Crimpro - Warrantless Arrest

CRIMINAL PROCEDURE WARRANTLESS ARREST CASES

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PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.

NAZARENO VILLAREAL y LUALHATI, Accused-Appellant.

G.R. No. 201363; March 18, 2013

D E C I S I O N

PERLAS-BERNABE, J.:

This is an appeal from the May 25, 2011 Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 31320 which affirmed in toto the December 11, 2007 Decision2

of the Regional Trial Court of Caloocan City, Branch 123 (RTC), convicting appellant Nazareno Villareal y Lualhati (appellant) of violation of Section 11, Article II of Republic Act No. 91653 (RA 9165) and sentencing him to suffer the penalty of imprisonment for twelve (12) years and one (1) day to fourteen (14) years and eight (8) months and to pay a fine of P300,000.00.

The Factual Antecedents

On December 25, 2006 at around 11:30 in the morning, as PO3 Renato de Leon (PO3 de Leon) was driving his motorcycle on his way home along 5th Avenue, he saw appellant from a distance of about 8 to 10 meters, holding and scrutinizing in his hand a plastic sachet of shabu. Thus, PO3 de Leon, a member of the Station Anti-Illegal Drugs-Special Operation Unit (SAID-SOU) in Caloocan City, alighted from his motorcycle and approached the appellant whom he recognized as someone he had previously arrested for illegal drug possession.4

Upon seeing PO3 de Leon, appellant tried to escape but was quickly apprehended with the help of a tricycle driver. Despite appellant’s attempts to resist arrest, PO3 de Leon was able to board appellant onto his motorcycle and confiscate the plastic sachet of shabu in his possession. Thereafter, PO3 de Leon brought appellant to the 9th Avenue Police Station to fix his handcuffs, and then they proceeded to the SAID-SOU office where PO3 de Leon marked the seized plastic sachet with "RZL/NV 12-25-06," representing his and appellant’s initials and the date of the arrest.5

Subsequently, PO3 de Leon turned over the marked evidence as well as the person of appellant to the investigator, PO2 Randulfo Hipolito (PO2 Hipolito) who, in turn, executed an acknowledgment receipt6 and prepared a letter request7 for the laboratory examination of the seized substance. PO2 Hipolito personally delivered the request and the confiscated item to the Philippine National Police (PNP) Crime Laboratory, which were received by Police Senior Inspector Albert Arturo (PSI Arturo), the forensic chemist.8

Upon qualitative examination, the plastic sachet, which contained 0.03 gram of white crystalline substance, tested positive for methylamphetamine hydrochloride, a dangerous drug.9

Consequently, appellant was charged with violation of Section 11, Article II of RA 9165 for illegal possession of dangerous drugs in an Information10 which reads:

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That on or about the 25th day of December, 2006 in Caloocan City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did then and there willfully, unlawfully and feloniously have in his possession, custody and control, METHYLAMPHETAMINE HYDROCHLORIDE (Shabu) weighing 0.03 gram which, when subjected to chemistry examination gave positive result of METHYLAMPHETAMIME HYDROCHLORIDE, a dangerous drug.

CONTRARY TO LAW.

When arraigned, appellant, assisted by counsel de oficio, entered a plea of not guilty to the offense charged.11

In his defense, appellant denied PO3 de Leon’s allegations and instead claimed that on the date and time of the incident, he was walking alone along Avenida, Rizal headed towards 5th

Avenue when someone who was riding a motorcycle called him from behind. Appellant approached the person, who turned out to be PO3 de Leon, who then told him not to run, frisked him, and took his wallet which containedP1,000.00.12

Appellant was brought to the 9th Avenue police station where he was detained and mauled by eight other detainees under the orders of PO3 de Leon. Subsequently, he was brought to the Sangandaan Headquarters where two other police officers, whose names he recalled were "Michelle" and "Hipolito," took him to the headquarters’ firing range. There, "Michelle" and "Hipolito" forced him to answer questions about a stolen cellphone, firing a gun right beside his ear each time he failed to answer and eventually mauling him when he continued to deny knowledge about the cellphone.13 Thus, appellant sustained head injuries for which he was brought to the Diosdado Macapagal Hospital for proper treatment.14

The following day, he underwent inquest proceedings before one Fiscal Guiyab, who informed him that he was being charged with resisting arrest and "Section 11."15 The first charge was eventually dismissed.

The RTC Ruling

After trial on the merits, the RTC convicted appellant as charged upon a finding that all the elements of the crime of illegal possession of dangerous drugs have been established, to wit: (1) the appellant is in possession of an item or object which is identified to be a prohibited drug; (2) that such possession is not authorized by law; and (3) that the accused freely and consciously possesses said drug. Finding no ill motive on the part of PO3 de Leon to testify falsely against appellant, coupled with the fact that the former had previously arrested the latter for illegal possession of drugs under Republic Act No. 642516 (RA 6425), the RTC gave full faith and credit to PO3 de Leon’s testimony. Moreover, the RTC found the plain view doctrine to be applicable, as the confiscated item was in plain view of PO3 de Leon at the place and time of the arrest.

On the other hand, the RTC gave scant consideration to the defenses of denial and frame-up proffered by the appellant, being uncorroborated, and in the light of the positive assertions of PO3 de Leon. It refused to give credence to appellant’s claim that PO3 de Leon robbed him of his money, since he failed








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to bring the incident to the attention of PO3 de Leon’s superiors or to institute any action against the latter.

Consequently, the RTC sentenced appellant to suffer the penalty of imprisonment of twelve (12) years and one (1) day to fourteen (14) years and eight (8) months and to pay a fine of P300,000.00.

The CA Ruling

In its assailed Decision, the CA sustained appellant’s conviction, finding "a clear case of in flagrante delicto warrantless arrest"17 as provided under Section 5, Rule 113 of the Revised Rules of Criminal Procedure. The CA held that appellant "exhibited an overt act or strange conduct that would reasonably arouse suspicion,"18aggravated by the existence of his past criminal citations and his attempt to flee when PO3 de Leon approached him.

Citing jurisprudence, the appellate court likewise ruled that the prosecution had adequately shown the continuous and unbroken chain of custody of the seized item, from the time it was confiscated from appellant by PO3 de Leon, marked at the police station, turned over to PO2 Hipolito and delivered to the crime laboratory, where it was received by PSI Arturo, the forensic chemist, up to the time it was presented in court for proper identification.

The Issue

The sole issue advanced before the Court for resolution is whether the CA erred in affirming in toto the RTC’s Decision convicting appellant of the offense charged.

The Ruling of the Court

The appeal is meritorious.

Section 5, Rule 113 of the Revised Rules of Criminal Procedure lays down the basic rules on lawful warrantless arrests, either by a peace officer or a private person, 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 just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

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

x x x




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For the warrantless arrest under paragraph (a) of Section 5 to operate, two elements must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.19 On the other hand, paragraph (b) of Section 5 requires for its application that at the time of the arrest, an offense had in fact just been committed and the arresting officer had personal knowledge of facts indicating that the appellant had committed it.20

In both instances, the officer’s personal knowledge of the fact of the commission of an offense is absolutely required. Under paragraph (a), the officer himself witnesses the crime while under paragraph (b), he knows for a fact that a crime has just been committed.

In sustaining appellant’s conviction in this case, the appellate court ratiocinated that this was a clear case of an "in flagrante delicto warrantless arrest" under paragraphs (a) and (b) of Section 5, Rule 113 of the Revised Rules on Criminal Procedure, as above-quoted.

The Court disagrees.

A punctilious assessment of the factual backdrop of this case shows that there could have been no lawful warrantless arrest. A portion of PO3 de Leon’s testimony on direct examination in court is revelatory:

FISCAL LARIEGO: While you were there at 5th

Avenue, was there anything unusual that transpired?

PO3 DE LEON: Yes Ma’am. Q: What was this incident? A: While I was on board my motorcycle on my home, I saw a man looking at the shabu in his hand, Ma’am. Q: And exactly what time was this? A: Around 11:30 in the morning, Ma’am. Q: How far were you from this person that you said was verifying something in his hand? A: Eight to ten meters, Ma’am. Q: What exactly did you see he was verifying? A: The shabu that he was holding, Ma’am. Q: After seeing what the man was doing, what did you do next? A: I alighted from my motorcycle and approached him, Ma’am. Q: In the first place why do you say that what he was examining and holding in his hand was a shabu? A: Because of the numerous arrests that I have done, they were all shabu, Ma’am.21 (Underscoring supplied)

On the basis of the foregoing testimony, the Court finds it inconceivable how PO3 de Leon, even with his presumably perfect vision, would be able to identify with reasonable accuracy, from a distance of about 8 to 10 meters and while simultaneously driving a motorcycle, a negligible and minuscule amount of powdery substance (0.03 gram) inside the plastic sachet allegedly held by appellant. That he had previously effected numerous arrests, all involving shabu, is insufficient to create a conclusion that what he purportedly saw in appellant’s hands was indeed shabu.





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Absent any other circumstance upon which to anchor a lawful arrest, no other overt act could be properly attributed to appellant as to rouse suspicion in the mind of PO3 de Leon that he (appellant) had just committed, was committing, or was about to commit a crime, for the acts per se of walking along the street and examining something in one’s hands cannot in any way be considered criminal acts. In fact, even if appellant had been exhibiting unusual or strange acts, or at the very least appeared suspicious, the same would not have been sufficient in order for PO3 de Leon to effect a lawful warrantless arrest under paragraph (a) of Section 5, Rule 113.

Neither has it been established that the rigorous conditions set forth in paragraph (b) of Section 5, Rule 113 have been complied with, i.e., that an offense had in fact just been committed and the arresting officer had personal knowledge of facts indicating that the appellant had committed it.

The factual circumstances of the case failed to show that PO3 de Leon had personal knowledge that a crime had been indisputably committed by the appellant. It is not enough that PO3 de Leon had reasonable ground to believe that appellant had just committed a crime; a crime must in fact have been committed first, which does not obtain in this case.

Without the overt act that would pin liability against appellant, it is therefore clear that PO3 de Leon was merely impelled to apprehend appellant on account of the latter’s previous charge22 for the same offense. The CA stressed this point when it said:

It is common for drugs, being illegal in nature, to be concealed from view.1âwphi1 PO3 Renato de Leon saw appellant holding and scrutinizing a piece of plastic wrapper containing a white powderly substance. PO3 Renato de Leon was quite familiar with appellant, having arrested him twice before for the same illegal possession of drug. It was not just a hollow suspicion. The third time around, PO3 de Leon had reasonably assumed that the piece of plastic wrapper appellant was holding and scrutinizing also contained shabu as he had personal knowledge of facts regarding appellant’s person and past criminal record. He would have been irresponsible to just ‘wait and see’ and give appellant a chance to scamper away. For his part, appellant being, in fact, in possession of illegal drug, sensing trouble from an equally familiar face of authority, ran away. Luckily, however, PO3 de Leon caught up with him through the aid of a tricycle driver. Appellant’s act of running away, indeed, validated PO3 de Leon’s reasonable suspicion that appellant was actually in possession of illegal drug. x x x23

However, a previous arrest or existing criminal record, even for the same offense, will not suffice to satisfy the exacting requirements provided under Section 5, Rule 113 in order to justify a lawful warrantless arrest. "Personal knowledge" of the arresting officer that a crime had in fact just been committed is required. To interpret "personal knowledge" as referring to a person’s reputation or past criminal citations would create a dangerous precedent and unnecessarily stretch the authority and power of police officers to effect warrantless arrests based solely on knowledge of a person’s previous criminal infractions, rendering nugatory the rigorous requisites laid out under Section 5.

It was therefore error on the part of the CA to rule on the validity of appellant’s arrest based on "personal knowledge of facts regarding appellant’s person and past criminal record," as this is unquestionably not what "personal knowledge" under the law contemplates, which must be strictly construed.24





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Furthermore, appellant’s act of darting away when PO3 de Leon approached him should not be construed against him. Flight per se is not synonymous with guilt and must not always be attributed to one’s consciousness of guilt.25It is not a reliable indicator of guilt without other circumstances,26 for even in high crime areas there are many innocent reasons for flight, including fear of retribution for speaking to officers, unwillingness to appear as witnesses, and fear of being wrongfully apprehended as a guilty party.27 Thus, appellant’s attempt to run away from PO3 de Leon is susceptible of various explanations; it could easily have meant guilt just as it could likewise signify innocence.

In fine, appellant’s acts of walking along the street and holding something in his hands, even if they appeared to be dubious, coupled with his previous criminal charge for the same offense, are not by themselves sufficient to incite suspicion of criminal activity or to create probable cause enough to justify a warrantless arrest under Section 5 above-quoted. "Probable cause" has been understood to mean a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man's belief that the person accused is guilty of the offense with which he is charged.28 Specifically with respect to arrests, it is such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested,29 which clearly do not obtain in appellant’s case.

Thus, while it is true that the legality of an arrest depends upon the reasonable discretion of the officer or functionary to whom the law at the moment leaves the decision to characterize the nature of the act or deed of the person for the urgent purpose of suspending his liberty,30 it cannot be arbitrarily or capriciously exercised without unduly compromising a citizen’s constitutionally-guaranteed right to liberty. As the Court succinctly explained in the case of People v. Tudtud:31

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.

Consequently, there being no lawful warrantless arrest, the shabu purportedly seized from appellant is rendered inadmissible in evidence for being the proverbial fruit of the poisonous tree. As the confiscated shabu is the very corpus delicti of the crime charged, appellant must be acquitted and exonerated from all criminal liability.

WHEREFORE, the assailed Decision of the Court of Appeals in CA-G.R. CR No. 31320 is REVERSED and SET ASIDE. Appellant Nazareno Villareal y Lualhati is ACQUITTED on reasonable doubt of the offense charged and ordered immediately released from detention, unless his continued confinement is warranted by some other cause or ground.

SO ORDERED.









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PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.

ARNOLD MARTINEZ Y NGELES, EDGAR DIZON Y FERRER, REZIN MARTINEZ Y CAROLINO, and RAFAEL GONZALES Y CUNANAN, Accused-Appellants.

G.R. No. 191366; December 13, 2010

D E C I S I O N

MENDOZA, J.:

This is an appeal from the August 7, 2009 Decision1 of the Court of Appeals (CA), in CA-G.R. HC-NO. 03269, which affirmed the February 13, 2008 Decision2 of the Regional Trial Court, Branch 41, Dagupan City (RTC), in Criminal Case No. 2006-0525-D, finding the accused guilty of violating Section 13, in relation to Section 11, Article II of Republic Act No. 9165 for Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings.

The Facts

The Information indicting the accused reads:

That on or about the 2nd day of September 2006, in the City of Dagupan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, ARNOLD MARTINEZ y ANGELES, EDGAR DIZON y FERRER, REZIN MARTINEZ y CAROLINO, ROLAND DORIA y DIAZ and RAFAEL GONZALES y CUNANAN, without authority of law, confederating together, acting jointly and helping one another, did then and there wilfully, unlawfully and criminally, sniff and possess dangerous drugs (shabu residues) contained in empty plastic sachets and rolled aluminum foil, during a party, or at a social gathering or meeting, or in the proximate company of at least two (2) person[s].

Contrary to Section 13, Article II, R.A. 9165.3

Version of the Prosecution

As culled from the testimonies of prosecution witnesses, Police Officer 1 Bernard Azardon (PO1 Azardon), one of the apprehending officers, and Police Inspector Lady Ellen Maranion (P/Insp. Maranion), the forensic chemical officer, it appears that on September 2, 2006, at around 12:45 o’clock in the afternoon, PO1 Azardon was on duty at the Police Community Precinct II along Arellano Street, Dagupan City, when a concerned citizen entered the precinct and reported that a pot session was going on in the house of accused Rafael Gonzales (Gonzales) in Trinidad Subdivision, Dagupan City. Upon receipt of the report, PO1 Azardon, PO1 Alejandro Dela Cruz (PO1 Dela Cruz), and members of the Special Weapons and Tactics (SWAT) team hied to Trinidad Subdivision, Dagupan City. Upon inquiry from people in the area, the house of Gonzales was located.

As the police officers entered the gate of the house, they saw accused Orlando Doria (Doria) coming out of the side door and immediately arrested him. Inside the house, they saw accused Gonzales, Arnold Martinez (A. Martinez), Edgar Dizon (Dizon), and Rezin Martinez (R. Martinez) in a room. The four were

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surprised by the presence of the police. In front of them were open plastic sachets (containing shabu residue), pieces of rolled used aluminum foil and pieces of used aluminum foil.

The accused were arrested and brought to the police precinct. The items found in the room were seized and turned over to the Pangasinan Provincial Police Crime Laboratory Officer, P/Insp. Maranion. The latter conducted a laboratory examination on the seized items and all 115 plastic sachets, 11 pieces of rolled used aluminum foil, and 27 of the 49 pieces of used aluminum foil tested positive for methamphetamine hydrochloride. The accused were subjected to a drug test and, except for Doria, they were found to be positive for methamphetamine hydrochloride.

Version of the Defense

The defense, through its witnesses, accused A. Martinez, Dizon, and R. Martinez, claimed that in the morning of September 2, 2006, the three of them were along Arellano Street in Trinidad Subdivision, Dagupan City, to meet with a certain Apper who bumped the passenger jeep of R. Martinez and who was to give the materials for the painting of said jeep. As they were going around the subdivision looking for Apper, they saw Gonzales in front of his house and asked him if he noticed a person pass by. While they were talking, Doria arrived. It was then that five to seven policemen emerged and apprehended them. They were handcuffed and brought to the police station in Perez, Dagupan City, where they were incarcerated and charged with sniffing shabu.

The Ruling of the RTC

The case against Doria was dismissed on a demurrer to evidence.

On February 13, 2008, the RTC rendered its decision, the dispositve portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered finding accused ARNOLD MARTINEZ y Angeles, EDGAR DIZON y Ferrer, REZIN MARTINEZ y Carolino, and RAFAEL GONZALES y Cunanan GUILTY beyond reasonable doubt of the crime of Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings defined and penalized under Section 13 in relation to Section 11, Article II of Republic Act 9165, and each of them is sentenced to suffer the penalty of life imprisonment and to pay the fine in the amount of P500,000.00, and to pay the cost of suit.

The subject items are hereby forfeited in favor of the government and to be disposed of in accordance with the law.

SO ORDERED.4

The RTC was of the view that the positive testimony of prosecution witness PO1 Azardon, without any showing of ill-motive on his part, prevailed over the defenses of denial and alibi put up by the accused. The accused were held to have been in constructive possession of the subject items. A conspiracy was also found present as there was a common purpose to possess the dangerous drug.

The Ruling of the CA



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The CA ruled that there was sufficient evidence to support the findings of the RTC as to the constructive possession of the dangerous drugs by the accused. It further held that although the procedure regarding the custody and disposition of evidence prescribed by Section 21 of R.A. No. 9165 was not strictly complied with, the integrity and evidentiary value of the evidence were nonetheless safeguarded. The CA was of the view that the presumption of regularity in the performance of official duty was not sufficiently controverted by the accused.

Not in conformity, the accused now interposes this appeal before this Court praying for the reversal of the subject decision, presenting the following

Assignment of Errors

For accused Arnold Martinez, Edgar Dizon and Rezin Martinez

1. The lower court erred in finding the accused-appellants to be having a pot session at the time of their arrest;

2. The lower court erred in not seeing through the antics of the police to plant the shabu paraphernalia to justify the arrest of the accused-appellants without warrant;

3. The lower court erred in not finding that the corpus delicti has not been sufficiently established;

4. The lower court erred in not finding the uncorroborated testimony of PO1 Azardon insufficient to convict the accused-appellants of the crime charged;

5. The lower court erred in not acquitting the accused-appellants.

For accused Rafael Gonzales

I

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE PROSECUTION’S FAILURE TO OVERTHROW THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE.

II

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE PROSECUTION’S FAILURE TO ESTABLISH THE CHAIN OF CUSTODY OF THE ALLEGED CONFISCATED DRUG.

After an assiduous assessment of the evidentiary records, the Court finds that the prosecution failed to prove the guilt of the accused. The principal reasons are 1] that the evidence against the accused are inadmissible; and 2] that granting the same to be admissible, the chain of custody has not been duly established.

Illegal Arrest, Search and Seizure


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Indeed, the accused is estopped from assailing the legality of his arrest if he fails to raise such issue before arraignment.5 However, this waiver is limited only to the arrest. The legality of an arrest affects only the jurisdiction of the court over the person of the accused. A waiver of an illegal warrantless arrest does not carry with it a waiver of the inadmissibility of evidence seized during the illegal warrantless arrest.6

Although the admissibility of the evidence was not raised as in issue by the accused, it has been held that this Court has the power to correct any error, even if unassigned, if such is necessary in arriving at a just decision,7especially when the transcendental matter of life and liberty is at stake.8 While it is true that rules of procedure are intended to promote rather than frustrate the ends of justice, they nevertheless must not be met at the expense of substantial justice. Time and again, this Court has reiterated the doctrine that the rules of procedure are mere tools intended to facilitate the attainment of justice, rather than frustrate it. Technicalities should never be used to defeat substantive rights.9 Thus, despite the procedural lapses of the accused, this Court shall rule on the admissibility of the evidence in the case at bench. The clear infringement of the accused’s right to be protected against unreasonable searches and seizures cannot be ignored.

The State cannot, in a manner contrary to its constitutional guarantee, intrude into the persons of its citizens as well as into their houses, papers and effects.10 Sec. 2, Art. III, of the 1987 Constitution provides:

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

This constitutional guarantee, however, is not a blanket prohibition against all searches and seizures without warrant. Arrests and seizures in the following instances are allowed even in the absence of a warrant — (i) warrantless search incidental to a lawful arrest;11 (ii) search of evidence in "plain view;" (iii) search of a moving vehicle; (iv) consented warrantless search; (v) customs search; (vi) stop and frisk; and (vii) exigent and emergency circumstances.12

This case would appear to fall under either a warrantless search incidental to a lawful arrest or a plain view search, both of which require a lawful arrest in order to be considered valid exceptions to the constitutional guarantee. Rule 113 of the Revised Rules of Criminal Procedure provides for the circumstances under which a warrantless arrest is lawful. Thus:

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


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










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(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 is 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) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.

A review of the facts reveal that the arrest of the accused was illegal and the subject items were confiscated as an incident thereof. According to the testimony of PO1 Azardon and his Joint Affidavit13 with PO1 Dela Cruz, they proceeded to, and entered, the house of accused Gonzales based solely on the report of a concerned citizen that a pot session was going on in said house, to wit:

Q: I go back to the information referred to you by the informant, did he not tell you how many persons were actually conducting the pot session?

A: Yes, sir.

Q: When you went to the place of Rafael Gonzales, of course you were not armed with a search warrant, correct?

A: None, sir.

Q: Before the information was given to you by your alleged informant, you did not know personally Rafael Gonzales?

A: I have not met [him] yet but I heard his name, sir.

Q: When this informant told you that he was told that there was [an] ongoing pot session in the house of Rafael Gonzales, was this report to you placed in the police blotter before you proceeded to the house of Rafael Gonzales?

A: I think it was no longer recorded, sir.

Q: In other words, you did not even bother to get the personal data or identity of the person who told you that he was allegedly informed that there was an ongoing pot session in the house of Rafael Gonzales?

A: What I know is that he is a jeepney driver of a downtown jeepney but he does not want to be identified because he was afraid, sir.

Q: And likewise, he did not inform you who told him that there was an ongoing pot session in the house of Rafael Gonzales?

A: No more, sir.



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Q: But upon receiving such report from that jeepney driver you immediately formed a group and went to the place of Rafael Gonzales?

A: Yes, sir.

x x x

Q: When you were at the open gate of the premises of Rafael Gonzales, you could not see what is happening inside the house of Rafael Gonzales?

A: Yes, sir.

Q: You did not also see the alleged paraphernalia as well as the plastic sachet of shabu on the table while you were outside the premises of the property of Rafael Gonzales?

x x x

Q: Before they entered the premises they could not see the paraphernalia?

COURT: Answer.

A: Of course because they were inside the room, how could we see them, sir.

Q: But still you entered the premises, only because a certain person who told you that he was informed by another person that there was an ongoing pot session going on inside the house of Rafael Gonzales?

A: Yes, sir.

Q: And that is the only reason why you barged in inside the house of Rafael Gonzales and you arrested the persons you saw?

A: Yes, sir.14

Paragraph (c) of Rule 113 is clearly inapplicable to this case. Paragraphs (a) and (b), on the other hand, may be applicable and both require probable cause to be present in order for a warrantless arrest to be valid. Probable cause has been held to signify a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man’s belief that the person accused is guilty of the offense with which he is charged.15

Although this Court has ruled in several dangerous drugs cases16 that tipped information is sufficient probable cause to effect a warrantless search,17 such rulings cannot be applied in the case at bench because said cases involve either a buy-bust operation or drugs in transit, basically, circumstances other than the sole tip of an informer as basis for the arrest. None of these drug cases involve police officers entering a house without warrant to effect arrest and seizure based solely on an informer’s tip. The case of People v. Bolasa18 is informative on this matter.







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In People v. Bolasa, an anonymous caller tipped off the police that a man and a woman were repacking prohibited drugs at a certain house. The police immediately proceeded to the house of the suspects. They walked towards the house accompanied by their informer. When they reached the house, they peeped inside through a small window and saw a man and woman repacking marijuana. They then entered the house, introduced themselves as police officers, confiscated the drug paraphernalia, and arrested the suspects. This Court ruled:

The manner by which accused-appellants were apprehended does not fall under any of the above-enumerated categories. Perforce, their arrest is illegal. First, the arresting officers had no personal knowledge that at the time of their arrest, accused-appellants had just committed, were committing, or were about to commit a crime. Second, the arresting officers had no personal knowledge that a crime was committed nor did they have any reasonable ground to believe that accused-appellants committed it. Third, accused-appellants were not prisoners who have escaped from a penal establishment.

Neither can it be said that the objects were seized in plain view. First, there was no valid intrusion. As already discussed, accused-appellants were illegally arrested. Second, the evidence, i.e., the tea bags later on found to contain marijuana, was not inadvertently discovered. The police officers intentionally peeped first through the window before they saw and ascertained the activities of accused-appellants inside the room. In like manner, the search cannot be categorized as a search of a moving vehicle, a consented warrantless search, a customs search, or a stop and frisk; it cannot even fall under exigent and emergency circumstances, for the evidence at hand is bereft of any such showing.

On the contrary, it indicates that the apprehending officers should have conducted first a surveillance considering that the identities and address of the suspected culprits were already ascertained. After conducting the surveillance and determining the existence of probable cause for arresting accused-appellants, they should have secured a search warrant prior to effecting a valid arrest and seizure. The arrest being illegal ab initio, the accompanying search was likewise illegal. Every evidence thus obtained during the illegal search cannot be used against accused-appellants; hence, their acquittal must follow in faithful obeisance to the fundamental law.19

It has been held that personal knowledge of facts in arrests without warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when the suspicion, that the person to be arrested is probably guilty of committing an offense, is based on actual facts, that is, supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. 20

As to paragraph (a) of Section 5 of Rule 113, the arresting officers had no personal knowledge that at the time of the arrest, accused had just committed, were committing, or were about to commit a crime, as they had no probable cause to enter the house of accused Rafael Gonzales in order to arrest them. As to paragraph (b), the arresting officers had no personal knowledge of facts and circumstances that would lead them to believe that the accused had just committed an offense. As admitted in the testimony of PO1 Azardon, the tip originated from a concerned citizen who himself had no personal knowledge of the information that was reported to the police:

Q: Mr. Witness, you claimed that the reason for apprehending all the accused was based on a tip-off by an informant?




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A: Yes, sir.

Q: What exactly [did] that informant tell you?

A: He told us that somebody told him that there was an ongoing pot session in the house of one of the accused Rafael Gonzales, sir.

Q: You mean to say that it was not the informant himself to whom the information originated but from somebody else?

A: That was what he told me, sir.

Q: Because of that you proceeded to where the alleged pot session was going on? [No Answer]

Q: Did you[r] informant particularly pinpointed [sic] to where the alleged pot session was going on?

A: No more because he did not go with us, sir.

Q: So you merely relied on what he said that something or a pot session was going on somewhere in Arellano but you don’t know the exact place where the pot session was going on?

A: Yes, sir.

Q: And your informant has no personal knowledge as to the veracity of the alleged pot session because he claimed that he derived that information from somebody else?

A: This is what he told us that somebody told him that there was an ongoing pot session, sir.

Q: Despite of [sic] that information you proceeded to where?

A: Trinidad Subdivision, sir.

x x x

Q: Mr. Witness, did your informant named [sic] those included in the alleged pot session?

A: No, sir.

Q: That was, because your informant don’t *sic+ know physically what was really happening there?

A: He was told by another person that there was an ongoing pot session there, sir.21 [Emphasis supplied]

Neither can it be said that the subject items were seized in plain view. The elements of plainview are: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the



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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.22

The evidence was not inadvertently discovered as the police officers intentionally entered the house with no prior surveillance or investigation before they discovered the accused with the subject items. If the prior peeking of the police officers in Bolasa was held to be insufficient to constitute plain view, then more so should the warrantless search in this case be struck down. Neither can the search be considered as a search of a moving vehicle, a consented warrantless search, a customs search, a stop and frisk, or one under exigent and emergency circumstances.

The apprehending officers should have first conducted a surveillance considering that the identity and address of one of the accused were already ascertained. After conducting the surveillance and determining the existence of probable cause, then a search warrant should have been secured prior to effecting arrest and seizure. The arrest being illegal, the ensuing search as a result thereof is likewise illegal. Evidence procured on the occasion of an unreasonable search and seizure is deemed tainted for being the proverbial fruit of a poisonous tree and should be excluded.23 The subject items seized during the illegal arrest are thus inadmissible. The drug, being the verycorpus delicti of the crime of illegal possession of dangerous drugs, its inadmissibility thus precludes conviction, and calls for the acquittal of the accused.

As has been noted previously by this Court, some lawmen, prosecutors and judges have glossed over illegal searches and seizures in cases where law enforcers are able to present the alleged evidence of the crime, regardless of the methods by which they were obtained. This attitude tramples on constitutionally-guaranteed rights in the name of law enforcement. It is ironic that such enforcement of the law fosters the 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.24

Chain of Custody

Even granting that the seized items are admissible as evidence, the acquittal of the accused would still be in order for failure of the apprehending officers to comply with the chain of custody requirement in dangerous drugs cases.

The accused contend that the identity of the seized drug was not established with moral certainty as the chain of custody appears to be questionable, the authorities having failed to comply with Sections 21 and 86 of R.A. No. 9165, and Dangerous Drug Board (DDB) Resolution No. 03, Series of 1979, as amended by Board Regulation No. 2, Series of 1990. They argue that there was no prior coordination with the Philippine Drug Enforcement Agency(PDEA), no inventory of the confiscated items conducted at the crime scene, no photograph of the items taken, no compliance with the rule requiring the accused to sign the inventory and to give them copies thereof, and no showing of how the items were handled from the time of confiscation up to the time of submission to the crime laboratory for testing. Therefore, the corpus delicti was not proven, thereby producing reasonable doubt as to their guilt. Thus, they assert that the presumption of innocence in their favor was not overcome by the presumption of regularity in the performance of official duty.





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The essential requisites to establish illegal possession of dangerous drugs are: (i) the accused was in possession of the dangerous drug, (ii) such possession is not authorized by law, and (iii) the accused freely and consciously possessed the dangerous drug.25 Additionally, this being a case for violation of Section 13 of R.A. No. 9165, an additional element of the crime is (iv) the possession of the dangerous drug must have occurred during a party, or at a social gathering or meeting, or in the proximate company of at least two (2) persons.

The existence of the drug is the very corpus delicti of the crime of illegal possession of dangerous drugs and, thus, a condition sine qua non for conviction. In order to establish the existence of the drug, its chain of custodymust be sufficiently established. The chain of custody requirement is essential to ensure that doubts regarding the identity of the evidence are removed through the monitoring and tracking of the movements of the seized drugs from the accused, to the police, to the forensic chemist, and finally to the court.26 Malillin v. People was the first in a growing number of cases to explain the importance of chain of custody in dangerous drugs cases, to wit:

As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same.27

Section 1(b) of DDB Regulation No. 1, Series of 2002,28 defines chain of custody as follows:

b. "Chain of Custody" means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and used in court as evidence, and the final disposition;

Paragraph 1, Section 21, Article II of R.A. No. 9165, provides for safeguards for the protection of the identity and integrity of dangerous drugs seized, to wit:

SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused






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or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.

People v. Habana thoroughly discusses the proper procedure for the custody of seized or confiscated items in dangerous drugs cases in order to ensure their identity and integrity, as follows:

Usually, the police officer who seizes the suspected substance turns it over to a supervising officer, who would then send it by courier to the police crime laboratory for testing. Since it is unavoidable that possession of the substance changes hand a number of times, it is imperative for the officer who seized the substance from the suspect to place his marking on its plastic container and seal the same, preferably with adhesive tape that cannot be removed without leaving a tear on the plastic container. At the trial, the officer can then identify the seized substance and the procedure he observed to preserve its integrity until it reaches the crime laboratory.

If the substance is not in a plastic container, the officer should put it in one and seal the same. In this way the substance would assuredly reach the laboratory in the same condition it was seized from the accused. Further, after the laboratory technician tests and verifies the nature of the substance in the container, he should put his own mark on the plastic container and seal it again with a new seal since the police officer’s seal has been broken. At the trial, the technician can then describe the sealed condition of the plastic container when it was handed to him and testify on the procedure he took afterwards to preserve its integrity.

If the sealing of the seized substance has not been made, the prosecution would have to present every police officer, messenger, laboratory technician, and storage personnel, the entire chain of custody, no matter how briefly one’s possession has been. Each of them has to testify that the substance, although unsealed, has not been tampered with or substituted while in his care.29

Section 21(a) of the Implementing Rules and Regulations (IRR) of R.A. No. 9165 further elaborates, and provides for, the possibility of non-compliance with the prescribed procedure:

(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. [Emphasis supplied]

Accordingly, non-compliance with the prescribed procedural requirements will not necessarily render the seizure and custody of the items void and invalid, provided that (i) there is a justifiable ground for such non-compliance, and (ii) the integrity and evidentiary value of the seized items are properly preserved. In this case, however, no justifiable ground is found availing, and it is apparent that there was



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a failure to properly preserve the integrity and evidentiary value of the seized items to ensure the identity of the corpus delicti from the time of seizure to the time of presentation in court. A review of the testimonies of the prosecution witnesses and the documentary records of the case reveals irreparably broken links in the chain of custody.

According to the apprehending police officers in their Joint Affidavit, the following were confiscated from the accused, to wit:

a) Several pcs of used empty plastic sachets containing suspected shabu residues.

b) Eight used (8) disposable lighters ( two (2) pcs colored orange, two (2) pcs colored yellow, one (1) pc colored green & one (1) pc colored white ).

c) Several pcs of used rolled aluminum foil containing suspected shabu residues.

d) Several pcs of used cut aluminum foil containing suspected shabu residues.

e) One (1) pc glass tube containing suspected shabu residues.30

[Emphases supplied]

At the police station, the case, the accused, and the above-mentioned items were indorsed to Duty Investigator Senior Police Officer 1 Pedro Urbano, Jr. (SPO1 Urbano) for proper disposition.31 A letter-request for laboratory examination was prepared by Police Superintendent Edgar Orduna Basbag for the following items:

a) Pieces of used empty small plastic sachets with suspected shabu residues marked "DC&A-1."

b) Pieces of used rolled and cut aluminum foil with suspected shabu residues marked "DC&A-2."

c) Pieces of used cut aluminum foil with suspected shabu residues marked "DC&A-3."32

[Emphases supplied]

The letter-request and above-mentioned items were submitted to P/Insp. Maranion by SPO3 Froilan Esteban (SPO3 Esteban). Final Chemistry Report No. D-042-06L listed the specimens which were submitted for testing, to wit:

SPECIMENS SUBMITTED:

A – A1 to A115 – One Hundred fifteen (115) open transparent plastic sachet with tag each containing suspected shabu residue without markings.

B – B1 to B11 – Eleven (11) rolled used aluminum foil with tag each containing suspected shabu residuewithout markings.





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C – C1 to C49 – Forty-nine (49) used aluminum foil with tag each containing suspected shabu residuewithout markings.33

[Emphases supplied]

Three days after the subject items were seized, or on September 5, 2006, a Confiscation Receipt was issued by PO1 Azardon and PO1 Dela Cruz, which reads:

DCPS AID SOTG 05 September 2006

CONFISCATION RECEIPT

TO WHOM IT MAY CONCERN:

THIS IS TO CERTIFY that on or about 12:45 noon of September 4, 2006, we together with our precinct supervisor, SPO4 Pedro Belen Jr., and SWAT members composed of SPO1 Marlon Decano, PO3 Manuel Garcia, PO2 Adriano Cepiroto and PO1 Aldrin Guarin apprehended the following names of persons of ARNOLD MARTINEZ Y ANGELES, 37 yrs old, married, jobless, a resident of Lucao Dist., this city; EDGAR DIZON Y FERRER, 36 yrs old, single, tricycle driver, a resident of 471 Lucao Dist., this city. REZIN MARTINEZ Y CAROLINO, 44 yrs old, married, jitney driver, a resident of Lucao Disttrict this city; ROLAND DORIA Y DIAZ, 39 yrs old, married, businessman, resident of Cabeldatan, Malasiqui, Pangasinan and RAFAEL GONZALES Y CUNANAN, 49 yrs old, separated, jobless and a resident of Trinidad Subd., Arellano-Bani this city.

Suspects were duly informed of their constitutional rights and were brought to Dagupan City Police Station, Perez Market Site Dagupan City and indorsed to Duty Desk Officer to record the incident andthe sachet of suspected Shabu Paraphernalias were brought to PNP Crime Laboratory, Lingayen, Pangasinan for Laboratory Examination.

Seizing Officer:

(sgd.) PO1 Bernard B Azardon Affiant

(sgd.) PO1 Alejandro Dela Cruz Affiant

Remarks:

Refused to Signed

Refused to Signed

Refused to Signed

Refused to Signed

Refused to Signed34




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[Emphases supplied]

The 115 open transparent plastic sachets, 11 pieces of rolled used aluminum foil, and 27 (of the 49) pieces of used aluminum foil, all containing shabu residue, as identified in the Final Chemistry Report, were presented in court and marked as Exhibits "H" and series, "I" and series, and "J" and series, respectively. Said items were identified by PO1 Azardon and P/Insp. Maranion at the witness stand.35

The CA ruled that the integrity and evidentiary value of the subject items were properly preserved as there was sufficient evidence to prove that the items seized from the accused were the same ones forwarded to the crime laboratory for examination, as shown in the Confiscation Receipt and the letter-request for laboratory examination.

A review of the chain of custody indicates, however, that the CA is mistaken.

First, the apprehending team failed to comply with Section 21 of R.A. No. 9165. After seizure and confiscation of the subject items, no physical inventory was conducted in the presence of the accused, or their representative or counsel, a representative from the media and the DOJ, and any elected public official. Thus, no inventory was prepared, signed, and provided to the accused in the manner required by law. PO1 Azardon, in his testimony,36admitted that no photographs were taken. The only discernable reason proffered by him for the failure to comply with the prescribed procedure was that the situation happened so suddenly. Thus:

Q: But upon receiving such report from that jeepney driver you immediately formed a group and went to the place of Rafael Gonzales?

A: Yes, sir.

Q: Such that you did not even inform the PDEA before you barged in that place of Rafael Gonzales?

A: It was so suddenly, [sic] sir.

Q: And that explains the reason why you were not able to have pictures taken, is that correct?

A: Yes, sir.37

[Emphasis supplied]

The Court does not find such to be a justifiable ground to excuse non-compliance. The suddenness of the situation cannot justify non-compliance with the requirements. The police officers were not prevented from preparing an inventory and taking photographs. In fact, Section 21(a) of the IRR of R.A. No. 9165 provides specifically that in case of warrantless seizures, the inventory and photographs shall be done at the nearest police station or at the nearest office of the apprehending officer/team. Whatever effect the suddenness of the situation may have had should have dissipated by the time they reached the police station, as the suspects had already been arrested and the items seized. Moreover, it has been held that in case of warrantless seizures nothing prevents the apprehending officer from





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immediately conducting the physical inventory and photography of the items at their place of seizure, as it is more in keeping with the law’s intent to preserve their integrity and evidentiary value.38

This Court has repeatedly reversed conviction in drug cases for failure to comply with Section 21 of R.A. No. 9165, resulting in the failure to properly preserve the integrity and evidentiary value of the seized items. Some cases arePeople v. Garcia,39 People v. Dela Cruz,40 People v. Dela Cruz,41 People v. Santos, Jr.,42 People v. Nazareno,43People v. Orteza,44 Zarraga v. People,45 and People v. Kimura.46

Second, the subject items were not properly marked. The case of People v. Sanchez is instructive on the requirement of marking, to wit:

What Section 21 of R.A. No. 9165 and its implementing rule do not expressly specify is the matter of "marking" of the seized items in warrantless seizures to ensure that the evidence seized upon apprehension is the same evidence subjected to inventory and photography when these activities are undertaken at the police station rather than at the place of arrest. Consistency with the "chain of custody" rule requires that the "marking" of the seized items - to truly ensure that they are the same items that enter the chain and are eventually the ones offered in evidence - should be done (1) in the presence of the apprehended violator (2) immediately upon confiscation. This step initiates the process of protecting innocent persons from dubious and concocted searches, and of protecting as well the apprehending officers from harassment suits based on planting of evidence under Section 29 and on allegations of robbery or theft.

For greater specificity, "marking" means the placing by the apprehending officer or the poseur-buyer of his/her initials and signature on the item/s seized. x x x Thereafter, the seized items shall be placed in an envelope or an evidence bag unless the type and quantity of the seized items require a different type of handling and/or container. The evidence bag or container shall accordingly be signed by the handling officer and turned over to the next officer in the chain of custody.47 [Emphasis in the original]

Nowhere in the testimony of PO1 Azardon or in his Joint Affidavit with PO1 Dela Cruz does it appear that the subject items were at all marked. It was only in the letter-request for laboratory examination that the subject items were indicated to have been marked with "DC&A-1," "DC&A-2" and "DC&A-3." There is no showing, however, as to who made those markings and when they were made. Moreover, those purported markings were never mentioned when the subject items were identified by the prosecution witnesses when they took the stand.

The markings appear to pertain to a group of items, that is, empty plastic sachets, rolled and cut aluminium foil, and cut aluminium foil, but do not specifically pertain to any individual item in each group. Furthermore, it was only in the Chemistry Report48 that the precise number of each type of item was indicated and enumerated. The Court notes that in all documents prior to said report, the subject items were never accurately quantified but only described as "pieces,"49 "several pcs,"50 and "shabu paraphernallas."51 Strangely, the Chemistry Report indicates that all the subject items had "no markings," although each item was reported to have been marked by P/Insp. Maranion in the course of processing the subject items during laboratory examination and testing.52 Doubt, therefore, arises as to the identity of the subject items. It cannot be determined with moral certainty that the subject items seized from the accused were the same ones subjected to the laboratory examination and presented in court.

















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This Court has acquitted the accused for the failure and irregularity in the marking of seized items in dangerous drugs cases, such as Zarraga v. People,53 People v. Kimura,54 and People v. Laxa.55

Third, the Confiscation Receipt relied upon by the prosecution and the courts below gives rise to more uncertainty. Instead of being prepared on the day of the seizure of the items, it was prepared only three days after. More important, the receipt did not even indicate exactly what items were confiscated and their quantity. These are basic information that a confiscation receipt should provide. The only information contained in the Confiscation Receipt was the fact of arrest of the accused and the general description of the subject items as "the sachet of suspected Shabu paraphernallas were brought to the PNP Crime Laboratory." The receipt is made even more dubious by PO1 Azardon’s admission in his testimony56 that he did not personally prepare the Confiscation Receipt and he did not know exactly who did so.

Fourth, according to the Certification57 issued by the Dagupan Police Station, the subject items were indorsed by PO1 Dela Cruz to Duty Investigator SPO1 Urbano for proper disposition. These were later turned over by SPO3 Esteban to P/Insp. Maranion. There is, however, no showing of how and when the subject items were transferred from SPO1 Urbano to SPO3 Esteban.

Fifth, P/Insp. Maranion appears to be the last person in the chain of custody. No witness testified on how the subject items were kept after they were tested prior to their presentation in court. This Court has highlighted similar shortcomings in People v. Cervantes,58 People v. Garcia,59 People v. Sanchez,60 and Malillin v. People.61

More irregularities further darken the cloud as to the guilt of the accused. Contrary to PO1 Azardon’s testimony62that they were tipped off by a concerned citizen while at the police station, the Letter63 to the Executive Director of the DDB states that the apprehending officers were tipped off "while conducting monitoring/surveillance." Said letter also indicates, as does the Confiscation Receipt, that the arrest and seizure occurred on September 4, 2006, and not September 2, 2006, as alleged in the Information. It was also mentioned in the aforementioned Certification of the Dagupan Police and Joint Affidavit of the police officers that a glass tube suspected to contain shabu residue was also confiscated from the accused. Interestingly, no glass tube was submitted for laboratory examination.

In sum, numerous lapses and irregularities in the chain of custody belie the prosecution’s position that the integrity and evidentiary value of the subject items were properly preserved. The two documents specifically relied on by the CA, the Confiscation Receipt and the letter-request for laboratory examination, have been shown to be grossly insufficient in proving the identity of the corpus delicti. The corpus delicti in dangerous drugs cases constitutes the drug itself. This means that proof beyond reasonable doubt of the identity of the prohibited drug is essential before the accused can be found guilty.64

Regarding the lack of prior coordination with the PDEA provided in Section 86 of R.A. No. 9165, in People v. Sta. Maria,65 this Court held that said section was silent as to the consequences of such failure, and said silence could not be interpreted as a legislative intent to make an arrest without the participation of PDEA illegal, nor evidence obtained pursuant to such an arrest inadmissible. Section 86 is explicit only in saying that the PDEA shall be the "lead agency" in the investigation and prosecution of drug-related cases. Therefore, other law enforcement bodies still possess authority to perform similar functions as the PDEA as long as illegal drugs cases will eventually be transferred to the latter.















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Let it be stressed that non-compliance with Section 21 of R.A. No. 9165 does not affect the admissibility of the evidence but only its weight.66 Thus, had the subject items in this case been admissible, their evidentiary merit and probative value would be insufficient to warrant conviction.

It may be true that where no ill motive can be attributed to the police officers, the presumption of regularity in the performance of official duty should prevail. However, such presumption obtains only when there is no deviation from the regular performance of duty.67 Where the official act in question is irregular on its face, the presumption of regularity cannot stand.

In this case, the official acts of the law enforcers were clearly shown and proven to be irregular. When challenged by the evidence of a flawed chain of custody, the presumption of regularity cannot prevail over the presumption of innocence of the accused.68

This Court once again takes note of the growing number of acquittals for dangerous drugs cases due to the failure of law enforcers to observe the proper arrest, search and seizure procedure under the law.69 Some bona fidearrests and seizures in dangerous drugs cases result in the acquittal of the accused because drug enforcement operatives compromise the integrity and evidentiary worth of the seized items. It behooves this Court to remind law enforcement agencies to exert greater effort to apply the rules and procedures governing the custody, control, and handling of seized drugs.

It is recognized that strict compliance with the legal prescriptions of R.A. No. 9165 may not always be possible. Thus, as earlier stated, non-compliance therewith is not necessarily fatal. However, the lapses in procedure must be recognized, addressed and explained in terms of their justifiable grounds, and the integrity and evidentiary value of the evidence seized must be shown to have been preserved.70

On a final note, this Court takes the opportunity to be instructive on Sec. 1171 (Possession of Dangerous Drugs) and Sec. 1572 (Use of Dangerous Drugs) of R.A. No. 9165, with regard to the charges that are filed by law enforcers. This Court notes the practice of law enforcers of filing charges under Sec. 11 in cases where the presence of dangerous drugs as basis for possession is only and solely in the form of residue, being subsumed under the last paragraph of Sec. 11. Although not incorrect, it would be more in keeping with the intent of the law to file charges under Sec. 15 instead in order to rehabilitate first time offenders of drug use, provided that there is a positive confirmatory test result as required under Sec. 15. The minimum penalty under the last paragraph of Sec. 11 for the possession of residue is imprisonment of twelve years and one day, while the penalty under Sec. 15 for first time offenders of drug use is a minimum of six months rehabilitation in a government center. To file charges under Sec. 11 on the basis of residue alone would frustrate the objective of the law to rehabilitate drug users and provide them with an opportunity to recover for a second chance at life.

In the case at bench, the presence of dangerous drugs was only in the form of residue on the drug paraphernalia, and the accused were found positive for use of dangerous drugs. Granting that the arrest was legal, the evidence obtained admissible, and the chain of custody intact, the law enforcers should have filed charges under Sec. 15, R.A. No. 9165 or for use of dangerous drugs and, if there was no residue at all, they should have been charged under Sec. 1473 (Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings). Sec. 14 provides that the maximum penalty under Sec. 1274(Possession of Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs) shall be imposed on any person who shall possess any equipment, instrument, apparatus and other paraphernalia for dangerous drugs. Under Sec. 12, the maximum penalty is imprisonment of four years and a fine of P50,000.00. In fact,











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under the same section, the possession of such equipment, apparatus or other paraphernalia is prima facie evidence that the possessor has used a dangerous drug and shall be presumed to have violated Sec. 15.1avvphi1

In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court thus calls on law enforcers and prosecutors in dangerous drugs cases to exercise proper discretion in filing charges when the presence of dangerous drugs is only and solely in the form of residue and the confirmatory test required under Sec. 15 is positive for use of dangerous drugs. In such cases, to afford the accused a chance to be rehabilitated, the filing of charges for or involving possession of dangerous drugs should only be done when another separate quantity of dangerous drugs, other than mere residue, is found in the possession of the accused as provided for in Sec. 15.

WHEREFORE, the August 7, 2009 Decision of the Court of Appeals in CA-G.R. HC-NO. 03269 is REVERSED and SET ASIDE and another judgment entered ACQUITTING the accused and ordering their immediate release from detention, unless they are confined for any other lawful cause.

Let a copy of this decision be furnished the Director of the Bureau of Corrections, Muntinlupa City, for immediate implementation. The Director of the Bureau of Corrections is directed to report to this Court within five days from receipt of this decision the action he has taken. Copies shall also be furnished the Director-General, Philippine National Police, and the Director-General, Philippine Drugs Enforcement Agency, for their information and guidance.

The Regional Trial Court, Branch 41, Dagupan City, is directed to turn over the seized items to the Dangerous Drugs Board for destruction in accordance with law.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

NASARIO MOLINA y MANAMA @ "BOBONG" and GREGORIO MULA y MALAGURA @ "BOBOY", accused-appellants.

G.R. No. 133917; February 19, 2001

YNARES-SANTIAGO, J.:

To sanction disrespect and disregard for the Constitution in the name of protecting the society from lawbreakers is to make the government itself lawless and to subvert those values upon which our ultimate freedom and liberty depend.1

For automatic review is the Decision2 of the Regional Trial Court of Davao City, Branch 17, in Criminal Case No. 37,264-96, finding accused-appellants Nasario Molina y Manamat alias "Bobong" and Gregorio Mula y Malaguraalias "Boboy," guilty beyond reasonable doubt of violation of Section 8,3 of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended by Republic Act No. 7659,4 and sentencing them to suffer the supreme penalty of death.


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The information against accused-appellants reads:

That on or about August 8, 1996, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, in conspiracy with each other, did then and there willfully, unlawfully and feloniously was found in their possession 946.9 grants of dried marijuana which are prohibited.

CONTRARY TO LAW.5

Upon arraignment on September 4, 1996, accused-appellants pleaded not guilty to the accusation against them.6Trial ensued, wherein the prosecution presented Police Superintendent Eriel Mallorca, SPO1 Leonardo Y. Pamplona, Jr., and SPO1 Marino S. Paguidopon, Jr. as witnesses.

The antecedent facts are as follows:

Sometime in June 1996, SPO1 Marino Paguidopon, then a member of the Philippine National Police detailed at Precinct No. 3, Matina, Davao City, received an information regarding the presence of an alleged marijuana pusher in Davao City.7 The first time he came to see the said marijuana pusher in person was during the first week of July 1996. SPO1 Paguidopon was then with his informer when a motorcycle passed by. His informer pointed to the motorcycle driver, accused-appellant Mula, as the pusher. As to accused-appellant Molina, SPO1 Paguidopon had no occasion to see him before the arrest. Moreover, the names and addresses of the accused- appellants came to the knowledge of SPO1 Paguidopon only after they were arrested.8

At about 7:30 in the morning of August 8, 1996, SPO1 Paguidopon received an information that the alleged pusher will be passing at NHA, Ma- a, Davao City any time that morning.9 Consequently, at around 8:00 A.M. of the same day, he called for assistance at the PNP, Precinct No. 3, Matina, Davao City, which immediately dispatched the team of SPO4 Dionisio Cloribel (team leader), SPO2 Paguidopon (brother of SPO1 Marino Paguidopon), and SPO1 Pamplona, to proceed to the house of SPO1 Marino Paguidopon where they would wait for the alleged pusher to pass by.10

At around 9:30 in the morning of August 8, 1996, while the team were positioned in the house of SPO1 Paguidopon, a "trisikad" carrying the accused-appellants passed by. At that instance, SPO1 Paguidopon pointed to the accused-appellants as the pushers. Thereupon, the team boarded their, vehicle and overtook the "trisikad."11 SPO1 Paguidopon was left in his house, thirty meters from where the accused-appellants were accosted.12

The police officers then ordered the "trisikad" to stop. At that point, accused-appellant Mula who was holding a black bag handed the same to accused-appellant Molina. Subsequently, SPO1 Pamplona introduced himself as a police officer and asked accused-appellant Molina to open the bag.13 Molina replied, "Boss, if possible we will settle this."14 SPO1 Pamplona insisted on opening the bag, which revealed dried marijuana leaves inside. Thereafter; accused-appellants Mula and Molina were handcuffed by the police officers.15

On December 6, 1996, accused-appellants, through counsel, jointly filed a Demurrer to Evidence, contending that the marijuana allegedly seized from them is inadmissible as evidence for having been obtained in violation of their constitutional right against unreasonable searches and seizures.16 The


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demurrer was denied by the trial court.17A motion for reconsideration was filed by accused-appellants, but this was likewise denied. Accused-appellants waived presentation of evidence and opted to file a joint memorandum.

On April 25, 1997, the trial court rendered the assailed decision,18 the decretal portion of which reads:

WHEREFORE, finding the evidence of the prosecution alone without any evidence from both accused who waived presentation of their own evidence through their counsels, more than sufficient to prove the guilt of both accused of the offense charged beyond reasonable doubt, pursuant to Sec. 20, sub. par. 5 of Republic Act 7659, accused NASARIO MOLINA and GREGORIO MULA, are sentenced to suffer a SUPREME PENALTY OF DEATH through lethal injection under Republic Act 8176, to be effected and implemented as therein provided for by law, in relation to Sec. 24 of Rep. Act 7659.

The Branch Clerk of Court of this court, is ordered to immediately elevate the entire records of this case with the Clerk of Court of the Supreme Court, Manila, for the automatic review of their case by the Supreme Court and its appropriate action as the case may be.

SO ORDERED.19

Pursuant to Article 47 of the Revised penal Code and Rule 122, Section 10 of the Rules of Court, the case was elevated to this Court on automatic review. Accused-appellants contend:

I.

THAT THE MARIJUANA IS IN ADMISSIBLE IN EVIDENCE FOR HAVING BEEN SEIZED IN VIOLATION OF APPELLANTS' CONSTITUTIONAL RIGHTS AGAINST UNREASONABLE, SEARCHES AND SEIZURES;

II.

THAT ASSUMING IT IS ADMISSIBLE IN EVIDENCE, THE GOVERNMENT HAS NOT OTHERWISE PROVED THEIR GUILT BEYOND REASONABLE DOUBT; AND

III.

THAT, FINALLY, ASSUMING THEIR GUILT HAS BEEN PROVED BEYOND REASONABLE DOUBT, THE IMPOSABLE PENALTY FOR VIOLATION OF SEC. 8 OF RA No. 7659 (sic), IN THE ABSENCE OF ANY AGGRAVATING CIRCUMSTANCE, IS LIFE IMPRISONMENT, NOT DEATH.20

The Solicitor General filed a Manifestation and MO1ion (In Lieu of Brief), wherein he prayed for the acquittal of both accused-appellants.

The fundamental law of the land mandates that searches and seizures be carried out in a reasonable fashion, that is, by virtue or on the strength of a search warrant predicated upon the existence of a probable cause. The pertinent provision of the Constitution provides:


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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.21

Complementary to the foregoing provision is the exclusionary rule enshrined under Article III, Section 3, paragraph 2, which bolsters and solidifies the protection against unreasonable searches and seizures.22 Thus:

Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

Without this rule, the right to privacy would be a form of words, valueless and undeserving of mention in a perpetual charter of inestimable human liberties; so too, without this rule, the freedom from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not to merit this Court's high regard as a freedom implicit in the concept of ordered liberty.23

The foregoing constitutional proscription, however, is not without exceptions. Search and seizure may be made without a warrant and the evidence obtained therefrom may be admissible in the following instances: (1) search incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of customs laws; (4) seizure of evidence in plain view; (5) when the accused himself waives his right against unreasonable searches and seizures;24 and (6) stop and frisk situations (Terry search).25

The first exception (search incidental to a lawful arrest) includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest which must precede the search. In this instance, the law requires that there be first a lawful arrest before a search can be made --- the process cannot be reversed.26 As a rule, an arrest is considered legitimate if effected with .a valid warrant of arrest. The Rules of Court, however, recognizes permissible warrantless arrests. Thus, a peace officer or a private person may, without warrant, arrest a person: (a) when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense (arrest in flagrante delicto); (b) when an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it (arrest effected in hot pursuit); and (c) when the person to be arrested is a prisoner who has escaped from a penal establishment or a place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another ( arrest of escaped prisoners ).27

In the case at bar, the court a quo anchored its judgment of conviction on a finding that the warrantless arrest of accused-appellants, and the subsequent search conducted by the peace officers, are valid because accused-appellants were caught in flagrante delicto in possession of prohibited drugs.28 This brings us to the issue of whether or not the warrantless arrest, search and seizure in the present case fall within the recognized exceptions to the warrant requirement.


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In People v. Chua Ho San,29 the Court held that in cases of in flagrante delicto arrests, a peace officer or a private person may, without a warrant, arrest a person when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. The arresting officer, therefore, must have personal knowledge of such fact or, as recent case law adverts to, personal knowledge of facts or circumstances convincingly indicative or constitutive of probable cause. As discussed in People v. Doria,30 probable cause means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest.

As applied to in flagrante delicto arrests, it is settled that "reliable information" alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, are not sufficient to constitute probable cause that would justify an in flagrante delicto arrest. Thus, in People v. Aminnudin,31 it was held that "the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the MNWilcon 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."

Likewise, in People v. Mengote,32 the Court did not consider "eyes... darting from side to side :.. [while] holding ... [one's] abdomen", in a crowded street at 11:30 in the morning, as overt acts and circumstances sufficient to arouse suspicion and indicative of probable cause. According to the Court, "[b]y no stretch of the imagination could it have been inferred from these acts that an offense had just been committed, or was actually being committed or was at least being attempted in [the arresting officers'] presence." So also, in People v. Encinada,33the Court ruled that no probable cause is gleanable from the act of riding a motorela while holding two plastic baby chairs.1âwphi1.nêt

Then, too, in Malacat v. Court of Appeals,34 the trial court concluded that petitioner was attempting to commit a crime as he was "`standing at the comer of Plaza Miranda and Quezon Boulevard' with his eyes 'moving very fast' and 'looking at every person that come (sic) nearer (sic) to them.'"35 In declaring the warrantless arrest therein illegal, the Court said:

Here, there could have been no valid in flagrante delicto ... arrest preceding the search in light of the lack of personal knowledge on the part of V u, the arresting officer, or an overt physical act, on the part of petitioner, indicating that a crime had just been committed, was being committed or was going to be committed.36

It went on to state that –

Second, there was nothing in petitioner's behavior or conduct which could have reasonably elicited even mere suspicion other than that his eyes were "moving very fast" - an observation which leaves us incredulous since Yu and his teammates were nowhere near petitioner and it was already 6:30 p.m., thus presumably dusk. Petitioner and his companions were merely standing at the comer and were not creating any commotion or trouble...


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Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was "discovered" "inside the front waistline" of petitioner, and from all indications as to the distance between Yu and petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not have been visible to Yu.37

Clearly, to constitute a valid in flagrante delicto arrest, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.38

In the case at bar, accused-appellants manifested no outward indication that would justify their arrest. In holding a bag on board a trisikad, accused-appellants could not be said to be committing, attempting to commit or have committed a crime. It matters not that accused-appellant Molina responded "Boss, if possible we will settle this" to the request of SPO1 Pamplona to open the bag. Such response which allegedly reinforced the "suspicion" of the arresting officers that accused-appellants were committing a crime, is an equivocal statement which standing alone will not constitute probable cause to effect an inflagrante delicto arrest. Note that were it not for SPO1 Marino Paguidopon (who did not participate in the arrest but merely pointed accused-appellants to the arresting officers), accused-appellants could not be the subject of any suspicion, reasonable or otherwise.

While SPO1 Paguidopon claimed that he and his informer conducted a surveillance of accused-appellant Mula, SPO1 Paguidopon, however, admitted that he only learned Mula's name and address after the arrest. What is more, it is doubtful if SPO1 Paguidopon indeed recognized accused-appellant Mula. It is worthy to note that, before the arrest, he was able to see Mula in person only once, pinpointed to him by his informer while they were on the side of the road. These circumstances could not have afforded SPO1 Paguidopon a closer look at accused-appellant Mula, considering that the latter was then driving a motorcycle when, SPO1 Paguidopon caught a glimpse of him. With respect to accused-appellant Molina, SPO1 Paguidopon admitted that he had never seen him before the arrest.

This belies the claim of SPO1 Pamplona that he knew the name of accused-appellants even before the arrest, to wit –

"Q- When you said that certain Mula handed a black bag to another person and how did you know that it was Mula who handed the black bag to another person?

A- Because I have already information from Paguidopon, regarding Mula and Molina, when they pass by through the street near the residence of Paguidopon. He told that the one who is big one that is Gregorio Mula and the thin one is Nazario Molina"39

The aforecited testimony of SPO1 Pamplona, therefore, is entirely baseless SPO1 Pamplona could not have learned the name of accused-appellants from SPO1 Paguipodon because Paguipodon himself, who allegedly conducted the surveillance, was not even aware of accused-appellants' name and address prior to the arrest.


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Evidently, SPO1 Paguidopon, who acted as informer of the arresting officers, more so the arresting officers themselves, could not have been certain of accused-appellants' identity, and were, from all indications, merely fishing for evidence at the time of the arrest.

Compared to People v. Encinada, the arresting officer in the said case knew appellant Encinada even before the arrest because of the latter's illegal gambling activities, thus, lending at least a semblance of validity on the arrest effected by the peace officers. Nevertheless, the Court declared in said case that the warrantless arrest and the consequent search were illegal, holding that "[t]he prosecution's 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."40

Moreover, it could not be said that accused-appellants waived their right against unreasonable searches and seizure. 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.41

Withal, the Court holds that the arrest of accused-appellants does not fall under the exceptions allowed by the rules. Hence, the search conducted on their person was likewise illegal. Consequently, the marijuana seized by the peace officers could not be admitted as evidence against accused-appellants, and the Court is thus, left with no choice but to find in favor of accused-appellants.

While the Court strongly supports the campaign of the government against drug addiction and commends the efforts of our law-enforcement officers towards this drive, all efforts for the achievement of a drug-free society must not encroach on the fundamental rights and liberties of individuals as guaranteed in the Bill of Rights, which protection extends even to the basest of criminals.

WHEREFORE, the Decision of the Regional Trial Court of Davao City, Branch 17, in Criminal Case No. 37, 264-96, is REVERSED and SET ASIDE. For lack of evidence to establish their guilt beyond reasonable doubt, accused-appellants Nasario Molina y Manamat alias "Bobong" and Gregorio Mula y Malagura alias "Boboy", areACQUITTED and ordered RELEASED from confinement unless they are validly detained for other offenses. No costs.

SO ORDERED.


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THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

ROGELIO MENGOTE y TEJAS, accused-appellant.

G.R. No. 87059; June 22, 1992

CRUZ, J.:

Accused-appellant Rogelio Mengote was convicted of illegal possession of firearms on the strength mainly of the stolen pistol found on his person at the moment of his warrantless arrest. In this appeal, he pleads that the weapon was not admissible as evidence against him because it had been illegally seized and was therefore the fruit of the poisonous tree. The Government disagrees. It insists that the revolver was validly received in evidence by the trial judge because its seizure was incidental to an arrest that was doubtless lawful even if admittedly without warrant.

The incident occurred shortly before noon of August 8, 1987, after the Western Police District received a telephone call from an informer that there were three suspicious-looking persons at the corner of Juan Luna and North Bay Boulevard in Tondo, Manila. A surveillance team of plainclothesmen was forthwith dispatched to the place. As later narrated at the trial by Patrolmen Rolando Mercado and Alberto Juan, 1 they there saw two men "looking from side to side," one of whom was holding his abdomen. They approached these persons and identified themselves as policemen, whereupon the two tried to run away but were unable to escape because the other lawmen had surrounded them. The suspects were then searched. One of them, who turned out to be the accused-appellant, was found with a .38 caliber Smith and Wesson revolver with six live bullets in the chamber. His companion, later identified as Nicanor Morellos, had a fan knife secreted in his front right pants pocket. The weapons were taken from them. Mengote and Morellos were then turned over to police headquarters for investigation by the Intelligence Division.

On August 11, 1987, the following information was filed against the accused-appellant before the Regional Trial Court of Manila:

The undersigned accuses ROGELIO MENGOTE y TEJAS of a violation of Presidential Decree No. 1866, committed as follows:

That on or about August 8, 1987, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and knowingly have in his possession and under his custody and control a firearm, to wit:

one (1) cal. 38 "S & W" bearing Serial No. 8720-T

without first having secured the necessary license or permit therefor from the proper authorities.

Besides the police officers, one other witness presented by the prosecution was Rigoberto Danganan, who identified the subject weapon as among the articles stolen from him during the robbery in his house in Malabon on June 13, 1987. He pointed to Mengote as one of the robbers. He had duly reported


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the robbery to the police, indicating the articles stolen from him, including the revolver. 2 For his part, Mengote made no effort to prove that he owned the firearm or that he was licensed to possess it and claimed instead that the weapon had been "Planted" on him at the time of his arrest. 3

The gun, together with the live bullets and its holster, were offered as Exhibits A, B, and C and admitted over the objection of the defense. As previously stated, the weapon was the principal evidence that led to Mengote's conviction for violation of P.D. 1866. He was sentenced to reclusion perpetua. 4

It is submitted in the Appellant's Brief that the revolver should not have been admitted in evidence because of its illegal seizure. no warrant therefor having been previously obtained. Neither could it have been seized as an incident of a lawful arrest because the arrest of Mengote was itself unlawful, having been also effected without a warrant. The defense also contends that the testimony regarding the alleged robbery in Danganan's house was irrelevant and should also have been disregarded by the trial court.

The following are the pertinent provision of the Bill of Rights:

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

Sec. 3 (1). The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

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

There is no question that evidence obtained as a result of an illegal search or seizure is inadmissible in any proceeding for any purpose. That is the absolute prohibition of Article III, Section 3(2), of the Constitution. This is the celebrated exclusionary rule based on the justification given by Judge Learned Hand that "only in case the prosecution, which itself controls the seizing officials, knows that it cannot profit by their wrong will the wrong be repressed." The Solicitor General, while conceding the rule, maintains that it is not applicable in the case at bar. His reason is that the arrest and search of Mengote and the seizure of the revolver from him were lawful under Rule 113, Section 5, of the Rules of Court reading as follows:

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



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(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 failing 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.

We have carefully examined the wording of this Rule and cannot see how we can agree with the prosecution.

Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee from a penal institution when he was arrested. We therefore confine ourselves to determining the lawfulness of his arrest under either Par. (a) or Par. (b) of this section.

Par. (a) 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, (2) in the presence of the arresting officer.

These requirements have not been established in the case at bar. At the time of the arrest in question, the accused-appellant was merely "looking from side to side" and "holding his abdomen," according to the arresting officers themselves. There was apparently no offense that had just been committed or was being actually committed or at least being attempted by Mengote in their presence.

The Solicitor General submits that the actual existence of an offense was not necessary as long as Mengote's acts "created a reasonable suspicion on the part of the arresting officers and induced in them the belief that an offense had been committed and that the accused-appellant had committed it." The question is, What offense? What offense could possibly have been suggested by a person "looking from side to side" and "holding his abdomen" and in a place not exactly forsaken?

These are certainly not sinister acts. And the setting of the arrest made them less so, if at all. It might have been different if Mengote bad been apprehended at an ungodly hour and in a place where he had no reason to be, like a darkened alley at 3 o'clock in the morning. But he was arrested at 11:30 in the morning and in a crowded street shortly after alighting from a passenger jeep with I his companion. He was not skulking in the shadows but walking in the clear light of day. There was nothing clandestine about his being on that street at that busy hour in the blaze of the noonday sun.

On the other hand, there could have been a number of reasons, all of them innocent, why his eyes were darting from side to side and be was holding his abdomen. If they excited suspicion in the minds of the arresting officers, as the prosecution suggests, it has nevertheless not been shown what their suspicion was all about. In fact, the policemen themselves testified that they were dispatched to that place only because of the telephone call from the informer that there were "suspicious-looking" persons in that vicinity who were about to commit a robbery at North Bay Boulevard. The caller did not explain why he thought the men looked suspicious nor did he elaborate on the impending crime.


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In the recent case of People v. Malmstedt, 5 the Court sustained the warrantless arrest of the accused because there was a bulge in his waist that excited the suspicion of the arresting officer and, upon inspection, turned out to be a pouch containing hashish. In People v. Claudio, 6 the accused boarded a bus and placed the buri bag she was carrying behind the seat of the arresting officer while she herself sat in the seat before him. His suspicion aroused, be surreptitiously examined the bag, which he found to contain marijuana. He then and there made the warrantless arrest and seizure that we subsequently upheld on the ground that probable cause had been sufficiently established.

The case before us is different because there was nothing to support the arresting officers' suspicion other than Mengote's darting eyes and his hand on his abdomen. By no stretch of the imagination could it have been inferred from these acts that an offense had just been committed, or was actually being committed, or was at least being attempted in their presence.

This case is similar to People v. Aminnudin, 7 where the Court held that the warrantless arrest of the accused was unconstitutional. This was effected while be was coming down a vessel, to all appearances no less innocent than the other disembarking passengers. He had not committed nor was be actually committing or attempting to commit an offense in the presence of the arresting officers. He was not even acting suspiciously. In short, there was no probable cause that, as the prosecution incorrectly suggested, dispensed with the constitutional requirement of a warrant.

Par. (b) is no less applicable because its no less stringent requirements have also not been satisfied. The prosecution has not shown that at the time of Mengote's arrest an offense had in fact just been committed and that the arresting officers had personal knowledge of facts indicating that Mengote had committed it. All they had was hearsay information from the telephone caller, and about a crime that had yet to be committed.

The truth is that they did not know then what offense, if at all, had been committed and neither were they aware of the participation therein of the accused-appellant. It was only later, after Danganan had appeared at the Police headquarters, that they learned of the robbery in his house and of Mengote's supposed involvement therein. 8 As for the illegal possession of the firearm found on Mengote's person, the policemen discovered this only after he had been searched and the investigation conducted later revealed that he was not its owners nor was he licensed to possess it.

Before these events, the Peace officers had no knowledge even of Mengote' identity, let alone the fact (or suspicion) that he was unlawfully carrying a firearm or that he was involved in the robbery of Danganan's house.

In the landmark case of People v. Burgos, 9 this Court declared:

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 the fact. The offense must also be committed in his presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859). (Emphasis supplied)

xxx xxx xxx


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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. (Emphasis supplied)

This doctrine was affirmed in Alih v. Castro, 10 thus:

If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection with a crime about to be committed, being committed, or just committed, what was that crime? There is no allegation in the record of such a falsification. Parenthetically, it may be observed that 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. (Emphasis supplied)

It would be a sad day, indeed, if any person could be summarily arrested and searched just because he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a peace officer could clamp handcuffs on any person with a shifty look on suspicion that he may have committed a criminal act or is actually committing or attempting it. This simply cannot be done in a free society. This is not a police state where order is exalted over liberty or, worse, personal malice on the part of the arresting officer may be justified in the name of security.

There is no need to discuss the other issues raised by the accused-appellant as the ruling we here make is sufficient to sustain his exoneration. Without the evidence of the firearm taken from him at the time of his illegal arrest, the prosecution has lost its most important exhibit and must therefore fail. The testimonial evidence against Mengote (which is based on the said firearm) is not sufficient to prove his guilt beyond reasonable doubt of the crime imputed to him.

We commend Atty. Violeta Calvo-Drilon for her able and spirited defense of the accused-appellant not only in the brief but also in the reply brief, which she did not have to file but did so just the same to stress the constitutional rights of her client. The fact that she was acting only as a counsel de oficio with no expectation of material reward makes her representation even more commendable.

The Court feels that if the peace officers had been more mindful of the provisions of the Bill of Rights, the prosecution of the accused-appellant might have succeeded. As it happened, they allowed their over-zealousness to get the better of them, resulting in their disregard of the requirements of a valid search and seizure that rendered inadmissible the vital evidence they had invalidly seized.

This should be a lesson to other peace officers. Their impulsiveness may be the very cause of the acquittal of persons who deserve to be convicted, escaping the clutches of the law because, ironically enough, it has not been observed by those who are supposed to enforce it.

WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The accused-appellant is ACQUITTED and ordered released immediately unless he is validly detained for other offenses. No costs.


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SO ORDERED.

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF: ANDREW HARVEY, JOHN SHERMAN and ADRIAAN VAN DEL ELSHOUT, petitioners,

vs. HONORABLE COMMISSIONER MIRIAM DEFENSOR SANTIAGO, COMMISSION ON IMMIGRATION AND

DEPORTATION, respondent.

G.R. No. 82544; June 28, 1988

MELENCIO-HERRERA, J.:

A petition for Habeas Corpus.

Petitioners Andrew Harvey and John Sherman, 52 and 72 years, respectively, are both American nationals residing at Pagsanjan, Laguna, while Adriaan Van Elshout, 58 years old, is a Dutch citizen also residing at Pagsanjan, Laguna.

The case stems from the apprehension of petitioners on 27 February 1988 from their respective residences by agents of the Commission on Immigration and Deportation (CID) by virtue of Mission Orders issued by respondent Commissioner Miriam Defensor Santiago of the CID. Petitioners are presently detained at the CID Detention Center.

Petitioners were among the twenty-two (22) suspected alien pedophiles who were apprehended after three months of close surveillance by CID agents in Pagsanjan, Laguna. Two (2) days after apprehension, or on 29 February 1988, seventeen (17) of the twenty-two (22) arrested aliens opted for self-deportation and have left the country. One was released for lack of evidence; another was charged not for being a pedophile but for working without a valid working visa. Thus, of the original twenty two (22), only the three petitioners have chosen to face deportation.

Seized during petitioners apprehension were rolls of photo negatives and photos of the suspected child prostitutes shown in salacious poses as well as boys and girls engaged in the sex act. There were also posters and other literature advertising the child prostitutes.

The "Operation Report," on Andrew Harvey and Richard Sherman dated 29 February 1988 stated:

xxx xxx xxx

ANDREW MARK HARVEY was found together with two young boys.


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RICHARD SHERMAN was found with two naked boys inside his room.

In respect of Van Den Elshout the "After Mission Report," dated 27 February 1988 read in part:

Noted:

There were two (2) children ages 14 & 16 which subject readily accepted having been in his care and live-in for quite sometime.

On 4 March 1988, deportation proceedings were instituted against petitioners for being undesirable aliens under Section 69 of the Revised Administrative Code (Deportation Case No. 88-13). The "Charge Sheet" read inter alia:

Wherefore, this Office charges the respondents for deportation, as undesirable aliens, in that: they, being pedophiles, are inimical to public morals, public health and public safety as provided in Section 69 of the Revised Administrative Code.

On 7 March 1988, Warrants of Arrest were issued by respondent against petitioners for violation of Sections 37, 45 and 46 of the Immigration Act and Section 69 of the Revised Administrative Code On the same date, the Board of Special Inquiry III commenced trial against petitioners.

On 14 March 1988, petitioners filed an Urgent Petition for Release Under Bond alleging that their health was being seriously affected by their continuous detention. Upon recommendation of the Board of Commissioners for their provisional release, respondent ordered the CID doctor to examine petitioners, who certified that petitioners were healthy.

On 22 March 1988, petitioners filed a Petition for Bail which, however, respondent denied considering the certification by the CID physician that petitioners were healthy. To avoid congestion, respondent ordered petitioners' transfer to the CID detention cell at Fort Bonifacio, but the transfer was deferred pending trial due to the difficulty of transporting them to and from the CID where trial was on-going.

On 4 April 1988 petitioner Andrew Harvey filed a Manifestation/Motion stating that he had "finally agreed to a self-deportation" and praying that he be "provisionally released for at least 15 days and placed under the custody of Atty. Asinas before he voluntarily departs the country." On 7 April 1988, the Board of Special Inquiry — III allowed provisional release of five (5) days only under certain conditions. However, it appears that on the same date that the aforesaid Manifestation/ Motion was filed, Harvey and his co-petitioners had already filed the present petition.

On 4 April 1988, as heretofore stated, petitioners availed of this Petition for a Writ of Habeas Corpus. A Return of the Writ was filed by the Solicitor General and the Court heard the case on oral argument on 20 April 1988. A Traverse to the Writ was presented by petitioners to which a Reply was filed by the Solicitor General.

Petitioners question the validity of their detention on the following grounds:

1) There is no provision in the Philippine Immigration Act of 1940 nor under Section 69 of the Revised Administrative Code, which legally clothes the Commissioner with any authority to arrest and detain


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petitioners pending determination of the existence of a probable cause leading to an administrative investigation.

2) Respondent violated Section 2, Article III of the 1987 Constitution prohibiting unreasonable searches and seizures since the CID agents were not clothed with valid Warrants of arrest, search and seizure as required by the said provision.

3) Mere confidential information made to the CID agents and their suspicion of the activities of petitioners that they are pedophiles, coupled with their association with other suspected pedophiles, are not valid legal grounds for their arrest and detention unless they are caught in the act. They further allege that being a pedophile is not punishable by any Philippine Law nor is it a crime to be a pedophile.

We reject petitioners' contentions and uphold respondent's official acts ably defended by the Solicitor General.

There can be no question that the right against unreasonable searches and seizures guaranteed by Article III, Section 2 of the 1987 Constitution, is available to all persons, including aliens, whether accused of crime or not (Moncado vs. People's Court, 80 Phil. 1 [1948]. One of the constitutional requirements of a valid search warrant or warrant of arrest is that it must be based upon probable cause. Probable cause has been defined as referring to "such facts and circumstances antecedent to the issuance of the warrant that in themselves are sufficient to induce a cautious man to rely on them and act in pursuance thereof." (People vs. Syjuco 64 Phil. 667 [1937]; Alverez vs. CFI, 64 Phil. 33 [1937]).

The 1985 Rules on Criminal Procedure also provide that an arrest wit a warrant may be effected by a peace officer or even a private person (1) when such person has committed, actually committing, or is attempting to commit an offense in his presence; and (2) when an offense has, in fact, been committed and he has personal knowledge of facts indicating that the person to be arrested has committed it (Rule 113, Section 5).

In this case, the arrest of petitioners was based on probable cause determined after close surveillance for three (3) months during which period their activities were monitored. The existence of probable cause justified the arrest and the seizure of the photo negatives, photographs and posters without warrant (See Papa vs. Mago, L-27360, February 28, 1968,22 SCRA 857; People vs. Court of First Instance of Rizal, L-41686, November 17, 1980, 101 SCRA 86, cited in CRUZ, Constitutional Law, 1987 ed., p. 143). Those articles were seized as an incident to a lawful arrest and, are therefore, admissible in evidence (Section 12, Rule 126,1985 Rules on criminal Procedure).

But even assuming arguendo that the arrest of petitioners was not valid at its inception, the records show that formal deportation charges have been filed against them, as undesirable aliens, on 4 March 1988. Warrants of arrest were issued against them on 7 March 1988 "for violation of Section 37, 45 and 46 of the Immigration Act and Section 69 of the Administrative Code." A hearing is presently being conducted by a Board of Special Inquiry. The restraint against their persons, therefore, has become legal. The Writ has served its purpose. The process of the law is being followed (Cruz vs. Montoya, L-39823, February 25, 1975, 62 SCRA 543). "were a person's detention was later made by virtue of a judicial order in relation to criminal cases subsequently filed against the detainee, his petition for hebeas corpus becomes moot and academic" (Beltran vs. Garcia, L-49014, April 30, 1979, 89 SCRA 717). "It is a fumdamental rule that a writ of habeas corpus will not be granted when the confinement is or has


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become legal, although such confinement was illegal at the beginning" (Matsura vs. Director of Prisons, 77 Phil. 1050 [1947]).

That petitioners were not "caught in the act" does not make their arrest illegal. Petitioners were found with young boys in their respective rooms, the ones with John Sherman being naked. Under those circumstances the CID agents had reasonable grounds to believe that petitioners had committed "pedophilia" defined as "psychosexual perversion involving children" (Kraft-Ebbing Psychopatia Sexualis p. 555; Paraphilia (or unusual sexual activity) in which children are the preferred sexual object" (Webster's Third New International Dictionary, 1971 ed., p. 1665) [Solicitor General's Return of the Writ, on p. 101. While not a crime under the Revised Penal Code, it is behavior offensive to public morals and violative of the declared policy of the State to promote and protect the physical, moral, spiritual, and social well-being of our youth (Article II, Section 13, 1987 Constitution).

At any rate, the filing by petitioners of a petition to be released on bail should be considered as a waiver of any irregularity attending their arrest and estops them from questioning its validity (Callanta v. Villanueva, L-24646 & L-24674, June 20, 1977, 77 SCRA 377; Bagcal vs. Villaraza, L-61770, January 31, 1983, 120 SCRA 525).

The deportation charges instituted by respondent Commissioner are in accordance with Section 37(a) of the Philippine Immigration Act of 1940, in relation to Section 69 of the Revised Administrative Code. Section 37(a) provides in part:

(a) The following aliens shall be arrested upon the warrant of the Commissioner of Immigration and Deportation or any other officer designated by him for the purpose and deported upon the warrant of the Commissioner of Immigration and Deportation after a determination by the Board of Commissioners of the existence of the ground for deportation as charged against the alien;

xxx xxx xxx

The foregoing provision should be construed in its entirety in view of the summary and indivisible nature of a deportation proceeding, otherwise, the very purpose of deportation proceeding would be defeated.

Section 37(a) is not constitutionally proscribed (Morano vs. Vivo, L-22196, June 30, 1967, 20 SCRA 562). The specific constraints in both the 1935 1 and 1987 2 Constitutions, which are substantially Identical, contemplate prosecutions essentially criminal in nature. Deportation proceedings, on the other hand, are administrative in character. An order of deportation is never construed as a punishment. It is preventive, not a penal process. It need not be conducted strictly in accordance with ordinary Court proceedings.

It is of course well-settled that deportation proceedings do not constitute a criminal action. The order of deportation is not a punishment, (Maliler vs. Eby, 264 U.S., 32), it being merely the return to his country of an alien who has broken the conditions upon which he could continue to reside within our borders (U.S. vs. De los Santos, 33 Phil., 397). The deportation proceedings are administrative in character, (Kessler vs. Stracker 307 U.S., 22) summary in nature, and need not be conducted strictly in accordance with the ordinary court proceedings (Murdock vs. Clark, 53 F. [2d], 155). It is essential,


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however, that the warrant of arrest shall give the alien sufficient information about the charges against him, relating the facts relied upon. (U.S. vs. Uhl 211 F., 628.) It is also essential that he be given a fair hearing with the assistance of counsel, if he so desires, before unprejudiced investigators (Strench vs. Pedaris, 55 F. [2d], 597; Ex parte Jew You On, 16 F. [2d], 153). However, all the strict rules of evidence governing judicial controversies do not need to be observed; only such as are fumdamental and essential like the right of cross-examination. (U.S. vs. Hughes, 104 F. [2d], 14; Murdock vs. Clark, 53 F. [2d], 155.) Hearsay evidence may even be admitted, provided the alien is given the opportunity to explain or rebut it (Morrell vs. Baker, 270 F., 577; Sercerchi vs. Ward, 27 F. Supp., 437). (Lao Tang Bun vs. Fabre 81 Phil. 682 [1948]).

The ruling in Vivo vs. Montesa (G. R. No. 24576, July 29, 1968, 24 SCRA 155) that "the issuance of warrants of arrest by the Commissioner of Immigration, solely for purposes of investigation and before a final order of deportation is issued, conflicts with paragraph 3, Section I of Article III of the Constitution" (referring to the 1935 Constitution) 3 is not invocable herein. Respondent Commissioner's Warrant of Arrest issued on 7 March 1988 did not order petitioners to appear and show cause why they should not be deported. They were issued specifically "for violation of Sections 37, 45 and 46 of the Immigration Act and Section 69 of the Revised Administrative Code." Before that, deportation proceedings had been commenced against them as undesirable aliens on 4 March 1988 and the arrest was a step preliminary to their possible deportation.

Section 37 of the Immigration Law, which empowers the Commissioner of Immigration to issue warrants for the arrest of overstaying aliens is constitutional. The arrest is a stop preliminary to the deportation of the aliens who had violated the condition of their stay in this country. (Morano vs. Vivo, L-22196, June 30, 1967, 20 SCRA 562).

To rule otherwise would be to render the authority given the Commissioner nugatory to the detriment of the State.

The pertinent provision of Commonwealth Act No. 613, as amended, which gives authority to the Commissioner of Immigration to order the arrest of an alien temporary visitor preparatory to his deportation for failure to put up new bonds required for the stay, is not unconstitutional.

xxx xxx xxx

... Such a step is necessary to enable the Commissioner to prepare the ground for his deportation under Section 37[al of Commonwealth Act 613. A contrary interpretation would render such power nugatory to the detriment of the State. (Ng Hua To vs. Galang, G. R. No. 10145, February 29, 1964, 10 SCRA 411).

"The requirement of probable cause, to be determined by a Judge, does not extend to deportation proceedings." (Morano vs. Vivo, supra, citing Tiu Chun Hai vs. Commissioner, infra). There need be no "truncated" recourse to both judicial and administrative warrants in a single deportation proceedings.

The foregoing does not deviate from the ruling in Qua Chee Gan vs. Deportation Board (G. R. No. 10280, September 30, 1963, 9 SCRA 27 [1963]) reiterated in Vivo vs. Montesa, supra, that "under the express


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terms of our Constitution (the 1935 Constitution), it is therefore even doubtful whether the arrest of an individual may be ordered by any authority other than a judge if the purpose is merely to determine the existence of a probable cause, leading to an administrative investigation." For, as heretofore stated, probable cause had already been shown to exist before the warrants of arrest were issued.

What is essential is that there should be a specific charge against the alien intended to be arrested and deported, that a fair hearing be conducted (Section 37[c]) with the assistance of counsel, if desired, and that the charge be substantiated by competent evidence. Thus, Section 69 of the Revised Administrative Code explicitly provides:

Sec. 69. Deportation of subject of foreign power. A subject of a foreign power residing in the Philippines shall not be deported, expelled, or excluded from said Islands or repatriated to his own country by the President of the Philippines except upon prior investigation, conducted by said Executive or his authorized agent, of the ground upon which such action is contemplated. In such a case the person concerned shall be informed of the charge or charges against him and he shall be allowed not less than 3 days for the preparation of his defense. He shall also have the right to be heard by himself or counsel, to produce witnesses in his own behalf, and to cross-examine the opposing witnesses.

The denial by respondent Commissioner of petitioners' release on bail, also challenged by them, was in order because in deportation proceedings, the right to bail is not a matter of right but a matter of discretion on the part of the Commissioner of Immigration and Deportation. Thus, Section 37(e) of the Philippine Immigration Act of 1940 provides that "any alien under arrest in a deportation proceeding may be released under bond or under such other conditions as may be imposed by the Commissioner of Immigration." The use of the word "may" in said provision indicates that the grant of bail is merely permissive and not mandatory on the part of the Commissioner. The exercise of the power is wholly discretionary (Ong Hee Sang vs. Commissioner of Immigration, L-9700, February 28,1962, 4 SCRA 442). "Neither the Constitution nor Section 69 of the Revised Administrative Code guarantees the right of aliens facing deportation to provisional liberty on bail." (Tiu Chun Hai et al vs. Deportation Board, 104 Phil. 949 [1958]). As deportation proceedings do not partake of the nature of a criminal action, the constitutional guarantee to bail may not be invoked by aliens in said proceedings (Ong Hee Sang vs. Commissioner of Immigration, supra).

Every sovereign power has the inherent power to exclude aliens from its territory upon such grounds as it may deem proper for its self-preservation or public interest (Lao Tan Bun vs. Fabre 81 Phil. 682 [1948]). The power to deport aliens is an act of State, an act done by or under the authority of the sovereign power (In re McCulloch Dick, 38 Phil. 41 [1918]). It is a police measure against undesirable aliens whose continued presence in the country is found to be injurious to the public good and the domestic tranquility of the people (Forbes vs. Chuoco Tiaco et al., 16 Phil. 534 [1910]). Particularly so in this case where the State has expressly committed itself to defend the tight of children to assistance and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development (Article XV, Section 3[2]). Respondent Commissioner of Immigration and Deportation, in instituting deportation proceedings against petitioners, acted in the interests of the State.

WHEREFORE, the Petition is dismissed and the Writ of Habeas Corpus is hereby denied.


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SO ORDERED.


MEDEL TANGLIBEN Y BERNARDINO, defendant-appellant.

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

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


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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


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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:

I

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:


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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. Paño, 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 Aminnudinto the case at bar. To require search warrants during on-the-spot


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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


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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


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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.


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THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

MIKAEL MALMSTEDT, *defendant-appellant.

G.R. No. 91107 June 19, 1991

The Solicitor General for plaintiff-appellee.

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

PADILLA, J.:p

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

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

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

At around 7:00 o'clock in the morning of 11 May 1989, accused went to the Nangonogan bus stop in Sagada to catch the first available trip to Baguio City. From Baguio City, accused planned to take a late afternoon trip to Angeles City, then proceed to Manila to catch his flight out of the country, scheduled on 13 May 1989. From Sagada, accused took a Skyline bus with body number 8005 and Plate number AVC 902. 1

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


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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


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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;



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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


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inspection, that accused was required to present his passport. The failure of accused to present his identification papers, when ordered to do so, only managed to arouse the suspicion of the officer that accused was trying to hide his identity. For is it not a regular norm for an innocent man, who has nothing to hide from the authorities, to readily present his identification papers when required to do so?

The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession, plus the suspicious failure of the accused to produce his passport, taken together as a whole, led the NARCOM officers to reasonably believe that the accused was trying to hide something illegal from the authorities. From these circumstances arose a probable cause which justified the warrantless search that was made on the personal effects of the accused. In other words, the acts of the NARCOM officers in requiring the accused to open his pouch bag and in opening one of the wrapped objects found inside said bag (which was discovered to contain hashish) as well as the two (2) travelling bags containing two (2) teddy bears with hashish stuffed inside them, were prompted by accused's own attempt to hide his identity by refusing to present his passport, and by the information received by the NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession. To deprive the NARCOM agents of the ability and facility to act accordingly, including, to search even without warrant, in the light of such circumstances, would be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society.

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

SO ORDERED.

Melencio-Herrera, Paras, Feliciano, Bidin, Griño-Aquino, Medialdea, Regalado 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 Constitution 2 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


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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;



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, 12and 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


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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 Obiña, an INP member "on Detached Service with the Anti-Narcotics Unit." This avowedly aroused Obiña'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, Obiña 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.


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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" toAminnudin 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 buribag he had with him at the time. The Court cited with approval the ruling of the U.S. Federal Supreme Court inJohn 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


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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 delictotransporting prohibited drugs at the time of their arrest. Again, the Court took occasion to distinguish the case fromAminnudin 24 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, citing Manipon, 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


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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


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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


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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 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 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.


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CHUA HO SAN @ TSAY HO SAN, accused-appellant.

G.R. No. 128222; June 17, 1999

DAVIDE, JR., C.J.:

Chua Ho San @ Tsay Ho San (hereafter CHUA) prays for his acquitttal and the reversal of the judgment of 10 February 1997 of the Regional Trial Court (RTC) of San Fernando, La Union, Branch 66, finding him guilty of transporting, without appropriate legal authority, the regulated substance methamphetamine hydrochloride, in violation of Section 15, 1 Article III of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972 as further amended by R.A. No. 7659, 2 and sentencing him to "die by lethal injection." In view thereof, the judgement was brought to this Court for automatic review pursuant to Article 47 of the Revised Penal Code, as amended by Section 11 of R.A. No. 7659.

In response to reports of rampant smuggling of firearms and other contraband, Jim Lagasca Cid (hereafter CID), as Chief of Police of the Bacnotan Police Station, of La Union began patrolling the Bacnotan coastline with his officers. While monitoring the coastal area of Barangay Bulala on 29 March 1995, he intercepted a radio call at around 12:45 p.m. from Barangay Captain Juan Almoite (hereafter ALMOITE) of Barangay Tammocalao requesting police assistance regarding an unfamiliar speedboat the latter had spotted. According to ALMOITE, the vessel looked different from the boats ordinarily used by fisherfolk of the area and was poised to dock at Tammocalao shores. CID and six of his men led by his Chief Investigator, SPO1 Reynoso Badua (hereafter BADUA), proceeded forthwith to Tammocalao beach and there conferred with ALMOITE. CID then observed that the speedboat ferried a lone male passenger. As it was routine for CID to deploy his men in strategic places when dealing with similar situations, he ordered his men to take up positions thirty meters from the coastline. When the speedboat landed, the male passenger alighted, and using both hands, carried what appeared a multicolored strawbag. He then walked towards the road. By this time, ALMOITE, CID and BADUA, the latter two conspicuous in their uniform and issued side-arms, became suspicious of the man as he suddenly changed direction and broke into a run upon seeing the approaching officers. BADUA, however, prevented the man from fleeing by holding on to his right arm. Although CID introduced themselves as police officers, the man appeared impassive. Speaking in English, CID then requested the man to open his bag, but he seem not to understand. CID thus tried speaking Tagalog, then Ilocano, but still to no avail. CID then resorted to what he termed "sign language;" he motioned with his hands for the man to open the bag. This time, the man apparently understood and acceded to the request. A search of the bag yielded several transparent plastic packets containing yellowish crystalline substances. CID then gestured to the man to close the bag, which he did. As CID wished to proceed to the police station, he signaled the man to follow, but the latter did not to comprehend. Hence, CID placed his arm around the shoulders of the man and escorted the latter to the police headquarters.

At the police station, CID surmised, after having observed the facial features of the man, that he was probably Taiwanese. CID then "recited and informed the man of his constitutional rights" to remain silent, to have the assistance of a counsel, etc. Eliciting no response from the man, CID ordered his men to find a resident of the area who spoke Chinese to act as an enterpreter. In the meantime, BADUA opened the bag and counted twenty-nine (29) plastic packets containing yellowish crystalline substance which he and CID suspected was shabu. The interpreter, Mr. Go Ping Guan, finally arrived, through whom the man was "apprised of his constitutional rights." The police authorities were satisfied that the


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man and the interpreter perfectly understood each other despite their uncertainty as to what language was spoken. But when the policemen asked the man several questions, he retreated to his obstinate reticence and merely showed his I.D. with the name Chua Ho San printed thereon. CHUA's bag and its contents were sent to the PNP Crime Laboratory at Camp Diego Silang, Carlatan, San Fernando, La Union for laboratory examination. In the meantime, CHUA was detained at the Bacnotan Police Station.1âwphi1.nêt

Later that same day, Police Chief Inspector and Forensic Chemist Theresa Ann Bugayong Cid of the Philippine National Police, Region I, received a letter request 3 from CID — incidentally her husband — to conduct a laboratory examination of twenty-nine (29) plastic packets placed inside a multicolored strawbag. In her Chemistry Report No. D-025-95, 4 she stated that her qualitative examination established the contents of the plastic packets, weighing 28.7 kilos, to be positive of methamphetamine hydrochloride or shabu, a regulated drug.

CHUA was initially charged with illegal possession of methaphetamine hydrochloride before the RTC which docketed the case as Criminal Case No. 4037. However, pursuant to the recommendation of the Office of the Provincial Prosecutor, La Union, that the facts of the case could support an indictment for illegal transport of a regulated drug, the information was subsequently amended to allege that CHUA "willfully, unlawfully and feloniously transpor(ted) 28.7 kilos of [m]ethamphetamine [h]ydrochloride (shabu) without the necessary permit or authority to transport the same" in violation of Section 15, Article III of R.A. 6425 as amended by R.A. 7659.

At his arraignment on 31 July 1995, CHUA entered a plea of not guilty. The RTC was satisfied that CHUA understood the amended information read to him in Fukien by the Fukien-speaking interpreter, Thelma Sales Go.

Thereafter, the RTC exerted all efforts to obtain the services of a Taiwanese Interpreter through the auspices of the Department of Foreign Affairs. However, it was only after directing the request to the Taipei Economic and Cultural Office in the Philippines that interpreters were assigned to CHUA.

Trial finally ensued. The State presented evidence tending to establish the above narration of facts which were culled chiefly from the testimony of CID, its first witness, and whose testimony, in turn, was substantially corroborated by witnesses BADUA and ALMOITE.

Experts witness Theresa Ann Cid, confirmed the entries of her chemistry report in that the contents of the 29 plastic packets weighing 28.7 kilos sent to her for chemical analysis were pure, unadulterated methamphetamine hydrochloride or shabu. She also explained that they were unwashed, hence they appeared yellowish.

For the defense, CHUA testified in his own behalf through interpreter Steven Yu. He disclosed that he hails from Taiwan and was employed in a shipbuilding and repairing company. On 21 March 1995, he was instructed by his employer Cho Chu Rong (hereafter RONG) to board the latter's 35-tonner ship which would embark for Nan Au Port, Mainland China where they would buy fish. Upon arrival at their destination, RONG left the ship, came back without the fish, but with two bags, the contents of which he never divulged to CHUA. RONG then showed to CHUA a document purportedly granting them authority to fish on Philippine waters. So they sailed towards the Philippines and reached Dagupan, Pangasinan on 29 March 1995. At around 10:30 a.m., they disembarked on a small speedboat with the two bags RONG


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brought with him from China. While, sailing, RONG made several phone calls using his mobile phone. CHUA heard RONG asked the person on the other side of the line if he could see the speedboat they were riding. Apparently, the person on shore could not see them so they cruised over the waters for about five hours more when finally, low on fuel and telephone battery, they decided to dock. CHUA anchored the boat while RONG carried the bags to shore. The tasks completed, RONG left to look for a telephone while CHUA rested and sat one and half (1 1/2) meters away from one bag. A child thereafter pointed out to him that one bag was missing much to RONG's dismay when he learned of it. When a crowd started to mill around them, the police arrived. CHUA then realized that RONG was nowhere to be found. The police immediately approached CHUA, and with nary any spoken word, only gestures and hand movements, they escorted him to the precinct where he was handcuffed and tied to a chair. Later, the police, led by an officer who CHUA guessed as the Chief of Police arrived with the motor engine of the speedboat and a bag. They presented the bag to him, opened it, inspected and weighed the contents, then proclaimed them as methaphetamine hydrochloride.

CHUA denounced the prosecution's story as a distortion of the truth. He denied he was ever favored with an interpreter or informed of his "constitutional rights," particularly of his right to counsel. Consequently, his arrest was tainted with illegality and the methamphetamine hydrochloride found in the bag should have been regarded inadmissible as evidence. He also maintained that CID never graced the occasion of his setting foot for the first time at Tammocalao beach. BADUA certainly never prevented him from running away, as such thought failed to make an impression in his mind. Most significantly, he denied ownership and knowledge of the contents of the bag, emphasizing that RONG alone exercised dominion over the same.

Elmer Parong, (hereafter PARONG) a Sangguniang Bayan member, recalled that on the date in question, he arrived at the beach with the police. He saw CHUA standing with a bag beside him. He also remembered hearing from the people congregating at the beach that CHUA arrived with a companion and a certain policeman Anneb had chased the latter's car. He additionally claimed that when the crowd became unruly, the police decided to bring CHUA to police headquarters. There, the mayor took charge of the situation — he opened CHUA's bag with the assistance of the police, he called for a forensic chemist surnamed CID to take a sample of the contents of the bag, and he ordered his officials to find an interpreter. Throughout the proceedings, photographers were busy taking pictures to document the event.

Last to testify was Arsenio CRAIG, a farmer and resident of Tammocalao who narrated that he was standing with CHUA on the beach when two men and a lady arrived. They were about to get a bag situated near CHUA when they detected the arrival of the local police. They quickly disappeared. CRAIG then noticed ALMOITE and PARONG at the beach but not CID.

In a decision promulgated on 10 February 1997, the RTC found that the prosecution successfully discharged its burden of proving that CHUA transported 28.7 kilos of methamphetamine hydrochloride without legal authority to do so. Invoking People v. Tagliben 5 as authority, the RTC characterized the search as incidental to a valid in flagrante delicto arrest, hence it allowed the admission of the methamphetamine hydrochloride as corpus delicti. The RTC also noted the futility of informing CHUA of his constitutional rights to remain silent, and to have competent and independent counsel preferably of his own choice, considering the language barrier and the observation that such irregularity was "rectified when accused was duly arraigned and . . . (afterwards) participated in the trial of this case." The RTC then disregarded the inconsistencies and contradictions in the testimonies of the prosecution


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witnesses as these referred to minor details which did not impair the credibility of the witnesses or tarnish the credence conferred on the testimonies thus delivered.

The RTC also believed that CHUA conspired not only with his alleged employer RONG and the Captain of the 35-tonner vessel in the illegal trade of prohibited drugs on Philippine shores, but with several other members of an organized syndicate bent on perpetrating said illicit traffic. Such predilection was plainly evident in the dispositive portion, to wit:

WHEREFORE, and in view of all the foregoing, as proven and established by convincing and satisfactory evidence that the accused had conspired and acted in concert with one Cho Chu Rong, not to mention Chen Ho Fa, the Skipper of the 35-tonner ship they used in coming to the Country from China and Taiwan, this Court finds the accused Chua Ho San @ Tsay Ho San guilty beyond reasonable doubt of the offense of Violation of Sec. 15, Art. III of R.A. No. 6425, as amended by R.A. No. 7659 as charged in the Information, and considering the provisions of Sec. 20 of R.A. No. 7659 that the maximum penalty shall be imposed if the quantity sold/possessed/transported is "200 grams or more" in the case of Shabu, and considering, further that the quantity involved in this case is 28.7 kilograms which is far beyond the weight ceiling specified in said Act, coupled with the findings of conspiracy or that accused is a member of an organized syndicated crime group, this Court, having no other recourse but to impose the maximum penalty to accused, this Court hereby sentences the said accused Chua Ho San @ Tsay Ho San to die by lethal injection; to pay a fine of Ten Million Pesos (P10,000,000.00); and to pay the costs.

The Court hereby orders Director Ricareido [sic] Sarmiento of the Philippine National Police to immediately form an investigating Committee to be composed by [sic] men of unimpeachable integrity, who will conduct an exhaustive investigation regarding this case to determine whether there was negligence or conspiracy in the escape of Cho Chu Rong and the two (2) or three (3) persons who approached the accused in the seashore of Tammocalao, Bacnotan, La Union, and attempted to take the remaining bag from accused, as well as the whereabouts of the other bag; and to furnish this Court a copy of the report/result of the said investigation in order to show compliance herewith sixty (60) days from receipt hereof.

The confiscated 28.7 kilograms of Methaphetamine Hydrochloride or Shabu is ordered turned over immediately to the Dangerous Drugs Board for destruction in accordance with the law.

The fiberglass boat with its motor engine is hereby ordered confiscated in favor of the government and to be turned over to the Philippine National Police, La Union Command, for use in their Bantay-Dagat operations against all illegal seaborne activities.

SO ORDERED. 6

Before this Court, CHUA posits that the RTC erred in (1) admitting as competent evidence the 29 plastic packets of methamphetamine hydrochloride since they were indubitably "forbidden fruits;" (2) granting weight and credence to the testimonies of prosecution witnesses despite glaring inconsistencies on


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material points; and in (3) appreciating conspiracy between him and an organized syndicate in the illicit commerce of prohibited drugs since this was not alleged in the information.

The Solicitor General traverses CHUA's contentions by asserting that: (1) the search was licitly conducted despite the absence of search and seizure warrants as circumstances immediately preceding to and comtemporaneous with the search necessitated and validated the police action; and (2) that there was an effective and valid waiver of CHUA's right against unreasonable searches and seizures since he consented to the search.

We reverse the RTC.

Enshrined in the Constitution is the inviolable right to privacy home and person. It explicitly ordains that people have the right to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose. 7 Inseparable, and not merely corollary or incidental to said right and equally hallowed in and by the Constitution, is the exclusionary principle which decrees that any evidence obtained in violation of said right is inadmissible for any purpose in any proceedings. 8

The Cosntitutional proscription against unreasonable searches and seizures does not, of course, forestall reasonable searches and seizure. What constitutes a reasonable or even an unreasonable search in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved. 9Verily, the rule is, the Constitution bars State intrusions to a person's body, personal effects or residence except if conducted by virtue of a valid of a valid search warrant issued in compliance with the procedure outlined on the Constitution and reiterated in the Rules of Court; "otherwise such search and seizure become "unreasonable" within the meaning of the aforementioned constitutional provision." 10 This interdiction against warrantless searches and seizures, however, is not absolute and such warrantless searches and seizures have long been deemed permissible by jurisprudence 11 in instances of (1) search of moving vehicles, (2) seizure in plain view, (3) customs searches, (4) waiver or consent searches, (5) stop and frisk situations (Terry search), 12 and (6) search incidental to a lawful arrest. The last includes a valid warrantless search and seizure pursuan to an equally valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected with a valid wararnt of arrest, the Rules of Court recognize permissible warrantless arrests, to wit: (1) arrests in flagrante delicto, (2) arrests effected in hot pursuit, and (3) arrests of escaped prisoners. 13

This Court is therefore tasked to determine whether the warrantless arrest, search and seizure conducted under the facts of the case at bar constitute a valid exemption from the warrant requirement. Expectedly and quite understandably, the prosecution and the defense painted extremely divergent versions of the incident. But this Court is certain that CHUA was arrested and his bag searched without the benefit of a warrant.

In cases of in fragrante delicto, arrests, a peace officer or a private person may without a warrant, arrest a person, when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. The arresting officer, therefore, must have personal knowledge of such facts 14 or as recent case law 15adverts to, personal knowledge of facts or circumstances convincingly indicative or constitutive of probable cause. The term probable cause had been understood to mean a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man's belief that the person accused is guilty of the offense with which he is charged. 16 Specifically with respect to arrests, it is such facts and circumstances which would lead a


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reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. 17 In People v. Montilla, 18 the Court acknowledged that "the evidentiary measure for the propriety of filing criminal charges, and correlatively, for effecting warrantless arrest, has been reduced and liberalized." Noting that the previous statutory and jurisprudential evidentiary standard was "prima facie evidence" and that it had been dubiously equated with probable cause, the Court explained:

[F]elicitously, those problems and confusing concepts (referring to prima facie evidence and probable cause) were clarified and set aright, at least on the issue under discussion, by the 1985 amendment of the Rules of Court which provides in Rule 112 thereof that the quantum of evidence required in preliminary investigation is such evidence as suffices to "engender as well founded belief" as to the fact of the commission of the crime and the respondent's probable guilt thereof. It has the same meaning as the related phraseology used in other parts of the same Rule, that is, that the investigating fiscal "finds cause to hold the respondent for trial," or where "a probable cause exists." It should, therefore, be in that sense, wherein the right to effect a warrantless arrest should be considered as legally authorized." (emphasis supplied) 19

Guided by these principles, this Court finds that there are no facts on record reasonably suggestive or demonstrative of CHUA's participation in on going criminal enterprise that could have spurred police officers from conducting the obtrusive search. The RTC never took the pains of pointing to such facts, but predicated mainly its decision on the finding that was "accused was caught red-handed carrying the bagful of [s]habu when apprehended." In short, there is no probable cause. At least in People v. Tangliben, the Court agreed with the lower court's finding that compelling reasons (e.g., accused was acting suspiciously, on the spot identification by an informant that accused was transporting prohibitive drug, and the urgency of the situation) constitutive of probable cause impelled police officers from effecting an in flagrante delicto arrest. In the case at bar, the Solicitor General proposes that the following details are suggestive of probable cause — persistent reports of rampant smuggling of firearm and other contraband articles, CHUA's watercraft differing in appearance from the usual fishing boats that commonly cruise over the Bacnotan seas, CHUA's illegal entry into the Philippines (he lacked the necessary travel documents or visa), CHUA's suspicious behavior, i.e. he attempted to flee when he saw the police authorities, and the apparent ease by which CHUA can return to and navigate his speedboat with immediate dispatch towards the high seas, beyond the reach of Philippine laws.

This Court, however, finds that these do not constitute "probable cause." None of the telltale clues, e.g., bag or package emanating the pungent odor of marijuana or other prohibited drug, 20 confidential report and/or positive identification by informers of courier(s) of prohibited drug and/or the time and place where they will transport/deliver the same,21 suspicious demeanor or behavior 22 and suspicious bulge in the waist 23 — accepted by this Court as sufficient to justify a warrantless arrest exists in this case. There was no classified information that a foreigner would disembark at Tammocalao beach bearing prohibited drug on the date in question. CHUA was not identified as a drug courier by a police informer or agent. The fact that the vessel that ferried him to shore bore no resemblance to the fishing boats of the area did not automatically mark him as in the process of perpetrating an offense. And despite claims by CID and BADUA that CHUA attempted to flee, ALMOITE testified that the latter was merely walking and oblivious to any attempt at conversation when the officers approached him. This cast serious doubt on the truthfulness of the claim, thus:

Q: How far were you when the accused put the bag on his sholder?


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A: We were then very near him about three meters away from the male person carrying the bag.

Q: To what direction was he facing when he put the bag on his shoulder?

A: To the east direction.

Q: In relation to you, where were you.

A: With the company of Sgt. Reynoso and Maj. Cid we approached the accused and when Maj. Cid went near him, he spoke in Tagalong, English and Ilocano which accused did not understand because he did not respond.

Q: When Maj. Cid was talking, what was the accused doing at that time?

A: He was walking.

Q: To what direction he was walking?

A: He was walking to the east direction. (sic)

Q: He was walking away from you or going near you?

A: He was going away from us. That is why Sgt. Reynoso held the right arm of the accused.

Q: Was Sgt. Badua able to hold the right arm of the accused?

A: Yes sir and he stopped. 24

True, CHUA entered Philippine territory without a visa. This was not obvious to the police. But gossamer to the officers' sense perception and view were CHUA disembarking from a speedboat, CHUA walking casually towards the road, and CHUA carrying a multicolored strawbag. These acts did not convey any impression that he illegally entered Philippine shores. Neither were these overt manifestations of an ongoing felonious activity nor of CHUA's criminal behevior as clearly established in CID's testimony, thus:

Q Was the accused committing a crime when you introduced yourselves:

A No, sir.

Q No, so there was no reason for you to approach the accused because he was not doing anything wrong?


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A No, sir, that is our objective, to approach the person and if ever or whatever assistance that we can give we will give. 25

The search cannot therefore be denominated as incidental to an arrest. While a contemporaneous search of a person arrested may be effected to deliver dangerous weapons or proofs or implements used in the commission of the crime and which search may extend to the area within his immediate control where he might gain possession of a weapon or evidence he can destroy, 26 a valid arrest must precede the search. The process cannot be reversed.

In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used as a pretext for conducting a search. In this instance, the law requires that there be first a lawful arrest before a search can be made — the process cannot be reversed. 27

To reiterate, the search was not incidental to an arrest. There was no warrant of arrest and the warrantless arrest did not fall under the exemptions allowed by the Rules of Court 28 as already shown. Fom all indications, the search was nothing but a fishing expedition. It is worth mentioning here that after introducing themselves, the police officcers immediately inquired about the contents of the bag. What else could have impelled the officers from displaying such inordinate interest in the bag but to ferret out evidence and discover if a felony had indeed been committed by CHUA — in effect to "retroactively establish probable cause and validate an illegal search and seizure."

The State then attempted to persuade this Court that there was a consented search, a legitimate waiver of the constitutional guarantee against obtrusive searches. It is fundamental, however, that to constitute a waiver, it must first appear 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. 29 CHUA never exhibited that he knew, actually or constructively of his right against unreasonable searches or that he intentionally conceded the same. This can be inferred from the manner by which the search performed, thus:

Q Together with your Chief Investigator, what was the first thing that you did when you approached him (CHUA)?

A We introduced ourselves as police officers, sir.

Q Okey, in the first place why did you introduce yourselves?

A That is normal practice in our part, sir.

xxx xxx xxx

Q If it is possible. Okey (sic) now, after introducing yourselves what did you do?

A He did not answer me and he did not utter any word,


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Q When he did not utter any word. What else did he do?

A I asked again a question that if he can open his bag sir.

Q And did he understand your question when you requested him to open his bag?

A No, sir, there is no answer.

Q No answer?

A Yes, sir, no answer.

Q And when there was no answer what did you do next?

A I used sign language sir.

Q Will you demonstrate to this Honorable Court how you demonstrated that sign language of opening the bag mr. (sic) witness?

A I pointed to the zipper of the bag and then made an action like this sir.

xxx xxx xxx

SHERIFF:

The witness demonstrating (sic) by pointing to the straw bag and then manifesting a sign to open the zipper of the straw bag moving his right hand from left to right or from the opening to the end of the zipper.

COURT: From the start of the zipper where you open it up to the end of the zipper.

Witness: Yes, sir, and then I made a motion like this.

(The witness repeating the motion described on record.)

COURT: Did you open that personally?

WITNESS:

A No, your honor.

Q Now, mr. (sic) witness, why did you request the accused to open the bag?

A Because it is our duty also to inspect his belongings sir.


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Q Why, why was it — no, I reform my question your honor. Is it normal procedure for you to examine anybody or to request anybody to open his bag?

A The fact that he was a foreigner, sir, it is also our duty to inspect the baggage, it is our routine duty of a police (sic), sir.

Q Is that the normal duty of a police officer to request a person to open his bag?

A yes, sir.

Q Okey, (sic) you did not ask the accused, mr. (sic) witness, to open his bag?

A No, sir.

Q But you simply requested him to open the nag?

A Yes, sir. 30

CHUA obviously failed to understand the events that overran and overwhelmed him. The police officers already introduced themselves to CHUA in three languages, but he remained completely deadpan. The police hence concluded that CHUA failed to comprehend the three languages. When CHUA failed to respond again to the police's request to open the bag, they resorted to what they called "sign language." They claimed that CHUA finally understood their hand motions and gestures. This Court disagrees. If CHUA could not understand what was orally articulated to him, how could he understand the police's "sign language." More importantly, it cannot logically be inferred from his alleged cognizance of the "sign language" that he deliberately, intelligently, and consciously waived his right against such an intrusive search. This Court is not unmindful of cases upholding the validity of consented warrantless searches and seizure. But in these cases, the police officers' request to search personnel effects was orally articulated to the accused and in such language that left no room for doubt that the latter fully understood what was requested. In some instances, the accused even verbally replied to the request demonstrating that he also understood the nature and consequences of such request. 31

It was eventually discovered that the bag contained the regulated subtance. But this is a trifling matter. If evidence obtained during an illegal search even if tending to confirm or actually confirming initial information or suspicion of felonious activity is absolutely considered inadmissible for any purpose in any proceeding, the same being the fruit of a poisonous trees 32 how much more of "forbidden fruits" which did not confirm any initial suspicion of criminal enterprise as in this case — because the police admitted that they never harbored any initial suspicion. Casting aside the regulated substance as evidence, the remaining evidence on record are insufficient, feeble and ineffectual to sustain CHUA's conviction.

Indeed, the likelihood of CHUA having actually transported methamphetamine hydrochloride cannot be quickly dispelled. But the constitutional guarantee against unreasonable searches and seizures cannot be so carelessly disregarded, as overzealous police officers are sometimes wont to do. Fealty to the


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Constitution and the rights it guarantees should be paramount in their minds, otherwise their good intentions will remain as such simply because they have blundered. "There are those who say that . . . 'the criminal is to go free because the constable has blundered.'. . . In some cases this will undoubtedly be the result. But . . . 'there is another consideration — the imperative of judicial integrity . . . The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." 33

As to the averred glaring inconsistencies in the testimonies of the posecution witnesses, this Court considers them trivial as they refer to insignificant details which will not affect the outcome of the case. On a passing note, this Court calls the attention of the trial court regarding its erroneous appreciation of conspiracy. This aggravating circumstance is without question unsupported by the records. Conspiracy was not included in the indictment nor raised in the pleadings or proceedings of the trial court. It is also fundamental that conspiracy must be proven just like any other criminal accusation, that is, independently and beyond reasonable doubt. 34

WHEREFORE, for all the foregoing, the decision of the Regional Trial Court, Branch 66, San Fernando, La Union in Criminal Case No. 4037 is hereby REVERSED and SET ASIDE and accused-appellant CHUA HO SAN @ TSAY HO SAN is hereby ACQUITTED of the crime charged, the evidence not being sufficient to establish his guilt beyond reasonable doubt.

Costs de oficio.

SO ORDERED.


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NOLI SALCEDO @ "KA TONY," GEMO IBAÑEZ @ "KA TITING," BOLODOY CALDERON, JUANITO SUAL, JR., EDISON BANCULO, NONOY ESQUILONA, GIL RAPSING, JOSE FERNANDEZ, REYNALDO CORTEZ, NOE

ALBAO, ELY RAPSING, PACO MANLAPAZ, DANILO LAURIO and NORIE HUELVA, accused, NOLI SALCEDO, EDISON BANCULO, JUAN SUAL, JR., and DANILO LAURIO, accused-appellants.

G.R. No. 100920 June 17, 1997

PANGANIBAN, J.:

The rights of a person under custodial investigation, particularly the right to remain silent and to counsel, have been explained, echoed and stressed no end by this Court. They are no less constitutionally enshrined. 1Innumerable court decisions 2 have been rendered, evincing the great importance with which the state regards them. A law 3was recently enacted defining the rights of persons arrested, detained or under custodial investigation as well as the duties of the arresting, detaining and investigating officers; and penalizing violations thereof. In spite of these clear constitutional, jurisprudential and statutory guidelines, one still finds persistent infractions by public investigators and police authorities that have resulted in acquittals which oftentimes are not understood or appreciated by the public at large.

In the present case, the issue confronts us once more. As we have held in similar cases, a voluntary extrajudicial confession of an accused, even where it reflects the truth, if given without the assistance of counsel and without a valid waiver thereof, is inadmissible in evidence against him. 4

Of course, where the statements in the uncounselled confession are reiterated in open court, or where other conclusive evidence proves the guilt of the accused beyond reasonable doubt, the court should not hesitate to convict and mete the proper penalty. 5

In an Information 6 dated October 28, 1988, First Assistant Provincial Fiscal Andres B. Barsaga, Jr., charged Accused-appellants Noli Salcedo, Edison Banculo, Juanito Sual, Jr. and Danilo Laurio, together with Nonoy (Teodulo, Jr.) Esquilona, Reynaldo Cortes, Paco (Romarico) Manlapaz, Gemo Ibañez, Bolodoy Calderon, Gil Rapsing, Jose Fernandez, Noe Albao, Ely Rapsing and Norie Huelva, with the crime of murder committed as follows:

That on or about June 20, 1988, in the evening thereof, at Barangay Gabi, Municipality of Baleno, Province of Masbate, Philippines, within the jurisdiction of this Court, the said accused, conspiring together and mutually helping one another, with intent to kill, evident premeditation(,) treachery and superiority of strenght (sic) and taking advantage of nighttime, did, then and there willfully, unlawfully and feloniously attack, assault and short with a gun(,) hack with a bolo one Honorio Aparejado y Fideles, hitting the latter on the different parts of the body, thereby inflicting wounds which directly caused his instantaneous death.

On September 12, 1989, Accused Noli Salcedo, Juanito Sual, Jr., Edison Banculo, Danilo Laurio, Reynaldo Cortes and Nonoy Esquilona, assisted by Attys. Ricardo Merdegia and Jose Medina, pleaded not guilty to the above charge, while Accused Romarico Manlapaz, assisted by Atty. Ruben Songco, entered the same


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plea on January 23, 1990. 7 The rest of the accused remained at large. Trial ensued insofar as those apprehended and arraigned were concerned. On May 6, 1991, the trial judge rendered judgment convicting Salcedo as principal; and Banculo, Sual, Jr. and Laurio as accomplices in the crime of murder. Esquilona, Jr., Cortes and Manlapaz were acquitted. 8

The Facts

Evidence for the Prosecution

The principal witness for the prosecution, Edwin Cortes, a 30-year old farmer, resident of Gabi, Baleno, Masbate, and brother-in-law of the victim, Honorio Aparejado, identified and affirmed his statement 9 given on June 30, 1988 relative to the incident which he had subscribed to before Municipal Circuit Trial Judge Vicente Lim Yu on July 11, 1988. The gist of Cortes' testimony 10 is as follows:

About 8:00 o'clock in the evening of June 20, 1988, he was in his house together with his wife, their four children and the victim when several armed men led by Accused Noli Salcedo arrived. Salcedo shouted for him and the victim to come out of the house. Once outside, Cortes and Aparejado were ordered to lie on the ground; then they were hogtied. Thereafter, they were told to get up and were led to the other side of a creek, about twenty (20) meters from the house, where they were ordered to lie down again. While the witness and the victim were in such position about two or three meters apart, Salcedo shot Aparejado twice, then hacked him. Salcedo's companions likewise hacked the victim. Afterwards, they turned Aparejado's body around, opened his stomach and took out his liver. His kneecap was also removed. Then all the accused left, bringing with them the victim's liver and kneecap. Cortes claimed to have witnessed all these since the accused had a flashlight and the moon was just rising.

After the accused had left, Cortes ran towards a grassy area where he was able to untie his hands. The following morning, he informed the relatives of the victim about the incident and likewise reported the same to police authorities at Baleno, Masbate. Cortes further stated that he had known Salcedo for about a year prior to the incident and that he had no knowledge of any reason why the accused had killed Aparejado. Although he admitted not knowing the identities of Salcedo's companions at the time of the murder, he identified each of the accused before the trial court and said that they were the ones who killed Aparejado.

Municipal Health Officer Conchita Ulanday conducted the postmortem examination on the body of the victim. Her findings included:

Signs of violence:

(1) Incised wound with a zigzag appearance 11" penetrating exposing the stomach and a portion of the intestines, located at the epigastric area (Rt.) up to the level of the navel.

(2) Incised wound slightly curving in appearance(,) 7" penetrating exposing a portion of the intestines crossing the wound #1 at the level of the navel.


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(3) Gunshot wound point of entry #2, 1 cm. circular each 1" apart pre-axillary line at the level of the 4th and 5th (illegible) with the presence of tattoing (sic) (powder burns) around the wound(,) back, left, with a downward-inward in (sic) direction.

(4) Gunshot wound point of entry 1 cm. circular, scapular line, (with) tattoing (sic) around the wound, lower back, left.

(5) Hack wound at the level of the nape of the neck, almost completely detaching the head from the body.

(6) A emulsion (sic) knee cartilage, Rt.

Due to the above-mentioned post mortem findings (sic) was made that death was caused by hack, gunshot and incised wounds. 11

Dr. Ulanday described the first, second and last wounds as serious but not fatal, although they might have been "secondary to infection." However, the three other wounds were fatal since they injured vital organs such as the lungs, heart and liver. 12

Witness Lydia Aparejado, widow of the victim, testified on how she learned of the killing of her husband. At that time, she was in Baleno attending to the needs of their children who were studying there. She further testified to the actual expenses incurred as a consequence of the death of her husband, amounting to P5,000.00. She also demanded indemnification for the physical and mental anguish she felt due to the killing of her husband, in an amount she left to the discretion of the court. 13

P/Sgt. Jose Bajar of the Aroroy Police Station testified that he had conducted the investigation of Accused Danilo Laurio, Juan 14 Sual, Jr. and Edison Banculo on August 22, 1988. The investigation was in the form of questions and answers in the vernacular which were reduced into writing. 15 During cross-examination, he admitted that the three were not assisted by counsel when they signed their respective waivers-neither during the investigation nor at the time they affixed their signatures to their respective statements. 16

Pfc. Wencell 17 Esquilona, member of the INP (now PNP) Baleno Police Station, was presented as a rebuttal witness for the prosecution. He stated that he had effected the arrest of six of the accused, namely: Manlapaz, Cortes, Esquillona, Jr., Laurio, Banculo and Sual. As to the latter three, Esquilona admitted that he was not armed with a warrant for their arrest but that he had only received a wire from the headquarters that the three were suspects in the murder of Aparejado. At the time of the arrest, he likewise recovered one lantaka, an "armalite" revolver and fatigue uniforms at the house where the three were arrested. He stated further that he did not maltreat any of them and was not present during their investigation conducted by Sgt. Jose Bajar. 18

Evidence for the Defense

Accused Edison Banculo testified that he had been in Balite, Aroroy, Masbate, sleeping in the house of his adoptive parents, Celia 19 Laydo and Angel Entines, 20 on the night the incident occurred. His adoptive parents and co-accused Danilo Laurio were also in the same house at that time. He declared that he had


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signed Exhibit "G", purportedly his confession of his participation in the killing of Aparejado, only because he could not bear the physical maltreatment by the police who had further threatened to kill him. He confirmed that he was not assisted by counsel or apprised of his rights to remain silent and to be assisted by counsel of his own choice during his investigation. 21

Another accused, Teodulo Esquilona, Jr., testified that he had been in Masbate, Masbate, learning the art of wood lamination from a certain Eduardo Marabe, on the day the incident took place. Among his co-accused, he knew only Reynaldo Cortes while he met the others for the first time in court. He testified further that, contrary to the assertion of Prosecution Witness Edwin Cortes, he personally knew the latter who had been his neighbor in thepoblacion of Baleno, Masbate from 1978 to 1986. Besides, his wife was the cousin of Edwin. 22

Accused Reynaldo Cortes corroborated the alibi of Teodulo, Jr., stating that he slept in the latter's house on the night of June 20, 1988 at Lagta, Baleno, Masbate. The latter had left early morning of that day and came back only the following day. He denied having known the other accused previous to the filing of the case except for Romarico Manlapaz who was a neighbor of Teodulo, Jr. He claimed to be a cousin of the victim's father but knew no enmity or ill feeling between them. He likewise claimed to have been physically maltreated by the police during his investigation. 23

The principal suspect, Noli Salcedo, likewise denied complicity in the murder of Aparejado. He claimed to have been in Manila working as a construction laborer from 1987 until August 1988. When asked the name of his employer and of the firm where he worked, he could not, however, name either. At the latter date, he went back to Bantigue (in Masbate) to attend the fiesta. He was later arrested in his hometown of Kinamaligan. At the time of his arrest, he had tried to escape, as a result of which he was shot by one of the police officers. He denied knowing the Aparejados and his other co-accused. 24

Another accused, Romarico Manlapaz, also claimed that he had been in Manila from May 10, 1988 until February 1989 when he returned to Lagta, Baleno. He admitted knowing, among his co-accused, Teodulo Esquilona, Jr. and Reynaldo Cortes who were his neighbors in Lagta. As to the rest, he only met them in jail. He also denied knowing the victim or his widow. 25

Juanito Sual, Jr. stated that he was in his house in Gabi, Baleno, Masbate during the night of the incident. He admitted affixing his signature to the statement marked Exhibit "F" for the prosecution, but only because he could no longer bear the maltreatment of Policeman Wencell Esquilona. He confirmed that he had not been assisted by counsel during his investigation, and denied that he had been informed of his rights to remain silent and to be assisted by counsel of his own choice. He also claimed that at the time he was apprehended, there was no warrant for his arrest. He denied having been in the company of Noli Salcedo, whom he allegedly met in jail only in the evening of June 20, 1988. He said that, among the other accused, he knew only Edison Banculo, Danilo Laurio and Reynaldo Cortes prior to this case. 26

Danilo Laurio stated that he was sleeping at the house of his adoptive parents in Balite, Aroroy, Masbate, on the night that Honorio Aparejado was killed. At that time, his co-accused Edison Banculo was in the same house. He controverted the statement of Prosecution Witness Edwin Cortes that he was one of those who had killed Aparejado. He further denied having known the victim or the latter's wife prior to his murder. He also stated that at the time of his arrest, the arresting officer was not armed with a warrant. Although he admitted having signed his alleged sworn statement presented by the prosecution, he claimed that he was forced to do so after having been physically abused by Policeman Wencell Esquilona. 27


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The adoptive mother of Accused Banculo and Laurio, Celia Laydo Entines, testified that she and the two went gold-panning in her land at Baliti (or Balite), Aroroy, Masbate on June 20, 1988 at daytime. About 7:00 o'clock in the evening, they all went to sleep and woke up about 5:00 o'clock the following morning. To her knowledge, her two adopted sons did not leave the house that night. 28

Two other witnesses were presented, corroborating the alibi of Cortes and Esquilona, Jr., and also attesting to their good character.

Ruling of the Trial Court

In discrediting Accused-appellant Noli Salcedo's sole defense of alibi, the court a quo reasonable thus:

Accused Noli Salcedo has been clearly and positively identified by lone witness Edwin Cortes. His alibi therefore, that he was in Manila at the time the heinous crime was perpetrated, cannot be sustained. Moreover, after examining the evidence in support of his defense, the Court finds that his alibi has the aspect of fabrication.

xxx xxx xxx

When asked by the prosecution the firm or the name of his employer where he was working in Manila, he could not remember the construction firm neither the name of his employer. This is highly impossible, considering the fact that he reports to work daily. While he may in the remote probability forget one, he could not forget both. 29

With respect to the other accused, the trial court explained their complicity this wise:

It is to be remembered that Edwin Cortes, witness for the prosecution knew only Noli Salcedo and Bolodoy Calderon of the eight (8) who came to his house. . . .

The other accused were merely referred to by the witness as companions of Noli Salcedo and Bolodoy Calderon. That he was able to pinpoint the other accused in Court is understandable considering that when the above-named accused were under custodial interrogation, he was present. Under such circumstances, he could well remember the faces of the six (6) accused for purposes of implicating them.

Their participation in the criminal act appears to be limited to being present in the premises where the acts of co-defendants who, other than being present, giving moral support to the principal accused, cannot be said to constitute direct participation in the acts of execution and their presence and company were not necessary and essential to the perpetration of the murder in question. Such co-defendants may only be considered guilty as accomplices. . . . 30

However, the trial court noted that the inclusion of Accused Romarico (Paco) Manlapaz, Reynaldo Cortes and Teodulo Esquilona, Jr. in the charge was based solely on the extrajudicial confessions of Edison Banculo, Juan Sual, Jr. and Danilo Laurio which, absent independent proof of conspiracy, were not admissible evidence against alleged co-conspirators 31 under Section 27, Rule 130 of the Rules of Court. Thus, a judgment of acquittal was rendered in favor of Manlapaz, Cortes and Esquilona, Jr.


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The full dispositive portion of the questioned Decision reads as follows:

WHEREFORE, the Court finds accused NOLI SALCEDO GUILTY beyond reasonable doubt of the crime of Murder and is sentenced to suffer the penalty of RECLUSION PERPETUA and to pay the heirs of the victim in the amount of FIFTY THOUSAND (P50,000.00) PESOS.

Accused Edison Banculo, Juan Sual Jr. and Danilo Laurio as Accomplice (sic) in the crime of Murder, they are hereby sentenced to suffer Indeterminate Penalty of EIGHT (8) YEARS and ONE (1) DAY ofPrision Mayor, as minimum, to FOURTEEN (14) YEARS and EIGHT (8) MONTHS of Reclusion Temporal, as maximum, in the absence of any mitigating circumstance.

All instruments seized from the accused are hereby confiscated in favor of the government, to wit:

Exh. "I" — lantaka (homemade gun) long barrel;

Exh. "L" — armalite revolver, Smith and Wesson, US made;

Exh. "L-1, L-2, L-3, L-4" — live ammos; and

Exh. "L-5 and L-6" — empty shells.

In the service of their sentence, accused Edison Banculo, Juan Sual Jr. and Danilo Laurio shall be given the full credit of their detention.

Accused Teodulo Esquilona, Jr., Reynaldo Cortes and Paco Manlapaz are hereby ACQUITTED.

Let an alias warrant of arrest be issued for the apprehension of the other accused who remain at large up to the present, namely: Gemo Ibañez, Bolodoy Calderon, Gil Rapsing, Jose Fernandez, Noe Albao, Ely Rapsing and Norie Huelva. 32

Issues

In their appeal before us, accused-appellants aver that the trial court erred in not acquitting them on the ground of reasonable doubt and in not giving due credit to their defense of denial and alibi. 33 They claim that the prosecution failed to present clear and conclusive proof of conspiracy and of the presence of all elements of the crime (without, however, specifying which elements was not proved). Thus, although alibi is an inherently weak defense, faced with the "improbabilities and uncertainties of the prosecution's evidence, it suffices to raise reasonable doubt as to the accused's responsibility."

The Solicitor General views Appellant Salcedo's alibi as futile because he failed to prove that it was physically impossible for him to have been at the scene of the crime at the time of its commission. Further, the prosecution eyewitness' positive identification of him as one of the culprits pulverizes his already weak defense. The state counsel recommends, however, the acquittal of Appellants Banculo,


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Sual, Jr. and Laurio on the ground that their extrajudicial confessions were executed without the assistance of counsel and are, hence, inadmissible in evidence. He further states that since the only evidence implicating them in the crime are these uncounselled confessions, the constitutional presumption of innocence must be resolved in their favor. 34

The Court's Ruling

After a careful scrutiny of the records, we find the recommendation of the Solicitor General justified. Thus, we partially grant this appeal insofar as the conviction of Appellants Juanito Sual, Jr., Edison Banculo and Danilo Laurio is concerned. However, with regard to Appellant Noli Salcedo, in the face of the clear and categorical testimony of Prosecution Witness Edwin Cortes who related in minutiae the extent of Salcedo's participation in the vicious slaughtering of the hapless victim, his conviction must stand.

First Issue: Sufficiency of Prosecution Evidence

Against Appellant Banculo, Sual, Jr. and Laurio

Appellants Banculo, Sual, Jr. and Laurio deny complicity in the murder of Aparejado and refute the voluntariness of the execution of their purported confessions. The three claim to have been physically maltreated by the apprehending officer and forced to sign the statements prepared by the police investigator. The trial judge, however, gave no credit to their allegations of maltreatment, and further ruled against the objections of the defense counsel to the admissibility of appellants' statements on the ground that they had been taken without the assistance of counsel.

Significantly, the absence of counsel at the time of the investigation of the three above-named appellants was confirmed by the police investigator himself, thus:

Q (When) Danilo Laurio signed the waiver, was he assisted by counsel?

A No, sir.

Q How about Juanito Sual, when he signed Exhibit F, his waiver, when he signed the waiver on Exhibit F, was he assisted by his counsel?

A No, sir.

Q When he signed the entire body of your investigation was he also assisted by counsel?

A No, sir.

Q How about Edison Banculo when he signed the waiver, was he assisted by counsel?

A He was not assisted.


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Q When he signed the entire investigation that you made?

A Yes, sir. 35

Under these circumstances, this Court is left with no choice but to exclude the sworn statements of Laurio, Sual, Jr., and Banculo from the evidence against them. We recently had occasion to discourse on the inviolability of the constitutional rights of a person under custodial investigation and we find our pronouncement in People vs. Parelonce more worth repeating:

Under Sec. 12 par. 1, Art. III, of the 1987 Constitution, any person under custodial investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. The right to be informed carries with it the correlative obligation on the part of the investigator to explain, and contemplates effective communication which results in the subject understanding what is being conveyed. Since what is sought to be attained is comprehension, the degree of explanation required will vary and depend on education, intelligence and other relevant personal circumstances of the person being investigated. In further ensuring the right to counsel of the person being investigated, it is not enough that the subject be informed of the right; he should also be asked whether he wants to avail himself of the same and should be told that he can hire a counsel of his own choice if he so desires or that one will be provided him at his request. If he decides not to retrain a counsel of his choice or avail himself of one to be provided him and, therefore, chooses to waive his right to counsel, such waiver, to be valid and effective, must be made with the assistance of counsel. That counsel must be a lawyer.

Even assuming that in the instant case the extrajudicial confession made by appellant spoke the truth and was not extracted through violence or intimidation, still the failure of the police investigators to inform appellant of his right to remain silent, coupled with the denial of his right to a competent and independent counsel or the absence of effective legal assistance when he waived his constitutional rights, rendered the confession inadmissible under Sec. 12, par. 3, Art. III, of the 1987 Constitution.36 (Emphasis supplied.)

In People vs. Januario, 37 we reemphasized our unwavering commitment to safeguard our people's rights, particularly the right to counsel of persons under custodial investigation, as follows:

The 1987 Constitution was crafted and ordained at a historic time when our nation was reeling from ghastly memories of atrocities, excesses and outright violations of our people's rights to life, liberty and property. Hence, our bill of rights was worded to emphasize the sanctity of human liberty and specifically to protect persons undergoing custodial investigations from ignorant, overzealous and/or incompetent peace officers. The Constitution so dearly values freedom and voluntariness that, inter alia, it unequivocally guarantees a person undergoing investigation for the commission of an offense not only the services of counsel, but a lawyer who is not merely (a) "competent" but also (b) "independent" and (c) "preferably of his own choice" as well.


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xxx xxx xxx

The Court understands the difficulties faced by law enforcement agencies in apprehending violators of the law . . . . It sympathizes with the public clamor for the bringing of criminals before the altar of justice. However, quick solution of crimes and the consequent apprehension of malefactors are not the end-all and be-all of law enforcement. Enforcers of the law must follow the procedure mandated by the Constitution and the law. Otherwise, their efforts would be meaningless. And their expenses in trying to solve crimes would constitute needless expenditures of taxpayers' money.

This 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 government.

The constitutionally infirm confessions of appellants, therefore, cannot be given any iota of consideration. And without such statements, the remaining prosecution evidence is sorely inadequate to prove the participation of Banculo, Sual, Jr. and Laurio in the crime. The lone prosecution eyewitness, Edwin Cortes, tried to implicate all the accused by describing the kind of weapon each had been armed with during the night of the incident. 38 His statements relative thereto are, however, suspect. In the rest of his testimony, he referred to the accused, other than Salcedo, merely as Salcedo's "companions." On a specific question proffered by the public prosecutor, Cortes admitted not knowing the identities of the other accused, thus:

Q Do you want to impress to this Honorable Court that you do not know the rest of the accused at the time when this victim was killed?

A Yes, sir. 39

Even during his earlier investigation by the police, he had already claimed not to have recognized the other assailants. The relevant part of his sworn statement is as follows:

Q How many persons all in all did you see?

A Eight.

Q Of these eight persons were you able to recognize any one of them?

A Yes, sir.

Q Who are they?

A Noli Salcedo and Bolodoy Calderon.

Q How about the six, do you know them?

A I do not know them. 40


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Without knowing the other accused at the time of the incident, it is quite unbelievable that the witness could recall exactly what kind of weapon each carried that night. No sufficient and credible evidence is in the records to overturn another constitutional right of the accused: the right to be presumed innocent of any offense until the contrary is proved beyond reasonable doubt. Every circumstance favoring their innocence must be taken into account and proof against them must survive the test of reason. 41 Under the above circumstances, the prosecution failed to adduce that quantum of evidence required to warrant a conviction. Hence, the three appellants deserve an acquittal.42

Against Appellant Salcedo

We cannot hold the same for Appellant Salcedo. He was positively and consistently identified by Witness Edwin Cortes as the principal culprit. Upon the group's arrival at the witness' house, it was Salcedo who shouted for Cortes and Aparejado to get down from the house. He was the one who gave orders for them to lie down on the ground, to be hogtied and to proceed to the other side of the creek. 43 The witness was categorical in declaring that it was Salcedo who shot Aparejado twice and hacked him after that. He testified:

Q When you were already lying flat on the ground near that creek what happened?

A Noli Salcedo shot Honorio Aparejado.

Q Was Honorio Aparejado hit?

A Yes, sir.

Q How far were you when you saw Honorio Aparejado . . . Noli Salcedo when he shot Honorio Aparejado?

A Just near, about two meters.

Q How were you able to see that it was Noli Salcedo who shot Honorio Aparejado when it was nighttime?

A I could recognize his voice and his physical built.

Q Was there a light at that time?

A Yes, sir.

xxx xxx xxx

Q How many times did Noli Salcedo shoot Honorio Aparejado?

A Two times.

Q Then after shooting Honorio Aparejado, what else transpired?


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A He was hacked.

Q Do you want to tell us that Honorio Aparejado was again hacked?

A Yes, sir.

Q By whom?

A The companions of Noli Salcedo.

Q How about Noli Salcedo, did he hack Honorio Aparejado?

A Yes, sir.

Q How many times?

A Only once. 44

His testimony essentially affirmed his statements during the police investigation, thus:

QUESTION Last June 20, 1988 at about 8:00 o'clock in the evening where were you?

ANSWER I was in my house at Gabi, Baleno, Masbate.

xxx xxx xxx

Q While you were in your house on that date and time, do you remember of (sic) any unusual incident that happened?

A Yes sir.

Q Tell us what happened.

A During that date and time several persons arrived and told us to go down.

Q How many persons all in all did you see?

A Eight.

Q Of these eight persons were you able to recognize any one of them?

A Yes sir.

Q Who are they?


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A Noli Salcedo and Bolodoy Calderon.

xxx xxx xxx

Q What happened after you were told to lay flat faced down?

A While we were lying down, Noli Salcedo shot Norie Aparejado.

Q Was Norie Aparejado hit?

A Yes, sir. 45

Appellant Salcedo, instead of introducing evidence to show that the witness had evil motive in imputing the crime to him, even admitted that he knew of no reason why Edwin Cortes would testify falsely against him. 46Consequently, Cortes' positive and clear identification of Salcedo is sufficient to convict him. It has been repeatedly held that the testimony of a single witness, if credible and positive and satisfies the court as to the guilt of the accused beyond reasonable doubt, is sufficient to convict. 47

Second Issue: Alibi

In the light of the prior discussion exculpating Appellants Banculo, Sual, Jr. and Laurio from the murder of Aparejado, we shall no longer discuss the sufficiency and worthiness of their alibi.

With respect to Appellant Salcedo, his defense of alibi, juxtaposed with the positive identification made by Witness Cortes, pales in probative value and is totally inadequate to justify an exoneration. Salcedo tried to establish that it was physically impossible for him to have been at the scene of the crime since he was supposedly working in Manila at that time. But when asked by the public prosecutor the name of his employer in Manila, he simply replied that he could not remember anymore. 48 As aptly observed by the trial court, it is highly impossible for one not to remember either the name of his employer or the firm where he had worked. 49 Salcedo did not even attempt to try to recall either name. This lends grave doubt as to the truthfulness of his defense. The inherent weakness of alibi as a defense was not overcome. Indubitably, it cannot prevail over the positive identification made by the prosecution witness. 50

Treachery

Although the trial court stated that the killing was qualified by treachery, it did not explain what circumstances of treachery were present. Nonetheless, the facts established during trial unmistakably point to the presence of means, method or form employed by the accused which tended directly and specially to ensure the execution of the offense without risk to himself arising from the defense that the offended party might make. The Court is satisfied that these essential requirements of treachery were proven by clear and convincing evidence as conclusively as the killing itself. 51

In the case before us, there were eight assailants, at least one of whom was armed with a gun and a bolo. It was sufficiently established by the prosecution that the victim had first been hogtied and then made to lie down facing the ground. And it was in such position that Salcedo fatally shot and hacked him. Obviously, the killing was attended by alevosia. Aparejado


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was rendered defenseless and absolutely with no means to repel or evade the attack. 52 This qualifies the killing to murder.

Damages

This Court observes that the trial court did not rule on the damages sought to be recovered by the widow of the victim. Lydia Aparejado testified that she incurred expenses for the embalmment, the coffin and funeral lot in the estimated amount of P5,000.00. Of such expenses, the Court can only give credence to those supported by receipts and which appear to have been genuinely incurred in connection with the death, wake and burial of the victim. 53 We scoured the records for any receipt in support of her claim but found none. Actual damages cannot, therefore, be granted to the victim's heirs. However, we affirm the civil indemnity in the amount of P50,000.00 given by the trial court. This is automatically awarded without need of further evidence other than the fact of the victims's death.

Anent moral damages, the victim's widow did state that she suffered headaches due to the death of her husband; with him gone, she worried about how to support her children. Moral damages, which include physical suffering and mental anguish, may be recovered in criminal offenses resulting in physical injuries 54 or the victim's death, as in this case. The amount of moral damages is left to the discretion of the court. Since the court a quo did not exercise such discretion, this Court may do so because an appeal in a criminal case opens the whole case for review. This Court now deems justified the award of moral damages in the amount of P50,000.00 to Lydia, the wife of Honorio Aparejado.

WHEREFORE, premises considered, the appeal is partially GRANTED. Appellants Edison Banculo, Juanito Sual, Jr. and Danilo Laurio are hereby ACQUITTED on reasonable doubt and are ordered RELEASED immediately unless they are being detained for some other legal cause. The assailed Decision finding Noli Salcedo GUILTY beyond reasonable doubt of murder and imposing on him the penalty of reclusion perpetua as well as the payment of the sum of P50,000.00 as indemnity to the heirs of the victim, Honorio Aparejado y Fideles, is AFFIRMED. Furthermore, accused-appellant is also ordered to pay moral damages in the amount of P50,000.00 to the victim's wife, Lydia Aparejado. The other parts of the said Decision, insofar as they are not inconsistent with the foregoing, are hereby also AFFIRMED.

SO ORDERED.

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Crimpro - Warrantless Arrest