p. 142) is
highly suspicious, being written only on what appears to be the remaining small space at
the bottom edge of the page, hardly befitting the prestige and standing of its alleged
reporter an RTC judge, as well as the importance of the alleged incident involving an
attempt to bribe by an American national.

This investigator believes, in the light of the evidence presented, that this entry was only
intercalated to lend credence to respondents defense.
5. Respondents version itself strains ones credulity. He would have the court believe that
having had enough of Crears impudence (in allegedly offering a bribe would) he would:

a) personally report the matter to the PNP on a non-working day (Saturday, May 4, 1996)
at 3:00 oclock in the afternoon.

b) Himself personally travel to David Crears hatchery in Mainit, Zamboanguita which is at

least 30 kms. Away from Dumaguete City where his court is located in the mid-morning of
June 4, 1996, a Wednesday, merely to engage Crear in a conversation for the purpose of
entrapping him later.

c) Subsequently, undertake another distant travel 28 kms away to Salawaki Beach Resort
on a Saturday afternoon merely to determine or agree on when the pay-off would be.

It is to be noted, that notwithstanding respondents claim that he was to act as bait for the
entrapment of David Crear by the Dumaguete police, no policeman ever accompanied him either
on June 4th or June 8th when he met with David Crear. He was accompanied only by Casildo Gabo
who was not even a court employee anymore, having retired.[24]
In an effort to escape criminal liability, the respondent judge shifts the burden on the NBI by raising
the defense of frame-up. Frame-up as a defense has been invariably viewed by this Court with disfavor
for it can just easily be concocted but is quite difficult to prove.[25] And the defense of frame-up must be
proved by clear and convincing evidence because it is of the same category as alibi. [26] In the case at
bar, the respondent judge failed to present any convincing evidence to substantiate his claim. He
advances the theory that the NBI had carefully mapped out a frame-up operation against him as a
retaliatory measure for all those cases which the NBI had filed and for which he (Judge Barron) caused
the dismissal thereof. This cannot be given credence. There is no evidence on record that NBI
harboured a personal grudge against the respondent judge. Clearly what transpired was an entrapment
and not a frame-up as claimed by respondent. Entrapment has received judicial sanction as long as it
is carried out with due regard to Constitutional and legal safeguards.[27] Furthermore, there is no scintilla
of evidence that the manner by which the NBI agents conducted the operation was tainted with
illegality. This Court has held in case of Mallari vs. Court of Appeals[28] that Absent strong and convincing
proof to the contrary, this Court is bound by the presumption that the arresting officers were aware of
the legal mandates in effecting an arrest and strictly complied with the same.
The respondent judge insinuates that the search conducted on his car was illegal. We do not think
so. Where the arrest of the accused was lawful, having been caught in flagrante delicto, there is no
need for a warrant for the seizure of the fruit of the crime as well as for the body search upon him, the
same being incidental to a lawful arrest.[29] There being a lawful arrest upon the person of the respondent
judge, the NBI agents were authorized to conduct a warrantless search. In People vs. De Lara,[30] we
held: A contemporaneous search may be conducted upon the person of the arrestee and the immediate
vicinity where the arrest was made.
We have previously held that the warrantless search incidental to a lawful arrest authorizes the
arresting officer to make a search upon a person of the person arrested. Moreover, the individual being
arrested may be frisked for concealed weapons that may be used against the arresting officer and all
unlawful articles found in his person, or within his immediate control may be seized. [31]
As shown on record, a firearm was confiscated on the person of the respondent judge. There was
even an attempt on the part of the respondent judge to draw such weapon. He was only prevented from
doing so on account of the timely confiscation of the firearm by the agents. The search, being merely
an incident to the lawful arrest, cannot be stigmatized as unlawful. [32]
 The respondent judge denied accepting the bribe money despite the presence of fluorescent
powder on his hands. He claims that the money was unceremoniously tossed to him.[33]Such statement
deserves scant consideration. The pictures taken immediately after the arrest reveal that the bundles
of money were neatly placed under the drivers seat. If the bundles of money were unceremoniously
tossed to him, it is difficult to understand how all the money found themselves orderly placed under the
his seat. Furthermore, the incident report filed by the NBI showed that he was caught placing the money
under the drivers seat.
Respondent Judge further contends that the NBI relied on the signal of David Crear, and not on
their personal discernment of what transpired inside the car.[34]
The means employed and the manner by which the entrapment operation was conducted is
assailed by the respondent judge. The reliance of the NBI agents on the signal given by Crear was
appropriate. It was the manner by which Crear would convey to the agents that the marked money was
already in possession of the respondent judge. The arresting officers could not place themselves in a
conspicuous position where they could easily be seen by the respondent judge as the said transaction
was supposedly between Crear and Judge Barron only. It must be noted that ways and means are
resorted to for the purpose of trapping and capturing the lawbreaker in the execution of his criminal
plan.[35] Entrapment is not a bar to the prosecution and conviction of the lawbreaker.
As regards the testimonies given by the witnesses presented by the respondent judge, little, if any
should be given.
First, the deposition of Judge Teopisto Calumpang Sr. was taken when he was still confined at the
Holy Child Hospital. Although he was able to attest to the contents of his affidavit and confirm his
signature, he could not effectively and intelligently relate the surrounding circumstances leading to the
execution of said affidavit, as he was too sick to do so. In addition, Judge Calumpang was
a compadre and a good friend of the respondent judge.
Secondly, the testimony of SPO1 Avelino Burlaza is wanting in substantial veracity to warrant
credence and the necessary logic to elicit belief. We agree with the findings of the special investigator
that the manner by which the alleged bribe attempt was reported was not commensurate to the stature
of the judge. It was observed that the entry in the police blotter was hurriedly written, while the other
entries in the same book appeared to be written more deliberately. Likewise, it was noted that the entry
seemed cramped as it was written at the bottom of the page, leaving the impression that it was a
fabricated entry.
Moreover, when the alleged bribe attempt was reported, SPO1 Burlaza did not even bother to
inquire as to the amount involved and the relevant facts relative to a reported crime. In addition, Burlaza
did not inform his superior of the bribe attempt. His explanation is that he waited for the respondent
judges go signal before he would report the entrapment plan to his superiors. Again, this is contrary to
the standard operating police procedures. What further taints the credibility of this police officer is that
respondent judge was once a family lawyer of Burlaza.
All told, a judge should always be a symbol of rectitude and propriety comporting himself in a
manner that will raise no doubt whatsoever about his honesty.[36] The conduct of respondent judge show
that he can be influenced by monetary considerations. His act of demanding and receiving money from
a party-litigant constitutes serious misconduct in office. It is this kind of gross and flaunting misconduct,
no matter how nominal the amount involved on the part of those who are charged with the responsibility
of administering the law and rendering justice quickly, which erodes the respect for law and the courts. [37]
Respondent judge tainted the image of the Judiciary to which he owes fealty and the obligation to
keep it at all times unsullied and worthy of the peoples trust. [38] There is no place in the Judiciary for
those who cannot meet the exacting standards of judicial conduct and integrity. [39] Respondent judge
does not deserve to remain in the Judiciary and should accordingly be removed from the service. [40]
 IN VIEW OF THE FOREGOING, the Court resolved to DISMISS respondent Judge Florencio S.
Barron from the service with FORFEITURE of all retirement benefits and priveleges. He is likewise
DISQUALIFIED from re-employment in any branch or instrumentality of the government, including
government-owned or controlled corporations. This decision shall be immediately executory.
SO ORDERED.
Regalado,(Acting C.J.), Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Martinez, Quisumbing, and Purisima, JJ., concur.
Narvasa, C.J., on official leave.
 [G.R. No. 127801. March 3, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SAMUEL YU VALDEZ @

Bebot, accused-appellant.

DECISION
QUISUMBING, J.:

This is an appeal from the decision[1] rendered on November 4, 1996, by the Regional Trial Court of Lagawe,
Ifugao, Branch 14, in Criminal Case No. 930, which found Samuel Valdez guilty of the crime of illegal transport
of marijuana buds/leaves and sentencing him to reclusion perpetua and to pay a fine of P500,000.00.
In an information dated December 28, 1994, Provincial Prosecutor Jose Godofredo Naui charged herein
accused-appellant with violation of Section 4 of Republic Act No. 6425, as amended, otherwise known as
Dangerous Drugs Act of 1972, allegedly committed as follows:

That on or about the 1st day of September, 1994, in the Municipality of Hingyon, Ifugao and within
the jurisdiction of the Honorable Court, the above-named accused, while on board a Dangwa
Tranco bus bound for Manila, did then and there, wilfully and unlawfully transport marijuana
weighing more or less two kilos packed in two separate containers.

CONTRARY TO LAW.[2] 2

Upon arraignment, herein accused-appellant, assisted by counsel, entered a plea of not guilty. Thereafter,
trial on the merits ensued. Subsequently, the trial court rendered the assailed judgment, the dispositive portion of
which reads:

From the foregoing, the prosecution having proven the guilt of the accused beyond reasonable
doubt, he is hereby sentenced to suffer the penalty of reclusion perpetua. He is fined the amount of
Five Hundred Thousand (P500,000.00) Pesos. The drug in question is ordered forfeited in favor of
the government.

SO ORDERED.[3]

The prosecutions evidence upon which the finding of guilt beyond reasonable doubt was based is summarized
by the trial court as follows:

In the morning of September 1, 1994, SPO1 Bernardo Mariano was in the Municipality of Banaue,
Ifugao waiting for a ride to report for work in Lagawe, Ifugao. A civilian asset approached him and
intimated that an Ilocano person was ready to transport marijuana. This asset described to him the
physical appearance of the suspect as thin and possessing a green bag. Mr. Mariano invited the
asset and together they proceeded to Barangay O-ong, Hingyon, Ifugao. There they alighted and
stopped and ordinary Dangwa passenger bus bound for Baguio City. Aboard on this bus, they did
not find the person concerned and reaching Barangay Pitawan, Hingyon, Ifugao, they stepped out
of the vehicle and waited for the air conditioned Dangwa bus bound for Manila. When this bus
arrived, Police Officer Mariano boarded the aircon bus and looked for that person from among the
passengers and noticed him holding the green bag. He immediately ordered the person to get out of
the bus. This fellow followed holding the bag. Once outside, he further ordered the suspect to open
the bag and saw a water jug colored red and white and a lunch box. He told this man to open the
jug and the lunch box and when opened, he saw marijuana leaves as contents. At this time, suspect
revealed his name to be Samuel Yu Valdez. With this discovery, the asset was left behind and
Peace Officer Mariano escorted the accused to the Philippine National Police (PNP) Provincial
Headquarters at Lagawe, Ifugao. He turned over the accused including the contents of the green
bag to his superiors for further investigation.[4]

In open court, SPO1 Bernardo Mariano identified the water jug, the lunch box, both stuffed with dried
marijuana leaves and the green bag. He further identified the accused as the same person from whom he seized
the prohibited drug. Police Senior Inspector Alma Margarita Villasenor, Forensic Chemist, PNP Crime
Laboratory, Camp Dangwa, La Trinidad, Benguet averred that from her laboratory examination, the items or
samples taken from the water jug and lunchbox gave positive results to the test for the presence of marijuana, a
prohibited drug.
Only the accused testified in his defense. His testimony is narrated by the trial court as follows:

Accused is a resident of Barangay Gumol, Guimba, Nueva Ecija and knows construction work and
more often than not, his co-worker is a certain Edwin Andres from Cabanatuan City who married
one from Banaue, Ifugao. Upon the invitation of Edwin Andres to attend the latters birthday
celebration slated on August 31, 1994, accused and Edwin Andres arrived in Banaue, Ifugao on
August 30, 1994. The next day, August 31, 1994, accused partook of the birthday party and the
following morning September 1, 1994, he was bound for Nueva Ecija taking the 7:00 oclock in the
morning Dangwa bus. Because of too much intake of liquor (hang-over), when he boarded the bus,
he still felt groggy and sat alone on a seat near the window. While the bus was proceeding, he felt
sleepy on that seat still alone. His bag was placed on the right side and the green bag was place
under the seat to the right. Feeling sleepy, he noticed somebody or a passenger seated beside him
and later he also felt and noticed that his seatmate was gone and at this time he was awakened by a
tap on his shoulder. He saw two persons standing and one of them mentioned as Mariano who he
thought at first was the bus inspector as he was in fatigue uniform. Then this Mariano asked him
whether or not he owns the green bag but he replied saying I do not know. I have a fellow seated
with me here but he is no more. He was made to step out of the bus and there he was forced to
declare that he is the owner of the bag. The other policeman was nearby who pointed to the green
bag. That the two policemen were the ones who opened that bag and its contents were
marijuana. Thereafter, he was brought to the PNP Provincial Headquarters (termed by the accused
as barracks) in Lagawe, Ifugao. When brought to said office, he saw many people possibly police
or soldiers.He was later on investigated and showed them the bag. He was told to stay for a while in
the jailhouse. He could remember that he was made to sign some papers or documents which he did
not read. After an overnight stay at the barracks, he was brought to the hospital for medical
examination about the pain on his breast but kept mum on the blow delivered by Bernardo Mariano
at the waiting shed where he was first aprehended. That from the hospital, he was brought to the
Municipal Jail and later to the Provincial Jail for further detention.[5]

Appellant, through his counsel, Public Attorneys Office, raised the following assignment of errors in his
appeal:
I

THE COURT A QUO ERRED IN ADMITTING THE SEIZED DRUGS IN EVIDENCE.

 II

THE COURT A QUO ERRED IN CONVICTING THE ACCUSED DESPITE THE FAILURE
OF THE PROSECUTION TO PROVE HIS GUILT OF THE CRIME CHARGED BEYOND
REASONABLE DOUBT.[6]

Appellant contends that the marijuana allegedly seized from him was a product of an unlawful search, hence,
inadmissible in evidence.
The resolution of this case hinges on the pivotal question of the constitutionality and legality of the arrest and
search of herein appellant effected by the police officer.
Settled is the rule that no arrest, search and seizure can be made without a valid warrant issued by a competent
judicial authority. The Constitution guarantees the right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures.[7] It further decrees that any evidence obtained in violation
of said rights shall be inadmissible for any purpose in any proceeding.[8]
The abovementioned constitutional provisions serve as safeguards against wanton and unreasonable invasion
of the privacy and liberty of a citizen as to his person, papers and effects. The right of a person to be secure against
any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. A
statute, rule or situation which allows exceptions to the requirement of a warrant of arrest or search warrant must
be strictly construed. We cannot liberally consider arrests or seizures without warrant or extend their application
beyond the cases specifically provided or allowed by law. To do so would infringe upon personal liberty and set
back a basic right so often violated and yet, so deserving of full protection and vindication.[9]
Nevertheless, the constitutional proscription against warrantless searches and seizures admits of certain legal
and judicial exceptions, as follows: (1) warrantless search incidental to a lawful arrest recognized under Section
12, Rule 126 of the Rules of Court and by prevailing jurisprudence; (2) seizure of evidence 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.[10]
On the other hand, a lawful arrest without a warrant may be made by a peace officer or a private person under
the following circumstances:

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

(b) When an offense has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or
place where he is serving final judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.[11]

In this case, appellant was caught in flagrante since he was carrying marijuana at the time of his arrest. A
crime was actually being committed by the appellant, thus, the search made upon his personal effects falls
squarely under paragraph (a) of the foregoing provisions of law, which allow a warrantless search incident to
lawful arrest. While it is true that SPO1 Mariano was not armed with a search warrant when the search was
conducted over the personal effects of appellant, nevertheless, under the circumstances of the case, there was
sufficient probable cause for said police officer to believe that appellant was then and there committing a crime.
Although the term eludes exact definition, probable cause signifies a reasonable ground of suspicion
supported by circumstances sufficiently strong in themselves to warrant a cautious mans belief that the person
accused is guilty of the offense with which he is charged; or the existence of such facts and circumstances which
could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the items,
articles or objects sought in connection with said offense or subject to seizure and destruction by law is in the
place to be searched.[12] The required probable cause that will justify a warrantless search and seizure is not
determined by a fixed formula but is resolved according to the facts of each case.[13]
Our jurisprudence is replete with instances where tipped information has become a sufficient probable cause
to effect a warrantless search and seizure.[14]
In People v. Tangliben,[15] two police officers and a barangay tanod were conducting surveillance mission at the Victory Liner
terminal compound in San Fernando, Pampanga against persons who may commit misdemeanors and also on those who may be engaging
in the traffic of dangerous drugs based on information supplied by informers. At 9:30 in the evening, the policemen noticed a person
carrying a red travelling bag who was acting suspiciously. An informer pointed to the accused-appellant as carrying marijuana. They
confronted him and requested him to open his bag but he refused. He acceded later on when the policemen identified themselves. Inside
the bag were marijuana leaves wrapped in a plastic wrapper. The police officers only knew of the activities of Tangliben on the night of
his arrest. Hence, faced with such on-the-spot tip, the police officers acted quickly as there was not enough time to secure a search
warrant.

In People v. Maspil,[16] a checkpoint was set up by elements of the First Narcotics Regional Unit of the
Narcotics Command at Sayangan, Atok, Benguet, to monitor, inspect and scrutinize vehicles on the highway
going towards Baguio City. This was done because of a confidential report by informers that Maspil and Bagking,
would be transporting a large quantity of marijuana to Baguio City. In fact, the informers were with the policemen
manning the checkpoint. As expected, at about 2 oclock in the early morning of November 1, 1986, a jeepney
approached the checkpoint, driven by Maspil, with Bagking as passenger. The officers stopped the vehicle and
saw that on it were loaded 2 plastic sacks, a jute sack, and 3 big round tin cans. When opened, the sacks and cans
were seen to contain what appeared to be marijuana leaves. The policemen thereupon placed Maspil and Bagking
under arrest, and confiscated the leaves which, upon scientific examination, were verified to be marijuana
leaves. The Court upheld the validity of the search thus conducted, as being incidental to lawful warrantless arrest
and declared that Maspil and Bagking had been caught in flagrante delicto transporting prohibited drugs.
In People v. Malmstedt,[17] Narcom agents set up checkpoint at Acop, Tublay, Mountain Province in view of
reports that vehicles coming from Sagada were transporting marijuana. They likewise received information that
a Caucasian coming from Sagada had in his possession prohibited drugs. There was no reasonable time to obtain
a search warrant, especially since the identity of the suspect could not be readily ascertained. Accuseds actuations
also aroused the suspicion of the officers conducting the inspection aboard the bus. The Court held that in light
of such circumstances, to deprive the agents of the ability and facility to act promptly, including a search without
a warrant, would be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society.
In People v. Bagista,[18] the NARCOM officers had probable cause to stop and search all vehicles coming
from the north to Acop, Tublay, Benguet in view of the confidential information they received from their regular
informant that a woman having the same appearance as that of accused-appellant would be bringing marijuana
from up north. They likewise had probable cause to search accused-appellants belongings since she fitted the
description given by the NARCOM informant.
In Manalili v. Court of Appeals,[19] the policemen conducted a surveillance in an area of the Kalookan
Cemetery based on information that drug addicts were roaming therein. Upon reaching the place, they chanced
upon a man in front of the cemetery who appeared to be high on drugs. He was observed to have reddish eyes and
to be walking in a swaying manner. Moreover, he appeared to be trying to avoid the policemen. When approached
and asked what he was holding in his hands , he tried to resist. When he showed his wallet, it contained
marijuana. The Court held that the policemen had sufficient reason to accost accused-appellant to determine if he
was actually high on drugs due to his suspicious actuations, coupled with the fact that based on information, this
area was a haven for drug addicts.
As in the instant case, police officer Mariano was tipped off by a civilian asset that a thin Ilocano person with
a green bag was about to transport marijuana from Banaue, Ifugao. Said information was received by SPO1
Mariano the very same morning he was waiting for a ride in Banaue to report for work in Lagawe, the capital
town of Ifugao province. Thus, face with such on-the-spot information, the law enforcer had to respond quickly
to the call of duty. Obviously, there was not enough time to secure a search warrant considering the time involved
in the process. In fact, in view of the urgency of the case, SPO1 Mariano together with the civilian asset proceeded
immediately to Hingyon, Ifugao to pursue the drug trafficker. In Hingyon, he flagged down buses bound for
Baguio City and Manila, and looked for the person described by the informant. It must be noted that the target of
the pursuit was just the thin Ilocano person with a green bag and no other. And so, when SPO1 Mariano inspected
the bus bound for Manila, he just singled out the passenger with the green bag. Evidently, there was definite
information of the identity of the person engaged in transporting prohibited drugs at a particular time and
place.SPO1 Mariano had already an inkling of the identity of the person he was looking for. As a matter of fact,
no search at all was conducted on the baggages of other passengers. Hence, appellants claim that the arresting
officer was only fishing for evidence of a crime has no factual basis.
Clearly, SPO1 Mariano had probable cause to stop and search the buses coming from Banaue in view of the
information he got from the civilian asset that somebody having the same appearance as that of appellant and
with a green bag would be transporting marijuana from Banaue. He likewise had probable cause to search
appellants belongings since he fits the description given by the civilian asset. Since there was a valid warrantless
search by the police officer, any evidence obtained during the course of said search is admissible against appellant.
Appellant likewise asserts that the prosecution failed to prove his guilt beyond reasonable doubt. He claims
that when SPO1 Mariano apprehended him, he was not in possession of the green bag as the same was under the
seat before him.
The assertion is incredulous.
As SPO1 Mariano declared in his testimony, the appellant was alone in his seat and the green bag was placed
under the seat just in front of appellant. SPO1 Mariano testified as follows:
Q: How about this travelling bag, the green bag, is it not that this bag was placed considerably far from the accused?
A: The green bag was placed just in front of him.
Q: But he was not holding the bag, is it not?
A: No.
Q: So he was not in possession of this bag when you apprehended him?
A: No.
Q: And of course there were other passengers aside from the accused?
A: There were other passengers but he was alone on that seat.
Q: How about the seat fronting this accused, is it not that there was a person seated in front?
A: Yes, there were.
Q: And upon seeing the accused you ordered him to get that bag?
A: Yes.
Q: And you told him to get the bag and alight from the bus?
A: I told him, you get off the bus, and I told him to carry his bag.[20]
From the foregoing testimony, it can be gleamed that when appellant was asked to get off the bus and bring
his bag, appellant brought with him said bag. If, indeed, the bag was not his, he should not have taken it with him
in alighting from the bus. Besides, denial, like alibi, if not substantiated by clear and convincing evidence, is
negative and self-serving evidence bearing no weight in law.[21]
Appellant further avers that the civilian asset should have been presented in court to shed light on how he
managed to get his information. This argument is not tenable. The settled rule is that the presentation of an
informant in illegal drugs case is not essential for conviction nor is it indispensable for a successful prosecution
because his testimony would be merely corroborative and cumulative.[22]
Based on the foregoing, this Court is convinced that the guilt of appellant has been proven beyond reasonable
doubt by the evidence on record.
With the enactment and effectivity of R.A. No. 7659,[23] the penalty imposable upon violators of Section 4 of
Dangerous Drugs Act is reclusion perpetua to death and a fine ranging from five hundred thousand pesos
(P500,000.00) to ten million pesos (P10,000,000.00) if the marijuana involved weighs 750 grams or more. In this
case, the quantity of marijuana involved weighs more or less two kilograms, hence, the applicable penalty
is reclusion perpetua to death. Since the imposable penalty is composed of two indivisible penalties, the rules for
the application of indivisible penalties under Article 63 of the Revised Penal Code should be applied. This is
pursuant to our pronouncement in People vs. Simon[24] where we recognized the suppletory application of the rules
on penalties in the Revised Penal Code as well as the Indeterminate Sentence Law to the Dangerous Drugs Act
after the amendment of the latter by R.A. No. 7659.[25] Thus, as there is neither mitigating nor aggravating
circumstances in the commission of the crime, the trial court correctly imposed the lesser penalty of reclusion
perpetua. Finally, considering that the penalty imposed is the indivisible penalty of reclusion perpetua, the
Indeterminate Sentence Law could not be applied.[26]
WHEREFORE, the instant appeal is DENIED. The judgment of the lower court finding appellant guilty of
the crime illegal transport of marijuana and sentencing him to reclusion perpetua and to pay fine of P500,000.00
is hereby AFFIRMED. Costs against appellant.
SO ORDERED.
Bellosillo, (Chairman), Puno, Mendoza, and Buena, JJ., concur.
 [G.R. No. 120852. October 28, 1999]

BENJAMIN D. OBRA and BRIG. GEN. TOMAS DUMPIT, petitioners, vs. COURT OF
APPEALS, SPOUSES JAMES BRETT and JUNE PRILL BRETT, respondents.

DECISION
MENDOZA, J.:

This is a petition for review on certiorari of the decision,[1] dated June 21, 1995, of the Court of
Appeals affirming an award of P100,000.00 for violation of constitutional right and P10,000.00 for
attorneys fees made by the Regional Trial Court, Branch 8, of Baguio and Benguet in favor of private
respondents.
The facts are as follows:
Petitioner Benjamin D. Obra was, at the time material to this case, the Regional Director of the
Bureau of Mines and Geo-Sciences (BMGS) in Baguio City. On June 26, 1985, Jeannette M. Grybos
wrote him a letter on behalf of the Gillies heirs of Palasa-an, Mankayan, complaining that private
respondents, spouses James Brett and June Prill Brett, had been conducting illegal mining activities
in an area in Bgy. Palasa-an, Mankayan, Benguet belonging to Gillies family. It was alleged:

A certain James Brett and June Prill Brett have since 1981 been illegally mining the above-named
Gillies property, extracting ore and mining without permit. We would like therefore to have their
operations investigated and inspected. We request further that their operations be stopped and their
mining equipments (sic) be confiscated. For your ready reference we are enclosing some
documents and pictures regarding the matter.

On the same day, petitioner Obra wrote Brig. Gen. Tomas Dumpit, then the Commanding
General of the Regional Unified Command I (RUC-1) of the Philippine Constabulary (PC), with
headquarters at Camp Bado Dangwa, La Trinidad, Benguet, requesting assistance in apprehending a
truck allegedly used by private respondents in illegal mining in the area. The pertinent portion of
Obras letter to Dumpit reads:

[In connection with the complaint of Ms. Jeannette M. Grybos,] we are enlisting the assistance of
your command by way of checking and apprehending a truck colored blue and yellow lining which
is used in transporting illegally mined ores from Palasa-an, Mankayan, Benguet to Baguio
City. Said vehicle passes through the military outpost located at the main entrance of Camp
Dangwa.

Kindly call up the Bureau of Mines and Geo-Sciences, Baguio, when such truck will be
apprehended so that this Office could take appropriate action therein.

The following day, June 27, 1985, petitioner Obra wrote private respondents and Ms. Grybos,
informing them that the BMGS was going to conduct an ocular inspection and field investigation on
July 2-5, 1985 at Palasa-an, Mankayan, Benguet in connection with Grybos complaint and requesting
them and their witnesses to be present at the investigation so that all legal and technical matters, as
well as the facts surrounding the case, shall be gathered and collated in order for this Office to take
the appropriate action thereon. . . .
Copies of the letters were furnished petitioner Dumpit with the request that assistance be
extended by RUC-1 to insure the success and peaceful outcome of the investigation. Supposedly
attached to the request was a certified true copy of a certification, dated June 20, 1985, made by the
BMGS stating that no Mines Temporary Permit, Small-Scale Mining Permit or any permit was issued
to James Brett within the Gillies Property in Palasa-an, Mankayan, Benguet.
A similar letter[2] was sent by petitioner Obra on June 27, 1985, to Col. Bernardo Estepa,
Provincial Commander of Benguet, with the request that the latter stop momentarily any mining
operation or activity, if there be any, of James and June Prill Brett in Palasa-an, Mankayan, Benguet
until the controversy or case has been resolved by [the BMGS].
Accordingly, elements of RUC-1 under Major Guillermo Densen and led by SGT. Josefino A.
Morales seized, on July 1, 1985, an Isuzu ELF truck (ABX-587) belonging to private respondents as
it was entering the Mamakar mining area in Palasa-an, Mankayan, Benguet. The truck was
impounded by the military and prevented from leaving the area except on mercy missions to transport
sick soldiers and workers to the hospital and when used to buy food supplies for the men inside the
camp.[3]
Private respondents then filed a complaint[4] for injuction and damages, with an application for
temporary restraining order, with the Regional Trial court, Branch 8, of Baguio and Benguet. They
alleged that the truck had been seized without prior investigation to determine the existence of
probable cause and that this was in violation of private respondents constitutional rights under Art.
32, in relation to Arts. 19, 20 and 21, of the Civil Code.
On July 18, 1985, the trial court issued a temporary restraining order directing petitioners to cease
and desist from preventing the subject truck from leaving the mine site. [5] On August 8, 1985, the
court issued a writ of preliminary injunction.
After trial, the court gave judgment to private respondents. It found that no investigation had
been conducted either by petitioner Obra or his office or by petitioner Dumpit to verify the complaint
of Jeannette Grybos before the vehicle was ordered seized by them, and that, as a result, private
respondents had been deprived of the use and enjoyment of property without due process of
law. Accordingly, the trial court ruled that, under Art. 32 of the Civil Code and the ruling in Aberca
v. Ver,[6] private respondents wer entitled to actual and compensatory damages, moral damages, and
exemplary damages in the total amount of P100,000.00 and attorneys fees in the total amount of
P10,000.00, plus costs of suit.
On appeal, the appellate court affirmed the decision in toto. Hence, this petition. Petitioners
contend:
1. PETITIONERS COULD NOT BE HELD LIABLE FOR DAMAGES IN THE PERFORMANCE OF THEIR
DUTY IN GOOD FAITH.
2. PETITIONERS ARE ENTITLED TO AN AWARD OF DAMAGES.
The contentions are without merit. The decision of the Court of Appeals is affirmed.
Petitioners invoke P.D. No. 1281, as amended, authorizing the Regional Director of the BMGS
to order the seizure and confiscation, in favor of the Government, of the tools and equipment used in
the commission of an offense and to deputize, when necessary, any member or unit of the PC, police
agency, barangay or any qualified person to police mining activities. [7] They claim that petitioner
Obra made his request to his co-petitioner in good faith and solely for the purpose of maintaining
the status quo while the investigation of Grybos complaint was being conducted, after finding that
private respondents had no permit to conduct mining activities in the contested area.
The provisions of P.D. No. 1281, which petitioners invoke in their defense, read:

Sec. 3. The Bureau of Mines shall have the following powers and functions, to wit:

....

f.) To arrest or order the arrest, even without warrant, of any person who has committed or is in the
act of committing any of the offenses defined under Presidential Decree No. 463, or any other laws
being implemented by the Bureau of Mines, and seize and confiscate or order the seizure and
confiscation, in favor of the government, of the tools and equipment used in the commission of the
offense and the minerals extracted by the offender, and institute whatever action that may be
necessary relative thereto;

g.) To deputize, when necessary, any member or unit of the PC, police agency, barangay or any
qualified person to police all mining activities;

....

Sec. 6. The Bureau of Mines shall have jurisdictional supervision and control over all holders of
mining claims or applicants for and/or grantees of mining licenses, permits, leases and/or operators
thereof, including mining service contracts and service contracts insofar as their mining activities
are concerned; and in the exercise of such authority, it shall have the power to enlist the aid and
support of all law enforcement agencies of the Government, civil and/or military.

Petitioners contend that these provisions of the Decree were justified under Art. IV, 3 of the 1973
Constitution which provided that

The right of the people to be secure in their persons, houses, papers, and effects aginst unreasonable
searches and seizures of whatever nature and for any purpose shall not be violated, and no search
warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge,
or such other responsible officer as may be authorized by law, after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing the
place to be searched, and the persons or things to be seized.[8]

The above provision of the 1973 Constitution, however, merely validated the grant by law to
nonjudicial officers of the power to issue warrants of arrest or search warrants, but did not in any
way exempt these officers from the duty of determining the existence of probable cause as basis for
the issuance of such warrants. Indeed, the issue in this case is not whether petitioner Obra had
authority to issue a search warrant and to deputize the military to assist in his investigation. The
question is whether he conducted an investigation and found probable cause for ordering the seizure
and impoundment of private respondents vehicle. The answer is: he did not. To the contrary, as
petitioner Obras letters to private respondents and to Grybos clearly stated, an investigation was to
be held on July 2-5, 1985 precisely to determine the veracity of the allegations in Grybos complaint.
Apparently, petitioner Obras only basis for ordering the seizure of the vehicle was an alleged
certification from the BMGS that no mining permit had been issued to private respondents. The
certification, however, was not presented in evidence nor does a copy thereof appear in the records.
On the contrary, in its resolution[9] dated may 12, 1986, the BMGS found that private respondent
June Prill Brett had a valid and subsisting mining claim within the area and that it was the Gillies
family which had no permit or lease from the government, although it was the first to work the claim.
Nor indeed could the seizure of the vehicle be justified under the moving vehicle doctrine.[10] The
truck was seized while it was entering the mining area; it was not transporting minerals outside of
the area.[11] As held in People v. Bagista,[12]

With regard to the search of moving vehicles, this had been justified on the ground that the mobility
of motor vehicles makes it possible for the vehicle to be searched to move out of the locality or
jurisdiction in which the warrant must be sought.

This is in no way, however, gives the police officers unlimited discretion to conduct warrantless
searches of automobiles in the absence of probable cause. When a vehicle is stopped and subjected
to an extensive search, such a warrantless search has been held to be valid as long as the officers
conducting the search have reasonable or probable cause to believe before the search that they will
find the instrumentality or evidence pertaining to a crime in the vehicle to be searched.

There could not have been, therefore, any finding of probable cause that the truck was being used
for any illegal mining activities.
As we said in Aberca v. Ver,[13] the military is not to be restrained from pursuing their task or
carrying out their mission with vigor. However, in doing so, care must be taken that constitutional
and legal safeguards are not disregarded. In this case, there was absolutely no justification for the
disregard of procedures for issuing search and seizure orders.
The Court of Appeals rightly concluded then that petitioners violated private respondents
constitutional rights to due process and to security against unreasonable searches and seizure in
ordering the seizure and impoundment of private respondents vehicle. For as the trial court held:[14]

From all the above arguments and counter-arguments, the Court finds that the petitioners do not
seriously dispute that the private respondents were, indeed, deprived of the use of their Isuzu ELF
Truck when the private respondents foreman and the driver of the truck were told by SGT. Morales
of the RUC-I that the same could not leave the mining area in Palasa-an, Mankayan, Benguet, per
orders, and the same was parked in front of the building where the military team specifically
assigned for that particular mission was staying. The arguments of the petitioners that there was no
destraint and/or seizure because the keys of the truck were always in the possession of private
respondents driver Kiyabang, that, on several occasions, the truck left the Palasa-an mining area, . .
. and that the private respondents voluntarily and maliciously refused to use or enjoy their own
truck . . . are facetious, to say the least, and deserve no serious consideration, in the light of the
undisputed fact that the military men led by Sgt. Morales did not allow him to drive the truck out of
the Palasa-an mining area, and on those occasions when he drove the truck out of the mining area,
it was on missions of mercy and for purposes of the needs of the military personnel assigned in the
Palasa-an mining area, and these, always with a soldier on board the truck. There was, therefore, a
distraint and at least constructive seizure by the military men led by Sgt. Morales, as per orders, of
the Isuzu Ilf truck of the private respondents, effectively depriving the latter of its use and
enjoyment of their property.

Likewise, it is not disputed by the petitioners that Petitioner Obras request for the checking and
apprehending of private respondents truck by Petitioner Dumpits RUC-I Command on June 26,
1985 (Exh. C) and the actual apprehension of said truck by Sgt. Morales and his men on July 1,
1985, were not preceded by and based on an investigation conducted by Petitioner Obra or his
Office, but, instead, were based on the letter-complaint of Jeannette Grybos received by said Office
also on June 26, 1985 (Exh. B). The petitioners claim that this did not violate the constitutional
right of the private respondents to due process because of the aforequoted reasons completely
ignores the fundamental rule that laws should not be so interpreted or implemented as to violate the
provisions of the constitution. Specifically, Petitioner Obras interpretation of the law that grants
him jurisdictional supervision and control over persons and things that have something to do with
mines and mining (Sec. 6, P.D. No. 1281) authorizes him to distrain and seize private respondents
truck, as he actually did through Sgt. Morales and his men, without prerequisite conditions such as
a prior preliminary investigation of the case (taken from the above quotation from petitioners
Memorandum), clearly violates the provision of the Bill of Rights on due process . . .

These findings and conclusions of the trial court, as affirmed by the Court of Appeals, are binding
on this Court in the absence of any showing that they are contrary to the evidence in the record. [15]
On the other hand, petitioner Dumpit claims that unlike the superior officers in Aberca, he had
no knowledge of the acts of his subordinates since they did not file an after-incident report which
was the standard procedure in these cases. He claims that all he did was to endorse the request to
Major Densen, the Intelligence Officer of RUC-1, to coordinate with the BMGS and implement the
order accordingly.
These contentions have no merit. It was sufficiently proved in this case that the seizure of the
truck was effected upon the orders of petitioner Dumpit, acting on the request of petitioner
Obra. Private respondents witnesses testified that when they asked the military men who stopped
them upon their entry to the Mamakar mining site, the soldiers told them that they were acting upon
the orders of the general in Camp Dangwa.[16] Sgt. Morales even issued a certification that the truck
was seized as per orders.[17] Petitioner Dumpit himself testified, thus:
SOL. DAVID:
Q This letter refers to a complaint by Mrs. Jeannette M. Grybos, when you received that letter of Engr. Obra, what action,
if any, did you take?
A On the letter of Director Obra dated June 26, 1985, whereby he was requesting assistance, the first thing I did is just
to designate an action officer and my instruction is to coordinate with Director Obra and undertake necessary action.
....
A I referred that letter when I received it from Director Obra to the Action Officer, the late Maj. Guillermo Densen. [18]
ATTY. GALACE:
Q Major Densen did not go to the mining site of [Palasa-an]?
 A My instruction was very clear, coordinate with Director Obra and take the necessary appropriate action, period. That
was my only instruction to the late Maj. Densen.
Q You did not authorize Maj. Densen to enter the mining site and that all operations in the mining area will be stopped?
A I left it to the discretion of my subordinate, your Honor.[19]

Art. 32 of the Civil Code makes liable any public officer who is directly or indirectly responsible
for violating an individuals constitutional rights. The ruling in Aberca, which has been reiterated in
subsequent cases,[20] is stated as follows:

. . .[T]he decisive factor in this case, in our view, is the language of Article 32. The law speaks of
an officer or employee or person directly of indirectly responsible for the violation of the
constitutional rights and liberties of another. Thus, it is not the actor alone (i.e., the one directly
responsible) who must answer for damages under Article 32; the person indirectly responsible has
also to answer for the damages or injury caused to the aggrieved party.

. . .While it would certainly be too nave to expect that violators of human rights would easily be
deterred by the prospect of facing damage suits, it should nonetheless be made clear in no uncertain
terms that Article 32 of the Civil Code makes the persons who are directly, as well as indirectly,
responsible for the transgressions joint tortfeasors.[21]

It was clear from petitioner Obras letter to petitioner Dumpit that assistance wa sought for the
seizure of private respondents truck. Thus, when petitioner Dumpit endorsed the request to his
subordinates for proper action, there could not have been any other forseeable consequence but the
eventual seizure of the truck.
Petitioner Dumpit cannot evade responsibility for his acts by claiming that he merely performed
a ministerial duty in ordering the implementation of petitioner Obras request. Otherwise, Art. 32
could easily be avoided by the mere plea that the officer concerned was only carrying out a ministerial
duty. Petitioner Dumpit was a ranking military official. It is unseemly for him to claim that he was
merely executing a ministerial act.
WHEREFORE, the petition is DISMISSED and the decision of the Court of Appeals is hereby
AFFIRMED.
SO ORDERED.
RODEL LUZ y ONG, G. R. No. 197788
Petitioner,

Present:

CARPIO, J., Chairperson,

- versus - BRION,
PEREZ,
SERENO, and
REYES, JJ.

PEOPLE OF THE Promulgated:

[1]
PHILIPPINES,
Respondent. February 29, 2012
x--------------------------------------------------x

DECISION

SERENO, J.:

This is a Petition for Review on Certiorari under Rule 45 seeking to set aside the Court of
Appeals (CA) Decision in CA-G.R. CR No. 32516 dated 18 February 2011[2]and Resolution dated
8 July 2011.

Statement of the Facts and of the Case

The facts, as found by the Regional Trial Court (RTC), which sustained the version of the
prosecution, are as follows:

PO2 Emmanuel L. Alteza, who was then assigned at the Sub-Station 1 of the Naga City
Police Station as a traffic enforcer, substantially testified that on March 10, 2003 at around 3:00
oclock in the morning, he saw the accused, who was coming from the direction of Panganiban
Drive and going to Diversion Road, Naga City, driving a motorcycle without a helmet; that this
prompted him to flag down the accused for violating a municipal ordinance which requires all
motorcycle drivers to wear helmet (sic) while driving said motor vehicle; that he invited the
accused to come inside their sub-station since the place where he flagged down the accused is
almost in front of the said sub-station; that while he and SPO1 Rayford Brillante were issuing a
citation ticket for violation of municipal ordinance, he noticed that the accused was uneasy and
kept on getting something from his jacket; that he was alerted and so, he told the accused to take
out the contents of the pocket of his jacket as the latter may have a weapon inside it; that the
accused obliged and slowly put out the contents of the pocket of his jacket which was a nickel-like
tin or metal container about two (2) to three (3) inches in size, including two (2) cellphones, one
(1) pair of scissors and one (1) Swiss knife; that upon seeing the said container, he asked the
accused to open it; that after the accused opened the container, he noticed a cartoon cover and
 something beneath it; and that upon his instruction, the accused spilled out the contents of the
container on the table which turned out to be four (4) plastic sachets, the two (2) of which were
empty while the other two (2) contained suspected shabu.[3]

Arraigned on 2 July 2003, petitioner, assisted by counsel, entered a plea of Not guilty to
the charge of illegal possession of dangerous drugs. Pretrial was terminated on 24 September
2003, after which, trial ensued.

During trial, Police Officer 3 (PO3) Emmanuel Alteza and a forensic chemist testified for
the prosecution. On the other hand, petitioner testified for himself and raised the defense of
planting of evidence and extortion.

In its 19 February 2009 Decision,[4] the RTC convicted petitioner of illegal possession of
dangerous drugs[5] committed on 10 March 2003. It found the prosecution evidence sufficient to
show that he had been lawfully arrested for a traffic violation and then subjected to a valid search,
which led to the discovery on his person of two plastic sachets later found to contain shabu. The
RTC also found his defense of frame-up and extortion to be weak, self-serving and
unsubstantiated. The dispositive portion of its Decision held:

WHEREFORE, judgment is hereby rendered, finding accused RODEL LUZ y

ONG GUILTY beyond reasonable doubt for the crime of violation of Section 11, Article II of
Republic Act No. 9165 and sentencing him to suffer the indeterminate penalty of imprisonment
ranging from twelve (12) years and (1) day, as minimum, to thirteen (13) years, as maximum, and
to pay a fine of Three Hundred Thousand Pesos (300,000.00).

The subject shabu is hereby confiscated for turn over to the Philippine Drug Enforcement
Agency for its proper disposition and destruction in accordance with law.

SO ORDERED.[6]

Upon review, the CA affirmed the RTCs Decision.

On 12 September 2011, petitioner filed under Rule 45 the instant Petition for Review on
Certiorari dated 1 September 2011. In a Resolution dated 12 October 2011, this Court required
respondent to file a comment on the Petition. On 4 January 2012, the latter filed its Comment
dated 3 January 2012.

Petitioner raised the following grounds in support of his Petition:

(i) THE SEARCH AND SEIZURE OF THE ALLEGED SUBJECT SHABU IS

INVALID.

(ii) THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF DUTY

OF THE POLICE OFFICER CANNOT BE RELIED UPON IN THIS CASE.
 (iii) THE INTEGRITY AND EVIDENTIARY VALUE OF THE ALLEGED SUBJECT
SPECIMEN HAS BEEN COMPROMISED.

(iv) THE GUILT OF THE ACCUSED-PETITIONER WAS NOT PROVEN BEYOND

THE REASONABLE DOUBT (sic).[7]

Petitioner claims that there was no lawful search and seizure, because there was no lawful arrest.
He claims that the finding that there was a lawful arrest was erroneous, since he was not even
issued a citation ticket or charged with violation of the city ordinance. Even assuming there was
a valid arrest, he claims that he had never consented to the search conducted upon him.

On the other hand, finding that petitioner had been lawfully arrested, the RTC held thus:

It is beyond dispute that the accused was flagged down and apprehended in this case by Police
Officers Alteza and Brillante for violation of City Ordinance No. 98-012, an ordinance requiring
the use of crash helmet by motorcycle drivers and riders thereon in the City of Naga and
prescribing penalties for violation thereof. The accused himself admitted that he was not wearing
a helmet at the time when he was flagged down by the said police officers, albeit he had a helmet
in his possession. Obviously, there is legal basis on the part of the apprehending officers to flag
down and arrest the accused because the latter was actually committing a crime in their presence,
that is, a violation of City Ordinance No. 98-012. In other words, the accused, being caught
in flagrante delicto violating the said Ordinance, he could therefore be lawfully stopped or arrested
by the apprehending officers. x x x.[8]

We find the Petition to be impressed with merit, but not for the particular reasons alleged. In
criminal cases, an appeal throws the entire case wide open for review and the reviewing tribunal
can correct errors, though unassigned in the appealed judgment, or even reverse the trial courts
decision based on grounds other than those that the parties raised as errors.[9]

First, there was no valid arrest of petitioner. When he was flagged down for committing a
traffic violation, he was not, ipso facto and solely for this reason, arrested.

Arrest is the taking of a person into custody in order that he or she may be bound to answer
for the commission of an offense.[10] It is effected by an actual restraint of the person to be arrested
or by that persons voluntary submission to the custody of the one making the arrest. Neither the
application of actual force, manual touching of the body, or physical restraint, nor a formal
declaration of arrest, is required. It is enough that there be an intention on the part of one of the
parties to arrest the other, and that there be an intent on the part of the other to submit, under the
belief and impression that submission is necessary.[11]

Under R.A. 4136, or the Land Transportation and Traffic Code, the general procedure for
dealing with a traffic violation is not the arrest of the offender, but the confiscation of the drivers
license of the latter:
 SECTION 29. Confiscation of Driver's License. Law enforcement and peace officers of
other agencies duly deputized by the Director shall, in apprehending a driver for any violation of
this Act or any regulations issued pursuant thereto, or of local traffic rules and regulations not
contrary to any provisions of this Act, confiscate the license of the driver concerned and issue a
receipt prescribed and issued by the Bureau therefor which shall authorize the driver to operate a
motor vehicle for a period not exceeding seventy-two hours from the time and date of issue of said
receipt. The period so fixed in the receipt shall not be extended, and shall become invalid
thereafter. Failure of the driver to settle his case within fifteen days from the date of apprehension
will be a ground for the suspension and/or revocation of his license.

Similarly, the Philippine National Police (PNP) Operations Manual[12] provides the following
procedure for flagging down vehicles during the conduct of checkpoints:
SECTION 7. Procedure in Flagging Down or Accosting Vehicles While in Mobile Car.
This rule is a general concept and will not apply in hot pursuit operations. The mobile car crew
shall undertake the following, when applicable: x x x

m. If it concerns traffic violations, immediately issue a Traffic Citation Ticket (TCT) or Traffic
Violation Report (TVR). Never indulge in prolonged, unnecessary conversation or
argument with the driver or any of the vehicles occupants;

At the time that he was waiting for PO3 Alteza to write his citation ticket, petitioner could
not be said to have been under arrest. There was no intention on the part of PO3 Alteza to arrest
him, deprive him of his liberty, or take him into custody. Prior to the issuance of the ticket, the
period during which petitioner was at the police station may be characterized merely as waiting
time. In fact, as found by the trial court, PO3 Alteza himself testified that the only reason they
went to the police sub-station was that petitioner had been flagged down almost in front of that
place. Hence, it was only for the sake of convenience that they were waiting there. There was no
intention to take petitioner into custody.

In Berkemer v. McCarty,[13] the United States (U.S.) Supreme Court discussed at length
whether the roadside questioning of a motorist detained pursuant to a routine traffic stop should
be considered custodial interrogation. The Court held that, such questioning does not fall under
custodial interrogation, nor can it be considered a formal arrest, by virtue of the nature of the
questioning, the expectations of the motorist and the officer, and the length of time the procedure
is conducted. It ruled as follows:

It must be acknowledged at the outset that a traffic stop significantly curtails the freedom
of action of the driver and the passengers, if any, of the detained vehicle. Under the law of most
States, it is a crime either to ignore a policemans signal to stop ones car or, once having stopped,
to drive away without permission. x x x

However, we decline to accord talismanic power to the phrase in the Miranda opinion
emphasized by respondent. Fidelity to the doctrine announced in Miranda requires that it be
enforced strictly, but only in those types of situations in which the concerns that powered the
decision are implicated. Thus, we must decide whether a traffic stop exerts upon a detained person
 pressures that sufficiently impair his free exercise of his privilege against self-incrimination to
require that he be warned of his constitutional rights.

Two features of an ordinary traffic stop mitigate the danger that a person questioned will
be induced to speak where he would not otherwise do so freely, Miranda v. Arizona, 384 U. S., at
467. First, detention of a motorist pursuant to a traffic stop is presumptively temporary and
brief. The vast majority of roadside detentions last only a few minutes. A motorists expectations,
when he sees a policemans light flashing behind him, are that he will be obliged to spend a short
period of time answering questions and waiting while the officer checks his license and
registration, that he may then be given a citation, but that in the end he most likely will be allowed
to continue on his way. In this respect, questioning incident to an ordinary traffic stop is quite
different from stationhouse interrogation, which frequently is prolonged, and in which the detainee
often is aware that questioning will continue until he provides his interrogators the answers they
seek. See id., at 451.

Second, circumstances associated with the typical traffic stop are not such that the
motorist feels completely at the mercy of the police. To be sure, the aura of authority
surrounding an armed, uniformed officer and the knowledge that the officer has some discretion
in deciding whether to issue a citation, in combination, exert some pressure on the detainee to
respond to questions. But other aspects of the situation substantially offset these forces. Perhaps
most importantly, the typical traffic stop is public, at least to some degree. x x x

In both of these respects, the usual traffic stop is more analogous to a so-called Terry
stop, see Terry v. Ohio, 392 U. S. 1 (1968), than to a formal arrest. x x x The comparatively
nonthreatening character of detentions of this sort explains the absence of any suggestion in our
opinions that Terry stops are subject to the dictates of Miranda. The similarly noncoercive aspect
of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such
stops are not in custody for the purposes of Miranda.

xxxxxxxxx

We are confident that the state of affairs projected by respondent will not come to pass. It
is settled that the safeguards prescribed by Miranda become applicable as soon as a suspects
freedom of action is curtailed to a degree associated with formal arrest. California v. Beheler, 463
U. S. 1121, 1125 (1983) (per curiam). If a motorist who has been detained pursuant to a traffic
stop thereafter is subjected to treatment that renders him in custody for practical purposes, he will
be entitled to the full panoply of protections prescribed by Miranda. See Oregon v. Mathiason, 429
U. S. 492, 495 (1977) (per curiam). (Emphasis supplied.)

The U.S. Court in Berkemer thus ruled that, since the motorist therein was only subjected to
modest questions while still at the scene of the traffic stop, he was not at that moment placed
under custody (such that he should have been apprised of his Miranda rights), and neither can
treatment of this sort be fairly characterized as the functional equivalent of a formal arrest.
Similarly, neither can petitioner here be considered under arrest at the time that his traffic citation
was being made.

It also appears that, according to City Ordinance No. 98-012, which was violated by petitioner,
the failure to wear a crash helmet while riding a motorcycle is penalized by a fine only. Under
the Rules of Court, a warrant of arrest need not be issued if the information or charge was filed
for an offense penalized by a fine only. It may be stated as a corollary that neither can a
warrantless arrest be made for such an offense.

This ruling does not imply that there can be no arrest for a traffic violation. Certainly, when there
is an intent on the part of the police officer to deprive the motorist of liberty, or to take the latter
into custody, the former may be deemed to have arrested the motorist. In this case, however, the
officers issuance (or intent to issue) a traffic citation ticket negates the possibility of an arrest for
the same violation.

Even if one were to work under the assumption that petitioner was deemed arrested upon
being flagged down for a traffic violation and while awaiting the issuance of his ticket, then
the requirements for a valid arrest were not complied with.

This Court has held that at the time a person is arrested, it shall be the duty of the arresting
officer to inform the latter of the reason for the arrest and must show that person the warrant of
arrest, if any. Persons shall be informed of their constitutional rights to remain silent and to
counsel, and that any statement they might make could be used against them. [14] It may also be
noted that in this case, these constitutional requirements were complied with by the police officers
only after petitioner had been arrested for illegal possession of dangerous drugs.

In Berkemer, the U.S. Court also noted that the Miranda warnings must also be given to a
person apprehended due to a traffic violation:

The purposes of the safeguards prescribed by Miranda are to ensure that the police do not
coerce or trick captive suspects into confessing, to relieve the inherently compelling pressures
generated by the custodial setting itself, which work to undermine the individuals will to resist,
and as much as possible to free courts from the task of scrutinizing individual cases to try to
determine, after the fact, whether particular confessions were voluntary. Those purposes are
implicated as much by in-custody questioning of persons suspected of misdemeanors as they are
by questioning of persons suspected of felonies.

If it were true that petitioner was already deemed arrested when he was flagged down for a traffic
violation and while he waiting for his ticket, then there would have been no need for him to be
arrested for a second timeafter the police officers allegedly discovered the drugsas he was already
in their custody.

Second, there being no valid arrest, the warrantless search that resulted from it was likewise
illegal.

The following are the instances when a warrantless search is allowed: (i) a warrantless search
incidental to a lawful arrest; (ii) search of evidence in plain view; (iii) search of a moving vehicle;
(iv) consented warrantless search; (v) customs search; (vi) a stop and frisk search; and (vii)
exigent and emergency circumstances.[15] None of the above-mentioned instances, especially a
search incident to a lawful arrest, are applicable to this case.

It must be noted that the evidence seized, although alleged to be inadvertently discovered, was
not in plain view. It was actually concealed inside a metal container inside petitioners pocket.
Clearly, the evidence was not immediately apparent.[16]

Neither was there a consented warrantless search. Consent to a search is not to be lightly inferred,
but shown by clear and convincing evidence.[17] It must be voluntary in order to validate an
otherwise illegal search; that is, the consent must be unequivocal, specific, intelligently given and
uncontaminated by any duress or coercion. While the prosecution claims that petitioner acceded
to the instruction of PO3 Alteza, this alleged accession does not suffice to prove valid and
intelligent consent. In fact, the RTC found that petitioner was merely told to take out the contents
of his pocket.[18]

Whether consent to the search was in fact voluntary is a question of fact to be determined
from the totality of all the circumstances. Relevant to this determination are the following
characteristics of the person giving consent and the environment in which consent is given: (1)
the age of the defendant; (2) whether the defendant was in a public or a secluded location; (3)
whether the defendant objected to the search or passively looked on; (4) the education and
intelligence of the defendant; (5) the presence of coercive police procedures; (6) the defendants
belief that no incriminating evidence would be found; (7) the nature of the police questioning; (8)
the environment in which the questioning took place; and (9) the possibly vulnerable subjective
state of the person consenting. It is the State that has the burden of proving, by clear and positive
testimony, that the necessary consent was obtained, and was freely and voluntarily given. [19] In
this case, all that was alleged was that petitioner was alone at the police station at three in the
morning, accompanied by several police officers. These circumstances weigh heavily against a
finding of valid consent to a warrantless search.

Neither does the search qualify under the stop and frisk rule. While the rule normally applies
when a police officer observes suspicious or unusual conduct, which may lead him to believe that
a criminal act may be afoot, the stop and frisk is merely a limited protective search of outer
clothing for weapons.[20]

In Knowles v. Iowa,[21] the U.S. Supreme Court held that when a police officer stops a person for
speeding and correspondingly issues a citation instead of arresting the latter, this procedure does
not authorize the officer to conduct a full search of the car. The Court therein held that there was
no justification for a full-blown search when the officer does not arrest the motorist. Instead,
police officers may only conduct minimal intrusions, such as ordering the motorist to alight from
the car or doing a patdown:

In Robinson, supra, we noted the two historical rationales for the search incident to arrest
exception: (1) the need to disarm the suspect in order to take him into custody, and (2) the need to
 preserve evidence for later use at trial. x x x But neither of these underlying rationales for the
search incident to arrest exception is sufficient to justify the search in the present case.

We have recognized that the first rationaleofficer safetyis both legitimate and weighty, x x
x The threat to officer safety from issuing a traffic citation, however, is a good deal less than in
the case of a custodial arrest. In Robinson, we stated that a custodial arrest involves danger to an
officer because of the extended exposure which follows the taking of a suspect into custody and
transporting him to the police station. 414 U. S., at 234-235. We recognized that [t]he danger to
the police officer flows from the fact of the arrest, and its attendant proximity, stress, and
uncertainty, and not from the grounds for arrest. Id., at 234, n. 5. A routine traffic stop, on the
other hand, is a relatively brief encounter and is more analogous to a so-called Terry stop . .
. than to a formal arrest. Berkemer v. McCarty, 468 U. S. 420, 439 (1984). See also Cupp v.
Murphy, 412 U. S. 291, 296 (1973) (Where there is no formal arrest . . . a person might well be
less hostile to the police and less likely to take conspicuous, immediate steps to destroy
incriminating evidence).

This is not to say that the concern for officer safety is absent in the case of a routine
traffic stop. It plainly is not. See Mimms, supra, at 110; Wilson, supra, at 413-414. But while the
concern for officer safety in this context may justify the minimal additional intrusion of
ordering a driver and passengers out of the car, it does not by itself justify the often
considerably greater intrusion attending a full fieldtype search. Even without the search
authority Iowa urges, officers have other, independent bases to search for weapons and protect
themselves from danger. For example, they may order out of a vehicle both the driver, Mimms,
supra, at 111, and any passengers, Wilson, supra, at 414; perform a patdown of a driver and any
passengers upon reasonable suspicion that they may be armed and dangerous, Terry v. Ohio, 392
U. S. 1 (1968); conduct a Terry patdown of the passenger compartment of a vehicle upon
reasonable suspicion that an occupant is dangerous and may gain immediate control of a weapon,
Michigan v. Long, 463 U. S. 1032, 1049 (1983); and even conduct a full search of the passenger
compartment, including any containers therein, pursuant to a custodial arrest, New York v. Belton,
453 U. S. 454, 460 (1981).

Nor has Iowa shown the second justification for the authority to search incident to arrestthe need
to discover and preserve evidence. Once Knowles was stopped for speeding and issued a citation,
all the evidence necessary to prosecute that offense had been obtained. No further evidence of
excessive speed was going to be found either on the person of the offender or in the passenger
compartment of the car. (Emphasis supplied.)

The foregoing considered, petitioner must be acquitted. While he may have failed to object to the
illegality of his arrest at the earliest opportunity, a waiver of an illegal warrantless arrest does not,
however, mean a waiver of the inadmissibility of evidence seized during the illegal warrantless
arrest.[22]

The Constitution guarantees the right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures. [23] Any evidence obtained in
violation of said right shall be inadmissible for any purpose in any proceeding. While the power
to search and seize may at times be necessary to the public welfare, still it must be exercised and
the law implemented without contravening the constitutional rights of citizens, for the
enforcement of no statute is of sufficient importance to justify indifference to the basic principles
of government.[24]

The subject items seized during the illegal arrest are inadmissible.[25] The drugs are the
very corpus delicti of the crime of illegal possession of dangerous drugs. Thus, their
inadmissibility precludes conviction and calls for the acquittal of the accused.[26]

WHEREFORE, the Petition is GRANTED. The 18 February 2011 Decision of the Court
of Appeals in CA-G.R. CR No. 32516 affirming the judgment of conviction dated 19 February
2009 of the Regional Trial Court, 5th Judicial Region, Naga City, Branch 21, in Criminal Case
No. RTC 2003-0087, is hereby REVERSED and SET ASIDE. Petitioner Rodel Luz y Ong is
hereby ACQUITTED and ordered immediately released from detention, unless his continued
confinement is warranted by some other cause or ground.

SO ORDERED.
G.R.No. 74869 July 6, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
IDEL AMINNUDIN y AHNI, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Herminio T. Llariza counsel de-officio for defendant-appellant.

CRUZ, J.:

The accused-appellant claimed his business was selling watches but he was nonetheless arrested, tried and found
guilty of illegally transporting marijuana. The trial court, disbelieving him, held it was high time to put him away and
sentenced him to life imprisonment plus a fine of P20,000.00. 1

Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the M/V Wilcon 9 at about 8:30 in
the evening, in Iloilo City. The PC officers who were in fact waiting for him simply accosted him, inspected his bag
and finding what looked liked marijuana leaves took him to their headquarters for investigation. The two bundles of
suspect articles were confiscated from him and later taken to the NBI laboratory for examination. When they were
verified as marijuana leaves, an information for violation of the Dangerous Drugs Act was filed against him. 2Later,
the information was amended to include Farida Ali y Hassen, who had also been arrested with him that same evening and
likewise investigated. 3 Both were arraigned and pleaded not guilty. 4 Subsequently, the fiscal filed a motion to dismiss the
charge against Ali on the basis of a sworn statement of the arresting officers absolving her after a 'thorough
investigation." 5 The motion was granted, and trial proceeded only against the accused-appellant, who was eventually
convicted . 6

According to the prosecution, the PC officers had earlier received a tip from one of their informers that the accused-
appellant was on board a vessel bound for Iloilo City and was carrying marijuana. 7 He was Identified by
name. 8 Acting on this tip, they waited for him in the evening of June 25, 1984, and approached him as he descended
from the gangplank after the informer had pointed to him. 9 They detained him and inspected the bag he was carrying. It
was found to contain three kilos of what were later analyzed as marijuana leaves by an NBI forensic examiner, 10 who
testified that she conducted microscopic, chemical and chromatographic tests on them. On the basis of this finding, the
corresponding charge was then filed against Aminnudin.

In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag was his clothing consisting of
a jacket, two shirts and two pairs of pants. 11 He alleged that he was arbitrarily arrested and immediately handcuffed.
His bag was confiscated without a search warrant. At the PC headquarters, he was manhandled to force him to admit he
was carrying the marijuana, the investigator hitting him with a piece of wood in the chest and arms even as he parried the
blows while he was still handcuffed. 12 He insisted he did not even know what marijuana looked like and that his business
was selling watches and sometimes cigarettes. 13 He also argued that the marijuana he was alleged to have been carrying
was not properly Identified and could have been any of several bundles kept in the stock room of the PC headquarters. 14

The trial court was unconvinced, noting from its own examination of the accused that he claimed to have come to
Iloilo City to sell watches but carried only two watches at the time, traveling from Jolo for that purpose and spending
P107.00 for fare, not to mention his other expenses. 15 Aminnudin testified that he kept the two watches in a secret
pocket below his belt but, strangely, they were not discovered when he was bodily searched by the arresting officers nor
were they damaged as a result of his manhandling. 16 He also said he sold one of the watches for P400.00 and gave away
the other, although the watches belonged not to him but to his cousin, 17 to a friend whose full name he said did not even
know. 18 The trial court also rejected his allegations of maltreatment, observing that he had not sufficiently proved the
injuries sustained by him. 19

There is no justification to reverse these factual findings, considering that it was the trial judge who had immediate
access to the testimony of the witnesses and had the opportunity to weigh their credibility on the stand. Nuances of
tone or voice, meaningful pauses and hesitation, flush of face and dart of eyes, which may reveal the truth or
expose the lie, are not described in the impersonal record. But the trial judge sees all of this, discovering for himself
the truant fact amidst the falsities.

The only exception we may make in this case is the trial court's conclusion that the accused-appellant was not really
beaten up because he did not complain about it later nor did he submit to a medical examination. That is hardly fair
or realistic. It is possible Aminnudin never had that opportunity as he was at that time under detention by the PC
authorities and in fact has never been set free since he was arrested in 1984 and up to the present. No bail has
been allowed for his release.

There is one point that deserves closer examination, however, and it is Aminnudin's claim that he was arrested and
searched without warrant, making the marijuana allegedly found in his possession inadmissible in evidence against
him under the Bill of Rights. The decision did not even discuss this point. For his part, the Solicitor General
dismissed this after an all-too-short argument that the arrest of Aminnudin was valid because it came under Rule
113, Section 6(b) of the Rules of Court on warrantless arrests. This made the search also valid as incidental to a
lawful arrest.

It is not disputed, and in fact it is admitted by the PC officers who testified for the prosecution, that they had no
warrant when they arrested Aminnudin and seized the bag he was carrying. Their only justification was the tip they
had earlier received from a reliable and regular informer who reported to them that Aminnudin was arriving in Iloilo
by boat with marijuana. Their testimony varies as to the time they received the tip, one saying it was two days before
the arrest, 20 another two weeks 21 and a third "weeks before June 25." 22 On this matter, we may prefer the declaration of
the chief of the arresting team, Lt. Cipriano Querol, Jr., who testified as follows:

Q You mentioned an intelligence report, you mean with respect to the coming of Idel
Aminnudin on June 25, 1984?

A Yes, sir.

Q When did you receive this intelligence report?

A Two days before June 25, 1984 and it was supported by reliable sources.

Q Were you informed of the coming of the Wilcon 9 and the possible trafficking of
marijuana leaves on that date?

A Yes, sir, two days before June 25, 1984 when we received this information from
that particular informer, prior to June 25, 1984 we have already reports of the
particular operation which was being participated by Idel Aminnudin.

Q You said you received an intelligence report two days before June 25, 1984 with
respect to the coming of Wilcon 9?

A Yes, sir.

Q Did you receive any other report aside from this intelligence report?

A Well, I have received also other reports but not pertaining to the coming of Wilcon
9. For instance, report of illegal gambling operation.

COURT:

Q Previous to that particular information which you said two days before June 25,
1984, did you also receive daily report regarding the activities of Idel Aminnudin

A Previous to June 25, 1984 we received reports on the activities of Idel Aminnudin.
Q What were those activities?

A Purely marijuana trafficking.

Q From whom did you get that information?

A It came to my hand which was written in a required sheet of information, maybe for
security reason and we cannot Identify the person.

Q But you received it from your regular informer?

A Yes, sir.

ATTY. LLARIZA:

Q Previous to June 25, 1984, you were more or less sure that Idel Aminnudin is
coming with drugs?

A Marijuana, sir.

Q And this information respecting Idel Aminnudin's coming to Iloilo with marijuana
was received by you many days before you received the intelligence report in
writing?

A Not a report of the particular coming of Aminnudin but his activities.

Q You only knew that he was coming on June 25,1984 two days before?

A Yes, sir.

Q You mean that before June 23, 1984 you did not know that minnudin was coming?

A Before June 23,1984, I, in my capacity, did not know that he was coming but on
June 23, 1984 that was the time when I received the information that he was coming.
Regarding the reports on his activities, we have reports that he was already
consummated the act of selling and shipping marijuana stuff.

COURT:

Q And as a result of that report, you put him under surveillance?

A Yes, sir.

Q In the intelligence report, only the name of Idel Aminnudin was mentioned?

A Yes, sir.

Q Are you sure of that?

A On the 23rd he will be coming with the woman.

Q So that even before you received the official report on June 23, 1984, you had
already gathered information to the effect that Idel Aminnudin was coming to Iloilo on
June 25, 1984?
 A Only on the 23rd of June.

Q You did not try to secure a search warrant for the seizure or search of the subject
mentioned in your intelligence report?

A No, more.

Q Why not?

A Because we were very very sure that our operation will yield positive result.

Q Is that your procedure that whenever it will yield positive result you do not need a
search warrant anymore?

A Search warrant is not necessary. 23

That last answer is a cavalier pronouncement, especially as it comes from a mere lieutenant of the PC. The
Supreme Court cannot countenance such a statement. This is still a government of laws and not of men.

The mandate of the Bill of Rights is clear:

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

In the case at bar, there was no warrant of arrest or search warrant issued by a judge after personal determination
by him of the existence of probable cause. Contrary to the averments of the government, the accused-appellant was
not caught in flagrante nor was a crime about to be committed or had just been committed to justify the warrantless
arrest allowed under Rule 113 of the Rules of Court. Even expediency could not be invoked to dispense with the
obtention of the warrant as in the case of Roldan v. Arca, 24 for example. Here it was held that vessels and aircraft are
subject to warrantless searches and seizures for violation of the customs law because these vehicles may be quickly
moved out of the locality or jurisdiction before the warrant can be secured.

The present case presented no such urgency. From the conflicting declarations of the PC witnesses, it is clear that
they had at least two days within which they could have obtained a warrant to arrest and search Aminnudin who was
coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was Identified. The date of its arrival was
certain. And from the information they had received, they could have persuaded a judge that there was probable
cause, indeed, to justify the issuance of a warrant. Yet they did nothing. No effort was made to comply with the law.
The Bill of Rights was ignored altogether because the PC lieutenant who was the head of the arresting team, had
determined on his own authority that a "search warrant was not necessary."

In the many cases where this Court has sustained the warrantless arrest of violators of the Dangerous Drugs Act, it
has always been shown that they were caught red-handed, as a result of what are popularly called "buy-bust"
operations of the narcotics agents. 25 Rule 113 was clearly applicable because at the precise time of arrest the accused
was in the act of selling the prohibited drug.

In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown
that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the
M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of
the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the
carrier of the marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive finger
that triggered his arrest. The Identification by the informer was the probable cause as determined by the officers
(and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him.
Now that we have succeeded in restoring democracy in our country after fourteen years of the despised
dictatorship, when any one could be picked up at will, detained without charges and punished without trial, we will
have only ourselves to blame if that kind of arbitrariness is allowed to return, to once more flaunt its disdain of the
Constitution and the individual liberties its Bill of Rights guarantees.

While this is not to say that the accused-appellant is innocent, for indeed his very own words suggest that he is
lying, that fact alone does not justify a finding that he is guilty. The constitutional presumption is that he is innocent,
and he will be so declared even if his defense is weak as long as the prosecution is not strong enough to convict
him.

Without the evidence of the marijuana allegedly seized from Aminnudin, the case of the prosecution must fall. That
evidence cannot be admitted, and should never have been considered by the trial court for the simple fact is that the
marijuana was seized illegally. It is the fruit of the poisonous tree, to use Justice Holmes' felicitous phrase. The
search was not an incident of a lawful arrest because there was no warrant of arrest and the warrantless arrest did
not come under the exceptions allowed by the Rules of Court. Hence, the warrantless search was also illegal and
the evidence obtained thereby was inadmissible.

The Court strongly supports the campaign of the government against drug addiction and commends the efforts of
our law-enforcement officers against those who would inflict this malediction upon our people, especially the
susceptible youth. But as demanding as this campaign may be, it cannot be more so than the compulsions of the Bill
of Rights for the protection of the liberty of every individual in the realm, including the basest of criminals. The
Constitution covers with the mantle of its protection the innocent and the guilty alike against any manner of high-
handedness from the authorities, however praiseworthy their intentions.

Those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name
of order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said, "I think it a less evil that
some criminals should escape than that the government should play an ignoble part." It is simply not allowed in the
free society to violate a law to enforce another, especially if the law violated is the Constitution itself.

We find that with the exclusion of the illegally seized marijuana as evidence against the accused-appellant, his guilt
has not been proved beyond reasonable doubt and he must therefore be discharged on the presumption that he is
innocent.

ACCORDINGLY, the decision of the trial court is REVERSED and the accused-appellant is ACQUITTED. It is so
ordered.

Narvasa, Gancayco and Medialdea, JJ., concur.

Separate Opinions

AQUINO, J., dissenting:

I respectfully dissent. I hold that the accused was caught in flagrante, for he was carrying marijuana leaves in his
bag at the moment of his arrest. He was not "innocently disembarking from the vessel." The unauthorized
transportation of marijuana (Indian hemp), which is a prohibited drug, is a crime. (Sec. 4, Rep. Act No. 6425). Since
he was committing a crime, his arrest could be lawfully effected without a warrant (Sec. 6a, Rule 113, Rules of
Court), and the search of his bag (which yielded the marijuana leaves) without a search warrant was also lawful
(Sec. 12, Rule 126, Rules of Court). I vote to affirm the judgment of the trial court finding him guilty of illegally
transporting marijuana.
Separate Opinions

AQUINO, J., dissenting:

I respectfully dissent. I hold that the accused was caught in flagrante, for he was carrying marijuana leaves in his
bag at the moment of his arrest. He was not "innocently disembarking from the vessel." The unauthorized
transportation of marijuana (Indian hemp), which is a prohibited drug, is a crime. (Sec. 4, Rep. Act No. 6425). Since
he was committing a crime, his arrest could be lawfully effected without a warrant (Sec. 6a, Rule 113, Rules of
Court), and the search of his bag (which yielded the marijuana leaves) without a search warrant was also lawful
(Sec. 12, Rule 126, Rules of Court). I vote to affirm the judgment of the trial court finding him guilty of illegally
transporting marijuana.
 [G.R. No. 116720. October 2, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROEL ENCINADA, accused-

appellant.

DECISION
PANGANIBAN, J.:

In acquitting the appellant, the Court reiterates the constitutional proscription that evidence (in this
case, prohibited drugs) seized without a valid search warrant is inadmissible in any proceeding. A yield
of incriminating evidence will not legitimize an illegal search. Indeed, the end never justifies the means.

The Case

This principle is stressed in this appeal from the Judgment,[1] promulgated on July 15, 1994 by the
Regional Trial Court of Surigao City, Branch 32,[2] in Criminal Case No. 3668, convicting Appellant Roel
Encinada of illegal transportation of prohibited drugs under Section 4 of Republic Act No. 6425, as
amended by Batas Pambansa Blg. 179.
An Information,[3] dated May 22, 1992, was filed by Third Asst. Surigao City Prosecutor Virgilio M.
Egay charging appellant of said crime allegedly committed as follows:

That on or about May 21, 1992, in the City of Surigao, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, in gross disregard of the prohibition of the
provisions of Republic Act No. 6425 as amended by Batas Pambansa Bilang 179, did then and
there willfully, unlawfully and feloniously have in his possession, custody and control dried
marijuana leaves weighing 800 grams, more or less, which he transported to Surigao City from
Cebu City aboard a passenger ship, well knowing that such acts are expressly prohibited by law.

Before arraignment, appellant, assisted by Counsel Antonio Casurra, offered to plead guilty to a
lesser offense, i.e., illegal possession of prohibited drugs.[4] The trial court requested the prosecution to
study the offer,[5] but the records do not show any agreement on such proposal.
Upon his arraignment, appellant pleaded not guilty to the charge.[6] After the prosecution presented
its evidence, the defense filed, with leave of court,[7] a Demurrer to Evidence dated September 1,
1993,[8] questioning the admissibility of the evidence which allegedly was illegally seized from
appellant. The court a quo denied the motion, ruling:[9]

For resolution is the demurrer to evidence dated September 1, 1993 of the accused, Roel Encinada,
praying that he be acquitted of the crime charged on the ground of the inadmissibility of the
evidence for the prosecution consisting of the marijuana (seized) from him by the police. The
accused raised the following issues, to wit: (1) Whether the arrest and search of the accused without
a warrant would fall under the doctrine of warrantless search as an incident to a lawful arrest; and,
(2) Whether the subject marijuana is admissible in evidence against the accused.

xxxxxxxxx
A scrutiny of the evidence for the prosecution shows that the events leading to the arrest of the
accused started when SPO4 Nicolas Bolonia, chief of the PNP vice control section, received a tip
from his informer that the accused, Roel Encinada would be arriving on board the M/V Sweet Pearl
at about seven oclock in the morning of May 21, 1992. On cross-examination SPO4 Bolonia
testified that the information was given to him by his asset at about four oclock in the afternoon of
May 20, 1992. After receiving the tip he relayed the information to SPO4 Cipriano Iligan, Jr., PNP
chief of intelligence.SPO4 Bolonia further declared that he would have applied for a search warrant
but there was simply no time for it.

xxxxxxxxx

In the later case of People vs. Tangliben (184 SCRA 220) the Supreme Court modified its ruling in
the Aminuddin case when it held that the arrest and search is lawful when the police had to act
quickly and there was no more time to secure a search warrant. It is noted that the tip was given to
SPO4 Bolonia by his informant at about the closing time of the offices of the various courts. He
still had to inform SPO4 Iligan in order to coordinate with him. The boat carrying the accused was
scheduled to dock in Surigao City at seven oclock the following morning when the courts had not
yet opened.

It is therefore quite obvious that the police did not have enough time to apply for a search warrant
in the interim. The police cannot be faulted for acting on the tip and for stopping and searching the
accused even without a warrant.

In the case at bar, the accused was caught in flagrante delicto in actual possession of the
marijuana. The search made upon his personal effects falls squarely under paragraph (a) of Rule
113, Section 5 of the 1985 Rules on Criminal Procedure which allows a warrantless search as an
incident to a lawful arrest (People vs. Malmstedt, 198 SCRA 401).

xxxxxxxxxxxx

WHEREFORE, premises considered, the demurrer to evidence in question is denied for lack of
merit.

After trial in due course, the assailed Judgment was rendered, the decretal portion of which reads:

WHEREFORE, premises considered, the Court finds the accused, Roel Encinada, guilty beyond
reasonable doubt of the violation of Section 4, Article II, of Republic Act No. 6425 as amended by
Batas Pambansa Bilang 179, and hereby sentences him to suffer the penalty of life imprisonment
and to pay a fine of twenty thousand pesos (P20,000.00) without subsidiary imprisonment in case
of insolvency; and to pay the costs.

The marijuana (Exhibit B) involved in this case is hereby forfeited to the government to be
destroyed or disposed of pursuant to present rules and regulations. The two plastic chairs (Exhibits
D and D-1) are also forfeited to the government.

The Facts
 Version of the Prosecution

The Solicitor General, in the Appellees Brief, recounts the events leading to appellants arrest, as
follows:[10]

At around 4 p.m. of May 20, 1992, SPO4 Nicolas Bolonia was in his house when he received a tip
from an informant that Roel Encinada would be arriving in Surigao City from Cebu City in the
morning of May 21, 1992 on board the M/V Sweet Pearl bringing with him marijuana. Bolonia was
then Chief of the Vice Control Squad of the Surigao City Police (pp. 27-29; TSN, November 27,
1992, 34-40; p. 10, TSN, May 14, 1993).

Bolonia already knew Encinada because the latter previously was engaged in illegal gambling
known as buloy-buloy. After receiving the tip, Bolonia notified the members of his team - SPO3
Marcial Tiro, SPO3 Glen Abot and SPO3 Charlito Duero - as well as his colleague SPO4 Cipriano
Iligan, Jr., the chief of the Intelligence and Investigation Division, of the information he
received. Because the information came late, there was no more time to secure a search warrant
(pp. 38; TSN, November 27, 1992, May 14, 1993, p. 13; pp. 4, 19; TSN, March 3, 1993).

In the early morning of May 21, 1992, Bolonia, Iligan and other police officers deployed
themselves in different strategic points at the city wharf to intercept Encinada. At about 8:15 a.m.
of the same day, the M/V Sweet Pearl finally docked. The police officers saw Encinada walk
briskly down the gangplank, carrying two small colored plastic baby chairs in his hand (p. 11 TSN,
May 14, 1993; pp. 4, 5, 15-16 TSN, March 3, 1993; pp. 29-30 TSN, November 27, 1992, pp. 29-
30).

From their various positions, the police officers followed Encinada immediately boarded a tricycle
at Borromeo Street, still holding the plastic chairs. As the tricycle slowly moved forward, Bolonia
chased it and ordered the driver to stop after identifying himself as a police officer. When the
vehicle stopped, Bolinia identified himself to Encinada and ordered him to alight from the
tricycle. Bolonia asked Encinada to hand over the plastic chairs, to which the latter complied (pp. 5,
6, 17 TSN, March 3, 1993, pp. 30-32, 35 TSN, November 27, 1992).

Bolonia noticed that there were two small chairs, one green and the other blue, stacked together and
tied with a piece of string. Between the stack of chairs, there was a bulky package. Bolonia
examined it closely and smelled the peculiar scent of marijuana. Making a small tear in the
cellophane cover, Bolonia could see and smell the what appeared to be marijuana, a prohibited drug
(pp. 6-9 TSN, March 3, 1993, Exh. B, D and sub-markings; pp. 32-34. 35-39 TSN, November 27,
1992).

Encinada was brought to the central police station. Bolonia, in the presence of one Nonoy Lerio
who is a member of the local media and a friend of Encinada, opened the package. It was
discovered that indeed, the contents consisted of dried leaves known as marijuana. In the course of
the investigation, Encinada surrendered to Bolonia his passenger ticket issued by M/V Sweet Pearl
(pp. 9-11 TSN, March 3, 1993, Exh. E; pp. 34-35, 39-40 TSN, November 27, 1992).

On July 13, 1992, Bolonia brought the package of dried leaves for examination at the PNP Crime
Laboratory at Camp Evangelista, Cagayan de Oro City. The forensic chemist, Inspector Vicente
Armada, tested the leaves and confirmed that they were positive for marijuana. However, the
marijuana only weighed 610 grams, which Armada opined to be probably due to shrinkage and
moisture loss (pp. 12-17, 19-21, 24-40, 41; TSN, November 27,1992, Exh. A, B. C and sub-
markings.)

Version of the Defense

Appellant sets up denial as his defense. In his brief, he denied ownership and possession of said
plastic baby chairs, as follows:[11]

1) In the morning of May 21, 1992, at around 8:00 oclock in the morning, more or less, the accused
was seen to have disembarked from MV Sweet Pearl after an overnight trip from Cebu City;

2) The accused proceeded to the Surigao PPA Gate and boarded a motorela bound for his residence
at Little Tondo, (within the City Proper), Surigao City. The Motorela was fully loaded with
passengers, with the accused as the fourth passenger;

3) When the motorela was already able to travel a distance of about ten (10) meters more or less,
the same was forcibly stopped by persons who ordered the passengers to disembarked
(sic). Thereafter, all the (baggage) of the passengers and the driver were ordered to stand in a line
for which a body search was made individually (sic);

4) After the search was made, the accused was singled out in the line and ordered to board the
service vehicle of the police and was brought to the PNP Police Station.

Before however the accused boarded the jeep, he was openly protesting to the action taken by the
police authorities and demanded from the apprehending officers a copy of a search warrant and/or
warrant of arrest for the search made and for his apprehension;

5) In the police headquarters, the accused was made to undergo custodial investigation for which a
plastic bag was presented to him allegedly containing the subject marijuana leaves. The accused
denied that the said plastic bag belonged to him.

The denial was witnessed by Mr. Daniel Nonoy Lerio, Jr. a member of the Surigao City Press, who
was invited by the Police Investigators to witness the presentation of the alleged marijuana leaves,
during the said investigation;

6) After the custodial investigation, the accused was placed immediately behind bars and the
Information for Violation of RA 6425 as amended by Batas Pambansa Blg. 179 was filed before
the Court;

xxxxxxxxx
Aside from appellant, the defense also presented five (5) other witnesses whose testimony
allegedly established the following:[12]
8.a) Ruben Concha the driver of the motorela who testified that he was surprised when the motorela
he was driving was forcibly stopped (while already in motion ) by the police authorities while
directing his four (4) passengers, (3 males and 1 female) to disembarked (sic) together with their
(baggage).

That after the search was made, the accused was singled out, and despite the protests made, was
ordered to board the Police service vehicle, while the 2 other male passengers just left the scene
while the female passenger continued to board the motorela who directed him to proceed to the
residence of Baby Encinada to verify whether the person picked up by the police authorities was
related to the latter;

8.b) Josephine Nodalo testified that she is a beautician, and that she was one of the four (4)
passengers of the motorela driven by Ruben Concha, which motorela was forcibly stopped by men
who are chasing it after travelling a distance of 5 to 10 meters away from its loading area near the
PPA Gate.

All the four (4) passengers were ordered to disembarked (sic) from the motorela whereupon they
were all subjected to body search including their (baggage).

That it was the male passenger who was sitting at the rear portion of the motorela who was picked
up by the Police Authorities and despite the protests made was ordered to board the Police service
vehicle.

Upon learning from the persons who were gathered at the scene, that the one who was picked up
was the son of Mr. Encinada, the latter boarded back the motorela and directed the driver to
proceed to the residence of the Encinadas at Little Tondo to verify whether it was really their son
who was picked up by the police authorities. She made this, as Mrs. Encinada, (the mother of the
accused) is his (regular) customer;

8.c) Mr. Daniel Nonoy Lerio, Jr. testified that, being a member of the Press, he was requested by
the police authorities to witness the custodial investigation conducted upon the person of the
accused, who, during the entire proceedings of the investigation vehemently denied having any
knowledge about the marijuana leaves placed inside the plastic bag;

8.d) Isabelita Encinada testified that she was informed by her manicurist (Josephine Nodalo) about
the arrest x x x (of) her son, somewhere at the PPA Port Area and upon being informed, she and her
husband immediately went to the Surigao PNP Headquarters to verify the (news) x x x;

x x x x x x x x x.

Ruling of the Trial Court

The trial court rejected appellants claim that he was merely an innocent passenger and that his
package contained mango and otap samples, not marijuana. Emphasizing that the Surigao City Police
had no ill motive against appellant, the trial court gave credence to SPO4 Bolonias story that he actually
received from his police asset the information regarding appellants arrival in Surigao City. The trial court
further emphasized that appellant was caught carrying marijuana in flagrante delicto. Hence, the
warrantless search following his lawful arrest was valid and the marijuana obtained was admissible in
evidence.

Assignment of Errors

In his Brief, appellant submits the following assignment of errors:[13]

I. The lower court erred in finding that the accused was caught in flagranti (sic) delicto in
possession of the subject marijuana leaves and is the one responsible in transporting the same;

II. The lower court gravely erred in finding that search and the arrest of the accused without a
warrant would fall under the doctrine of warrantless search as incident to a lawful arrest --

III. The lower court gravely erred in finding that the subject marijuana leaves is admissible in
evidence

In short, the main issues are (1) the sufficiency of the evidence showing possession of marijuana
by appellant and (2) the validity of the search conducted on the person and belongings of the appellant.

The Courts Ruling

The petition is meritorious.

First Issue: Illegal Possession of Prohibited Drugs

Appellant claims that the prosecution failed to prove his possession and ownership of the plastic
baby chairs. He contends that the testimonies of Bolonia and Iligan conflicted as to the number of
passengers riding the motorela. Such alleged conflict is peripheral and irrelevant. Hence, it deserves
scant consideration. Appellant adds that such testimonies also conflicted as to the place where
appellant sat inside the motorela. This claim, aside from being flimsy, is also not supported by the
transcript of stenographic notes.
In his testimony, appellant vehemently denied possession of the plastic baby chairs, stressing that
he was not holding them when the search was conducted. However, his denial is easily rebutted by
Bolonias testimony:[14]
Q: When you saw Roel Encinada who disembarked from M/V Sweet Pearl, what did you observe in his
person, if any?
A: He was carrying a (sic) baby chairs.
Q: What kind of chairs?
A: A (sic) plastic chairs.
xxxxxxxxx
Q: After you saw Roel Encinada disembarked (sic) from the boat, what did you and your companions
do?
 A: We followed him behind because we posted in the different direction(s) in the wharf.
xxxxxxxxx
Q: You said you followed Roel Encinada, what happened next when you followed him?
A: I saw Roel Encinada took (sic) a ride with a motorcycle so I chased him and let him stopped (sic).
xxxxxxxxx
Q: By the way, where was (sic) this (sic) two plastic chairs placed in the motorize tricycle?
A: He was sitting at the back of the motor at the right portion of the seat and the chairs was (sic)
placed besides him. ([W]itness indicating that he was sitting (sic) an imaginary seat at the back of
the motor and holding an (sic) imaginary chairs with his left arm).
Between these two contentions, the choice of the trial court prevails because this is a matter that
involves credibility of witnesses. On this subject of credibility, the opinion of the trial court deserves
great respect as it was in a better position to observe the demeanor and deportment of the witnesses
on the stand;[15] hence, it was in a superior situation to assess their testimonies.
Furthermore, proof of ownership of the marijuana is not necessary in the prosecution of illegal drug
cases;[16] it is sufficient that such drug is found in appellants possession.

Second Issue: Illegal Search and Seizure

Based on the foregoing discussion, appellants conviction could have been affirmed by this
Court. However, the very evidence implicating him -- the prohibited drugs found in his possession --
cannot be used against him in this case or, for that matter, in any proceeding.
Generally, a search and seizure must be validated by a previously secured warrant; otherwise,
such search and seizure is subject to challenge.[17] Section 2, Article III of the 1987 Constitution, is
apropos:

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

Any evidence obtained in violation of this provision is legally inadmissible in evidence as a fruit of
the poisonous tree. This principle is covered by this exclusionary rule:

SEC. 3. x x x

(2) Any evidence obtained in violation of x x x the preceding section shall be inadmissible for any
purpose in any proceeding.

The plain import of the foregoing provision is that a search and seizure is normally unlawful unless
authorized by a validly issued search warrant or warrant of arrest. This protection is based on the
principle that, between a citizen and the police, the magistrate stands as a mediator, nay, an authority
clothed with power to issue or refuse to issue search warrants or warrants of arrest. [18]
 The right against warrantless searches, however, is subject to legal and judicial exceptions, as
follows: (1) search incidental to a lawful arrest, (2) search of moving vehicles, (3) seizure in plain view,
(4) customs searches, and (5) waiver by the accused themselves of their right against unreasonable
search and seizure.[19] In these cases, the search and seizure may be made only upon probable cause
as the essential requirement. Although the term eludes exact definition, probable cause signifies a
reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant
a cautious mans belief that the person accused is guilty of the offense with which he is charged; or the
existence of such facts and circumstances which could lead a reasonably discreet and prudent man to
believe that an offense has been committed and that the item(s), article(s) or object(s) sought in
connection with said offense or subject to seizure and destruction by law is in the place to be
searched.[20]
In this case, Bolonia received at 4:00 p.m. on May 20, 1992 an intelligence report that appellant
who was carrying marijuana would arrive the next morning aboard the M/V Sweet Pearl.Although such
report could have been the basis of probable cause, Bolonia explained that he could not secure a
warrant because the courts in Surigao City were already closed for the day.Thus, he and the other
lawmen had no choice but to proceed the next morning to the port area. After appellant disembarked
from the ship and rode a motorela, Bolonia stopped the motor vehicle and conducted the search. He
rummaged through the two strapped plastic baby chairs which were held by appellant and found
inserted between them a package of marijuana wrapped in a small plastic envelope.
Appellant contended before the lower court that the warrantless search of his belongings was
proscribed by the Constitution. But the trial judge rejected this contention, opining that appellant was
caught in flagrante delicto at the time of his arrest. Hence, it concluded that the warrantless search
conducted after his lawful arrest was valid and that the marijuana was admissible in evidence.
Rule 113, Section 5, discusses the instances when a warrantless arrest may be effected, as follows:

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

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

(b) When an offense has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it; and

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

x x x x x x x x x.
In this case, appellant was not committing a crime in the presence of the Surigao City
policemen. Moreover, the lawmen did not have personal knowledge of facts indicating that the person
to be arrested had committed an offense. The search cannot be said to be merely incidental to a lawful
arrest. Raw intelligence information is not a sufficient ground for a warrantless arrest. Bolonias
testimony shows that the search preceded the arrest:[21]
Q: You said you followed Roel Encinada, what happened next when you followed him?
A: I saw Roel Encinada took (sic) a ride with a motorcycle so I chased him and let him stopped (sic).
xxxxxxxxx
 Q: You said you stopped the motor tricycle in which Roel Encinada (sic) riding, what did you do?
A: At first I identified myself to the driver and to some of the passengers.
xxxxxxxxx
Q: And after that, what happened next?
A: I requested Roel Encinada to disembark from the motor tricycle because of that information given
to us in his possession.
Q: Possession of what?
A: Possession of marijuana, Sir.
Q: And Roel Encinada alighted from the motor vehicle?
A: Yes, Sir.
Q: After Roel Encinada alighted from the motor tricycle, what happened next?
A: I requested to him to see his chairs that he carried.
Contrary to the trial courts ruling, People vs. Tangliben[22] is factually inapplicable to the case at
bar. The prosecutions evidence did not show any suspicious behavior when the appellant disembarked
from the ship or while he rode the motorela. No act or fact demonstrating a felonious enterprise could
be ascribed to appellant under such bare circumstances.
We disagree with the trial courts justification for the search:

The arrest of the accused without warrant was lawful because there was a probable cause or ground
for his apprehension. The police had received reliable, albeit confidential information from their
informant that Roel Encinada would be bringing in marijuana from Cebu City on board the M/V
Sweet Pearl. Unfortunately there was no more time for the police to apply for and secure a search
warrant as the information was received late in the afternoon of May 20, 1992 and the accused was
expected to arrive at seven oclock the following morning. The different courts were closed by
then. Nevertheless the police felt constrained to act on the valuable piece of information.

Even if the information was received by Bolonia about 4:00 p.m. of May 20, 1992 at his house,
there was sufficient time to secure a warrant of arrest, as the M/V Sweet Pearl was not expected to
dock until 7:00 a.m. the following day. Administrative Circular No. 13 allows applications for search
warrants even after court hours:

3. Rafflling shall be strictly enforced, except only in case where an application for search warrant
may be filed directly with any judge in whose jurisdiction the place to be searched is located, after
office hours, or during Saturdays, Sundays, and legal holidays, in which case the applicant is
required to certify under oath the urgency of the issuance thereof after office hours, or during
Saturdays, Sundays and legal holidays; (Emphasis supplied)

The same procedural dispatch finds validation and reiteration in Circular No. 19, series of 1987,
entitled Amended Guidelines and Procedures on Applications for Search Warrants for Illegal
Possession of Firearms and Other Serious Crimes Filed in Metro Manila Courts and Other Courts with
Multiple Salas:

This Court has received reports of delay while awaiting raffle, in acting on applications for search
warrants in the campaign against loose firearms and other serious crimes affecting peace and
order. There is a need for prompt action on such applications for search warrant. Accordingly, these
amended guidelines in the issuance of a search warrant are issued:

1. All applications for search warrants relating to violation of the Anti-subversion Act, crimes
against public order as defined in the Revised Penal Code, as amended, illegal possession of
firearms and/or ammunition and violations of the Dangerous Drugs Act of 1972, as amended, shall
no longer be raffled and shall immediately be taken cognizance of and acted upon by the Executive
Judge of the Regional Trial Court, Metropolitan Trial Court, and Municipal Trial Court under
whose jurisdiction the place to be searched is located.

2. In the absence of the Executive Judge, the Vice-Executive Judge shall take cognizance of
and personally act on the same. In the absence of the Executive Judge or Vice-Executive Judge, the
application may be taken cognizance of and acted upon by any judge of the Court where the
application is filed.

3. Applications filed after office hours, during Saturdays, Sundays and holidays, shall likewise be
taken cognizance of and acted upon by any judge of the Court having jurisdiction of the place to be
searched, but in such cases the applicant shall certify and state the facts under oath, to the
satisfaction of the judge, that its issuance is urgent.

4. Any judge acting on such application shall immediately and without delay personally conduct
the examination of the applicant and his witnesses to prevent the possible leakage of
information. He shall observe the procedures, safeguards, and guidelines for the issuance of search
warrants provided for in this Courts Administrative Circular No. 13, dated October 1, 1985.

In People vs. Aminnudin, the Court declared as inadmissible in evidence the marijuana found in
appellants possession during a search without a warrant, because it had been illegally seized. The
Court firmly struck down the policemens cavalier disregard for the Bill of Rights, explaining:
The present case presented no urgency. From the conflicting declarations of the PC witnesses, it
is clear that they had at least two days within which they could have obtained a warrant to arrest and
search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle
was identified. The date of its arrival was certain. And from the information they had received, they
could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a
warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of Rights was ignored
altogether because the PC lieutenant who was the head of the arresting team, had determined on his
own authority that a search warrant was not necessary.
Lawmen cannot be allowed to violate the very law they are expected to enforce. Bolonias receipt
of the intelligence information regarding the culprits identity, the particular crime he allegedly committed
and his exact whereabouts underscored the need to secure a warrant for his arrest. But he failed or
neglected to do so. Such failure or neglect cannot excuse him from violating a constitutional right of the
appellant.
It is significant that the Solicitor General does not share the trial judges opinion. Taking a totally
different approach to justify the search, the Republics counsel avers that appellant voluntarily handed
the chairs containing the package of marijuana to the arresting officer and thus effectively waived his
right against the warrantless search. This, he gleaned from Bolonias testimony:[23]
Q: After Roel Encinada alighted from the motor tricycle, what happened next?
A: I requested to him to see his chairs that he carried.
 Q: Are you referring to the two plastic chairs?
A: Yes, Sir.
Q: By the way, when Roel Encinada agreed to allow you to examine the two plastic chairs that he
carried, what did you do next?
A: I examined the chairs and I noticed that something inside in between the two chairs.
We are not convinced. While in principle we agree that consent will validate an otherwise illegal
search, we believe that appellant -- based on the transcript quoted above -- did not voluntarily consent
to Bolonias search of his belongings. Appellants silence should not be lightly taken as consent to such
search.[24] 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.[25] Furthermore, considering that the
search was conducted irregularly, i.e., without a warrant, we cannot appreciate consent based merely
on the presumption of regularity of the performance of duty.
Appellants alleged acquiescence should be distinguished from the consent appreciated in the
recent case of People vs. Lacerna.[26] In said case, the search was conducted at a validly established
checkpoint and was made in the regular performance of the policemens duty. Although it became
intrusive when the policemen opened his baggage, it was validated by the consent of appellant, who
testified in open court that he allowed such search because he had nothing to hide. In the present case,
there was no checkpoint established. The policemen stopped the motorela and forthwith subjected the
passengers to a search of their persons and baggage. In contrast to the accused in Lacerna, herein
appellant testified that he openly objected to the search by asking for a warrant.
Without the illegally seized prohibited drug, the appellants conviction cannot stand. There is simply
no sufficient evidence remaining to convict him. That the search disclosed a prohibited substance in
appellants possession, and thus confirmed the police officers initial information and suspicion, did not
cure its patent illegality. An illegal search cannot be undertaken and then an arrest effected on the
strength of the evidence yielded by the search.
We should stress that the Court is not unmindful of the difficulties of law enforcement agencies in
suppressing the illegal traffic of dangerous drugs. However, quick solutions of crimes and
apprehensions of malefactors do not justify a callous disregard of the Bill of Rights. Law enforcers are
required to follow the law and to respect the peoples rights. Otherwise, their efforts become
counterproductive. We remind them of this recent exhortation by this Court:[27]
x x x In the final analysis, we in the administration of justice would have no right to expect
ordinary people to be law-abiding if we do not insist on the full protection of their rights. Some
lawmen, prosecutors and judges may still tend to gloss over an illegal search and seizure as long as
the law enforcers show the alleged evidence of the crime regardless of the methods by which they
were obtained. This kind of attitude condones law-breaking in the name of law
enforcement. Ironically, it only fosters the more rapid breakdown of our system of justice, and the
eventual denigration of society. While this Court appreciates and encourages the efforts of law
enforcers to uphold the law and to preserve the peace and security of society, we nevertheless
admonish them to act with deliberate care and within the parameters set by the Constitution and the
law. Truly, the end never justifies the means.
WHEREFORE, the appeal is hereby GRANTED. The assailed Decision is REVERSED and SET
ASIDE. Appellant is ACQUITTED. Unless convicted for any other crime or detained for some lawful
reason, Appellant Roel Encinada is ORDERED RELEASED immediately.
SO ORDERED.
Narvasa, C.J., (Chairman), Romero, Melo, and Francisco, JJ., concur.
G.R. No. L-69803 October 8, 1985

CYNTHIA D. NOLASCO, MILA AGUILAR-ROQUE and WILLIE C. TOLENTINO, petitioners,

vs.
HON. ERNANI CRUZ PAO, Executive Judge, Regional Trial Court of Quezon City; HON. ANTONIO P.
SANTOS, Presiding Judge, Branch XLII, Metropolitan Trial Court of Quezon City: HON. SERGIO F.
APOSTOL, City Fiscal, Quezon City; HON. JUAN PONCE ENRILE, LT. GEN. FIDEL RAMOS and COL. JESUS
ALTUNA, respondents.

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

MELENCIO-HERRERA, J.:

The facts before the Court in these Certiorari, Prohibition, and mandamus proceedings will be briefly stated. The
three petitioners will be referred to through their surnames of NOLASCO, AGUILAR-ROQUE and TOLENTINO.

1. Prior to August 6, 1984 (hereinafter to be referred to without the year), AGUILAR-ROQUE was one of the
accused of Rebellion in Criminal Case No.
MC-25-113 of Military Commission No. 25, both cases being entitled "People of the Philippines vs. Jose Ma. Sison,
et al." She was then still at large.

2. At 11:30 A.M. on August 6th, AGUILAR-ROQUE and NOLASCO were arrested by a Constabulary Security Group
(CSG) at the intersection of Mayon Street and P. Margall Street, Quezon City. The stated time is an allegation of
petitioners, not denied by respondents. The record does not disclose that a warrant of arrest had previously beeen
issued against NOLASCO.

3. At 12:00 N. on August 6th, elements of the CSG searched the premises at 239-B Mayon Street, Quezon City. The
stated time is an allegation of petitioners, not specifically denied by respondents. In their COMMENT, however,
respondents have alleged that the search was conducted "late on the same day"; that is late on august 6th.

4. On August 6th, at around 9:00 A.M., Lt. Col. Virgilio G. Saldajeno of the CSG, applied for a Search Warrant from
respondent Hon. Ernani Cruz Pao, Executive Judge of the Regional Trial Court in Quezon City, to be served at No.
239-B Mayon Street, Quezon City, determined tyo be the leased residence of AGUILAR-ROQUE, after almost a
month of "round the clock surveillance" of the premises as a "suspected underground house of the CPP/NPA."
AGUILAR-ROQUE has been long wanted by the military for being a high ranking officer of the Communist Party of
the Philippines, particularly connected with the MV Karagatan/Doa Andrea cases.

In connection with the Search Warrant issued, the following may be stated:

(a) The Search Warrant was issued in proceedings entitled "People of the Philippines vs. Mila Aguilar-Roque,
Accused, Search Warrant No. 80- 84 for rebellion" (the SEARCH WARRANT CASE). Judge Panos Court was
Branch 88.

(b) It does not appear from the records before us that an application in writing was submitted by Lt. Col. Saldajeno
to Judge Pao.

(c) According to the record, Lt. Col. Saldajeno and his witness S/A Dionicio A. Lapus, were examined under oath by
Judge Pao but only the deposition of S/A Lapus has been submitted to us. The latter deposed that to his personal
knowledge, there were kept in the premises to be searched records, documents and other papers of the CPP/NPA
and the National Democratic Front, including support money from foreign and local sources intended to be used for
rebellion. 1

5. In connection with the search made at 12:00 N. of August 6th the following may be stated:
(a) TOLENTINO was a person then in charge of the premises. He was arrested by the searching party presumably
without a warrant of arrest.

(b) The searching party seized 428 documents and written materials, 2 and additionally a portable typewriter, and 2
wooden boxes, making 431 items in all. 3

(c) According to the Return, submitted in the SEARCH WARRANT CASE on August 10th, 4 the search was made in
the presence of Dra. Marciana Galang, owner of the premises, and of two (2) Barangay Tanods. No mention was made
that TOLENTINO was present. The list of the 428 articles and documents attached to the Return was signed by the two
Barangay Tanods, but not by Dra. Galang.

6. (a) On August 10th, the three petitioners, AGUILAR-ROQUE, NOLASCO and TOLENTINO, were charged before
the Quezon City Fiscal's Office (the CITY FISCAL, for short) upon complaint filed by the CSG against petitioners for
"Subversion/Rebellion and/or Conspiracy to Commit Rebellion/Subversion."

(b) On August 13th, the CITY FISCAL filed an Information for Violation of Presidential Decree No. 33 (Illegal
Possession of Subversive Documents) against petitioners before Branch 42 of the Metropolitan Trial Court of
Quezon City (the SUBVERSIVE DOCUMENTS CASE), respondent Judge Antonio P. Santos, presiding.

(c) On August 16th, CSG filed a Motion for Reconsideration with the CITY FISCAL, praying that AGUILAR-ROQUE
and NOLASCO be charged with Subversion. The Motion was denied on November 16th.

7. (a) On September 10th, the CSG submitted an Amended Return in the SEARCH WARRANT CASE praying, inter
alia, that the CSG be allowed to retain the seized 431 documents and articles, in connection with cases that are
presently pending against Mila Aguilar Roque before the Quezon City Fiscal's Office and the court. 5

(b) On September 28th, petitioners were required by Judge Pano to comment on the Amended Return, which
AGUILAR-ROQUE did on October 18th, raising the issue of the inadmissibility of any evidence obtained pursuant to
the Search Warrant.

(c) On December 13, 1984, Judge Pao admitted the Amended Return and ruled that the seized documents "shall
be subject to disposition of the tribunal trying the case against respondent."

8. (a) On December 12th, petitioners filed a Motion to Suppress in the SUBVERSIVE DOCUMENTS CASE, praying
that such of the 431 items belonging to them be returned to them. It was claimed that the proceedings under the
Search Warrant were unlawful. Judge Santos denied the Motion on January 7, 1985 on the ground that the validity
of the Search Warrant has to be litigated in the SEARCH WARRANT CASE. He was apparently not aware of the
Order of Judge Pao of December 13th issued in the SEARCH WARRANT CASE.

Hence, this Petition for Certiorari, Prohibition and mandamus to annul and set aside the (1) Search Warrant issued
by respondent RTC Judge Pao; (2) his Order admitting the Amended Return and granting the Motion to Retain
Seized Items; and (3) Order of respondent MTC Judge Santos denying petitioners' Motion to Suppress.

This Court, on February 12, 1985, issued a Temporary Restraining Order enjoining the respondents or their duly
authorized representatives from introducing evidence obtained under the Search Warrant.

The PETITIONERS principally assert that the Search Warrant is void because it is a general warrant since it does
not sufficiently describe with particularity the things subject of the search and seizure, and that probable cause has
not been properly established for lack of searching questions propounded to the applicant's witness. The
respondents, represented by the Solicitor General, contend otherwise, adding that the questions raised cannot be
entertained in this present petition without petitioners first moving for the quashal of the disputed Search Warrant
with the issuing Judge.

We find merit in the Petition.

Section 3, Article IV of the Constitution, guarantees the right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of whatever nature and for any purpose. It also
specifically provides that no Search Warrant shall issue except upon probable cause to be determined by the Judge
or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be searched and the things
to be seized.

The disputed Search Warrant (No. 80-84) describes the personalities to be seized as follows:

Documents, papers and other records of the Communist Party of the Phihppines/New Peoples Army
and/or the National Democratic Front, such as Minutes of the Party Meetings, Plans of these groups,
Programs, List of possible supporters, subversive books and instructions, manuals not otherwise
available to the public, and support money from foreign or local sources.

It is at once evident that the foregoing Search Warrant authorizes the seizure of personal properties vaguely
described and not particularized. It is an all- embracing description which includes everything conceivable regarding
the Communist Party of the Philippines and the National Democratic Front. It does not specify what the subversive
books and instructions are; what the manuals not otherwise available to the public contain to make them subversive
or to enable them to be used for the crime of rebellion. There is absent a definite guideline to the searching team as
to what items might be lawfully seized thus giving the officers of the law discretion regarding what articles they
should seize as, in fact, taken also were a portable typewriter and 2 wooden boxes. It is thus in the nature of a
general warrant and infringes on the constitutional mandate requiring particular description of the things to be
seized. In the recent rulings of this Court, search warrants of similar description were considered null and void for
being too general. Thus:

Subversive documents, pamphlets, leaflets, books, and other publications to promote the objectives
and purposes of the subversive organizations known as Movement for Free Philippines. Light-a-Fire
Movement and April 6 Movement. 6

The things to be seized under the warrant issued by respondent judge were described as
'subversive documents, propaganda materials, FAs, printing paraphernalia and all other subversive
materials Such description hardly provided a definite guideline to the search team as to what articles
might be lawfully seized thereunder. Said description is no different from if not worse than, the
description found in the search warrants in "Burgos, et al. v. the Chief of Staff"which this Court
declared null and void for being too general. 7

In the case at bar, the search warrant issued by respondent judge allowed the seizure of printed
copies of the Philippine Times, manuscripts/drafts of articles for publication, newspaper dummies
subversive documents, articles, etc., and even typewriters, duplicating machines, mimeographing
and tape recording machines. Thus, the language used is so all embracing as to include all
conceivable records and equipment of petitioner regardless of whether they are legal or illegal. The
search warrant under consideration was in the nature of a general warrant which is constitutionally
objectionable. 8

The lack of particularization is also evident in the examination of the witness presented by the applicant for Search
Warrant.

Q Mr. Dionicio Lapus, there is an application for search warrant filed by Lt. Col.
Virgilio Saldajeno and the Court would like to know if you affirm the truth of your
answer in this deposition?

(The deposition instead)

A Yes, sir,

Q How long did it take you for the surveillance?

A Almost a month, sir.

 Q Are you a lawyer, Mr. Lapus?

A No, Your Honor, but I was a student of law.

Q So, you are more or less familiar with the requisites of the application for search
warrant?

A Yes, Your Honor.

Q How did you come to know of the person of Mila Aguilar-Roque?

A Because of our day and night surveillance, Your Honor, there were so many
suspicious persons with documents.

Q What kind of documents do you refer to?

A Documents related to the Communist Party of Philippines and New People's Army.

Q What else?

A Conferences of the top ranking officials from the National Democratic Front,
Organization of the Communist Party of the Philippines ...

Q And may include what else?

A Other papers and documents like Minutes of the Party Meetings, Plans of these
groups, Programs, List of possible supporters, subversive books and instructions,
manuals not otherwise available to the public and support money from foreign and
local sources. 9

The foregoing questions propounded by respondent Executive Judge to the applicant's witness are not sufficiently
searching to establish probable cause. The "probable cause" required to justify the issuance of a search warrant
comprehends such facts and circumstances as will induce a cautious man to rely upon them and act in pursuant
thereof. 10 Of the 8 questions asked, the 1st, 2nd and 4th pertain to Identity. The 3rd and 5th are leading not searching
questions. The 6th, 7th and 8th refer to the description of the personalities to be seized, which is Identical to that in the
Search Warrant and suffers from the same lack of particularity. The examination conducted was general in nature and
merely repetitious of the deposition of said witness. Mere generalization will not suffice and does not satisfy the
requirements of probable cause upon which a warrant may issue. 11

Respondents claim, however, that the proper forum for questioning the illegality of a Search Warrant is with the
Court that issued it instead of this original, independent action to quash. The records show, however, that petitioners
did raise that issue in the SEARCH WARRANT CASE in their Comment, dated October 18, 1984. In fact, they
already questioned the admissibility of the evidence obtained under the Search Warrant, even during the inquest
investigation on August 10, 1984. And in the SUBVERSIVE DOCUMENTS CASE, they filed a Motion to Suppress
on December 12, 1984 claiming that the proceedings under the Search Warrant were unlawful. Substantially,
therefore, while not denominated as a motion to quash, petitioners had questioned the legality of the Search
Warrant.

Parenthetically, it strikes the Court that the pendency of the SEARCH WARRANT CASE and of the SUBVERSIVE
DOCUMENTS CASE before two different Courts is not conducive to an orderly administration of justice. It should be
advisable that, whenever a Search Warrant has been issued by one Court, or Branch, and a criminal prosecution is
initiated in another Court, or Branch, as a result of the service of the Search Warrant, the SEARCH WARRANT
CASE should be consolidated with the criminal case for orderly procedure. The later criminal case is more
substantial than the Search Warrant proceeding, and the Presiding Judge in the criminal case should have the right
to act on petitions to exclude evidence unlawfully obtained.
Notwithstanding the irregular issuance of the Search Warrant and although, ordinarily, the articles seized under an
invalid search warrant should be returned, they cannot be ordered returned in the case at bar to AGUILAR-ROQUE.
Some searches may be made without a warrant. Thus, Section 12, Rule 126, Rules of Court, explicitly provides:

Section 12. Search without warrant of person arrested.A person charged with an offense may be
searched for dangerous weapons or anything which may be used as proof of the commission of the
offense.

The provision is declaratory in the sense that it is confined to the search, without a search warrant, of a person who
had been arrested. It is also a general rule that, as an incident of an arrest, the place or premises where the arrest
was made can also be search without a search warrant. In this latter case, "the extent and reasonableness of the
search must be decided on its own facts and circumstances, and it has been stated that, in the application of
general rules, there is some confusion in the decisions as to what constitutes the extent of the place or premises
which may be searched. 12 "What must be considered is the balancing of the individual's right to privacy and the public's
13
interest in the prevention of crime and the apprehension of criminals."

Considering that AGUILAR-ROQUE has been charged with Rebellion, which is a crime against public order; that the
warrant for her arrest has not been served for a considerable period of time; that she was arrested within the
general vicinity of her dwelling; and that the search of her dwelling was made within a half hour of her arrest, we are
of the opinion that in her respect, the search at No. 239-B Mayon Street, Quezon City, did not need a search
warrant; this, for possible effective results in the interest of public order.

Such being the case, the personalities seized may be retained. by CSG, for possible introduction as evidence in the
Rebellion Case, leaving it to AGUILAR-ROQUE to object to their relevance and to ask Special Military Commission
No.1 to return to her any and all irrelevant documents and articles.

WHEREFORE, while Search Warrant No. 80-84 issued on August 6, 1984 by respondent Executive Judge Ernani
Cruz Pao is hereby annulled and set aside, and the Temporary Restraining Order enjoining respondent from
introducing evidence obtained pursuant to the Search Warrant in the Subversive Documents case hereby made
permanent, the, personalities seized may be retained by the Constabulary Security Group for possible introduction
as evidence in Criminal Case No. SMC-1-1, pending before Special Military commission No. 1, without prejudice to
petitioner Mila Aguilar-Roque objecting to their relevance and asking said Commission to return to her any and all
irrelevant documents and articles.

SO ORDERED.

Plana, Escolin Relova, Gutierrez, Jr., De la Fuente, Alampay and Patajo concur.

Makasiar, C.J., concurs in the result.

Aquino, J.; took no part.

Concepcion Jr., J., reserves his vote.

Separate Opinions

TEEHANKEE, J., concurring and dissenting:

I concur with the concurring and dissenting opinion of Mr. Justice Vicente Abad Santos. The questioned search
warrant has correctly been declared null and void in the Court's decision as a general warrant issued in gross
violation of the constitutional mandate that "the right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated"
(Bill of Rights, sec. 3). The Bill of Rights orders the absolute exclusion of all illegally obtained evidence: "Any
evidence obtained in violation of this . . . section shall be inadmissible for any purpose in any proceeding" (Sec.
4[2]). This constitutional mandate expressly adopting the exclusionary rule has proved by historical experience to be
the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures
by outlawing all evidence illegally seized and thereby removing the incentive on the part of state and police officers
to disregard such basic rights. What the plain language of the Constitution mandates is beyond the power of the
courts to change or modify.

All the articles thus seized fall under the exclusionary rule totally and unqualifiedly and cannot be used against any
of the three petitioners, as held by the majority in the recent case of Galman vs. Pamaran (G.R. Nos. 71208-09,
August 30, 1985). The Court has held that "in issuing a search warrant the judge must strictly comply with the
requirements of the Constitution and the statutory provisions. A liberal construction should be given in favor of the
individual to prevent stealthy encroachment upon, or gradual depreciation of the rights secured by the Constitution.
No presumptions of regularity are to be invoked in aid of the process when an officer undertakes to justify it." (Mata
vs. Bayona, 128 SCRA 388, 393-394)

The majority pronouncement that "as an incident to (petitioner Mila Aguilar- Roque's) arrest, her dwelling at No. 239-
B Mayon Street, Quezon City could have been searched, even without a warrant, for evidence of rebellion" is
patently against the constitutional proscription and settled law and jurisprudence. Mr. Justice Cuevas amply
discusses this in the dissenting portion of his separate opinion. Suffice it to add and stress that the arresting CSG
Group themselves knew that they needed a search warrant and obtained the void warrant in question. The
exception of Rule 126, sec. 12 which allows a warrantless search of a person who is lawfully arrested is absolutely
limited to his person, at the time of and incident to his arrest and to dangerous weapons or anything which may be
used as proof of the commission of the offense." Such warrantless search obviously cannot be made in a
place other than the place of arrest. In this case, petitioner Aguilar-Roque was arrested at 11:30 a.m. on board a
public vehicle on the road (at Mayon and P. Margall Streets). To hold that her dwelling could "later on the same day"
be searched without warrant is to sanction an untenable violation, if not nullification, of the cited basic constitutional
rights against unreasonable searches and seizures.

I vote to grant the petition in toto.

ABAD SANTOS, J., concurring and dissenting:

I concur in the judgment insofar as it annuls and sets aside Search Warrant No. 80-84 issued by Executive Judge
Ernani Cruz Pao for the reasons adduced by Justice Melencio Herrera. In addition I wish to state the judge either
did not fully know the legal and constitutional requirements for the issuance of a search warrant or he allowed
himself to be used by the military. In either case his action can only be described as deplorable.

I do not agree with the ponencia when it says that personalities seized may be retained by the Constabulary
Security Group for possible introduction as evidence in Criminal Case No. SMC-1-1 pending before Special Military
Commission No. 1. I agree with Justice Cuevas. for the reasons stated by him, that their retention cannot be justified
by the provisions of Sec. 12, Rule 126 of the Rules of Court. But then again I cannot agree with Justice Cuevas,
statement that not all the things seized can be ordered returned to their owners. He refers to "the subversive
materials seized by the government agents." What are subversive materials? Whether a material is subversive or
not is a conclusion of law, not of fact. Who will make the determination? Certainly not the military for it is not
competent to do so aside from the fact that it has its own peculiar views on the matter. thus copies of Playboy
magazines were seized from a labor leader now deceased and medicines were also seized from a physician who
was suspected of being a subversive. I say return everything to the petitioners.

CUEVAS, J., concurring and dissenting

I fully agree with the pronouncement in the majority opinion nullifying Search warrant No. 80-84 issued by the Hon.
Ernani Cruz Pao Executive Judge of the Regional Trial Court of Quezon City which was served at 239B Mayon St.,
Quezon City It does not specify with requisite particularity the things, objects or properties that may be seized
hereunder. Being in the nature of a general warrant, it violates the constitutional mandate that the place to be
searched and the persons or things to be seized, 'must be particularly described. (Art. IV, Sec. 3, 1973 Constitution)
I, however, regret being unable to concur with the dictum justifying the said search on the basis of Sec. 12, Rule 126
of the Rules of Court which provides:

SEC. 12. Search without warrant of person arrested.A person charged with an offense may be
searched for dangerous weapons or anything which may be used as proof of the commission of the
offense.

The lawful arrest being the sole justification for the validity of the warrantless search under the aforequoted provision
(Sec. 12, Rule 126) the same must be limited to and circumscribed by, the subject, time, and place of said arrest. As
to subject, the warrantless search is sanctioned only with respect to the person of the suspect, and things that may
be seized from him are limited to "dangerous weapons" or "anything which may be used as proof of the commission
of the offense." Hence

An officer making an arrest may take from the person arrested any money or property found upon
his person which was used in the commission of the crime or might furnish the prisoner with the
means of committing violence or escaping or which may be used as evidence in the trial of the
cause ... (In Re Moreno vs. Ago Chi, 12 Phil. 439: People vs. Veloso, 48 Phil. 169)

With respect to the time and place of the warrantless search allowed by law, it must be contemporaneous with the
lawful arrest. Stated otherwise, to be valid, the search must have been conducted at about the time of the arrest or
immediately thereafter and only at the place where the suspect was arrested,

The right without a search warrant contemporaneously to search a person lawfully arrested while
committing a crime and to search the place where the arrest is made in order to find and seize things
connected with the crime as its fruits or as the means by which it was committed, as well as
weapons or other things to effect an escape from custody is not to be doubted. CAROLL vs. US 267
US 122. 158. ... But the right does not extend to other places. Frank Agnello's house was several
blocks distant from Alba's house where the arrest was made. When it was entered and searched,
the conspiracy was ended and the defendants were under arrest and in custody elsewhere. That
search cannot be sustained as an incident of the arrests. MARSON vs. US, 275 US 192, 199.
(Emphasis supplied) (Agnello vs. U.S., 269 U.S. 20,30)

The second element which must exist in order to bring the case within the exception to the general rule is that, in
addition to a lawful arrest, the search must be incident to the arrest.

The search must be made at the place of the arrest, otherwise, it is not incident to the
arrest. AGNELLO vs. U.S. supra. In this latter case, 269 U.S. 20 at 30, it is said that the officers
have a right to make a search contemporaneously with the arrest. And if the purpose of the officers
in making their entry is not to make an arrest, but to make a search to obtain evidence for some
future arrest, then search is not incidental to arrest. BYARS vs. U.S. 273 U.S., 28 ET AL. (Papani vs,
U. S. 84 F 2d 160, 163)

In the instant case, petitioners were arrested at the intersection of Mayon St. and P. Margall St. at 11:30 A.M. of
August 6. 1976. The search, on the other hand, was conducted after the arrest, that was at around 12:00 noon of
the same day or "late that same day (as respondents claim in their "COMMENT") at the residence of petitioner
AGUILAR-ROQUE in 239B Mayn St., Quezon City. How far or how many kilometers is that place from the place
where petitioner was arrested do not appear shown by the record. But what appears undisputed is that the search
was made in a place other than the place of arrest and, not on the occasion of nor immediately after the arrest. It
cannot be said, therefore, that such a search was incidental to the arrest of the petitioners. Not being an incident of
a lawful arrest, the search of the premises at 239B Mayon St., Quezon City WITHOUT A VALID SEARCH
WARRANT is ILLEGAL and violative of the constitutional rights of the respondent. The things and properties seized
on the occasion of said illegal search are therefore INADMISSIBLE in evidence under the exclusionary rule.
However, not all the things so seized can be ordered returned to their owners. Objects and properties the
possession of which is prohibited by law, cannot be returned to their owners notwithstanding the illegality of their
seizure. (Mata vs. Bayona, 128 SCRA 388, 1984 citing Castro vs. Pabalan, 70 SCRA 478). Thus, the subversive
materials seized by the government agents which cannot be legally possessed by anyone under the law can and
must be retained by the government.
G.R. No. 106213 September 23, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CRISANTA SANTOS Y GADASA, accused-appellant.

The Solicitor General for plaintiff-appellee.

Josefina de Alban Law Office for accused-appellant.

CRUZ, J.:

Crisanta Santos was charged with the sale of prohibited drugs in violation of Article 2, Section 4, of Rep.
Act. 6425 and pleaded not guilty. 1 She later plea-bargained for the lesser offense of mere possession but the
prosecution objected and her motion was denied. 2 After trial, she was convicted of the original charge and
sentenced to life imprisonment and a fine of P20,000.00. 3 She now raises legal and factual questions in her
appeal for exoneration.

From the evidence submitted by the prosecution, the trial court found that in the morning of October 19,
1991, the Anti-Narcotics Unit of the Kalookan City Police Force received two successive reports of
marijuana peddling in Maypajo, Kalookan, by a couple named Bundoy and Antang. A buy-bust team was
forthwith organized with SPO4 Juan Grajo as leader and SPO3 Renato Dizon, SPO2 Juan Sapin, Jr., and
SPO2 Vivencio Corpuz as members. Corpuz was to pose as the buyer and was supplied with two marked
ten-peso bills 4 for purpose. The team proceeded to the target area at about 6:30 a.m. While the rest of the team
deployed themselves some ten meters away, an informer introduced Corpuz to Antang, the herein appellant.
Corpuz asked to buy two teabags of marijuana, which Antang immediately produced in exchange for the marked
money. As the other team members closed in at the pre-arranged signal from Corpuz, Antang sensed danger and
ran into her house nearby. The team members chased her and there placed her under arrest. They recovered the
marked money from her. Upon interrogation, she admitted to possessing a red box and an iron pot hanging from
the ceiling but claimed they were empty. All told, 17 tea bags and 25 cigarettes were seized from her. 5 These
were duly marked and sent for examination to the PC Crime Laboratory, where they were later found positive for
marijuana. 6

The above narration was made by prosecution witnesses Grajo, Sapin and Corpuz, members of the buy-
bust team, and Elizabeth Ayonon, forensic chemist of the PC Crime Laboratory, who analyzed the seized
articles. 7

For the defense, the only witness was Crisanta Santos herself. She flatly denied the charge against her. She
said there was no buy-bust operation at all. What really happened was that in the morning in question, six
policemen and their barangay chairman barged into her house while she was sleeping and immediately
conducted a warrantless search despite her objections. Claiming to have found marijuana in an iron pot and
a novelty box, they took her to the police station and booked her for selling illegal drugs. She immediately
telephoned her common-law husband, Bundoy, who arrived soon and offered to take her place in the
detention cell. 8 He was, however, released after a while on the ground that the evidence was seized not from
9
him but from Santos.

In this appeal, Santos reiterates her arguments in her earlier motion to be allowed to plead guilty to the
lesser charge of possession in lieu of the selling of marijuana. She says again that the marijuana belonged
to Bundoy and not her and that she had in fact often berated him for engaging in the sale of this narcotic.
She insists that it is Bundoy and not her who should have been charged.

Alternatively, she suggests that the marijuana was "planted" on her by the policemen who raided her house
that morning. Taking still another tack, she protests that the marijuana was seized from her as a result of an
invalid warrantless search that rendered the seized articles inadmissible evidence against her.
The appeal must fail.

The evidence clearly shows that there was a valid entrapment of the appellant. All the three team members
who testified positively identified her as the person who sold the two teabags of marijuana to Corpuz during
the sham transaction. The marked money was retrieved from her upon her arrest. The 17 teabags and 25
cigarettes seized in her house were found to be positive for marijuana by the forensic chemist who
subjected them to laboratory examination. Although Santos denied it later, she had earlier admitted their
possession in her plea-bargaining motion. 10

The seizure of the marijuana in the house was not unlawful because it was incident to a lawful arrest. 11The
arrest itself was valid because Antang was caught red-handed, while in the act of selling the prohibited articles to
the sham buyer. Under Rule 113 of the Rules of Court, particularly Section 5(a), a warrantless arrest may be made
by any person

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

The evidence of the prosecution shows that it was Antang who, upon questioning, voluntarily produced the
novelty box and pointed to the iron box containing the marijuana teabags and cigarettes. Even if her later
denials were accepted, the seizure would still not thereby be invalidated for the rule is that, in the course of
a lawful arrest, a warrantless search may be made not only on the person of the suspect but also in a
permissible area within his reach. 12 In the case at bar, the search and seizure was made incidental to a lawful
arrest and within the permissible area of search.

The lawfulness of Santos' arrest and search should refute her complaint that she was not accorded the right
to a preliminary investigation prior to the filing of the information against her. Rule 112, Section 7, of the
Rules of Court clearly provides:

When a person is lawfully arrested without a warrant for an offense cognizable by the
Regional Trial Court, the complaint or information
may be filed by the offended party, peace officer or fiscal without a preliminary investigation
having been first conducted, on the basis of the affidavit of the offended party or arresting
officer or person.

The purpose of a preliminary investigation is to determine "whether there is sufficient ground to engender a
well-founded belief that a crime cognizable by the Regional Trial Court has been committed and that the
respondent is probably guilty thereof and should be held for trial." That sufficient ground had already been
determined with the arrest of the suspect in the act of selling the prohibited drugs to the arresting officers
as described in their joint affidavit. 13

The appellant seeks to throw suspicion away from her and focus it on her common-law husband by
claiming that the marijuana belonged to him and it was he who was selling it. She faults the police for
charging her with his offense.

While she correctly argues that she had no obligation to prove Bundoy guilty, it is equally true that the
prosecution also had no similar duty. Its duty was to prove her guilty, on the strength particularly of her
admission that the marijuana belonged to her. The prosecution had no obligation to present Bundoy as its
witness. If the defense felt that Santos was being unjustly accused, it was not prevented from calling
Bundoy to the stand and exposing him as the real culprit. Each party has a right to call its own witnesses
according to its own strategy. 14

In this connection, the prosecution also had the option not to present the informer as its witness if it
believed that his testimony would not be crucial but only corroborative.

The defense points to a number of inconsistencies in the testimonies of the three policemen who
conducted the buy-bust operation and stresses that these contradictions impair their credibility. The Court
does not think so. There are indeed such imperfections but we do not find that they have substantially
flawed the essential veracity of their common narration of the entrapment. Minor contradictions among the
several witnesses of a particular incident are to be expected in view of their differences in impressions,
memory, vantage points and other relevant factors.

We shall sustain the factual findings of Judge Adoracion S. Angeles of the Regional Trial Court of Kalookan
City, owing to her superior opportunity to observe the witnesses while on the stand and to ascertain from
their demeanor whether they were to be believed or not. We do not find that her conclusions on this matter
are arbitrary or without substantial basis and so should be reversed. We also hold that the seized marijuana
was lawfully admitted as evidence against the appellant because it was taken in the course of a lawful
warrantless search incidental to a lawful arrest.

The trial court sentenced the appellant to life imprisonment and a fine of P20,000.00, under Article 2,
Section 4, of Rep. Act No. 6425, as amended. Pending the resolution of this appeal, Rep. Act No. 6425 was
further amended by Rep. Act No. 7659, which took effect December 31, 1993.

In People v. Martin Simon y Sunga 15, the Court held that the provisions of Rep. Act No. 7659 which are
favorable to the accused should be given retroactive application, pursuant to Article 22 of the Revised Penal
Code. Accordingly, the provisions of Rep. Act No. 7659 lowering the penalty that can be imposed on the
appellant shall be applied in this case.

The appellant was convicted of selling two teabags of marijuana. She is therefore covered by Section 20 of
Rep. Act No. 7659 reading as follows:

Application of Penalties, Confiscation and Forfeiture of the Proceeds of Instrument of the

Crime. The penalties for offense under Section 3, 4, 7, 8 and 9 of Article II and Sections 14,
14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in
any of the following quantities:

xxx xxx xxx

5. 750 grams or more of Indian hemp or marijuana.

xxx xxx xxx

Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall
range from prision correccional to reclusion perpetua depending upon the quantity.

In Simon, the Court harmonized the provisions of Section 20, in view of the obvious error on the imposable
penalties. The penalty of reclusion perpetua is given as the maximum of the penalty where the amount of
drugs involved is less than the amount specified under the first paragraph of Section 20 (i.e., less than 750
grams of marijuana), and also as the minimum of the penalty where the amount of drugs involved is more
than that specified in the first paragraph (i.e., more than 750 grams).

The Court held that the penalty to be imposed where the quantity of the drugs involved is less than the
quantities stated in the first paragraph of Section 20 shall range from prision correccional to reclusion
temporal. The quantity of drugs enumerated in the second paragraph of Section 20 shall be divided into
three, with the resulting quotient, and double or treble the same, as the bases for allocating the penalty
proportionately among the three periods. Furthermore, modifying circumstances can be appreciated to fix
the proper period of the penalty imposable, provided, however, that the lowest penalty shall in any event
be prision correccional so as not to depreciate the seriousness of drug offense.

The Court also held that Section 1 of the Indeterminate Sentence Law shall be applied to drugs cases under
Rep. Act No. 7659, as the latter act had adopted the penalties under the Revised Penal Code.

Conformably to these rulings, the penalty to be imposed on the appellant pursuant to Rep. Act No. 7659
is prision correccional. Applying the Indeterminate Sentence law, we hold that the appellant must be, and is
hereby, sentenced to the penalty of six (6) months of arresto mayor as minimum to six (6) years of prision
correccional.
WHEREFORE, the appeal is DISMISSED and the challenged decision is AFFIRMED, with the modification
that the accused is sentenced to the indeterminate penalty of six (6) months of arresto mayor as minimum
to six years of prision correccional as maximum. The confiscated marijuana sticks and flowering tops shall
be turned over immediately to the Dangerous Drugs Board for destruction in accordance with law. Costs
against the appellant.

SO ORDERED.
G.R. No. 96177 January 27, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARI MUSA y HANTATALU, accused-appellant.

The Solicitor General for plaintiff-appellee.

Pablo L. Murillo for accused-appellant.

ROMERO, J.:

The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision, dated August 31, 1990, 1 of the
Regional Trial Court (RTC) of Zamboanga City, Branch XII, finding him guilty of selling marijuana in violation of Article II,
Section 4 of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972.

The information filed on December 15, 1989 against the appellant reads:

That on or about December 14, 1989, in the City of Zamboanga, Philippines, and within the
jurisdiction of this Honorable Court, the
above-named accused, not being authorized by law, did then and there, wilfully, unlawfully and
feloniously sell to one SGT. AMADO ANI, two (2) wrappers containing dried marijuana leaves,
knowing the same to be a prohibited drug.

CONTRARY TO LAW. 2

Upon his arraignment on January 11, 1990, the appellant pleaded not guilty. 3

At the trial, the prosecution presented three (3) witnesses, namely: (1) Sgt. Amado Ani, Jr. of the 9th Narcotics
Command (NARCOM) of Zamboanga City, who acted as poseur-buyer in the buy-bust operation made against the
appellant; (2) T/Sgt. Jesus Belarga, also of the 9th Narcotics Command of Zamboanga City, who was the NARCOM
team leader of the buy-bust operation; and (3) Athena Elisa P. Anderson, the Document Examiner and Forensic
Chemist of PC-INP Crime Laboratory of Regional Command (RECOM) 9. The evidence of the prosecution was
summarized by the trial court as follows:

Prosecution evidence shows that in the morning of December 13, 1989, T/Sgt. Jesus Belarga,
leader of a NARCOTICS COMMAND (NARCOM) team based at Calarian, Zamboanga City,
instructed Sgt. Amado Ani to conduct surveillance and test buy on a certain Mari Musa of Suterville,
Zamboanga City. Information received from civilian informer was that this Mari Musa was engaged in
selling marijuana in said place. So Sgt. Amado Ani, another NARCOM agent, proceeded to
Suterville, in company with a NARCOM civilian informer, to the house of Mari Musa to which house
the civilian informer had guided him. The same civilian informer had also described to him the
appearance of Mari Musa. Amado Ani was able to buy one newspaper-wrapped dried marijuana
(Exh. "E") for P10.00. Sgt. Ani returned to the NARCOM office and turned over the newspaper-
wrapped marijuana to T/Sgt. Jesus Belarga. Sgt. Belarga inspected the stuff turned over to him and
found it to be marijuana.

The next day, December 14, 1989, about 1:30 P.M., a buy-bust was planned. Sgt. Amado Ani was
assigned as the poseur buyer for which purpose he was given P20.00 (with SN GA955883) by
Belarga. The
buy-bust money had been taken by T/Sgt. Jesus Belarga from M/Sgt. Noh Sali Mihasun, Chief of
Investigation Section, and for which Belarga signed a receipt (Exh. "L" & "L-l" ) The team under Sgt.
Foncargas was assigned as back-up security. A pre-arranged signal was arranged consisting of Sgt.
Ani's raising his right hand, after he had succeeded to buy the marijuana. The two NARCOM teams
 proceeded to the target site in two civilian vehicles. Belarga's team was composed of Sgt. Belarga,
team leader, Sgt. Amado Ani, poseur buyer, Sgt. Lego and Sgt. Biong.

Arriving at the target site, Sgt. Ani proceeded to the house of Mari Musa, while the rest of the
NARCOM group positioned themselves at strategic places about 90 to 100 meters from Mari Musa's
house. T/Sgt. Belarga could see what went on between Ani and suspect Mari Musa from where he
was. Ani approached Mari Musa, who came out of his house, and asked Ani what he wanted. Ani
said he wanted some more stuff. Ani gave Mari Musa the P20.00 marked money. After receiving the
money, Mari Musa went back to his house and came back and gave Amado Ani two newspaper
wrappers containing dried marijuana. Ani opened the two wrappers and inspected the contents.
Convinced that the contents were marijuana, Ani walked back towards his companions and raised
his right hand. The two NARCOM teams, riding the two civilian vehicles, sped towards Sgt. Ani. Ani
joined Belarga's team and returned to the house.

At the time Sgt. Ani first approached Mari Musa, there were four persons inside his house: Mari
Musa, another boy, and two women, one of whom Ani and Belarga later came to know to be Mari
Musa's wife. The second time, Ani with the NARCOM team returned to Mari Musa's house, the
woman, who was later known as Mari Musa's wife, slipped away from the house. Sgt. Belarga
frisked Mari Musa but could not find the P20.00 marked money with him. Mari Musa was then asked
where the P20.00 was and he told the NARCOM team he has given the money to his wife (who had
slipped away). Sgt. Belarga also found a plastic bag containing dried marijuana inside it somewhere
in the kitchen. Mari Musa was then placed under arrest and brought to the NARCOM office. At
Suterville, Sgt. Ani turned over to Sgt. Belarga the two newspaper-wrapped marijuana he had earlier
bought from Mari Musa (Exhs. "C" & "D").

In the NARCOM office, Mari Musa first gave his name as Hussin Musa. Later on, Mari Musa gave
his true name Mari Musa. T/Sgt. Jesus Belarga turned over the two newspaper-wrapped
marijuana (bought at the buy-bust), the one newspaper-wrapped marijuana (bought at the test-buy)
and the plastic bag containing more marijuana (which had been taken by Sgt. Lego inside the
kitchen of Mari Musa) to the PC Crime Laboratory, Zamboanga City, for laboratory examination. The
turnover of the marijuana specimen to the PC Crime Laboratory was by way of a letter-request,
dated December 14, 1989 (Exh. "B"), which was stamped "RECEIVED" by the PC Crime Laboratory
(Exh. "B-1") on the same day.

Mrs. Athena Elisa P. Anderson, the Forensic Chemist of the PC Crime Laboratory, examined the
marijuana specimens subjecting the same to her three tests. All submitted specimens she examined
gave positive results for the presence of marijuana. Mrs. Anderson reported the results of her
examination in her Chemistry Report D-100-89, dated December 14, 1989, (Exh. "J", "J-1", "J-2", "J-
3", "J-4" and "J-5"). Mrs. Anderson identified in court the two newspaper wrapped marijuana bought
at the
buy-bust on December 14, 1989, through her initial and the weight of each specimen written with red
ink on each wrapper (Exhs. "C-1" and "D-1"). She also identified the one newspaper-wrapped
marijuana bought at the test-buy on December 13, 1989, through her markings (Exh. "E-1"). Mrs.
Anderson also identified her Chemistry Report (Exh. "J" & sub-markings.)

T. Sgt. Belarga identified the two buy-bust newspaper wrapped marijuana through his initial, the
words "buy-bust" and the words "December 14, 1989, 2:45 P.M." (written on Exhs. "C" and "D").
Belarga also identified the receipt of the P20 marked money (with SN GA955883) (Exh. "L"), dated
December 14, 1989, and his signature thereon (Exh.
"L-1"). He also identified the letter-request, dated December 14, 1989, addressed to the PC Crime
Laboratory (Exh. "B") and his signature thereon (Exh. "B-2") and the stamp of the PC Crime
Laboratory marked "RECEIVED" (Exh. "B-1"). 4

For the defense, the following testified as witnesses: (1) the accused-appellant Mari H. Musa; and (2) Ahara R.
Musa, his wife. The trial court summarized the version of the defense, thus:

[O]n December 14, 1989, at about 1:30 in the afternoon, Mari Musa was in his house at Suterville,
Zamboanga City. With him were his wife, Ahara Musa, known as Ara, his one-year old child, a
 woman manicurist, and a male cousin named Abdul Musa. About 1:30 that afternoon, while he was
being manicured at one hand, his wife was inside the one room of their house, putting their child to
sleep. Three NARCOM agents, who introduced themselves as NARCOM agents, dressed in civilian
clothes, got inside Mari Musa's house whose door was open. The NARCOM agents did not ask
permission to enter the house but simply announced that they were NARCOM agents. The
NARCOM agents searched Mari Musa's house and Mari Musa asked them if they had a search
warrant. The NARCOM agents were just silent. The NARCOM agents found a red plastic bag whose
contents, Mari Musa said, he did not know. He also did not know if the plastic bag belonged to his
brother, Faisal, who was living with him, or his father, who was living in another house about ten
arms-length away. Mari Musa, then, was handcuffed and when Mari Musa asked why, the NARCOM
agents told him for clarification.

Mari Musa was brought in a pick-up, his wife joining him to the NARCOM Office at Calarian,
Zamboanga City. Inside the NARCOM Office, Mari Musa was investigated by one NARCOM agent
which investigation was reduced into writing. The writing or document was interpreted to Mari Musa
in Tagalog. The document stated that the marijuana belonged to Mari Musa and Mari Musa was
asked to sign it. But Mari Musa refused to sign because the marijuana did not belong to him. Mari
Musa said he was not told that he was entitled to the assistance of counsel, although he himself told
the NARCOM agents he wanted to be assisted by counsel.

Mari Musa said four bullets were then placed between the fingers of his right hand and his fingers
were pressed which felt very painful. The NARCOM agents boxed him and Mari Musa lost
consciousness. While Mari Musa was maltreated, he said his wife was outside the NARCOM
building. The very day he was arrested (on cross-examination Mari Musa said it was on the next
day), Mari Musa was brought to the Fiscal's Office by three NARCOM agents. The fiscal asked him if
the marijuana was owned by him and he said "not." After that single question, Mari Musa was
brought to the City Jail. Mari Musa said he did not tell the fiscal that he had been maltreated by the
NARCOM agents because he was afraid he might be maltreated in the fiscal's office.

Mari Musa denied the NARCOM agents' charge that he had sold two wrappers of marijuana to them;
that he had received from them a P20.00 bill which he had given to his wife. He did not sell
marijuana because he was afraid that was against the law and that the person selling marijuana was
caught by the authorities; and he had a wife and a very small child to support. Mari Musa said he
had not been arrested for selling marijuana before. 5

After trial, the trial court rendered the assailed decision with the following disposition:

WHEREFORE, finding accused Mari Musa y Hantatalu guilty beyond reasonable doubt of selling
marijuana and pursuant to Sec. 4, Art II of Rep. Act No. 6425, he is sentenced to life imprisonment
and to pay the fine of P20,000.00, the latter imposed without subsidiary imprisonment. 6

In this appeal, the appellant contends that his guilt was not proved beyond reasonable doubt and impugns the
credibility of the prosecution witnesses.

The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not credible because: (1) prior to the buy-
bust operation, neither Sgt. Ani nor the other NARCOM agents were personally known by the appellant or vice-
versa; and (2) there was no witness to the alleged giving of the two wrappers of marijuana by the appellant to Sgt.
Ani.

Sgt. Ani testified that on December 13, 1989, upon instruction by T/Sgt. Jesus Belarga, he conducted a test-buy
operation on the appellant whereby he bought one wrapper of marijuana for P15.00 from the latter. 7 He reported the
successful operation to T/Sgt. Belarga on the same day. 8 Whereupon, T/Sgt. Belarga conducted a conference to organize
a buy-bust operation for the following day. 9

On December 14, 1989, at 1:30 p.m., two NARCOM teams in separate vehicles headed by T/Sgt. Belarga and a
certain Sgt. Foncardas went to the place of operation, which was the appellant's house located in Laquian
Compound, Suterville, Zamboanga City. Sgt. Ani was with the team of T/Sgt. Belarga, whose other members were
Sgts. Lego and Biong. 10 Sgt. Ani was given a marked P20.00 bill by T/Sgt. Belarga, which was to be used in the
operation.

Upon reaching the place, the NARCOM agents positioned themselves at strategic places. 11 Sgt. Ani approached the
house. Outside the house, the appellant asked Sgt. Ani what he wanted. Sgt. Ani asked him for some more
marijuana.12 Sgt. Ani gave him the marked P20.00 bill and the appellant went inside the house and brought back two
paper wrappers containing marijuana which he handed to Sgt. Ani. 13 From his position, Sgt. Ani could see that there were
other people in the house. 14

After the exchange, Sgt. Ani approached the other NARCOM agents and made the pre-arranged signal of raising
his right hand. 15 The NARCOM agents, accompanied by Sgt. Ani, went inside the house and made the arrest. The
agents searched the appellant and unable to find the marked money, they asked him where it was. The appellant said that
he gave it to his wife. 16

The Court, after a careful reading of the record, finds the testimony of Sgt. Ani regarding the buy-bust operation,
which resulted in the apprehension, prosecution and subsequent conviction of the appellant, to be direct, lucid and
forthright. Being totally untainted by contradictions in any of the material points, it deserves credence.

The contention that the appellant could not have transacted with Sgt. Ani because they do not know each other is
without merit. The day before the
buy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought a wrapper of marijuana from the
appellant. Through this previous transaction, Sgt. Ani was able to gain the appellant's confidence for the latter to sell
more marijuana to Sgt. Ani the following day, during the buy-bust operation. Moreover, the Court has held that what
matters is not an existing familiarity between the buyer and the seller, for quite often, the parties to the transaction
may be strangers, but their agreement and the acts constituting the sale and delivery of the marijuana. 17

The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was impossible for the appellant to sell
marijuana while his wife, cousin and manicurist were present. But the place of the commission of the crime of selling
prohibited drugs has been held to be not crucial 18 and the presence of other people apart from the buyer and seller will
not necessarily prevent the consummation of the illegal sale. As the Court observed in People v. Paco, 19 these factors
may sometimes camouflage the commission of the crime. In the instant case, the fact that the other people inside the
appellant's house are known to the appellant may have given him some assurance that these people will not report him to
the authorities.

The appellant, besides assailing Sgt. Ani's credibility, also questions the credibility of T/Sgt. Belarga. The appellant
submits that since T/Sgt. Belarga admitted that he was about 90 meters away from Sgt. Ani and the appellant, he
could not have possibly witnessed the sale. The appellant invokes People v.
Ale 20 where the Court observed that from a distance of 10-15 meters, a policeman cannot distinguish between marijuana
cigarette from ordinary ones by the type of rolling done on the cigarette sticks. And since T/Sgt. Belarga allegedly did not
see the sale, the appellant contends that the uncorroborated testimony of Sgt. Ani can not stand as basis for his
conviction.

People v. Ale does not apply here because the policeman in that case testified that he and his companion were
certain that the appellant therein handed marijuana cigarettes to the poseur-buyer based on the appearance of the
cigarette sticks. The Court rejected this claim, stating that:

This Court cannot give full credit to the testimonies of the prosecution witnesses marked as they are
with contradictions and tainted with inaccuracies.

Bian testified that they were able to tell that the four cigarettes were marijuana cigarettes because
according to him, the rolling of ordinary cigarettes are different from those of marijuana cigarettes.
(tsn, November 13, 1984, p. 10).

It is however, incredible to believe that they could discern the type of rolling done on those cigarettes
from the distance where they were observing the alleged sale of more or less 10 to 15 meters. 21
In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw the appellant hand over marijuana to
Sgt. Ani. What he said was that there was an exchange of certain articles between the two. The relevant portion of
T/Sgt. Belarga's testimony reads: 22

Q Now, do you remember whether Sgt. Ani was able to reach the house of Mari
Musa?

A Yes, ma'am.

Q After reaching Mari Musa, did you see what happened (sic)?

A Yes, ma'am.

Q Could you please tell us?

A From our vehicle the stainless owner type jeep where Sgt. Lego, Sgt. Biong were
boarded, I saw that Sgt. Ani proceeded to the house near the road and he was met
by one person and later known as Mari Musa who was at the time wearing short
pants and later on I saw that Sgt. Ani handed something to him, thereafter received
by Mari Musa and went inside the house and came back later and handed something
to Sgt. Ani.

Contrary to the contention of the appellant, it was not impossible for T/Sgt. Belarga to have seen, from a distance of
90-100 meters, Sgt. Ani hand to the appellant "something" and for the latter to give to the former "something."

Notwithstanding the fact that T/Sgt. Belarga could not have been certain that what Sgt. Ani received from the
appellant was marijuana because of the distance, his testimony, nevertheless, corroborated the direct evidence,
which the Court earlier ruled to be convincing, presented by Sgt. Ani on the following material points: (1) T/Sgt.
Belarga instructed Sgt. Ani to conduct a surveillance and test-buy operation on the appellant at Suterville,
Zamboanga City on December 13, 1989; 23 (2) later that same day, Sgt. Ani went back to their office and reported a
successful operation and turned over to T/Sgt. Belarga one wrapper of marijuana; 24 (3) T/Sgt. Belarga then organized a
team to conduct a buy-bust operation the following day; 25 (4) on December 14, 1989, T/Sgt. Belarga led a team of
NARCOM agents who went to Suterville, Zamboanga City; 26 (5) T/Sgt. Belarga gave a P20.00 marked bill to Sgt. Ani
which was to be used in the buy-bust operation; 27 (6) upon the arrival of the NARCOM agents in Suterville, Zamboanga
City, Sgt. Ani proceeded to the house of the appellant while some agents stayed in the vehicles and others positioned
themselves in strategic places; 28 the appellant met Sgt. Ani and an exchange of articles took place. 29

The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence given by Sgt. Ani. Additionally, the
Court has ruled that the fact that the police officers who accompanied the poseur-buyer were unable to see exactly
what the appellant gave the poseur-buyer because of their distance or position will not be fatal to the prosecution's
case 30 provided there exists other evidence, direct or circumstantial, e.g., the testimony of the poseur-buyer, which is
sufficient to prove the consummation of the sale of the prohibited drug

The appellant next assails the seizure and admission as evidence of a plastic bag containing marijuana which the
NARCOM agents found in the appellant's kitchen. It appears that after Sgt. Ani gave the pre-arranged signal to the
other NARCOM agents, the latter moved in and arrested the appellant inside the house. They searched him to
retrieve the marked money but didn't find it. Upon being questioned, the appellant said that he gave the marked
money to his wife. 31 Thereafter, T/Sgt. Belarga and Sgt. Lego went to the kitchen and noticed what T/Sgt. Belarga
described as a "cellophane colored white and stripe hanging at the corner of the kitchen." 32 They asked the appellant
about its contents but failing to get a response, they opened it and found dried marijuana leaves. At the trial, the appellant
questioned the admissibility of the plastic bag and the marijuana it contains but the trial court issued an Order ruling that
these are admissible in evidence. 33

Built into the Constitution are guarantees on the freedom of every individual against unreasonable searches and
seizures by providing in Article III, Section 2, the following:

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

Furthermore, the Constitution, in conformity with the doctrine laid down in Stonehill v. Diokno, 34 declares
inadmissible, any evidence obtained in violation of the freedom from unreasonable searches and seizures. 35

While a valid search warrant is generally necessary before a search and seizure may be effected, exceptions to this
rule are recognized. Thus, in Alvero v. Dizon, 36 the Court stated that. "[t]he most important exception to the necessity
for a search warrant is the right of search and seizure as an incident to a lawful arrest." 37

Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless search and seizure incident to a
lawful arrest, thus:

Sec. 12. Search incident to lawful arrest. A person lawfully arrested may be searched for
dangerous weapons or anything which may be used as proof of the commission of an offense,
without a search warrant.

There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting officer to make a
search upon the person of the person arrested. As early as 1909, the Court has ruled that "[a]n officer making an
arrest may take from the person arrested any money or property found upon his person which was used in the
commission of the crime or was the fruit of the crime or which might furnish the prisoner with the means of
committing
violence or of escaping, or which may be used as evidence in the trial of the cause . . . " 38 Hence, in a buy-bust
operation conducted to entrap a drug-pusher, the law enforcement agents may seize the marked money found on the
person
of the pusher immediately after the arrest even without arrest and search warrants. 39

In the case at bar, the NARCOM agents searched the person of the appellant after arresting him in his house but
found nothing. They then searched the entire house and, in the kitchen, found and seized a plastic bag hanging in a
corner.

The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend beyond the person of
the one arrested to include the premises or surroundings under his immediate control. 40 Objects in the "plain view" of
an officer who has the right to be in the position to have that view are subject to seizure and may be presented as
evidence. 41

In Ker v. California 42 police officers, without securing a search warrant but having information that the defendant husband
was selling marijuana from his apartment, obtained from the building manager a passkey to defendants' apartment, and
entered it. There they found the defendant husband in the living room. The defendant wife emerged from the kitchen, and
one of the officers, after identifying himself, observed through the open doorway of the kitchen, a small scale atop the
kitchen sink, upon which lay a brick-shaped package containing green leafy substance which he recognized as marijuana.
The package of marijuana was used as evidence in prosecuting defendants for violation of the Narcotic Law. The
admissibility of the package was challenged before the U.S. Supreme Court, which held, after observing that it was not
unreasonable for the officer to walk to the doorway of the adjacent kitchen on seeing the defendant wife emerge
therefrom, that "the discovery of the brick of marijuana did not constitute a search, since the officer merely saw what was
placed before him in full view. 43 The U.S. Supreme Court ruled that the warrantless seizure of the marijuana was legal on
the basis of the "plain view" doctrine and upheld the admissibility of the seized drugs as part of the prosecution's
evidence. 44

The "plain view" doctrine may not, however, be used to launch unbridled searches and indiscriminate seizures nor
to extend a general exploratory search made solely to find evidence of defendant's guilt. The "plain view" doctrine is
usually applied where a police officer is not searching for evidence against the accused, but nonetheless
inadvertently comes across an incriminating object. 45 Furthermore, the U.S. Supreme Court stated the following
limitations on the application of the doctrine:
What the "plain view" cases have in common is that the police officer in each of them had a prior justification for an
intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The
doctrine serves to supplement the prior justification whether it be a warrant for another object, hot pursuit, search
incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed
against the accused and permits the warrantless seizure. Of course, the extension of the original justification is
legitimate only where it is immediately apparent to the police that they have evidence before them; the "plain view"
doctrine may not be used to extend a general exploratory search from one object to another until something
incriminating at last emerges. 46

It has also been suggested that even if an object is observed in "plain view," the "plain view" doctrine will not justify
the seizure of the object where the incriminating nature of the object is not apparent from the "plain view" of the
object. 47 Stated differently, it must be immediately apparent to the police that the items that they observe may be
evidence of a crime, contraband, or otherwise subject to seizure.

In the instant case, the appellant was arrested and his person searched in the living room. Failing to retrieve the
marked money which they hoped to find, the NARCOM agents searched the whole house and found the plastic bag
in the kitchen. The plastic bag was, therefore, not within their "plain view" when they arrested the appellant as to
justify its seizure. The NARCOM agents had to move from one portion of the house to another before they sighted
the plastic bag. Unlike Ker vs. California, where the police officer had reason to walk to the doorway of the adjacent
kitchen and from which position he saw the marijuana, the NARCOM agents in this case went from room to room
with the obvious intention of fishing for more evidence.

Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen, they had no clue as
to its contents. They had to ask the appellant what the bag contained. When the appellant refused to respond, they
opened it and found the marijuana. Unlike Ker v. California, where the marijuana was visible to the police officer's
eyes, the NARCOM agents in this case could not have discovered the inculpatory nature of the contents of the bag
had they not forcibly opened it. Even assuming then, that the NARCOM agents inadvertently came across the
plastic bag because it was within their "plain view," what may be said to be the object in their "plain view" was just
the plastic bag and not the marijuana. The incriminating nature of the contents of the plastic bag was not
immediately apparent from the "plain view" of said object. It cannot be claimed that the plastic bag clearly betrayed
its contents, whether by its distinctive configuration, its transprarency, or otherwise, that its contents are obvious to
an observer. 48

We, therefore, hold that under the circumstances of the case, the "plain view" doctrine does not apply and the
marijuana contained in the plastic bag was seized illegally and cannot be presented in evidence pursuant to Article
III, Section 3(2) of the Constitution.

The exclusion of this particular evidence does not, however, diminish, in any way, the damaging effect of the other
pieces of evidence presented by the prosecution to prove that the appellant sold marijuana, in violation of Article II,
Section 4 of the Dangerous Drugs Act of 1972. We hold that by virtue of the testimonies of Sgt. Ani and T/Sgt.
Belarga and the two wrappings of marijuana sold by the appellant to Sgt. Ani, among other pieces of evidence, the
guilt of the appellant of the crime charged has been proved beyond reasonable doubt.

WHEREFORE, the appeal is DISMISSED and the judgment of the Regional Trial Court AFFIRMED.

SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SUCHINDA LEANGSIRI (at
large), accused, FATI OMOGBOLAHAN Y ALABI, YAMBA LISASI BHOLA,
and ZARIATU AMIDU, accused-appellants.

DECISION
PUNO, J.:

On June 7, 1993, appellants FATI OMOGBOLAHAN Y ALABI, YAMBA LISASI [1]

BHOLA, and ZARIATU AMIDU pleaded not guilty to the charge of Violation of Section 4,
[2] [3]

Article II, Republic Act (R.A.) No. 6425 embodied in an Information, dated April 2, 1993, as
[4]

follows:
xxx xxx xxx

That on or about the 31st of March, 1993 and sometime prior thereto in Manila and other parts of
Metro Manila, and within the jurisdiction of this Honorable Court, the above named accused,
conspiring, confederating, and mutually helping one another, did then and there, wilfully,
unlawfully and feloniously, without authority of law, deliver, give away, distribute, dispatch in
transit or transport 8,225.31 grams of heroin, a prohibited drug, and/or act as brokers in any of the
aforesaid transactions with or without consideration.

CONTRARY TO LAW.

A fourth accused, Thai national SUCHINDA LEANGSIRI, escaped from the Pasay City
Jail before the arraignment. He remains at large. [5]

The evidence of the prosecution establish that in the early afternoon of May 31, 1993,
accused Leangsiri was arrested at the arrival area of the Ninoy Aquino International Airport
(NAIA). He was in the act of bringing into the country 8,225.31 grams of heroin hidden [6]

under the false bottom of a black suitcase. He informed the authorities that he was to
[7]

deliver the contraband to three (3) people at the Las Palmas Hotel in Manila.
[8] [9]

Leangsiri was brought to the headquarters of the Narcotics Command (NARCOM) at

the Old MIA for further investigation. The head of the command, MAJOR ALBINO
[10]

SABLAYAN, formed a team, headed by SR. INSP. ADOLFO SAMALA, to conduct follow- [11]

up operations in the case. The team and agents of the Bureau of Customs proceeded to
[12]

the Las Palmas Hotel, where they allowed Leangsiri to check into Room 504 with the
[13]

confiscated black suitcase containing the heroin. [14]

At around eight oclock in the evening, two hours after checking in, Leangsiri received a
telephone call from his contact. Leangsiri was told that the black suitcase would be picked
up at about ten oclock that night. He relayed the information to his escorts, NARCOM
[15]

agents SPO3 FABIAN GAPIANGAO and SPO4 ELPIDIO BALNEG. Thereupon, the
[16] [17]

two NARCOM agents positioned themselves inside the washroom, with its door opened a
fraction to give them visual access to the rest of the hotel room. [18]

On the ground floor and outside perimeters of the Las Palmas hotel, Samala and other
NARCOM and Bureau of Customs agents were watching for unusual and suspicious
events. From where he sat at the hotels coffee shop, Samala noticed appellant Amidu
[19]
paced around the lobby for nearly an hour. At about ten p.m., Amidus co-appellants,
[20]

Omogbolahan and Bhola, arrived at the hotel. As Amidu flashed a thumbs up sign to them,
[21]

they all headed for the elevator and went up to the fifth floor of the hotel. [22]

They knocked on the door of Room 504. Leangsiri stood up from the bed in which he
sat, opened the door, and let the three appellants in. Leangsiri took the black
[23] [24]

suitcase and brought it to the dining area of the room where appellants stood in full view
[25]

of NARCOM agents Gapiangao and Balneg. Leangsiri opened the suitcase and displayed
its contents to his visitors.
[26]

Appellants briefly examined the black suitcase and two (2) transparent plastic bags
which contained the heroin. After the examination, Leangsiri closed the suitcase and
[27]

handed it over to appellants. Appellants started to leave the hotel room with the
[28]

contraband when Gapiangao and Balneg barged out of the washroom, identified
themselves as NARCOM agents, and made the arrest. [29]

Minutes later, Samala and his companions joined Gapiangao, Balneg, and the four
foreigners in Room 504. Appellants Omogbolahan and Bhola identified themselves by
[30]

presenting their respective passports. Appellant Amidu, on the other hand, merely said she
was staying in Room 413 of the same hotel. Further questioning of appellants revealed
[31]

that Omogbolahan and Bhola were billeted at the Royal Palm Hotel, also located in Manila. [32]

Accompanied by the hotels owner and security officer, Samala searched appellant
Amidus room. Tucked within the pages of her telephone and address book was a piece of
paper with the name SUCHINDA LEANGSIRI written on it. The paper and Amidus other
[33]

possessions were confiscated. [34]

The NARCOM and Customs teams then proceeded to the Royal Palm Hotel where
appellants Omogbolahan and Bhola were billeted. The agents coordinated with the security
officers of the hotel, who stood as witnesses when the former entered and searched said
appellants room. Their efforts yielded two black suitcases each with false bottoms and both
smaller than that confiscated from Leangsiri. Masking tape and an empty transparent bag
[35]

were also found in the room. [36]

Appellants denied any involvement in the transport of heroin by Leangsiri. They told a
different tale. [37]

Appellants Omogbolahan and Bhola were staying at Royal Palm Hotel. On that fateful
night of March 31, 1993, they went to the Las Palmas Hotel to meet co-appellant Amidu and
an American named David. When they got to the fourth floor of the hotel, and as they made
their way to Room 413 (Amidus room), they were accosted by some people who forcibly
brought them to Room 504. They explained that they were at the hotel to meet Amidu. Some
of those who intercepted them left the room and returned with Amidu. Appellants money
and jewelry were taken from them. Those who dispossesed them turned out to be
policemen.
Appellants were driven to the Royal Palm Hotel. Only one of the policemen entered its
premises as appellants and the others remained in the car. Afterwards, appellants were
brought to NARCOM headquarters. Together with Leangsiri, they were presented to the
media as members of an international drug syndicate.
 On August 31, 1993, the trial court convicted appellants, finding them guilty of conspiring
to transport heroin in violation of Section 4, R.A. 6425. The dispositive portion of the
decision reads:
xxx xxx xxx

WHEREFORE, premises considered, judgment is hereby rendered, finding all the accused (herein
appellants) FATI OMOGBOLAHAN y ALABI, YAMBA LISASI BHOLA and ZARIATU
AMIDU, guilty beyond reasonable doubt of the crime described in the Information, and hereby
sentences them to suffer a penalty of life imprisonment plus a fine of P30,000 for each of (them).

The case as against accused Suchinda Leangsiri is hereby ordered archived.

The Heroin of about 8,225.31 kgs. is hereby ordered destroyed in the manner provided by law.

SO ORDERED.

On September 9, 1993, appellants filed a motion for new trial grounded on the following

I. THAT ERRORS OF LAW OR IRREGULARITIES HAVE BEEN COMMITTED DURING

THE TRIAL PREJUDICIAL TO THE SUBSTANTIAL RIGHTS OF HEREIN ACCUSED
(HEREIN APPELLANTS);

II. THAT NEW AND MATERIAL EVIDENCE HAS BEEN DISCOVERED WHICH THE
ACCUSED (APPELLANTS) COULD NOT WITH REASONABLE DILIGENCE HAVE
DISCOVERED AND PRODUCED AT THE TRIAL, AND WHICH IF INTRODUCED AND
ADMITTED, WOULD PROBABLY CHANGE THE JUDGMENT.

The purported new and material evidence consists of the testimony of a certain Julita Thach
Camerino, a Thai citizen, who narrated in her affidavit:

1. That (she) is at present a detention prisoner at the Manila City Jail, Old Bilibid Prison
Compound, Sta. Cruz, Manila;

2. That on or about 11:00 oclock in the morning of 31 August 1993, (she) noticed the arrival of
inmates (appellants) into (the prison) compound, and (Amidu) was still crying;

3. That after a few minutes, Zariatu Amidu started banging her head against the concrete wall, but
after a few attempts she was prevailed upon to stop by another woman;

4. That (she) inquired from some of the inmates the reason why Zariatu Amidu was behaving that
way, and found out that she and the two other male detainees were just sentenced by the Court of
very severe penalty of life imprisonment;

5. That (she) pitied (appellants) of the fate that befell them and (her) conscience rebelled and
started tormenting (her) since (she) knows that they are innocent of the crime charged against them
of transporting heroin into the country;
6. That (her) conscience compelled (her) to approach them and voluntarily offered (her) help, if it is
still possible under the situation, whatever assistance (she) could extend to let justice prevail and
reveal the truth out of that incident on the evening of 31 March 1993, at Las Palmas Hotel, because
(she) was with the police at the NAIA, acting as an interpreter between Suchinda Leangsiri and the
police when the former was being interrogated at the NARCOM Headquarters at the Ninoy Aquino
International Airport (NAIA) in the afternoon of 31 March 1993, and into the evening of said date
at Las Palmas Hotel;

7. That in the process of (her) questioning of Leangsiri, the latter revealed to (them) that he was
going to deliver his stuff of heroin to someone at Las Palmas Hotel but did not identify the person
whom he was going to meet at the hotel nor mention the name/s of the same;

8. That on or about 6:00 oclock in the evening of 31 March 1993, (she), Suchinda Leangsiri, and
the police team arrived at Las Palmas Hotel wherein (she) and Leangsiri were instructed to proceed
to the desk counter and check-in, and got Room 504 to occupy;

9. That (she), Suchinda Leangsiri and a police officer whom (she) knew as Emil went to Room 504
to await for someone who would allegedly pick up the stuff of heroin but the claim or testimony
that SPO3 Gapiangao and SPO4 Balneg were also inside Room 504 together with Suchinda
Leangsiri is absolutely false;

10.That at around 9:30 that evening, the police brought inside Room 504 two black males whom
(she) later knew as Yamba Lisasi Bhola and Fati Omogbolahan Alabi;

11 . That while inside Room 504, (she) heard the two, Yamba Lisasi Bhola and Fati Omogbolahan
Alabi, protesting and complaining to the police why they were brought inside Room 504;

12. That the two further explained to the police that they were about to visit a lady friend billeted at
Room 413 of the same hotel;

13. That after hearing that information, (she) was requested by Sr. Insp. Dela Cruz to go with him,
and (they) immediately went inside Room 413 and forcibly brought Zariatu Amidu to Room 504 to
join with the two male black nationals already inside;

14. That afterwards, (they) brought (appellants) in the vicinity of Royal Palm Hotel, where (they)
search the room of the two black males and found no prohibited drugs;

15. That from Royal Palm Hotel, (they) went back to NARCOM Headquarters at NAIA, where
(she) divested the three black nationals of their cash and pieces of jewelry, and turn them over to
Sr. Insp. Dela Cruz for safekeeping;

16. That (she is) am going to state further the other details and related matters in court during my
testimony in the trial of the case against (appellants);

xxx xxx xxx [38]

The trial court denied the motion, ratiocinating thus:

 xxx xxx xxx

The Court reviewed the records of the case, the transcript of stenographic notes, and the pertinent
laws and jurisprudence, and the Court finds, and so holds, that the findings and conclusions
regarding the guilt of the herein accused (appellants), as well as the sufficiency of the evidence
against them, are amply supported by the evidence, and the present motion did not ventilate any
new matter as to warrant the said findings to be disturbed and/or set aside.

With respect to the alleged newly discovered evidence, the Court disagrees with the stance taken by
the accused (appellants) on this point. The testimony of Julita Thach Camerino could not be
considered newly discovered, as said person was brought to the premises of the Court for
identification during the trial of this case. Besides, her testimony, summarized in the undated
Affidavit submitted by the accused (appellants) on September 24, 1993, does not inspire
confidence, considering that this witness was convicted by this Court for violation of the dangerous
drugs law, as amended.

xxx xxx xxx [39]

Appellants now impugn the trial courts decision and its denial of their motion for new
trial, and raise the following assignments of error:
I. THAT THE LOWER COURT GRAVELY ERRED IN CONSIDERING THE EXISTENCE OF
CONSPIRACY BETWEEN AND AMONG THE ACCUSED;
II. THAT THE PROSECUTION FAILED TO INTRODUCE DIRECT AND/OR CIRCUMSTANTIAL
EVIDENCE TO PROVE THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT;
III. THE TRIAL COURT GRAVELY ERRED IN DISREGARDING THE CREDIBLE TESTIMONIES AND
OTHER SUBSTANTIAL EVIDENCE PRESENTED BY THE THREE ACCUSED.
IV. THE TRIAL COURT GRAVELY ERRED IN DISREGARDING THE CONFLICTING TESTIMONIES
OF THE PROSECUTION AND OTHER EVIDENCE FAVORABLE TO THE ACCUSED;
V. THE LOWER COURT ERRED IN DENYING ACCUSEDS MOTION FOR NEW TRIAL.[40]
We affirm appellants conviction for reasons we shall discuss in seriatim.
One. We hold that the trial court correctly found that appellants conspired with
Leangsiri to transport eight-and-a-half kilos of heroin.
Appellants submit a two-pronged argument assailing the finding of conspiracy. The first
prong urges that there is neither direct nor circumstantial evidence linking them to the
transport of heroin by Leangsiri. The second prong posits that only Leangsiris testimony can
prove their alleged conspiracy. The running fault in appellants line of reasoning is obvious
to the eye.
Conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. It is well-entrenched in our jurisprudence
[41]

that conspiracy need not be proved by direct evidence. Proof of previous agreement to
[42]

commit the crime is not also essential to establish conspiracy. Conspiracy may be inferred
from the acts of the accused, whose conduct before, during, and after the commission of
the crime can show its existence. In a host of cases, we have upheld the finding of
conspiracy where it is shown that the accused acted in concert to attain the same objective.
 In the case at bar, the positive testimonies of prosecution witnesses Gapiangao,
Balneg, and Samala established the concerted acts of appellants aimed at carrying out the
unlawful design of transporting the heroin confiscated from Leangsiri. When Leangsiri was
interrogated after his arrest, he revealed to the authorities that he was to deliver the
contraband to three (3) people at the Las Palmas Hotel. Later, while in Room 504 of
said hotel, Leangsiri received a telephone call in the presence of Gapiangao and
Balneg, by which he was informed that the heroin would be picked up from him at ten
oclock in the evening. Shortly before the designated pick-up time, Samala saw
appellant Amidu (who had been waiting in the lobby of the hotel for almost an hour)
flash a thumbs up sign to appellants Omogbolahan and Bhola when they arrived at
the hotel. The three (3) appellants then took the elevator and went up to the fifth
floor. They knocked on the door of Room 504, and Leangsiri let them into the room.
In full view of Gapiangao and Balneg, appellants examined Leangsiris heroin, and
took it and the suitcase with the false bottom in which it was hidden. Appellants were
on their way out of the room with the suitcase and heroin when they were arrested
by Gapiangao and Balneg. These facts show beyond doubt that appellants conspired with
Leangsiri to transport the illegal drug heroin.
Two. We also hold that there was delivery of the heroin under Section 4 of R.A. 6425,
from Leangsiri to appellants even though Leangsiri and the heroin were already under the
control of the NARCOM on the evening of March 31, 1993. Too far out from the fringes of
reason is appellants argument that since the NARCOM agents had already taken Leangsiri
and the heroin into their custody and control, it is the NARCOM agents who should be liable
for transporting the said heroin confiscated from Leangsiri.
Section 4, Article II of R.A. 6425 provides, inter alia:

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. xxx (Emphasis supplied)

The proviso applies to the NARCOM agents in the case at bar. In bringing Leangsiri
and the heroin to Las Palmas Hotel, the NARCOM agents were performing a lawful act in
furtherance of their follow-up operations. They went to the hotel to apprehend appellants to
whom delivery of the illegal drug was to be made.
Appellants also argue that, even assuming arguendo, they were caught in possession
of the heroin, they cannot be held liable under Section 4 of R.A. 6425 because they were
neither delivering nor transporting the drug. They postulate that said provision does not
penalize the recipient of the delivered contraband. [43]

The same argument was raised and rejected by this Court in People vs. Lo Ho Wing. In [44]

Lo Hong Wing, the authorities gathered from their intelligence and surveillance activities
that the accused were going to bring illegal drugs (shabu) into the country. The accused
were arrested while on-board a taxi cab which they hailed and boarded at the NAIA. In
rejecting the defense argument that there was no delivery, transporting or dispatching of
shabu made by the accused therein, we held:
 xxx xxx xxx

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

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

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

xxx xxx xxx

In the case at bar, appellants were on their way out of Room 504 of the Las Palmas Hotel
carrying the suitcase with a false bottom containing 8.5 kilos of heroin when they were
arrested by the NARCOM agents. At that point, they were in the act of conveying the heroin
to an unknown destination. Their act was part of the process of transporting the heroin. They
were all involved in a conspiracy. The act of Leangsiri in transporting the heroin is appellants
act. They cannot isolate and separate themselves from Leangsiri, for in conspiracy, the act
of one is the act of all.
Three. We further rule that the heroin (Exhs. C and its sub-exhibits) and the suitcase
with false bottom (Exh. F) are admissible against appellants.
It is inaccurate for appellants to claim that these evidentiary exhibits were formally
offered only against Leangsiri. They were also offered against them. As correctly noted by
the Solicitor General in his Brief:
xxx xxx xxx

The records show that on July 2, 1993, Assistant Chief State Prosecutor Jovencio Zuo and State
Prosecutor Reynaldo Lugtu formally offered Exhibits A to Q and their submarkings against
Leangsiri, (Omogbolahan), Bhola and Amidu (Original Records, pp. 67-71). xxx [45]
 Four. We now come to the argument of appellants that the piece of paper found in
Amidus hotel room, with the name SUCHINDA LEANGSIRI written on it, should not have[46]

been admitted by the trial court.

The Revised Rules of Court provide that (a) person lawfully arrested may be searched
for dangerous weapons or anything which may be used as proof of the commission of an
offense, without a search warrant. We interpreted
[47]
this provision
in Nolasco vs. Pao, thus:
[48]

xxx xxx xxx

The better and established rule is a strict application of the exception provided xxx that
is to absolutely limit a warrantless search of a person who is lawfully arrested to his or her
person at the time of and incident to his or her arrest and to dangerous weapons or anything
which may be used as proof of the commission of the offense. Such warrantless search
obviously cannot be made in a place other than the place of arrest.
We then held that the warrantless search made by the authorities on the accuseds
apartment which was located a few blocks away from where she was arrested was illegal
for being an untenable violation, if not nullification, of the basic constitutional right and
guarantee against unreasonable searches and seizures.
Nolasco, however, has undergone some mutations. In subsequent cases, we validated
warrantless searches made not only on the person of the suspect but also in a
permissible area within his reach. We ruled that the reach of a valid warrantless search
[49]

goes beyond the person of the one arrested and includes the premises or surroundings
under his immediate control. The immediate control test was enunciated in
[50]

the American case of Chimel vs. State of California. In that case, defendant was
[51]

arrested in his home for burglary of a coin shop. Afterwards, the arresting officers conducted
a search of his entire three-bedroom house, including the attic, the garage, a small
workshop, and drawers. Various items -primarily coins - were found through the search, and
were admitted in evidence against him by the trial court, which convicted him of
burglary. The United States Supreme Court reversed the conviction as it struck down the
warrantless search on the ground that the search of the accuseds home went far beyond
his person and the area from within which he might have obtained either a weapon
or something that could have been used as evidence against him.
The inadmissibility of evidence obtained in a warrantless search incident to a lawful
arrest outside the suspects person and the premises under his immediate control admits of
an exception. The exception obtains when the Plain View Doctrine applies as explained
in People vs. Musa, in this wise:
[52]

xxx Objects in the plain view of an officer who has the right to be in the position to have that view
are subject to seizure and may be presented as evidence.

In Ker v. California, police officers, without securing a search warrant but having information that
the defendant husband was selling marijuana from his apartment, obtained from the building
manager a passkey to defendants apartment, and entered it. There they found the defendant husband
in the living room. The defendant wife emerged from the kitchen, and one of the officers, after
identifying himself, observed through the open doorway of the kitchen, as small scale atop the
kitchen sink, upon which lay a brick-shaped package containing green leafy substance which he
recognized as marijuana. The package of marijuana was used as evidence in prosecuting defendants
for violation of the Narcotic Law. The admissibility of the package was challenged before the U.S.
Supreme Court, which held, after observing that it was not unreasonable for the officer to walk to
the doorway of the adjacent kitchen on seeing the defendant wife emerge therefrom, that the
discovery of the brick of marijuana did not constitute a search, since the officer merely saw what
was placed before him in full view. x x x The U.S. Supreme Court ruled that the warrantless seizure
of the marijuana was legal on the basis of the plain view doctrine and upheld the admissibility of
the seized drugs as part of the prosecutions evidence.

The plain view doctrine may not, however, be used to launch unbridled searches and indiscriminate
seizures nor to extend a general exploratory search made solely to find evidence of defendants
guilt. The plain view doctrine is usually applied where a police officer is not searching for evidence
against the accused, but nonetheless inadvertently comes across an incriminating object. x x x
Furthermore, the U.S. Supreme Court stated the following limitations on the application of the
doctrine.

What the plain view cases have in common is that the police officer in each of them had a prior
justification for an intrusion in the course of which he came inadvertently across a piece of
evidence incriminating the accused. The doctrine serves to supplement the prior justification -
whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some
other legitimate reason for being present unconnected with a search directed against the accused -
and permits the warrantless seizure. Of course, the extension of the original justification is
legitimate only where it is immediately apparent to the police that they have evidence before them;
the plain view doctrine may not be used to extend a general exploratory search from one object to
another until something incriminating at last emerges.

In the case at bar, appellants were arrested in Room 504 of the Las Palmas Hotel. The
piece of paper bearing Leangsiris name was obtained through a warrantless search of
Room 413 of the same hotel, and found tucked within the pages of appellant Amidus
telephone and address book. Clearly, the warrantless search is illegal and the piece of
paper bearing Leangsiris name cannot be admitted as evidence against appellants. The
inadmissibility of this evidence will not, however, exculpate appellants. Its exclusion does
not destroy the prosecutions case against appellants. The remaining evidence still
established their guilt beyond reasonable doubt.
Five. We uphold the calibration of the credibility of witnesses made by the court a
quo. The trial court judge had the opportunity to observe the demeanor of the witnesses
first-hand, and his findings are entitled to great weight.
The inconsistencies in Gapiangaos, Balnegs, and Samalas testimonies alluded to by
appellants hardly relate to the material parts of their testimonies which sufficiently proved
the elements of the crime at bar. It is a well-entrenched rule of evidence that corroborative
testimonies, in order to be credible, need not coincide on all aspects. Given the natural
limitations of the human senses, the immaterial and slight discrepancies in the testimonies
of witnesses, far from weakening their probative value, serve to strengthen their
credibility. Imperfect senses cannot be the source of perfect testimonies. [53]

Neither is the credibility of the prosecution witnesses crumpled by the fact that the
testimonies of some prosecution witnesses during the trial were not exactly and totally
reflected in their Joint Affidavit, dated April 1, 1993. We have held before that:
[54]

The general rule has always been that discrepancies between the statements of the affiant in his
affidavit and those made by him on the witness stand do not necessarily discredit him since ex
parte affidavits are generally incomplete. Affidavits are generally subordinated in importance to
open court declarations because they are oftentimes not in such a state as to afford him a fair
opportunity of narrating in full the incident which has transpired. xxx [55]

In checkered contrast, the testimonies of appellants are incongruous with reality. The
story proffered by appellant Omogbolahan, for instance, is too obviously melodramatic and
incredible to be believed. His story begins in February, 1992, with his wife and two children
being killed in a civil war in his native land of Liberia. Distraught, he decided to migrate to
the United States of America. He first flew to Thailand, where he stayed for six months
[56]

without managing to learn a single Thai word. Despite his language inadequacy, he was
[57]

able to land a job in a cargo company in that country. He did not befriend any Thai
national. Neither did he apply for an American visa in Thailand. [58]

He then heard from two co-Liberians named Jabar and Samsi that it was easy to obtain
an American visa from the United States embassy in the Philippines. Omogbolahan flew
from Thailand to our country. He stepped on Philippine soil on March 16, 1993, only to learn
that Jabar and Samsi had long left the country. Instead of going to the United
[59]

States embassy at Roxas Boulevard or any of the many travel agencies doing business in
the country, he spent his first two weeks here making the rounds of bars and clubs in the
Ermita area, hoping to meet fellow Africans and American citizens who could help him obtain
an American visa. In this clubs, he allegedly befriended his co-appellant Bhola and an [60]

American named David whom he was supposed to meet on the fateful night of March 31,
1993. Omogbolahan soon moved in with Bhola at the Royal Palm Hotel, and David promised
to help him obtain his American passport. [61]

Omogbolahans story is clearly a fabrication designed to provide him with a convenient

defense and to elicit sympathy from the courts. The testimonies of his co-appellants are
equally incredulous. They are also tattered with inconsistencies. As observed by the
Solicitor General, they could not even get their occupations straight, viz.:
xxx xxx xxx

Appellant Zariatu Amidu is a native of Ghana, Africa, 38 years old at the time she testified, a
widow and as shown in her passport, a seamstress by occupation. However, in her testimony, she
stated that she is a plain housewife. (tsn July 21, 1993, pp. 4 and 27)

On the other hand, appellant Yamba Lisasi Bhola is a native of Kinshasha, Zaire, Central Africa, 37
years old at the time he testified, married and a high school graduate xxx. In his testimony, he
stated that he is a trader xxx. Later on, he stated that he was working for the New Star Investment
in Thailand as marketing officer. (tsn July 16, 1993, p. 23)
[62]

Lastly, Fati Omogbolahan Alabi was 27 years old at the time he testified and an elementary
graduate and plumber according to his passport. In his testimony, however, he claimed to be a
technician. (tsnJuly 13, 1993 p. 4).
[63]

Six. We finally hold that the trial court did not gravely abuse its discretion in denying
appellants motion for new trial.
We find appellants first argument in moving for a new trial as baseless. As discussed
above, the purported errors and irregularities committed in the course of the trial against the
substantive rights of appellants do not exist.
Appellants second argument as to the necessity of a new trial is likewise
unmeritorious. Section 1, Rule 37 of the Revised Rules of Court grants an aggrieved party
the right to move for new trial on the ground, among others, of (n)ewly discovered evidence,
which he could not, with reasonable diligence, have discovered, and produced at the trial,
and which if presented would probably alter the result (thereof). Newly discovered
[64]

evidence, in order to warrant a new trial, must meet three requirements, viz: (1) it must have
been discovered after trial; (2) it could not have been discovered and produced at the trial
despite reasonable diligence; and (3) if presented, it would probably alter the results of the
action. [65]

In the case at bar, appellants were unable to prove that, even with the use of reasonable
diligence, they could not have obtained Camerinos testimony during the trial. On the
contrary, as correctly noted by the trial court, Camerino was identified in open court by
appellant Bhola on July 26, 1993.
Furthermore, it is unlikely that Camerinos prospective testimony would acquit
appellants. Firstly, her affidavit embodies a narration of events almost identical to that
presented by appellants. As has been discussed earlier, the defense version of what
occurred on the evening of March 31, 1993 is incredible and difficult to believe. Secondly,
Camerinos claim that she was a member of the team that arrested appellants is belied by
the testimony of prosecution witness Samala on rebuttal, viz:
xxx xxx xxx
STATE PROS.:
One Julita Camerino appeared before this Honorable Court and accused through counsel claim
she was a member of the team which arrested the three Africans now the accused in this case.What
can you say to that?
A: I dont know that person, sir.
Q: Were there instances or occasions before the date of March 31, 1993 when you met this Julita
Camerino?
A: I dont know, sir.
Q: You dont recall any?
A: I dont recall any, sir.
 xxx xxx xxx
Court:
Cross?
ATTY. BORJA:
Capt. Samala, is it not a fact that Julita Camerino served as your interpreter during the custodial
investigation after the arrest of the Thai National in the person of Suchinda Leangsiri?
A: No, sir.
ATTY. BORJA:
She was not there at any moment from March 31 to April 1, 1993 at the police headquarters or at
the Las Palmas Hotel?
A: I dont know that person, sir.[66]

Her credibility is also questionable considering the fact that she herself has been previously
convicted of violating the Dangerous Drugs Act.
IN VIEW WHEREOF, the Decision, dated August 31, 1993, and the Order,
dated October 11, 1993, of the RTC of Manila, Branch 47, in Criminal Case No. 93-118913
are AFFIRMED. Costs against appellants.
SO ORDERED.
 [G.R. No. 120431. April 1, 1998]

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

OF THE PHILIPPINES, respondents.

DECISION
ROMERO, J.:

This is a petition for review of the decision of the Court of Appeals in CA-G.R. CR No.
13976 dated January 16, 1995, which affirmed in toto the judgment of the Regional Trial
[1]

Court of Manila, Branch 1, convicting petitioner Rodolfo Espano for violation of Article II,
Section 8 of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs
Act.
Petitioner was charged under the following information:

That on or about July 14, 1991, in the City of Manila, Philippines, the said accused, not being
authorized by law to possess or use any prohibited drug, did then and there wilfully, unlawfully and
knowingly have in his possession and under his custody and control twelve (12) plastic cellophane
(bags) containing crushed flowering tops, marijuana weighing 5.5 grams which is a prohibited
drug.

Contrary to law.[2]

The evidence for the prosecution, based on the testimony of Pat. Romeo Pagilagan,
shows that on July 14, 1991, at about 12:30 a.m., he and other police officers, namely, Pat.
Wilfredo Aquino, Simplicio Rivera, and Erlindo Lumboy of the Western Police District
(WPD), Narcotics Division went to Zamora and Pandacan Streets, Manila to confirm reports
of drug pushing in the area. They saw petitioner selling something to another person. After
the alleged buyer left, they approached petitioner, identified themselves as policemen, and
frisked him. The search yielded two plastic cellophane tea bags of marijuana. When asked
if he had more marijuana, he replied that there was more in his house. The policemen went
to his residence where they found ten more cellophane tea bags of marijuana. Petitioner
was brought to the police headquarters where he was charged with possession of prohibited
drugs. On July 24, 1991, petitioner posted bail and the trial court issued his order of release
[3]

on July 29, 1991. [4]

Annabelle Alip, forensic chemist of the WPD Criminal Investigation Laboratory Section,
testified that the articles sent to her by Pat. Wilfredo Aquino regarding the apprehension of
a certain Rodolfo Espano for examination tested positive for marijuana, with a total weight
of 5.5 grams.
By way of defense, petitioner testified that on said evening, he was sleeping in his house
and was awakened only when the policemen handcuffed him. He alleged that the policemen
were looking for his brother-in-law Lauro, and when they could not find the latter, he was
instead brought to the police station for investigation and later indicted for possession of
prohibited drugs. His wife Myrna corroborated his story.
The trial court rejected petitioners defense as a mere afterthought and found the version
of the prosecution more credible and trustworthy.
Thus, on August 14, 1992, the trial court rendered a decision, convicting petitioner of
the crime charged, the dispositive portion of which reads:

WHEREFORE there being proof beyond reasonable doubt, the court finds the accused Rodolfo
Espano y Valeria guilty of the crime of violation of Section 8, Article II, in relation to Section 2 (e-
L) (I) of Republic Act No. 6425 as amended by Batas Pambansa Blg. 179, and pursuant to law
hereby sentences him to suffer imprisonment of six (6) years and one (1) day to twelve (12) years
and to pay a fine of P6,000.00 with subsidiary imprisonment in case of default plus costs.

The marijuana is declared forfeited in favor of government and shall be turned over to the
Dangerous Drugs Board without delay.

SO ORDERED.[5]

Petitioner appealed the decision to the Court of Appeals. The appellate court, however,
affirmed the decision of the trial court in toto.
Hence, this petition.
Petitioner contends that the trial and appellate courts erred in convicting him on the basis
of the following: (a) the pieces of evidence seized were inadmissible; (b) the superiority of
his constitutional right to be presumed innocent over the doctrine of presumption of
regularity; (c) he was denied the constitutional right of confrontation and to compulsory
process; and (d) his conviction was based on evidence which was irrelevant and not
properly identified.
After a careful examination of the records of the case, this Court finds no compelling
reason sufficient to reverse the decisions of the trial and appellate courts.
First, it is a well settled doctrine that findings of trial courts on the credibility of witnesses
deserve a high degree of respect. Having observed the deportment of witnesses during the
trial, the trial judge is in a better position to determine the issue of credibility and, thus, his
findings will not be disturbed during appeal in the absence of any clear showing that he had
overlooked, misunderstood or misapplied some facts or circumstances of weight and
substance which could have altered the conviction of the appellants. [6]

In this case, the findings of the trial court that the prosecution witnesses were more
credible than those of the defense must stand. Petitioner failed to show that Pat. Pagilagan,
in testifying against him, was motivated by reasons other than his duty to curb drug abuse
and had any intent to falsely impute to him such a serious crime as possession of prohibited
drugs. In the absence of such ill motive, the presumption of regularity in the performance of
his official duty must prevail.
In People v. Velasco, this Court reiterated the doctrine of presumption of regularity in
[7]

the performance of official duty which provides:

x x x. Appellant failed to establish that Pat. Godoy and the other members of the buy-bust team are
policemen engaged in mulcting or other unscrupulous activities who were motivated either by the
desire to extort money or exact personal vengeance, or by sheer whim and caprice, when they
entrapped her. And in the absence of proof of any intent on the part of the police authorities to
falsely impute such a serious crime against appellant, as in this case, the presumption of regularity
in the performance of official duty, . . ., must prevail over the self-serving and uncorroborated
claim of appellant that she had been framed. [8]

Furthermore, the defense set up by petitioner does not deserve any consideration. He
simply contended that he was in his house sleeping at the time of the incident. This Court
has consistently held that alibi is the weakest of all defenses; and for it to prosper, the
accused has the burden of proving that he was not at the scene of the crime at the time of
its commission and that it was physically impossible for him to be there. Moreover, the claim
of a frame-up, like alibi, is a defense that has been invariably viewed by the Court with
disfavor for it can just as easily be concocted but difficult to prove, and is a common and
standard line of defense in most prosecutions arising from violations of the Dangerous
Drugs Act. No clear and convincing evidence was presented by petitioner to prove his
[9]

defense of alibi.
Second, petitioner contends that the prosecutions failure to present the alleged
informant in court cast a reasonable doubt which warrants his acquittal. This is again without
merit, since failure of the prosecution to produce the informant in court is of no moment
especially when he is not even the best witness to establish the fact that a buy-bust
operation had indeed been conducted. In this case, Pat. Pagilagan, one of the policemen
who apprehended petitioner, testified on the actual incident of July 14, 1991, and identified
him as the one they caught in possession of prohibited drugs. Thus,

We find that the prosecution had satisfactorily proved its case against appellants. There is no compelling reason
for us to overturn the finding of the trial court that the testimony of Sgt. Gamboa, the lone witness for the
prosecution, was straightforward, spontaneous and convincing. The testimony of a sole witness, if credible and
positive and satisfies the court beyond reasonable doubt, is sufficient to convict.[10]

Thus on the basis of Pat. Pagilagans testimony, the prosecution was able to prove that
petitioner indeed committed the crime charged; consequently, the finding of conviction was
proper.
Lastly, the issue on the admissibility of the marijuana seized should likewise be ruled
upon. Rule 113 Section 5(a) of the Rules of Court provides:

A peace officer or a private person may, without a warrant, arrest a person:

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

x x x x x x x x x.

Petitioners arrest falls squarely under the aforecited rule. He was caught in flagranti as
a result of a buy-bust operation conducted by police officers on the basis of information
received regarding the illegal trade of drugs within the area of Zamora and Pandacan
Streets, Manila. The police officer saw petitioner handing over something to an alleged
buyer. After the buyer left, they searched him and discovered two cellophanes of
marijuana. His arrest was, therefore, lawful and the two cellophane bags of marijuana
seized were admissible in evidence, being the fruits of the crime.
As for the ten cellophane bags of marijuana found at petitioners residence, however, the
same are inadmissible in evidence.
The 1987 Constitution guarantees freedom against unreasonable searches and
seizures under Article III, Section 2 which provides:

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

An exception to the said rule is a warrantless search incidental to a lawful arrest for
dangerous weapons or anything which may be used as proof of the commission of an
offense. It may extend beyond the person of the one arrested to include the premises or
[11]

surroundings under his immediate control. In this case, the ten cellophane bags of
marijuana seized at petitioners house after his arrest at Pandacan and Zamora Streets do
not fall under the said exceptions.
In the case of People v. Lua, this Court held:
[12]

As regards the brick of marijuana found inside the appellants house, the trial court correctly ignored
it apparently in view of its inadmissibility. While initially the arrest as well as the body search was
lawful, the warrantless search made inside the appellants house became unlawful since the police
operatives were not armed with a search warrant. Such search cannot fall under search made
incidental to a lawful arrest, the same being limited to body search and to that point within reach or
control of the person arrested, or that which may furnish him with the means of committing
violence or of escaping. In the case at bar, appellant was admittedly outside his house when he was
arrested. Hence, it can hardly be said that the inner portion of his house was within his reach or
control.

The articles seized from petitioner during his arrest were valid under the doctrine of
search made incidental to a lawful arrest. The warrantless search made in his house,
however, which yielded ten cellophane bags of marijuana became unlawful since the police
officers were not armed with a search warrant at the time. Moreover, it was beyond the
reach and control of petitioner.
In sum, this Court finds petitioner Rodolfo Espano guilty beyond reasonable doubt of
violating Article II, Section 8, in relation to Section 2 (e-L) (I) of Republic Act No. 6425, as
amended. Under the said provision, the penalty imposed is six years and one day to twelve
years and a fine ranging from six thousand to twelve thousand pesos. With the passage of
Republic Act No. 7659, which took effect on December 31, 1993, the imposable penalty
shall now depend on the quantity of drugs recovered. Under the provisions of Republic Act
No. 7629, Section 20, and as interpreted in People v. Simon and People v. Lara, if the
[13] [14]

quantity of marijuana involved is less than 750 grams, the imposable penalty ranges
from prision correccional to reclusion temporal. Taking into consideration that petitioner is
not a habitual delinquent, the amendatory provision is favorable to him and the quantity of
marijuana involved is less than 750 grams, the penalty imposed under Republic Act No.
7659 should be applied. There being no mitigating nor aggravating circumstances, the
imposable penalty shall be prision correccional in its medium period. Applying the
Indeterminate Sentence Law, the maximum penalty shall be taken from the medium period
of prision correccional, which is two (2) years, four (4) months and one (1) day to four (4)
years and two (2) months, while the minimum shall be taken from the penalty next lower in
degree, which is one (1) month and one (1) day to six (6) months of arresto mayor.
WHEREFORE, the instant petition is hereby DENIED. The decision of the Court of
Appeals in C.A.-G.R. CR No. 13976 dated January 16, 1995 is AFFIRMED with the
MODIFICATION that petitioner Rodolfo Espano is sentenced to suffer an indeterminate
penalty of TWO (2) months and ONE (1) day of arresto mayor, as minimum to TWO (2)
years, FOUR (4) months and ONE (1) day of prision correccional, as maximum.
SO ORDERED.
Narvasa, C.J., (Chairman), Kapunan, and Purisima, JJ., concur.
 [G.R. No. 128277. November 16, 1998]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FERDINAND GUENO y

MATA, accused-appellant

DECISION
VITUG, J.:

Ferdinand Cueno y Mata pleaded "not guilty" to two separate indictments charging him with the violation of
Section 4 and of Section 8 of Republic Act 6425, otherwise known as the Dangerous Drugs Act, as amended: in
the first charge (Criminal Case No. 37-95), appellant was accused, along with Florida Senarosa Fajardo, of having
transgressed Section 4 of the Act, and in the other (Criminal Case No. 38-95), he was indicted for violating Section
8 of the law. The accusatory portions of the informations read:

In Criminal Case No. 37-95 -

"That on or about January 30, 1995, in the City of Cavite, Republic of the Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, without legal authority,
conspiring, confederating together and mutually helping one another, did, then and there, vatfulty,
unlawfully, feloniously and knowingly sell to a poseur buyer a small brick of dried Marijuana
leaves with flowering tops with a total net weight of 30.4315 grams, a prohibited drug.

"CONTRARY TO LAW."[1]

In Criminal Case No. 38-95 -

'That on or about January 30, 1995, in the City of Cavite, Republic of the Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, without legal authority, did, then
and there, wilfully, unlawfully, feloniously and knowingly have in his possession and control one
(1) brick and twenty one (21) plastic tea bag of dried Marijuana leaves with flowering tops with a
total net weight of 861.5842'grams, 'a prohibited drug.

CONTRARY TO LAW"[2]

Accused Ferdinand Cueno and Florida Fajardo pleaded "not guilty" in Criminal Case No. 37-95; Cueno
likewise entered a plea of "not guilty" in Criminal Case No. 38-95. Following the arraignment, a joint trial was
conducted since the two offenses were spawned during the same occasion.
When the reception of the evidence had concluded, the trial court, in its decision of 10 January 1997,
convicted both accused (Cueno and Fajardo) in Criminal Case No. 37-95 and found accused-appellant (Cueno)
in Criminal Case No. 38-95 guilty as charged. The dispositive portions of the judgment in the two criminal cases
read:

"WHEREFORE, this Court finding both accused GUILTY beyond reasonable doubt as charged in
the two (2) criminal Informations, accordingly hereby sentences them as follows:

"In Crim. Case No. 37-95

"Accused FERDINAND CUENO and FLORIDA FAJARDO are hereby sentenced to an
indeterminate prison term of four (4) months and twenty (20) days of arresto mayor maximum as
minimum, to four (4) years and two (2) months of prision correccional medium as maximum, with
the accessory penalties provided for by law, and to pay the costs.

"In Crim. Case No. 38-95

"Accused FERDINAND CUENO is hereby sentenced to a penalty of reclusion perpetua and is

ordered to pay a fine of P500,000.00, with the accessory penalties provided for by law, and to pay
the costs.

"SO ORDERED."[3]

The versions given by the prosecution and the defense, respectively, were narrated in good detail by the trial
court, presided over by the Honorable Christopher 0. Lock, in its appealed decision, viz-.

'The prosecution evidence showed that on January 25, 1995, an asset accompanied P01 AVELINO
CAMANTIGUE to lnocencio St., San Roque, Cavite City and pointed to the house of the accused
FERDINAND CUENO. Upon instructions of their commanding officer, Police Superintendent
MELCHOR RAMOS of the lst Mobile Force Company based in Camp Pantaleon Garcia, lmus,
Cavite, PO1 CAMANTIGUE together with SPO1 AQUILINO SARMIENTO and P02 EDWIN
MOJICA conducted surveillance operations on the alleged drug pushing activities of herein
accused at around 9:30 in the morning of January 26, 1995. P01 CAMANTIGUE who posed as a
newspaper vendor observed from a distance of 15 meters from the store of FERDIE CUENO that a
person was handing money to said accused and FERDIE in turn gave something to the person who
immediately inserted the same in his pocket. CAMANTIGUE allegedly overheard FERDIE saying:
'hindi ka lugi sa halagang P20.00 at iyan ay malakas.' At that time SARMIENTO and MOJICA
passed by CAMANTIGUE who removed his cap as a signal that the sale was already
consummated. After this, the group returned to their station, and reported the result of their
surveillance to their commanding officer who instructed them to apply for a search warrant.

"On January 30, 1995 at about 9:30 in the morning, SPO1 AQUILINO SARMIENTO together with
P02 EDWIN MOJICA and P01 AVELINO CAMANTIGUE proceeded to the Hall of Justice at
Imus, Cavite and applied for and were issued Search Warrant No. 023 by Judge DOLORES L.
ESPAOL, of the Regional Trial Court Branch 90, Dasmarias, Cavite. Said search warrant ordered
the search of the premises of one PETER DOE alias FERDIE and the seizure of dried marijuana
leaves allegedly in the possession of aforesaid person.

"After the search warrant was issued by Judge ESPAOL, CAMANTIGUE and his companions
returned to their station and informed their Commanding Officer Police Superintendent
MELCHOR RAMOS that a search warrant has already been issued, who hatched a plan that a buy-
bust operation be conducted on the accused first before the implementation of the search warrant. It was
agreed that P01 CAMANTIGUE will be accompanied by their informant who will introduce the former to
FERDIE as a user who is interested in buying marijuana.

"At about 3:30 that same afternoon, a team of policemen led by P/Supt. RAMOS, and composed of
SPO1 SARMIENTO, P02 MOJICA, P01 CAMANTIGUE, P03 FRANCISCO RAMOS together
with their informant, a certain ADO, proceeded to Cavite City, more particularly, lnocencio St., San
Roque, Cavite City, where accused resides. Upon arrival thereat, as planned, ADO introduced
CAMANTIGUE to FERDIE as a user who wants to buy marijuana. FERDIE at that time was
standing by the door of his store which is just an extension of the house where he was
staying. After said introduction, FERDIE asked CAMANTIGUE how much worth of marijuana
was he buying, to which CAMANTIGUE retorted that he wanted to buy marijuana worth P150.00.
FERDIE got the P150.00 from CAMANTIGUE and then called his commonlaw wife, the herein
accused FLORIDA FAJARDO alias FLORY, and instructed her to give CAMANTIGUE marijuana
worth P150.00. FLORY went inside their house and when she returned, she handed
CAMANTIGUE the marijuana (Exhibit 'D'). CAMANTIGUE then removed his cap as a signal to
his companions that the sale has been consummated. SPO1 SARMIENTO, P02 MOJICA and his
companions approached them and they identified themselves as policemen. They then arrested
FERDIE, and recovered from his possession were the buy money in the amount of P150.00,
consisting of a P100 bill with SN VQ927976 and a P50.00 bill with SN NRO87791. FLORY was
asked to go out of the store, and the policemen announced to the couple that they had with them a
search warrant for the search and seizure of marijuana in the premises of both accused. Before the
raiders proceeded to search the house of the accused, they called for barangay officials in the area
to witness the conduct of the search. Barangay Kagawads ERNESTO ROSAL and ALFREDO
SALINAS, SK Chairman EDGAR ORDOEZ, Asst. Chief Barangay Tanod JOSE DESIDERIO
arrived, and together with P/Supt. RAMOS, SPO1 SARMIENTO, P02 MOJICA and P01
CAMANTIGUE proceeded to search the residence of the accused. Barangay Chairman DOROTEO
ICAYAN, JR. arrived when the search was in progress. Inside the bedroom of the accused, SPO1
SARMIENTO found a balikbayan box which contained dirty clothes, a brick of dried flowering tops of
marijuana wrapped in a newspaper with a gross weight of 803 grams (Exhibit 'E') and twenty one (21) plastic
tea bags containing dried flowering tops of marijuana with a gross weight of 48.5842 grams (Exhibits 'F-l' to 'F-
21') together with rolling papers.After the search, the policemen prepared a Receipt of Property seized (Exhibit
'1') which was signed by both accused FERDINAND CUENO and FLORIDA FAJARDO, ANGELINA
MATA, mother of FERDIE, the raiding police officers, and the barangay officials who were present when the
search was made and the ensuing discovery of marijuana inside the bedroom of the accused. Both accused
together with the seized articles were then brought by the policemen to their headquarters in Camp Pantaleon
Garcia, Imus, Cavite. The following day, January 31, 1995, the seized articles were brought to the NBI for
laboratory examination, which examination gave positive results for marijuana. On the same day, the
corresponding criminal complaints were filed against accused FERDINAND CUENO and FLORIDA
FAJARDO.

"The story of the defense is different.

"The defense evidence showed that at around 4:30 in the afternoon of January 30. 1995, while
accused FLORIDA FAJARDO was tending their store located at Inocencio St., San Roque, Cavite
City and taking care of her 1 1/2 year old daughter, JESSICA, about eight (8) armed policemen in
civilian clothes forcibly entered their house. As she was so frightened by the sudden appearance of
these persons, she called her live-in partner and co-accused FERDINAND CUENO, who at the
time was at the back of their house, near the residence of their neighbor JERRY LIBONGCOGON
watching children playing with spiders. When FERDIE, hearing the shouts of FLORY, rushed to
the scene and introduced himself and asked why these persons were inside his house, he received a
strong slap on his face. FLORY, looking pale and visibly frightened by the events she saw, held her
child and just sat on their bed. FERDIE and FLORY were brought outside where FERDIE was
handcuffed. After about 5 minutes, barangay officials came, namely, EDGIE ORDONEZ, JOJO
ROSAL and ALFREDO SALINAS. He noticed the presence of Barangay Tanod JOSE
DESIDERIO when Barangay Captain DOROTEO ICAYAN came. FERDIE was not able to talk to
the barangay officials because they talked with the policemen inside the house. The policemen
showed the barangay officials the search warrant which was not shown to the accused.Thereafter,
the first floor of their house was searched and policemen found marijuana inside a box. The box
and the marijuana inside does not belong to him and he does not know where it came
from.FERDIE's sister, LORENA CUENO, who actually owns the store he and his wife FLORY are
tending, and her live-in partner EFREN CONCEPCION are the ones occupying the first floor of
their house.FERDIE and his wife occupies one of the three (3) rooms in the second floor of the
house owned by FERDIE's mother. FERDIE's mother and stepfather, together with his younger
sister occupies the two (2) other rooms. At the time the raid was conducted by the police on
January 30, 1995, LORENA was working in Japan as an entertainer, and it was only EFREN who
was occupying the first floor of the house, although both accused still has access to the first floor
because one has to pass the ground floor before he can enter the store. EFREN who is jobless and a
known drug user has already been salvaged (summarily executed by law enforcement agents)
sometime last year."[4]

Only Ferdinand Cueno appealed to this Court from the judgment of the court a quo. While, normally, only
that which meted him the sentence of reclusion perpetua could be appealed directly to the Supreme Court, his
other conviction, however, in the other case over which the trial court imposed a lower penalty, could likewise
here be considered consistently with the ruling in People vs. Saley,[5] where this Court had observed:

"x x x This Court has appellate jurisdiction over ordinary appeals in criminal cases directly from
the Regional Trial Courts when the penalty imposed is reclusion perpetua or higher. The Rules of
Court, allows, however, the appeal of criminal cases involving penalties lower than reclusion
perpetua or life imprisonment under the circumstances stated in Section 3, Rule 122, of the Revised
Rules of Criminal Procedure. Thus -

"'(c) The appeal to the Supreme Court in cases where the penalty imposed is life imprisonment, or
where a lesser penalty is imposed but involving offenses committed on the same occasion or arising
out of the same occurrence that gave rise to the more serious offense for which the penalty of death
or life imprisonment is imposed shall be by filing a notice of appeal in accordance with paragraph
(a) of this Section.'"

In his brief filed in compliance with the resolution of 27 August 1997 of the Court, appellant, through counsel,
argues that -

"l. The trial court (has) erred in giving credence to the testimonies of the prosecution witnesses;
(and)

"2. The trial court (has) erred in finding accused-appellant Ferdinand Cueno guilty beyond
reasonable doubt in Criminal Case No. 37-95 for selling marijuana leaves and Criminal Case No.
38-95 for possessing marijuana leaves."[6]

Regrettably, the appeal must fail.

 Accused-appellant assails the credibility of the police officers who have given testimony in the two criminal
cases. Unless compelling reasons are shown otherwise, this Court, not being a trier of facts itself, rely in good
part on the assessment and evaluation by the trial court of the evidence, particularly the attestations of witnesses,
presented to it. The Court will not generally interfere with the findings of the trial court in passing upon the
credibility of the witnesses; it is the latter court, not the appellate tribunal, which has the opportunity to see and
hear first hand the bringing up to it during trial of testimonial evidence. Here, once again, the Court sees no reason
to doubt and disturb the findings thereon of the trial court. The inconsistencies pointed out by accused-appellant,
at best to his cause, pertain only to collateral matters and really not that relevant to the case against him.
The totality of the evidence would indicate that the sale of prohibited drugs did take place. The two basic
elements for this charge to prosper, i.e., (a) the identity of the buyer and the seller, the object and the consideration,
and (b) the delivery of the thing sold and the payment therefor,[7] as the Solicitor General so pointed out, had been
successfully established by the prosecution witnesses, particularly the police officers, in their testimony during
trial.
P01 Camantigue, the poseur buyer, declared that it was appellant who ordered the production of marijuana
worth P150.00 during the buy-bust operation:
"Q: What happened after the two of you arrived there?
''A: Our informant introduced me to Ferdie, Sir, as a user and I will buy marijuana.
xxx xxx xxx
''Q: After you were introduced, what happened?
''A: He asked me about how much will I get, Sir.
"Q: What was your reply, if any?
''A:- Worth about P150.00, Sir.
"Q: After that, what happened?
''A: He called somebody named Flory, Sir.
xxx xxx xxx
''Q: What did the woman do when she was called by Ferdie?
"A: She was introduced to me by Ferdie as his wife, Sir, and he instructed her to give me worth P 150. 00.
xxx xxx xxx
"Q: If this Ferdie that you are referring to is present inside this Courtroom, will you be able to recognize him?
''A:- Yes, Sir.
''Q: Please look around and tell us if you can see Ferdie inside this Courtroom.
''A:- He is here, Sir.
''Q:- Please point to him, Mr. Witness.
''A: He is there, Sir. (Witness pointing to a man who identified himself as Ferdinand Cueno)."[8]
The existence of consideration and the fact of delivery of the drug bought from the accused was confirmed by the
witness:
''PROS. LU:
Were you able to buy marijuana?
''A: Yes, Sir.
"Q: From whom did you buy marijuana?
 ''A: This P150.00 was taken from me by Ferdie and then Ferdie told Flory who was then inside their house and she was
told to give me marijuana worth P150.00, Sir.
"Q: Are we to understand from you that this P150.00 was handed by you to Ferdie even before he called for Flory9
"A: Yes, Sir.[9]
When the article bought from the accused was later subjected to laboratory examination by the Forensic Chemistry
Division of the National Bureau of Investigation, the drug was tested positive for, and had a total net weight of
30.4315 grams of, marijuana. The Certification,[10] dated 31 January 1995, containing the test results, was admitted
by both the prosecution and the defense in their stipulation of facts.[11]
Appellant would want the Court to hold as being tainted with irregularity, and therefore void, the sale of the
prohibited drug since the marked money used in the purchase of the illegal drug has not been "blottered." The
argument is absurd. Indeed, in People vs. Manahan,[12] the Court has ruled that the failure to mark the money or
to present it in evidence is not material since the matter will not essentially disprove the sale. Even the presentation
in evidence of the buy-bust money. is not indispensable for the conviction of the accused as long as the sale can
be adequately proved in some other way by the prosecution.[13] The sale of the prohibited drug has been succinctly
described by the trial court, thus-

"Contrary to the contentions of the accused that there was no buy-bust operation, the police officers
had shown through their testimonies that the elements of the offense with which he was charged
were present, i.e., that the accused had sold and delivered a prohibited drug to another and that
accused knew that what he had- sold and delivered was a dangerous drug (People vs. Manzano, 227
SCRA 780). The established fact is that there was marijuana taken from the accused FERDINAND
CUENO pursuant to a buy-bust operation and the same was tested positively as such. In fact,
accused did not refute the fact that the substance recovered from him when he was arrested was
marijuana, a prohibited drug."[14]

Appellant submitted the defense of alibi, on the claim that he was not even at home when the sale supposedly
had taken place. It would be hard to buy this defense when measured up against the positive identification made
of him and the presumption of regularity in the performance of official functions by the police officers who
conducted the operation.
Appellant would question his conviction in Criminal Case No. 38-95 allegedly because of the illegality of
the search made in his house. The arrest of appellant has been made in the course of a buy-bust operation, thus, in
flagrante delicto. A buy-bust operation - a form of entrapment which has repeatedly been accepted to be a valid
means of arresting violators of the Dangerous Drugs Law[15] - is far variant from an ordinary arrest. In lawful
arrests, it becomes both the duty and the right of the apprehending officers to conduct a warrantless search not
only on the person of the suspect but also in the permissible area within his reach, i.e., that point which is within
the effective control of the person arrested, or that which may furnish him with the means of committing violence
or of escaping.[16] Prosecution witness P01 Camantigue, in this regard, has narrated:
"Q: Where was Ferdie at the time you arrived in front of his house?
''A: He was located at the side of a store by the door, Sir.
''Q: How far is that store from the house of this Ferdie?
''A: It is an extension of the house, Sir.
''Q: You are telling us that this store is part of the house of Ferdie?
xxx xxx xxx
"A: Yes, sir."[17]
Under this set-up, it becomes advisable, if not necessary, for the peace officers to forthwith undertake a search of
the house as being within the "permissible area.''
Appellant insinuates a "frame-up," in his brief, he states:

''Accused-appellant Ferdinand Gueno denied having sold marijuana to the arresting officers. He
claimed that there was no buy-bust operation. At 4:30 P.M. January 30, 1995, he was at his
neighbor's house with Jerry Liboncogon watching the two (2) children playing with spiders. He
heard the shouts of his wife so he ran towards home and when he arrived there, the police officers
were already inside the house.While they were conducting the search, somebody shouted and said
"eto pala, ang dami." (No reply or rebuttal was made on this). The marijuana allegedly found by the
searching officers does not belong to him or to his wife.

x x x xxx xxx

''Even prosecution witness Edgar Ordonez bolstered the claim of Cueno that the marijuana found
by the searching officers does not belong to him. Ordonez declared that the kitchen was searched
first and he cannot remember if anything was found there. Then the dresses were searched and
nothing was found. The searchers proceeded to the store but nothing was found. He heard the driver
of the jeep (of the policemen) uttered "eto pala, ang dami." Then he saw marijuana (TSN, April 2,
1996, pp. 3-16). This shows that the marijuana allegedly found during the search was planted. This
declaration of Ordonez totally destroyed the case of the prosecution. As prosecution witness,
Ordonez stated facts consistent with the guilt of accused Cueno but he also stated facts inconsistent
with the guilt of the latter. In the case of Duran vs. Court of Appeals (71 SCRA 68), it was held that
where inculpatory facts are susceptible to two interpretations, one consistent and the other
inconsistent with the guilt of the accused, then the evidence fails to fulfill the test of moral certainty
and is insufficient to support conviction."[18]

Verily, in order that this most-often invoked defense of ''frame up'' could possibly prosper, the evidence
therefor should be clear and convincing. Far from it, the contrary would here appear to be the case, The details
leading to the discovery of the prohibited drug were narrated by the prosecution witnesses with no significant
inconsistencies. P01 Camantigue testified:
''Q. What part of the house of Ferdie did you search first?
''A: The first part that we searched was the bedroom of Ferdie, Sir.
x x x x x x xxx
''Q: Who actually conducted the search inside the bedroom of Ferdie?
"A- SPO1 Sarmiento, Sir.
xxxxxxxxx
"Q: Who were present?
"A: One of them was Brgy. Capt. lcayan, Sir.
'Q: Who else?
''A: Our Officer Col. Ramos and some brgy. councilmen, Sir.
"Q: Who were present inside the room?
''A: I was also one of those who were inside the room, Sir.
 x x x x x x xxx
"Q: Now, what was the result of the search conducted by Aquilino Sarmiento inside the room?
xxx xxx xxx
''A: SPO1 Sarmiento was able to find marijuana wrapped with one huge piece of wrapping paper, Sir.
"PROS. LU:
'Q: In what particular portion of the bedroom did Sarmiento find that marijuana?
"A: In the cabinet of their clothes, Sir."[19]
SPO1 Sarmiento, the searching officer, was unequivocal in his own testimony, he stated:
"Q: What part of the house did you search first?
''A: The first thing that I searched was the bed of the spouses Cueno, Sir.
''Q: Did you find anything?
''A: I did not find any from there, Sir.
xxx xxx xxx
"Q: What place did you search next?
"A: The next thing that was searched was their dress cabinet, Sir.
''Q:Did you find anything there?
''A: Yes, sir.
"Q: What did you find?
''A: I found the marijuana from the dress cabinet, Sir."[20]
No ill-motive on the part of the police officers in effecting the buy-bust operation, and the consequent search
that followed, had at all been shown. The arrest of appellant was made in the course of an entrapment, following
a surveillance operation, normally performed by police officers in the apprehension of violators of the Dangerous
Drugs Act. The Court finds itself in agreement with the Solicitor General in this observation.-

"Nowhere in the record is there evidence that P01 Camantique was moved by ill-will. No proof was
adduced by the appellant to show that the police officer was motivated by evil intent. Of the several
thousand residents of Cavite City, there was absolutely no reason for the police officer to single out
the appellant and hurl false accusations against him. Truly, no person in his right senses would be
so cruel as to implicate an innocent person to a crime so serious as to cost even his life. Rather,
what prompted P01 Camantigue to come into the open and unmask the appellant on his illegal drug
activities was his desire to do something for the eradication of the drug menace."[21]

The Court, here again, holds that in the absence of proof of any odious intent on the part of the police authorities
to falsely impute a serious crime, such as that made against herein appellant, the Court will not allow their
testimony to be overcome by the self-serving and uncorroborated claim of "frame-up."[22]
The confiscated drug, with a total weight of 851.5842 grams, when tested, similarly proved to be positive for
marijuana.
Following the ruling in People vs. Simon,[23] and the amendatory provisions of Republic Act 7659, the Court
finds the sentence handed down by the trial court against appellant for Violation of Section 4, as well as of Section
8, Republic Act No. 6425, as amended, well within the legally prescribed penalties.
WHEREFORE, the DECISION appealed from is AFFIRMED. Costs against appellant,
SO ORDERED.
G.R. No. 164815 September 3, 2009

SR. INSP. JERRY C. VALEROSO, Petitioner,

vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents.

RESOLUTION

NACHURA, J.:

For resolution is the Letter-Appeal1 of Senior Inspector (Sr. Insp.) Jerry C. Valeroso (Valeroso) praying that our
February 22, 2008 Decision2 and June 30, 2008 Resolution3 be set aside and a new one be entered acquitting him
of the crime of illegal possession of firearm and ammunition.

The facts are briefly stated as follows:

Valeroso was charged with violation of Presidential Decree No. 1866, committed as follows:

That on or about the 10th day of July, 1996, in Quezon City, Philippines, the said accused without any authority of
law, did then and there willfully, unlawfully and knowingly have in his/her possession and under his/her custody and
control

One (1) cal. 38 "Charter Arms" revolver bearing serial no. 52315 with five (5) live ammo.

without first having secured the necessary license/permit issued by the proper authorities.

CONTRARY TO LAW.4

When arraigned, Valeroso pleaded "not guilty."5 Trial on the merits ensued.

During trial, the prosecution presented two witnesses: Senior Police Officer (SPO)2 Antonio Disuanco (Disuanco) of
the Criminal Investigation Division of the Central Police District Command; and Epifanio Deriquito (Deriquito),
Records Verifier of the Firearms and Explosives Division in Camp Crame. Their testimonies are summarized as
follows:

On July 10, 1996, at around 9:30 a.m., Disuanco received a Dispatch Order from the desk officer directing him and
three (3) other policemen to serve a Warrant of Arrest, issued by Judge Ignacio Salvador, against Valeroso for a
case of kidnapping with ransom.6

After a briefing, the team conducted the necessary surveillance on Valeroso checking his hideouts in Cavite,
Caloocan, and Bulacan. Eventually, the team members proceeded to the Integrated National Police (INP) Central
Police Station in Culiat, Quezon City, where they saw Valeroso about to board a tricyle. Disuanco and his team
approached Valeroso. They put him under arrest, informed him of his constitutional rights, and bodily searched him.
They found a Charter Arms revolver, bearing Serial No. 52315, with five (5) pieces of live ammunition, tucked in his
waist.7

Valeroso was then brought to the police station for questioning. Upon verification in the Firearms and Explosives
Division in Camp Crame, Deriquito presented a certification8 that the subject firearm was not issued to Valeroso, but
was licensed in the name of a certain Raul Palencia Salvatierra of Sampaloc, Manila.9

On the other hand, Valeroso, SPO3 Agustin R. Timbol, Jr. (Timbol), and Adrian Yuson testified for the defense.
Their testimonies are summarized as follows:

On July 10, 1996, Valeroso was sleeping inside a room in the boarding house of his children located at Sagana
Homes, Barangay New Era, Quezon City. He was awakened by four (4) heavily armed men in civilian attire who
pointed their guns at him and pulled him out of the room.10 The raiding team tied his hands and placed him near the
faucet (outside the room) then went back inside, searched and ransacked the room. Moments later, an operative
came out of the room and exclaimed, "Hoy, may nakuha akong baril sa loob!"11

Disuanco informed Valeroso that there was a standing warrant for his arrest. However, the raiding team was not
armed with a search warrant.12

Timbol testified that he issued to Valeroso a Memorandum Receipt13 dated July 1, 1993 covering the subject firearm
and its ammunition, upon the verbal instruction of Col. Angelito Moreno.14

On May 6, 1998, the Regional Trial Court (RTC), Branch 97, Quezon City, convicted Valeroso as charged and
sentenced him to suffer the indeterminate penalty of four (4) years, two (2) months and one (1) day, as minimum, to
six (6) years, as maximum. The gun subject of the case was further ordered confiscated in favor of the
government.15

On appeal, the Court of Appeals (CA) affirmed16 the RTC decision but the minimum term of the indeterminate
penalty was lowered to four (4) years and two (2) months.

On petition for review, we affirmed17 in full the CA decision. Valeroso filed a Motion for Reconsideration18 which was
denied with finality19 on June 30, 2008.

Valeroso is again before us through this Letter-Appeal20 imploring this Court to once more take a contemplative
reflection and deliberation on the case, focusing on his breached constitutional rights against unreasonable search
and seizure.21

Meanwhile, as the Office of the Solicitor General (OSG) failed to timely file its Comment on Valerosos Motion for
Reconsideration, it instead filed a Manifestation in Lieu of Comment.22

In its Manifestation, the OSG changed its previous position and now recommends Valerosos acquittal. After a
second look at the evidence presented, the OSG considers the testimonies of the witnesses for the defense more
credible and thus concludes that Valeroso was arrested in a boarding house. More importantly, the OSG agrees
with Valeroso that the subject firearm was obtained by the police officers in violation of Valerosos constitutional right
against illegal search and seizure, and should thus be excluded from the evidence for the prosecution. Lastly,
assuming that the subject firearm was admissible in evidence, still, Valeroso could not be convicted of the crime,
since he was able to establish his authority to possess the gun through the Memorandum Receipt issued by his
superiors.

After considering anew Valerosos arguments through his Letter-Appeal, together with the OSGs position
recommending his acquittal, and keeping in mind that substantial rights must ultimately reign supreme over
technicalities, this Court is swayed to reconsider.23

The Letter-Appeal is actually in the nature of a second motion for reconsideration. While a second motion for
reconsideration is, as a general rule, a prohibited pleading, it is within the sound discretion of the Court to admit the
same, provided it is filed with prior leave whenever substantive justice may be better served thereby.24

This is not the first time that this Court is suspending its own rules or excepting a particular case from the operation
of the rules. In De Guzman v. Sandiganbayan,25 despite the denial of De Guzmans motion for reconsideration, we
still entertained his Omnibus Motion, which was actually a second motion for reconsideration. Eventually, we
reconsidered our earlier decision and remanded the case to the Sandiganbayan for reception and appreciation of
petitioners evidence. In that case, we said that if we would not compassionately bend backwards and flex
technicalities, petitioner would surely experience the disgrace and misery of incarceration for a crime which he might
not have committed after all.26 Also in Astorga v. People,27 on a second motion for reconsideration, we set aside our
earlier decision, re-examined the records of the case, then finally acquitted Benito Astorga of the crime of Arbitrary
Detention on the ground of reasonable doubt. And in Sta. Rosa Realty Development Corporation v. Amante,28 by
virtue of the January 13, 2004 En Banc Resolution, the Court authorized the Special First Division to suspend the
Rules, so as to allow it to consider and resolve respondents second motion for reconsideration after the motion was
heard on oral arguments. After a re-examination of the merits of the case, we granted the second motion for
reconsideration and set aside our earlier decision.
Clearly, suspension of the rules of procedure, to pave the way for the re-examination of the findings of fact and
conclusions of law earlier made, is not without basis.

We would like to stress that rules of procedure are merely tools designed to facilitate the attainment of justice. They
are conceived and promulgated to effectively aid the courts in the dispensation of justice. Courts are not slaves to or
robots of technical rules, shorn of judicial discretion. In rendering justice, courts have always been, as they ought to
be, conscientiously guided by the norm that, on the balance, technicalities take a backseat to substantive rights, and
not the other way around. Thus, if the application of the Rules would tend to frustrate rather than to promote justice,
it would always be within our power to suspend the rules or except a particular case from its operation.29

Now on the substantive aspect.

The Court notes that the version of the prosecution, as to where Valeroso was arrested, is different from the version
of the defense. The prosecution claims that Valeroso was arrested near the INP Central Police Station in Culiat,
Quezon City, while he was about to board a tricycle. After placing Valeroso under arrest, the arresting officers bodily
searched him, and they found the subject firearm and ammunition. The defense, on the other hand, insists that he
was arrested inside the boarding house of his children. After serving the warrant of arrest (allegedly for kidnapping
with ransom), some of the police officers searched the boarding house and forcibly opened a cabinet where they
discovered the subject firearm.

After a thorough re-examination of the records and consideration of the joint appeal for acquittal by Valeroso and the
OSG, we find that we must give more credence to the version of the defense.

Valerosos appeal for acquittal focuses on his constitutional right against unreasonable search and seizure alleged
to have been violated by the arresting police officers; and if so, would render the confiscated firearm and
ammunition inadmissible in evidence against him.

The right against unreasonable searches and seizures is secured by Section 2, Article III of the Constitution which
states:

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

From this constitutional provision, it can readily be gleaned that, as a general rule, the procurement of a warrant is
required before a law enforcer can validly search or seize the person, house, papers, or effects of any individual.30

To underscore the significance the law attaches to the fundamental right of an individual against unreasonable
searches and seizures, the Constitution succinctly declares in Article III, Section 3(2), that "any evidence obtained in
violation of this or the preceding section shall be inadmissible in evidence for any purpose in any proceeding."31

The above proscription is not, however, absolute. The 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.32

8. Search of vessels and aircraft; [and]

9. Inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations.33

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.34

In light of the enumerated exceptions, and applying the test of reasonableness laid down above, is the warrantless
search and seizure of the firearm and ammunition valid?

We answer in the negative.

For one, the warrantless search could not be justified as an incident to a lawful arrest. Searches and seizures
incident to lawful arrests are governed by Section 13, Rule 126 of the Rules of Court, which reads:

SEC. 13. Search incident to lawful arrest. 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.

We would like to stress that the scope of the warrantless search is not without limitations. In People v.
Leangsiri,35People v. Cubcubin, Jr.,36 and People v. Estella,37 we had the occasion to lay down the parameters of a
valid warrantless search and seizure as an incident to a lawful arrest.

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove
any weapon that the latter might use in order to resist arrest or effect his escape. Otherwise, the officers safety
might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer
to search for and seize any evidence on the arrestees person in order to prevent its concealment or destruction.38

Moreover, in lawful arrests, it becomes both the duty and the right of the apprehending officers to conduct a
warrantless search not only on the person of the suspect, but also in the permissible area within the latters
reach.39 Otherwise stated, a valid arrest allows the seizure of evidence or dangerous weapons either on the person
of the one arrested or within the area of his immediate control.40 The phrase "within the area of his immediate
control" means the area from within which he might gain possession of a weapon or destructible evidence.41 A gun
on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one
concealed in the clothing of the person arrested.42

In the present case, Valeroso was arrested by virtue of a warrant of arrest allegedly for kidnapping with ransom. At
that time, Valeroso was sleeping inside the boarding house of his children. He was awakened by the arresting
officers who were heavily armed. They pulled him out of the room, placed him beside the faucet outside the room,
tied his hands, and then put him under the care of Disuanco.43 The other police officers remained inside the room
and ransacked the locked cabinet44 where they found the subject firearm and ammunition.45 With such discovery,
Valeroso was charged with illegal possession of firearm and ammunition.

From the foregoing narration of facts, we can readily conclude that the arresting officers served the warrant of arrest
without any resistance from Valeroso. They placed him immediately under their control by pulling him out of the bed,
and bringing him out of the room with his hands tied. To be sure, the cabinet which, according to Valeroso, was
locked, could no longer be considered as an "area within his immediate control" because there was no way for him
to take any weapon or to destroy any evidence that could be used against him.

The arresting officers would have been justified in searching the person of Valeroso, as well as the tables or
drawers in front of him, for any concealed weapon that might be used against the former. But under the
circumstances obtaining, there was no comparable justification to search through all the desk drawers and cabinets
or the other closed or concealed areas in that room itself.46

It is worthy to note that the purpose of the exception (warrantless search as an incident to a lawful arrest) is to
protect the arresting officer from being harmed by the person arrested, who might be armed with a concealed
weapon, and to prevent the latter from destroying evidence within reach. The exception, therefore, should not be
strained beyond what is needed to serve its purpose.47 In the case before us, search was made in the locked
cabinet which cannot be said to have been within Valerosos immediate control. Thus, the search exceeded the
bounds of what may be considered as an incident to a lawful arrest.48

Nor can the warrantless search in this case be justified under the "plain view doctrine."

The "plain view doctrine" may not be used to launch unbridled searches and indiscriminate seizures or to extend a
general exploratory search made solely to find evidence of defendants guilt. The doctrine is usually applied where a
police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an
incriminating object.49

As enunciated in People v. Cubcubin, Jr.50 and People v. Leangsiri:51

What the "plain view" cases have in common is that the police officer in each of them had a prior justification for an
intrusion in the course of which[,] he came inadvertently across a piece of evidence incriminating the accused. The
doctrine serves to supplement the prior justification whether it be a warrant for another object, hot pursuit, search
incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed
against the accused and permits the warrantless seizure. Of course, the extension of the original justification is
legitimate only where it is immediately apparent to the police that they have evidence before them; the "plain view"
doctrine may not be used to extend a general exploratory search from one object to another until something
incriminating at last emerges.52

Indeed, the police officers were inside the boarding house of Valerosos children, because they were supposed to
serve a warrant of arrest issued against Valeroso. In other words, the police officers had a prior justification for the
intrusion. Consequently, any evidence that they would inadvertently discover may be used against Valeroso.
However, in this case, the police officers did not just accidentally discover the subject firearm and ammunition; they
actually searched for evidence against Valeroso.

Clearly, the search made was illegal, a violation of Valerosos right against unreasonable search and seizure.
Consequently, the evidence obtained in violation of said right is inadmissible in evidence against him. 1avv phi 1

Unreasonable searches and seizures are the menace against which the constitutional guarantees afford full
protection. While the power to search and seize may at times be necessary for public welfare, still it may be
exercised and the law enforced without transgressing the constitutional rights of the citizens, for no enforcement of
any statute is of sufficient importance to justify indifference to the basic principles of government. Those who are
supposed to enforce the law are not justified in disregarding the rights of an individual in the name of order. Order is
too high a price to pay for the loss of liberty.53

Because a warrantless search is in derogation of a constitutional right, peace officers who conduct it cannot invoke
regularity in the performance of official functions.54

The Bill of Rights is the bedrock of constitutional government. If people are stripped naked of their rights as human
beings, democracy cannot survive and government becomes meaningless. This explains why the Bill of Rights,
contained as it is in Article III of the Constitution, occupies a position of primacy in the fundamental law way above
the articles on governmental power.55
Without the illegally seized firearm, Valerosos conviction cannot stand. There is simply no sufficient evidence to
convict him.56 All told, the guilt of Valeroso was not proven beyond reasonable doubt measured by the required
moral certainty for conviction. The evidence presented by the prosecution was not enough to overcome the
presumption of innocence as constitutionally ordained. Indeed, it would be better to set free ten men who might
probably be guilty of the crime charged than to convict one innocent man for a crime he did not commit.57

With the foregoing disquisition, there is no more need to discuss the other issues raised by Valeroso.

One final note. The Court values liberty and will always insist on the observance of basic constitutional rights as a
condition sine qua non against the awesome investigative and prosecutory powers of the government.58

WHEREFORE, in view of the foregoing, the February 22, 2008 Decision and June 30, 2008 Resolution are
RECONSIDERED and SET ASIDE. Sr. Insp. Jerry Valeroso is hereby ACQUITTED of illegal possession of firearm
and ammunition.

SO ORDERED.