Valid Waiver

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    Republic of the PhilippinesSUPREME COURT

    Manila

    THIRD DIVISION

    G.R. No. 120915 April 3, 1998

    THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.ROSA ARUTA y MENGUIN, accused-appellant.

    ROMERO, J .:

    With the pervasive proliferation of illegal drugs and its pernicious effects on our society, our lawenforcers tend at times to overreach themselves in apprehending drug offenders to the extent offailing to observe well-entrenched constitutional guarantees against illegal searches and arrests.Consequently, drug offenders manage to evade the clutches of the law on mere technicalities.

    Accused-appellant Rosa Aruta y Menguin was arrested and charged with violating Section 4, ArticleII of Republic Act No. 6425 or the Dangerous Drugs Act. The information reads:

    That on or about the fourteenth (14th) day of December, 1988, in the City of Olongapo,Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,without being lawfully authorized, did then and there willfully, unlawfully and knowinglyengage in transporting approximately eight (8) kilos and five hundred (500) grams of dried

    marijuana packed in plastic bag marked "Cash Katutak" placed in a traveling bag, which areprohibited drugs.

    Upon arraignment, she pleaded "not guilty." After trial on the merits, the Regional Trial Court of OlongapoCity convicted and sentenced her to suffer the penalty of life imprisonment and to pay a fine of twentythousand (P20,000.00) pesos.1

    The prosecution substantially relied on the testimonies of P/Lt. Ernesto Abello, Officer-in-Charge ofthe Narcotics Command (NARCOM) of Olongapo City and P/Lt. Jose Domingo. Based on theirtestimonies, the court a quofound the following:

    On December 13, 1988, P/Lt. Abello was tipped off by his informant, known only as Benjie, that a

    certain "Aling Rosa" would be arriving from Baguio City the following day, December 14, 1988, with alarge volume of marijuana. Acting on said tip, P/Lt. Abello assembled a team composed of P/Lt. JoseDomingo, Sgt. Angel Sudiacal, Sgt. Oscar Imperial, Sgt. Danilo Santiago and Sgt. Efren Quirubin.

    Said team proceeded to West Bajac-Bajac, Olongapo City at around 4:00 in the afternoon ofDecember 14, 1988 and deployed themselves near the Philippine National Bank (PNB) buildingalong Rizal Avenue and the Caltex gasoline station. Dividing themselves into two groups, one group,made up of P/Lt. Abello, P/Lt. Domingo and the informant posted themselves near the PNB buildingwhile the other group waited near the Caltex gasoline station.

    While thus positioned, a Victory Liner Bus with body number 474 and the letters BGO printed on itsfront and back bumpers stopped in front of the PNB building at around 6:30 in the evening of thesame day from where two females and a male got off. It was at this stage that the informant pointed

    out to the team "Aling Rosa" who was then carrying a traveling bag.

    Having ascertained that accused-appellant was "Aling Rosa," the team approached her andintroduced themselves as NARCOM agents. When P/Lt. Abello asked "Aling Rosa" about thecontents of her bag, the latter handed it to the former.

    Upon inspection, the bag was found to contain dried marijuana leaves packed in a plastic bagmarked "Cash Katutak." The team confiscated the bag together with the Victory Liner bus ticket to

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    which Lt. Domingo affixed his signature. Accused-appellant was then brought to the NARCOM officefor investigation where a Receipt of Property Seized was prepared for the confiscated marijuanaleaves.

    Upon examination of the seized marijuana specimen at the PC/INP Crime Laboratory, Camp Olivas,Pampanga, P/Maj. Marlene Salangad, a Forensic Chemist, prepared a Technical Report stating that

    said specimen yielded positive results for marijuana, a prohibited drug.

    After the presentation of the testimonies of the arresting officers and of the above technical report,the prosecution rested its case.

    Instead of presenting its evidence, the defense filed a "Demurrer to Evidence" alleging the illegalityof the search and seizure of the items thereby violating accused-appellant's constitutional rightagainst unreasonable search and seizure as well as their inadmissibility in evidence.

    The said "Demurrer to Evidence" was, however, denied without the trial court ruling on the allegedillegality of the search and seizure and the inadmissibility in evidence of the items seized to avoidpre-judgment. Instead, the trial court continued to hear the case.

    In view of said denial, accused-appellant testified on her behalf. As expected, her version of theincident differed from that of the prosecution. She claimed that immediately prior to her arrest, shehad just come from Choice Theater where she watched the movie "Balweg." While about to crossthe road, an old woman asked her help in carrying a shoulder bag. In the middle of the road, Lt.

    Abello and Lt. Domingo arrested her and asked her to go with them to the NARCOM Office.

    During investigation at said office, she disclaimed any knowledge as to the identity of the womanand averred that the old woman was nowhere to be found after she was arrested. Moreover, sheadded that no search warrant was shown to her by the arresting officers.

    After the prosecution made a formal offer of evidence, the defense filed a "Comment and/or

    Objection to Prosecution's Formal Offer of Evidence" contesting the admissibility of the items seizedas they were allegedly a product of an unreasonable search and seizure.

    Not convinced with her version of the incident, the Regional Trial Court of Olongapo City convictedaccused-appellant of transporting eight (8) kilos and five hundred (500) grams of marijuana from BaguioCity to Olongapo City in violation of Section 4, Article 11 of R.A. No. 6425, as amended, otherwise knownas the Dangerous Drugs Act of 1972 and sentenced her to life imprisonment and to pay a fine of twentythousand (P20,000.00) pesos without subsidiary imprisonment in case of insolvency. 2

    In this appeal, accused-appellant submits the following:

    1. The trial court erred in holding that the NARCOM agents could not apply for a warrant forthe search of a bus or a passenger who boarded a bus because one of the requirements for

    applying a search warrant is that the place to be searched must be specifically designatedand described.

    2. The trial court erred in holding or assuming that if a search warrant was applied for by theNARCOM agents, still no court would issue a search warrant for the reason that the samewould be considered a general search warrant which may be quashed.

    3. The trial court erred in not finding that the warrantless search resulting to the arrest ofaccused-appellant violated the latter's constitutional rights.

    4. The trial court erred in not holding that although the defense of denial is weak yet theevidence of the prosecution is even weaker.

    These submissions are impressed with merit.

    In People v.Ramos,3this Court held that a search may be conducted by law enforcers only on thestrength of a search warrant validly issued by a judge as provided in Article III, Section 2 of theConstitution which provides:

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

    This constitutional guarantee is not a blanket prohibition against all searches and seizures as it operatesonly against "unreasonable" searches and seizures. The plain import of the language of the Constitution,which in one sentence prohibits unreasonable searches and seizures and at the same time prescribes therequisites for a valid warrant, is that searches and seizures are normally unreasonable unless authorizedby a validly issued search warrant or warrant of arrest. Thus, the fundamental protection accorded by thesearch and seizure clause is that between person and police must stand the protective authority of amagistrate clothed with power to issue or refuse to issue search warrants or warrants of arrest. 4

    Further, articles which are the product of unreasonable searches and seizures are inadmissible asevidence pursuant to the doctrine pronounced in Stonehill v. Diokno.5This exclusionary rule was laterenshrined in Article III, Section 3(2) of the Constitution, thus:

    Sec. 3(2). Any evidence obtained in violation of this or the preceding section shall beinadmissible in evidence for any purpose in any proceeding.

    From the foregoing, it can be said that the State cannot simply intrude indiscriminately into the houses,papers, effects, and most importantly, on the person of an individual. The constitutional provisionguaranteed an impenetrable shield against unreasonable searches and seizures. As such, it protects theprivacy and sanctity of the person himself against unlawful arrests and other forms of restraint. 6

    Therewithal, the right of a person to be secured against any unreasonable seizure of his body and anydeprivation of his liberty is a most basic and fundamental one. A statute, rule or situation which allowsexceptions to the requirement of a warrant of arrest or search warrant must perforce be strictly construedand their application limited only to cases specifically provided or allowed by law. To do otherwise is aninfringement upon personal liberty and would set back a right so basic and deserving of full protection andvindication yet often violated.7

    The following cases are specifically provided or allowed by law:

    1. Warrantless search incidental to a lawful arrestrecognized under Section 12, Rule 126 of the Rules of Court8

    and by prevailingjurisprudence;

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

    (a) a prior valid intrusion based on the valid warrantless arrest in which thepolice are legally present in the pursuit of their official duties;

    (b) the evidence was inadvertently discovered by the police who had the rightto be where they are;

    (c) the evidence must be immediately apparent, and

    (d) "plain view" justified mere seizure of evidence without further search;

    3. Search of a moving vehicle. Highly regulated by the government, the vehicle's inherentmobility reduces expectation of privacy especially when its transit in public thoroughfaresfurnishes a highly reasonable suspicion amounting to probable cause that the occupantcommitted a criminal activity;

    4. Consented warrantless search;

    5. Customs search;9

    6. Stop and Frisk;10and

    7. Exigent and Emergency Circumstances.11

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    The above exceptions, however, should not become unbridled licenses for law enforcement officersto trample upon the constitutionally guaranteed and more fundamental right of persons againstunreasonable search and seizures. The essential requisite of probable cause must still be satisfiedbefore a warrantless search and seizure can be lawfully conducted.

    Although probable cause eludes exact and concrete definition, it generally signifies a reasonable ground

    of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man tobelieve that the person accused is guilty of the offense with which he is charged. It likewise refers to theexistence of such facts and circumstances which could lead a reasonably discreet and prudent man tobelieve that an offense has been committed and that the item(s), article(s) or object(s) sought inconnection with said offense or subject to seizure and destruction by law is in the place to be searched. 12

    It ought to be emphasized that in determining probable cause, the average man weighs facts andcircumstances without resorting to the calibrations of our rules of evidence of which his knowledge istechnically nil. Rather, he relies on the calculus of common sense which all reasonable men have inabundance. The same quantum of evidence is required in determining probable cause relative to search.Before a search warrant can be issued, it must be shown by substantial evidence that the items soughtare in fact seizable by virtue of being connected with criminal activity, and that the items will be found inthe place to be searched.13

    In searches and seizures effected without a warrant, it is necessary for probable cause to bepresent. Absent any probable cause, the article(s) seized could not be admitted and used asevidence against the person arrested. Probable cause, in these cases, must only be based onreasonable ground of suspicion or belief that a crime has been committed or is about to becommitted.

    In our jurisprudence, there are instances where information has become a sufficient probable causeto effect a warrantless search and seizure.

    In People v.Tangliben,14acting on information supplied by informers, police officers conducted asurveillanceat the Victory Liner Terminal compound in San Fernando, Pampanga against persons who

    may commit misdemeanors and also on those who may be engaging in the traffic of dangerous drugs. At9:30 in the evening, the policemen noticed a person carrying a red traveling bag who was actingsuspiciously. They confronted him and requested him to open his bag but he refused. He acceded lateron when the policemen identified themselves. Inside the bag were marijuana leaves wrapped in a plasticwrapper. The police officers only knew of the activities of Tangliben on the night of his arrest.

    In instant case, the apprehending officers already had prior knowledge from their informantregarding Aruta's alleged activities. In Tanglibenpolicemen were confronted with an on-the-spot tip.Moreover, the policemen knew that the Victory Liner compound is being used by drug traffickers astheir "business address". More significantly, Tangliben was acting suspiciously. His actuations andsurrounding circumstances led the policemen to reasonably suspect that Tangliben is committing acrime. In instant case, there is no single indication that Aruta was acting suspiciously.

    In People v. Malmstedt,15

    the Narcom agents received reports that vehicles coming from Sagada weretransporting marijuana. They likewise received information that a Caucasian coming from Sagada hadprohibited drugs on his person. There was no reasonable time to obtain a search warrant, especiallysince the identity of the suspect could not be readily ascertained. His actuations also aroused thesuspicionof the officers conducting the operation. The Court held that in light of such circumstances, todeprive the agents of the ability and facility to act promptly, including a search without a warrant, would beto sanction impotence and ineffectiveness in law enforcement, to the detriment of society.

    Note, however, the glaring differences of Malmstedt to the instant case. In present case, the policeofficers had reasonable time within which to secure a search warrant. Second, Aruta's identity waspriorly ascertained. Third, Aruta was not acting suspiciously. Fourth, Malmstedt was searchedaboard a moving vehicle, a legally accepted exception to the warrant requirement. Aruta, on theother hand, was searched while about to cross a street.

    In People v.Bagista,16the NARCOM officers had probable cause to stop and search all vehicles comingfrom the north to Acop, Tublay, Benguet in view of the confidential information they received from theirregular informant that a woman having the same appearance as that of accused-appellant would bebringing marijuana from up north. They likewise had probable cause to search accused-appellant'sbelongings since she fitted the description given by the NARCOM informant. Since there was a validwarrantless search by the NARCOM agents, any evidence obtained in the course of said search isadmissible against accused-appellant. Again, this case differs from Aruta as this involves a search of a

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    moving vehicle plus the fact that the police officers erected a checkpoint. Both are exceptions to therequirements of a search warrant.

    In Manalili v.Court of Appeals and People ,17the policemen conducted a surveillancein an area of theKalookan Cemetery based on information that drug addicts were roaming therein. Upon reaching theplace, they chancedupon a man in front of the cemetery who appeared to be "high" on drugs. He was

    observed to have reddish eyes and to be walking in a swaying manner. Moreover, he appeared to betrying to avoid the policemen. When approached and asked what he was holding in his hands, he tried toresist. When he showed his wallet, it contained marijuana. The Court held that the policemen hadsufficient reason to accost accused-appellant to determine if he was actually "high" on drugs due to hissuspicious actuations, coupled with the fact that based on information, this area was a haven for drugaddicts.

    In all the abovecited cases, there was information received which became the bases for conductingthe warrantless search. Furthermore, additional factors and circumstances were present which,when taken together with the information, constituted probable causes which justified the warrantlesssearches and seizures in each of the cases.

    In the instant case, the determination of the absence or existence of probable cause necessitates a

    reexamination of the facts. The following have been established: (1) In the morning of December 13,1988, the law enforcement officers received information from an informant named "Benjie" that acertain "Aling Rosa" would be leaving for Baguio City on December 14, 1988 and would be back inthe afternoon of the same day carrying with her a large volume of marijuana; (2) At 6:30 in theevening of December 14, 1988, accused-appellant alighted from a Victory Liner Bus carrying atraveling bag even as the informant pointed her out to the law enforcement officers; (3) The lawenforcement officers approached her and introduced themselves as NARCOM agents; (4) Whenasked by Lt. Abello about the contents of her traveling bag, she gave the same to him; (5) Whenthey opened the same, they found dried marijuana leaves; (6) Accused-appellant was then broughtto the NARCOM office for investigation.

    This case is similar to People v.Aminnudinwhere the police received information two days before

    the arrival of Aminnudin that the latter would be arriving from Iloilo on board the M/V Wilcon 9. Hisname was known, the vehicle was identified and the date of arrival was certain. From the informationthey had received, the police could have persuaded a judge that there was probable cause, indeed,to justify the issuance of a warrant. Instead of securing a warrant first, they proceeded to apprehend

    Aminnudin. When the case was brought before this Court, the arrest was held to be illegal; henceany item seized from Aminnudin could not be used against him.

    Another recent case is People v. Encinadawhere the police likewise received confidentialinformation the day before at 4:00 in the afternoon from their informant that Encinada would bebringing in marijuana from Cebu City on board M/V Sweet Pearl at 7:00 in the morning of thefollowing day. This intelligence information regarding the culprit's identity, the particular crime heallegedly committed and his exact whereabouts could have been a basis of probable cause for thelawmen to secure a warrant. This Court held that in accordance with Administrative Circular No. 13

    and Circular No. 19, series of 1987, the lawmen could have applied for a warrant even after courthours. The failure or neglect to secure one cannot serve as an excuse for violating Encinada'sconstitutional right.

    In the instant case, the NARCOM agents were admittedly not armed with a warrant of arrest. Tolegitimize the warrantless search and seizure of accused-appellant's bag, accused-appellant musthave been validly arrested under Section 5 of Rule 113 which provides inter alia:

    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;

    xxx xxx xxx

    Accused-appellant Aruta cannot be said to be committing a crime. Neither was she about to commitone nor had she just committed a crime. Accused-appellant was merely crossing the street and wasnot acting in any manner that would engender a reasonable ground for the NARCOM agents tosuspect and conclude that she was committing a crime. It was only when the informant pointed to

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    accused-appellant and identified her to the agents as the carrier of the marijuana that she wassingled out as the suspect. The NARCOM agents would not have apprehended accused-appellantwere it not for the furtive finger of the informant because, as clearly illustrated by the evidence onrecord, there was no reason whatsoever for them to suspect that accused-appellant was committinga crime, except for the pointing finger of the informant. This the Court could neither sanction nortolerate as it is a clear violation of the constitutional guarantee against unreasonable search and

    seizure. Neither was there any semblance of any compliance with the rigid requirements of probablecause and warrantless arrests.

    Consequently, there was no legal basis for the NARCOM agents to effect a warrantless search ofaccused-appellant's bag, there being no probable cause and the accused-appellant not having beenlawfully arrested. Stated otherwise, the arrest being incipiently illegal, it logically follows that thesubsequent search was similarly illegal, it being not incidental to a lawful arrest. The constitutionalguarantee against unreasonable search and seizure must perforce operate in favor of accused-appellant. As such, the articles seized could not be used as evidence against accused-appellant forthese are "fruits of a poisoned tree" and, therefore, must be rejected, pursuant to Article III, Sec. 3(2)of the Constitution.

    Emphasis is to be laid on the fact that the law requires that the search be incidental to a lawful arrest, inorder that the search itself may likewise be considered legal. Therefore, it is beyond cavil that a lawfularrest must precede the search of a person and his belongings. Where a search is first undertaken, andan arrest effected based on evidence produced by the search, both such search and arrest would beunlawful, for being contrary to law. 18

    As previously discussed, the case in point is People v.Aminnudin19where, this Court observed that:

    . . . accused-appellant was not, at the moment of his arrest, committing a crime nor was itshown that he was about to do so or that he had just done so. What he was doing wasdescending the gangplank of the M/V Wilcon 9 and there was no outward indication thatcalled for his arrest. To all appearances, he was like any of the other passengers innocentlydisembarking from the vessel. It was only when the informer pointed to him as the carrier of

    the marijuana that he suddenly became suspect and so subject to apprehension. It was thefurtive finger that triggered his arrest. The identification by the informer was the probablecause as determined by the officers (and not a judge) that authorized them to pounce upon

    Aminnudin and immediately arrest him.

    In the absence of probable cause to effect a valid and legal warrantless arrest, the search andseizure of accused-appellant's bag would also not be justified as seizure of evidence in "plain view"under the second exception. The marijuana was obviously not immediately apparent as shown bythe fact that the NARCOM agents still had to request accused-appellant to open the bag to ascertainits contents.

    Neither would the search and seizure of accused-appellant's bag be justified as a search of amoving vehicle. There was no moving vehicle to speak of in the instant case as accused-appellantwas apprehended several minutes after alighting from the Victory Liner bus. In fact, she wasaccosted in the middle of the street and not while inside the vehicle.

    People v.Solayao,20applied the stop and frisk principle which has been adopted in Posadas v.Court ofAppeals.21In said case, Solayao attempted to flee when he and his companions were accosted bygovernment agents. In the instant case, there was no observable manifestation that could have arousedthe suspicion of the NARCOM agents as to cause them to "stop and frisk" accused-appellant. Toreiterate, accused-appellant was merely crossing the street when apprehended. Unlike in theabovementioned cases, accused-appellant never attempted to flee from the NARCOM agents when thelatter identified themselves as such. Clearly, this is another indication of the paucity of probable causethat would sufficiently provoke a suspicion that accused-appellant was committing a crime.

    The warrantless search and seizure could not likewise be categorized under exigent and emergencycircumstances, as applied in People v.DeGracia.22In said case, there were intelligence reports that the building was being used as headquartersby the RAM during a coup d' etat. A surveillance team was fired at by a group of armed men coming outof the building and the occupants of said building refused to open the door despite repeated requests.There were large quantities of explosives and ammunitions inside the building. Nearby courts were closedand general chaos and disorder prevailed. The existing circumstances sufficiently showed that a crimewas being committed. In short, there was probable cause to effect a warrantless search of the building.The same could not be said in the instant case.

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    The only other exception that could possibly legitimize the warrantless search and seizure would beconsent given by the accused-appellant to the warrantless search as to amount to a waiver of herconstitutional right. The Solicitor General argues that accused-appellant voluntarily submitted herself tosearch and inspection citing People v.Malasugui23where this Court ruled:

    When one voluntarily submits to a search or consents to have it made on his person or

    premises, he is precluded from complaining later thereof. (Cooley, Constitutional Limitations,8th ed., [V]ol. I, p. 631.) The right to be secure from unreasonable search may, like everyright, be waived and such waiver may be made either expressly or impliedly.

    In support of said argument, the Solicitor General cited the testimony of Lt. Abello, thus:

    Q When this informant by the name of aliasBenjie pointed to Aling Rosa,what happened after that?

    A We followed her and introduced ourselves as NARCOM agents andconfronted her with our informant and asked her what she was carrying and ifwe can see the bag she was carrying.

    Q What was her reaction?

    A She gave her bag to me.

    Q So what happened after she gave the bag to you?

    A I opened it and found out plastic bags of marijuana inside.24

    This Court cannot agree with the Solicitor General's contention for the Malasuguicase is inapplicable tothe instant case. In said case, there was probable cause for the warrantless arrest thereby making thewarrantless search effected immediately thereafter equally lawful. 25On the contrary, the most essentialelement of probable cause, as expounded above in detail, is wanting in the instant case making thewarrantless arrest unjustified and illegal. Accordingly, the search which accompanied the warrantlessarrest was likewise unjustified and illegal. Thus, all the articles seized from the accused-appellant couldnot be used as evidence against her.

    Aside from the inapplicability of the abovecited case, the act of herein accused-appellant in handing overher bag to the NARCOM agents could not be construed as voluntary submission or an impliedacquiescence to the unreasonable search. The instant case is similar to People v. Encinada,26where thisCourt held:

    [T]he Republic's counsel avers that appellant voluntarily handed the chairs containing thepackage of marijuana to the arresting officer and thus effectively waived his right against thewarrantless search. This he gleaned from Bolonia's testimony.

    Q: After Roel Encinada alighted from the motor tricycle, what happenednext?

    A: I requested to him to see his chairs that he carried.

    Q: Are you referring to the two plastic chairs?

    A: Yes, sir.

    Q: By the way, when Roel Encinada agreed to allow you to examine the twochairs that he carried, what did you do next?

    A: I examined the chairs and I noticed that something inside in between thetwo chairs.

    We are not convinced. While in principle we agree that consent will validate an otherwise illegalsearch, we believe that appellantbased on the transcript quoted above did not voluntarilyconsent to Bolonia's search of his belongings.Appellant's silence should not be lightly taken asconsent to such search.The implied acquiescence to the search, if there was any, could not have

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    been more than mere passive conformity given under intimidating or coercive circumstances and isthus considered no consent at all within the purview of the constitutional guarantee . Furthermore,considering that the search was conducted irregularly, i.e., without a warrant, we cannot appreciateconsent based merely on the presumption of regularity of the performance of duty." (Emphasissupplied)

    Thus, accused-appellant's lack of objection to the search is not tantamount to a waiver of herconstitutional rights or a voluntary submission to the warrantless search. As this Court held in Peoplev.Barros:27

    . . . [T]he accused is not to be presumed to have waived the unlawful search conducted onthe occasion of his warrantless arrest "simply because he failed to object"

    . . . To constitute a waiver, it must appear first that the right exists; secondly,that the person involved had knowledge, actual or constructive, of theexistence of such right; and lastly, that said person had an actual intention torelinquish the right (Pasion Vda. de Garcia v. Locsin, 65 Phil. 698). The factthat the accused failed to object to the entry into his house does not amountto a permission to make a search therein (Magoncia v. Palacio, 80 Phil. 770).

    As pointed out by Justice Laurel in the case of Pasion Vda. de Garciav. Locsin(supra):

    xxx xxx xxx

    . . . As the constitutional guaranty is not dependent upon any affirmative actof the citizen, the courts do not place the citizen in the position of eithercontesting an officer's authority by force, or waiving his constitutional rights;but instead they hold that a peaceful submission to a search or seizure is nota consent or an invitation thereto, but is merely a demonstration of regard forthe supremacy of the law. (Citation omitted).

    We apply the rule that: "courts indulge every reasonable presumption against waiver of fundamental constitutional rights andthat we do not presume acquiescence in the loss of fundamental rights."

    28(Emphasis supplied)

    To repeat, to constitute a waiver, there should be an actual intention to relinquish the right. As clearlyillustrated in People v.Omaweng,29where prosecution witness Joseph Layong testified thus:

    PROSECUTOR AYOCHOK:

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

    A When we saw that traveling bag, we asked the driver if we could see thecontents.

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

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

    Q When he said that, what did you do?

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

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

    A He said "you can see it".

    Q And when he said "you can see and open it," what did you do?

    A When I went inside and opened the bag, I saw that it was not clothings(sic) that was contained in the bag.

    Q And when you saw that it was not clothings (sic), what did you do?

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    A When I saw that the contents were not clothes, I took some of thecontents and showed it to my companion Fomocod and when Fomocodsmelled it, he said it was marijuana. (Emphasis supplied)

    In the above-mentioned case, accused was not subjected to any search which may be stigmatizedas a violation of his Constitutional right against unreasonable searches and seizures. If one had

    been made, this Court would be the first to condemn it "as the protection of the citizen and themaintenance of his constitutional rights is one of the highest duties and privileges of the Court." Hewillingly gave prior consent to the search and voluntarily agreed to have it conducted on his vehicleand traveling bag, which is not the case with Aruta.

    In an attempt to further justify the warrantless search, the Solicitor General next argues that thepolice officers would have encountered difficulty in securing a search warrant as it could be securedonly if accused-appellant's name was known, the vehicle identified and the date of its arrival certain,as in theAminnudincase where the arresting officers had forty-eight hours within which to act.

    This argument is untenable.

    Article IV, Section 3 of the Constitution provides:

    . . . [N]o search warrant or warrant of arrest shall issue except upon probable cause to bedetermined by the judge, or such other responsible officer as may be authorized by law, afterexamination 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.(Emphasis supplied)

    Search warrants to be valid must particularly describe the place to be searched and the persons or thingsto be seized. The purpose of this rule is to limit the things to be seized to those and only those,particularly described in the warrant so as to leave the officers of the law with no discretion regardingwhat articles they shall seize to the end that unreasonable searches and seizures may not be made. 30

    Had the NARCOM agents only applied for a search warrant, they could have secured one without toomuch difficulty, contrary to the assertions of the Solicitor General. The person intended to be searchedhas been particularized and the thing to be seized specified. The time was also sufficiently ascertained tobe in the afternoon of December 14, 1988. "Aling Rosa" turned out to be accused-appellant and the thingto be seized was marijuana. The vehicle was identified to be a Victory Liner bus. In fact, the NARCOMagents purposely positioned themselves near the spot where Victory Liner buses normally unload theirpassengers. Assuming that the NARCOM agents failed to particularize the vehicle, this would not in anyway hinder them from securing a search warrant. The above particulars would have already sufficed. Inany case, this Court has held that the police should particularly describe the place to be searched and theperson or things to be seized, wherever and whenever it is feasible.31(Emphasis supplied)

    While it may be argued that by entering a plea during arraignment and by actively participating in thetrial, accused-appellant may be deemed to have waived objections to the illegality of the warrantlesssearch and to the inadmissibility of the evidence obtained thereby, the same may not apply in theinstant case for the following reasons:

    1. The waiver would only apply to objections pertaining to the illegality of the arrest as her plea of "notguilty" and participation in the trial are indications of her voluntary submission to the court'sjurisdiction.32The plea and active participation in the trial would not cure the illegality of the search andtransform the inadmissible evidence into objects of proof. The waiver simply does not extend this far.

    2. Granting that evidence obtained through a warrantless search becomes admissible upon failure toobject thereto during the trial of the case, records show that accused-appellant filed a Demurrer toEvidence and objected and opposed the prosecution's Formal Offer of Evidence.

    It is aproposto quote the case of People v.Barros,33which stated:

    It might be supposed that the non-admissibility of evidence secured through an invalidwarrantless arrest or a warrantless search and seizure may be waived by an accusedperson. The a priori argument is that the invalidity of an unjustified warrantless arrest, or anarrest effected with a defective warrant of arrest may be waived by applying for and postingof bail for provisional liberty, so as to estop an accused from questioning the legality orconstitutionality of his detention or the failure to accord him a preliminary investigation. We

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    do not believe, however, that waiver of the latter necessarily constitutes, or carries with it,waiver of the former an argument that the Solicitor General appears to be makingimpliedly. Waiver of the non-admissibility of the "fruits" of an invalid warrantless arrest and ofa warrantless search and seizure is not casually to be presumed, if the constitutional rightagainst unlawful searches and seizures is to retain its vitality for the protection of our people .In the case at bar, defense counsel had expressly objected on constitutional grounds to the

    admission of the carton box and the four (4) kilos of marijuana when these were formallyoffered in evidence by the prosecution. We consider that appellant's objection to theadmission of such evidence was made clearly and seasonably and that, under thecircumstances, no intent to waive his rights under the premises can be reasonably inferredfrom his conduct before or during the trial. (Emphasis supplied).

    In fine, there was really no excuse for the NARCOM agents not to procure a search warrantconsidering that they had more than twenty-four hours to do so. Obviously, this is again an instanceof seizure of the "fruit of the poisonous tree," hence illegal and inadmissible subsequently inevidence.

    The exclusion of such evidence is the only practical means of enforcing the constitutional injunctionagainst unreasonable searches and seizure. The non-exclusionary rule is contrary to the letter and spiritof the prohibition against unreasonable searches and seizures.34

    While conceding that the officer making the unlawful search and seizure may be held criminally and civillyliable, theStonehillcase observed that most jurisdictions have realized that the exclusionary rule is "theonly practical means of enforcing the constitutional injunction" against abuse. This approach is based onthe justification made by Judge Learned Hand that "only in case the prosecution which itself controls theseizing officials, knows that it cannot profit by their wrong, will the wrong be repressed." 35

    Unreasonable searches and seizures are the menace against which the constitutional guarantees affordfull protection. While the power to search and seize may at times be necessary to the public welfare, still itmay be exercised and the law enforced without transgressing the constitutional rights of the citizens, forthe enforcement of no statute is of sufficient importance to justify indifference to the basic principles ofgovernment.36

    Those who are supposed to enforce the law are not justified in disregarding the rights of the individual inthe name of order. Order is too high a price to pay for the loss of liberty. As Justice Holmes declared: "Ithink it is less evil that some criminals escape than that the government should play an ignoble part." It issimply not allowed in free society to violate a law to enforce another, especially if the law violated is theConstitution itself.37

    WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court, Branch 73,Olongapo City, is hereby REVERSED and SET ASIDE. For lack of evidence to establish her guiltbeyond reasonable doubt, accused-appellant ROSA ARUTA Y MENGUIN is hereby ACQUITTEDand ordered RELEASED from confinement unless she is being held for some other legal grounds.No costs.

    SO ORDERED.

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    Republic of the PhilippinesSUPREME COURT

    Manila

    SECOND DIVISION

    G.R. No. L-27968 December 3, 1975

    JOSE G. LOPEZ and TOMAS VELASCO, petitioners,vs.COMMISSIONER OF CUSTOMS, COLLECTOR OF CUSTOMS OF DAVAO, CHAIRMAN OF THEASAC, ACTING DIRECTOR, NATIONAL BUREAU OF INVESTIGATION, CITY FISCAL OFDAVAO, SENIOR NBI AGENT OF DAVAO, EARL REYNOLDS, AND/OR ANY OF THEIRAUTHORIZED REPRESENTATIVES, respondents.

    A. Romero for petitioners.

    Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Pacifico P. de Castroand Solicitor Augusto M. Amores for respondents.

    FERNANDO, J.:

    This Court, understandably and appropriately in the decision of cases coming before it, is calledupon to act with due care to avoid putting obstacles to the governmental policy "to minimize, if not todo away entirely, with the evil and corruption that smuggling brings in its wake ..." 1Nonetheless, thesteps taken by administrative authorities to implement such a laudable objective must not be

    repugnant to nor in conflict with constitutional rights. To be more specific, when the guaranteeagainst unreasonable search and seizure is invoked, there is a need to scrutinize the facts rigorouslyto preclude any infringement thereof. In this special civil action for certiorari, prohibition andmandamus which arose from the seizures made by the Collector of Customs of Davao of 1,480sacks of copra and 86 sacks of coffee from the M/V motor vessel Jolo Lema, our decision ofNovember 29, 1974 in Nasiad v. Court of Tax Appeals2made clear that there was no failure tocomply with the requirements of the law in effecting the same. The seizure was therefore declaredlawful by the Court of Tax Appeals, and its decision was affirmed by us.3The only question left thenis whether the search conducted by a party headed by respondent Earl Reynolds, Senior NBI Agentof Davao,4without the search warrant for the hotel room of petitioner Tomas Velasco, who enteredinto a contract with the other petitioner, Jose G. Lopez, the awardee of such Philippine ReparationsCommission vessel, for its operation and use ostensibly for fishing,5is violative of such constitutionalprovision.6The defense interposed by respondents is that there was consent. A careful scrutiny of

    the pleadings reveals that such indeed was the case. We find for respondents and dismiss theaction.

    The relevant facts as found in the aforesaid Nasiad decision read as follows: "As noted in theappealed decision, the issue submitted "for resolution is the legality of the seizure made by theCollector of Customs of Davao of the 1,408 sacks of copra and 86 sacks of coffee allegedly ownedby the petitioners." Then came this portion: "Petitioners claim that the 1,408 sacks of copra and 86sacks of coffee in question were purchased in Kiamba, Lumatin, and Lumasal, all in the province ofCotabato, from a certain Osmea Juanday. Petitioners contend that, inasmuch as the said goodswere not imported and of foreign origin, they are not legally subject to seizure and forfeiture. Theylikewise contend that the forfeiture made by the Collector of Customs of Davao was invalid becausethe said forfeiture was based on documents and papers which were illegally seized by agents of the

    Government through violence and intimidation. Respondent denies petitioners' claim. He contendsthat the evidence is sufficient to hold that the goods in question came from Indonesia andsubsequently brought to the Philippines in violation of our laws and, therefore, subject to forfeiture;and that the Indonesian documents and papers allegedly secured illegally by the combined team ofNBI, PC and RASAC agents stationed in Davao, were in fact lawfully and validly secured by them.Consequently, said documents and papers are admissible in evidence in the forfeiture proceedingsinstituted administratively by the Collector of Customs of Davao." It was then set forth: "Thevoluminous [evidence] of record clearly show that M/V [Jolo Lema] had been under strict surveillanceby the combined team of agents of the NBI, PC, RASAC, and City Police of Davao prior to its

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    apprehension at a private wharf in Batjak, Sasa, Davao City; that the said M/V [Jolo Lema] wasskippered (sic) by Capt. Aquilino Pantinople and chartered by Mr. Tomas Velasco; during the periodfrom the latter part of August to September 18, 1966, the said vessel was in Indonesian waterswhere it loaded copra and coffee beans from Taruna, Pitta and Mangenito, all of Indonesia ... ; thatin its trip to Indonesia it brought various merchandise from the Philippines which were exchangedand/or bartered for copra and coffee beans and subsequently taken to Davao City ...; and that said

    vessel passed Marore, Indonesia on September 18, 1966 on its way to Tahuna, Indonesia ... beforeproceeding to Davao City where it was apprehended on September 19, 1966." Then came thereference to the evidence and the testimonies of the witnesses of both parties, being appraised byrespondent Court, which did not find any ground to discredit the finding of respondent Collector ofCustoms. As therein pointed out: "The evidence does not show any plausible motive forrespondent's witnesses to falsify the truth because they represent different agencies of thegovernment. From all appearances, they have no personal interest whatsoever over the goodssubject of the forfeiture proceedings. Besides, petitioners have not adduced any evidence showingthat they were enemies of the witnesses for the government. In short, no iota of evidence was everpresented by the petitioners to destroy the integrity of the government witnesses and to cast a cloudof doubt on their testimonies." Also: "The decision of the Collector of Customs of Davao shows that apetitioner herein and at the same time one of the claimants of the confiscated copra and coffeebeans, Mr. Ernesto Lozada, is the Officer-in-Charge of the vessel M/V Jolo Lema. It is not surprising,

    therefore, that the members of his crew repudiated their sworn statements given to governmentagents." Then, lastly: "Moreover, petitioners failed to explain satisfactorily, much less refute the vitaltestimony of Fiscal Mariano Umali of the Department of Justice, Manila that the various Indonesiandocuments ... duly authenticated by the Indonesian Consulate in Manila, show in clear detail that thevessel M/V Jolo Lema was in Indonesia during the period from the latter part of August to September18, 1966, and that it loaded copra and coffee beans therein before the said vessel returned to DavaoCity on September 19, 1966. Petitioners' failure to successfully dispute or destroy said testimony bycompetent and reliable evidence strongly indicates that the copra and coffee beans in question wereimported from Indonesia." "7

    On the question of the search of the hotel room, the petition alleged that at about 3:00 o'clock in theafternoon of September 19, 1966, when the vessel was searched, a combined team of Constabulary

    and Regional Anti-Smuggling Center operatives headed by NBI agent Earl Reynolds raided the hotelroom then being rented by petitioner Tomas Velasco without any search warrant and in the absenceat the time of such petitioner Tomas Velasco or the presence of any other person, except one TeofilaIbaez, a mere manicurist of Davao City by occupation and "forcibly opened luggages and boxesfrom which only several documents and papers were found, then seized, confiscated and took awaythe same."8There was this refutation of such allegation in the answer presented by respondents,represented by the then Solicitor General,9now Associate Justice, Antonio P. Barredo: "(a) AfterCaptain Pantinople informed the team that petitioner Tomas Velasco, the charterer of the vessel,had other documents showing that vessel came from Indonesia carrying smuggled copra and coffee,some members of the team proceeded to the room of petitioner Velasco at the Skyroom Hotel inDavao City, to ask for said documents; (b) Although petitioner Velasco was not inside the hotelroom, respondent Reynolds, after identifying himself as a police officer and after explaining hispurpose, was allowed to enter the room by Mrs. Tomas Velasco who subsequently volunteered to

    open the suitcases and baggages of petitioner Velasco and delivered the documents and thingscontained therein to respondent Reynolds; ... (c) The said police team did not search the room;neither did the members thereof forcibly open the luggages and boxes nor seized and confiscatedthe documents and things contained therein, since that was not necessary because ... Mrs. TomasVelasco voluntarily opened the baggages and suitcases and gave their contents of documents andthings to respondent Reynolds. Such fact is also established by the joint affidavit of PC Lt. Romeo

    Arceo, Angel Huertas, Gregorio Esperancilla, Wilfredo G. Agcaoili, Patricio Barnes and LuceroCordero, a joint sworn statement of Antonio Bonotan, Vicente Dubria, Alberto Morgady and VirgilioHumol; and another affidavit of Pio Raganit and Winifredo Calamba, ... " 10

    Thus, as noted at the outset, petitioners are not entitled to the remedies prayed for.

    1. There has been marked receptivity on the part of this Court to claims based on the protection ofthe search and seizure clause of the Constitution, whenever properly invoked. So it was made clearfrom the leading case ofAlvarez v. Court of FirstInstance. 11It has been thus since then. 12Such was the case likewise under previous organicacts. 13There is this succinct restatement of what is embraced in the guarantee in the latest caseof Lim v. Ponce de Leon, 14with Justice Martin asponente: "There can be no question that withoutthe proper search warrant, no public official has the right to enter the premises of another without hisconsent for the purpose of search and seizure." 15It does not admit of doubt therefore that a searchor seizure cannot be stigmatized as unreasonable and thus offensive to the Constitution if consent

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    be shown. Such a view is implicit in People v. Malasugui. 16For this immunity from unwarrantedintrusion is a personal right which may be waived either expressly or impliedly. 17

    The crucial question then is whether in this instance there was consent on the part of the personwho was the occupant of the hotel room then rented by petitioner Velasco. It cannot be contendedthat such premises would be outside the constitutional protection of a guarantee intended to protect

    one's privacy. It stands to reason that in such a place, the insistence on being free from anyunwelcome intrusion is likely to be more marked. 18Was there, however, consent sufficient in law todispense with the warrant? Respondents, as previously noted, contend that there was such consent.They so alleged in their answer. Their memorandum would stress it further in these words: "Here thewife of petitioner Tomas Velasco, upon being informed of the purpose of the search by the officers,invited them to enter and search the hotel room and even voluntarily gave the documents and thingsrequested by said officers. This fact could be gleaned from the following records of the two seizurecases involving the vessel M/V Jolo Lema and its cargo of Indonesian copra and coffee: (a) OnSeptember 19, 1966, Teofila Ibaez, wife of petitioner Tomas Velasco, issued a written statementwhich states that "... I have voluntarily and freely allowed my husband's and my personalbelongings to be searched and freely gave the following items." ... (b) On the same date, she issuedanother certification which reads in part, viz.: "... That I have voluntarily turned over for safekeepingand verification the following."... (c) Also on the same date, she issued still another certificationwhich reads partially, thus:"... that I have freely and voluntarily allowed the search of my and myhusband's personal belongings and turn-over to the NBI of the following items."... (d) On October 13,1966 the Davao City Police Department issued a certification to the effect that the petitioner TomasVelasco never filed any "report for robbery or other offenses ... against any member of the NBI or thePC during the period from September 19, 1966 to the present,"... ." 19Their memorandum likewiseincluded as an annex an affidavit from Benjamin Doronal Y. Yaez, the assistant manager of theSkyroom Hotel. It was worded thus: "That on September 19, 1966 at around 3:00 to 4:00 o'clock inthe afternoon, a joint NBI, PC and Davao City Police Commando Team conducted a search onRoom 220 of the Skyroom Hotel occupied by Mr. and Mrs. Tomas Velasco; That before said searchwas conducted, [Teofila Ibaez], the actual occupant of the room at the time, voluntarily consentedto the request of Atty. [Earl Reynolds] and Lt.[Romeo Arceo], to search their room (Rm. 220) afterthe latter introduced themselves by showing their respective identifications cards; That during said

    search, upon the request of Atty. [Reynolds] and Lt.[Arceo], [Teofila Ibaez] voluntarily opened herhandbag which was found to contain a .45 caliber pistol and likewise voluntarily opened the maletaswhich were found to contain several papers and documents; That receipts were duly issued to[Teofila Ibaez] which accounted for everything taken from their room (Rm. No. 220) during thesearch, including said .45 caliber pistol, papers and documents and that nothing was lost; That[Teofila Ibaez] signed the receipts and received copies thereof; That [Teofila Ibaez] and I werepresent when the said search was being conducted; That said search was conducted in a peacefuland orderly manner ... ." 20There was an attempt on the part of petitioners to counteract the force ofthe above recital by an affidavit of one Corazon Y. Velasco, 21who stated that she is the legal wife ofpetitioner Tomas Velasco, and another by such petitioner himself 22reiterating such a fact and thatthe person who was present at his hotel room was one Teofila Ibaez, "a manicurist by occupation." 23Their effort appurtenant thereto is doomed to failure. If such indeed were the case, then it ismuch more easily understandable why that person, Teofila Ibaez, who could be aptly described as

    the wrong person at the wrong place and at the wrong time, would have signified her consent readilyand immediately. Under the circumstances, that was the most prudent course of action. It wouldsave her and even petitioner Velasco himself from any gossip or innuendo. Nor could the officers ofthe law be blamed if they would act on the appearances. There was a person inside who from allindications was ready to accede to their request. Even common courtesy alone would haveprecluded them from inquiring too closely as to why she was there. Under all the circumstances,therefore, it can readily be concluded that there was consent sufficient in law to dispense with theneed for a search warrant. The petition cannot, therefore, prevail.

    2. It was set forth at the outset that the state policy of minimizing, if not doing away entirely with thefestering sore of smuggling must be carried out with due respect for constitutional rights. It is atruism in law that a desirable end cannot be attained by illegal means. Whenever there is a showingtherefore that the safeguards of the fundamental law are disregarded, more specifically theguarantee against unreasonable search and seizure, then judicial redress is appropriate. To repeat,such is not the case here. Moreover, it may likewise be added that as previously mentionedin Nasiad v. Court of Tax Appeals, 24involving the very same occurrence, the only difference beingthat the petitioners there were the importers of the smuggled goods, this Court had affirmed thevalidity of the seizure proceeding. No injustice can therefore be claimed by petitioners.

    WHEREFORE, the petition for certiorari, prohibition and mandamusis dismissed. Costs againstpetitioners.

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    Republic of the PhilippinesSUPREME COURT

    Manila

    THIRD DIVISION

    G.R. No. 85401-02 June 4, 1990

    THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.ROSALINDA RAMOS y DAVID, defendant-appellant.

    The Solicitor General for plaintiff-appellee.

    Romeo C. Alinea for defendant-appellant.

    GUTIERREZ, JR., J.:

    Appellant Rosalinda Ramos seeks the reversal of the decisions of the Regional Trial Court, Branch73, Third Judicial Region at Olongapo City, finding her guilty beyond reasonable doubt in CriminalCase No. 5990 for violating Section 8 of Republic Act No. 6425 (Dangerous Drugs Act of 1972 asamended) and in Criminal Case No. 5991 for violating Section 4 of the same Act and sentencing herto:

    1) Imprisonment of six (6) years and one (1) day and a fine of P6,000.00 in CriminalCase No. 5990; and

    2) Life imprisonment and a fine of P20,000.00 in Criminal Case No. 5991.

    The two informations filed against the appellant respectively alleged:

    Criminal Case No. 5990

    That on or about the 29th day of November, 1982 in the City of Olongapo,Philippines, and within the jurisdiction of this Honorable Court, the above-namedaccused without being lawfully authorized, did then and there wilfully, unlawfully andknowingly have in his/her/their person, possession and control twenty (20) sticks ofmarijuana cigarettes.

    Criminal Case No. 5991

    That on or about the 29th day of November, 1982 in the City of Olongapo,Philippines, and within the jurisdiction of this Honorable Court, the above-namedaccused, without being lawfully authorized, did then and there wilfully, unlawfully andknowingly engage in selling, delivering, giving away to another and distributing four(4) sticks of marijuana cigarettes which is/are prohibited drug(s). (Rollo, p. 68)

    The prosecution's version of the facts, as summarized by the Solicitor-General, is as follows:

    On November 29,1982, at around 7:00 o'clock in the evening, a civilian informer

    came to the Narcotics Command Office in Olongapo City and reported that acigarette vendor by the name of 'Mama Rose' was selling marijuana at the comer of3rd Street and Rizal Avenue in Olongapo City (TSN, pp. 4-5, 13, May 4, 1984; pp. 3-4, 11, April 9, 1986). Captain Castillo instructed the informant to conduct a test buy.He gave to the informant two (2) five-peso bills, noting first the serial numbers in hispocket note (TSN, pp. 5,14-15, May 4, 1984; p. 4, April 9, 1986). The informer leftand after thirty (30) minutes came back and gave to Captain Castillo two (2) sticks ofmarijuana cigarettes (Exhibit 'C-2') which he bought from appellant. Captain Castillo

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    again instructed the informer to make another test buy from the suspect. From hiswallet, Captain Castillo extracted another two (2) five-peso bills and before handingthe same to the informer, recorded the serial numbers in his pocket note (TSN, pp.19-21, May 4, 1984).

    A team composed of Captain Castillo, Sgt. Tahil Ahamad, CIC Danilo Santiago and

    Angel Sudiacal left with the informer. The informer proceeded to where appellant wasselling cigarettes to conduct the next test buy while the NARCOM agents waited atthe Black and White Open Bar located at 7th Street, Rizal Avenue, Olongapo City(TSN, pp. 6-7, April 9, 1986). The bar was about three (3) blocks away from theplace where appellant was selling cigarettes (TSN, pp. 19, 8, Id.). After forty-five (45)minutes more or less, the informer arrived at the Black and White Bar and againgave to Captain Castillo two (2) sticks of marijuana (Exhibit 'C-l'; TSN, p. 23, May 4,1984; p. 6, April 9,1986).

    The team then proceeded to the place where appellant was selling cigarettes. AfterIdentifying themselves as NARCOM agents, Capt. Castillo told appellant that shewas being placed under arrest for illegal peddling of marijuana. Appellant wasrequested to take out the contents of her wallet (TSN, pp. 6-7, April 9, 1986, The fourmarked five- peso bills were found among her possessions and were confiscatedafter the serial numbers were confirmed by Captain Castillo from his record (TSN,pp. 23-25, May 4, 1984). The initial of Sgt. Tahil Ahamad was also found from theconfiscated five- peso bills (TSN, p. 9, April 9, 1986). Sgt. Ahamad searched the stallof appellant and found twenty (20) sticks of marijuana cigarettes in a trash canplaced under the small table where appellant displayed the wares she was selling(TSN, p. 7, April 9, 1986). Appellant was thereafter brought to the station (TSN, p.23, May 4, 1984).

    At the station, appellant executed a statement confessing to her crimes which sheswore to before Assistant City Fiscal Domingo Cabali, Jr. (TSN, pp. 5-6. June20,1984; Exhibit 'G').

    The marijuana sticks confiscated were sent to the Philippine Constabulary CrimeLaboratory (PCCL) for analysis. These were confirmed to be marijuana as evidencedby the Chemistry Report No. MD-363-82 of Marlene Salangad, a Forensic Chemist ofthe PCCL (See Exhibit 'B'; TSN, p. 3, Jan. 13, 1986). (Rollo, pp. 92-94)

    On the other hand, the version of the appellant as summarized by the trial court, is as follows:

    ... [O]n November 29, 1982, between 9:00 and 10:00 o'clock in the evening she wasat the corner of 3rd St., and Rizal Avenue, West Tapinac, Olongapo City, sellingcigarettes and fruits; that she does not have any table, all she had was a smallwooden 'papag' to show her wares and sell them; that she was sitting on the small

    'papag' when Capt. Castillo came and introduced himself followed by three or fourothers who were more or less 6 to 8 meters away. She was surprised why they werethere, and that she was invited by Capt. Castillo to the NARCOM office forinvestigation to which invitation she said 'yes' after which she was taken to theNARCOM office. Before she was taken thereto, the other men searched the buribags where she used to place her fruits (records does (sic) not show what fruits shewas selling) and also her small cigarettes (sic) stand; that they did not find anythingunder the 'papag; that when she was ordered to board the car, Castillo told her'sakay na ho, Mama Rose' (please board now, Mama Rose'); that she was told tobring along her cigarette stand; that inside her brown wallet, she has fifty (P 50.00)pesos consisting of five pesos and ten pesos; that it was Sudiacal who took herwallet and Sudiacal took five (5) peso bills and told her that four (4) five peso bills arethe same money which was used to buy marijuana from her; that she told the officer

    that the money was hers as she has been saving some for the rentals. She claimedthat she affixed her signatures on the four (4) five peso bills because she was forcedby Tahil Ahamad by saying 'Mama Rose', you sign this, if you are not going to signthis, something will happen to you, you will get hurt'; that because she is an oldwoman, she got scared so she signed. When Tahil Ahamad told her to sign, Ahamadwas tailing to her in a normal manner and seated in front of her; that she cannotremember having signed anything because she was nervous, Capt. Castilloinvestigated her and thereafter was brought to the Fiscal's Office. She signed a

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    document at the Fiscal's Office; that she was asked if the contents of the document is(sic) true to which she answered 'No, sir; that she was not assisted by a counselwhile being investigated. She also testified that she stayed at Narcom for five (5)days; that Capt. Castillo alone investigated her for four (4) hours and that shelikewise was not assisted by counsel at the Fiscal's Office. She claimed that whenshe was told by the Fiscal to just sign the document, Fiscal Cabali did not say

    anything when she said that the contents of the document are not true. (Rollo, pp.72)

    Appellant raises the following assignment of errors:

    I

    THE FINDINGS OF FACTS ARE SO UNCLEAR AND DOUBTFUL, MAKING THECONCLUSIONS OF THE TRIAL COURT WITHOUT FACTUAL AND LEGAL LEGTO STAND ON.

    II

    THE EVIDENCE OBTAINED AND THE PERSON ARRESTED WITHOUT THEBENEFIT OF A WARRANT OF ARREST AND SEIZURE MAY NOT BE USED

    AGAINST THE ACCUSED AND ANY CONVICTION FROM SUCH EVIDENCE ISNOT VALID AND A GROUND FOR REVERSAL.

    III

    THE TRIAL COURT RELIED HEAVILY ON THE CONFESSION OF THEAPPELLANT AND THE CONFESSION WAS EXTRACTED IN VIOLATION OFAPPELLANT'S CONSTITUTIONAL RIGHTS 'TO REMAIN SILENT AND TOCOUNSEL'.

    IV

    WHEN NOT ALL THE ELEMENTS OF THE OFFENSE ARE PRESENT ANDPROVEN, CONVICTION IS NOT PROPER.

    V

    THE REQUISITES IN ORDER TO CONVICT ON CIRCUMSTANTIAL EVIDENCEARE NOT PRESENT AND NOT COMPLIED WITH. (Rollo, p. 59)

    At the outset, it may be observed that two informations were filed against the appellant and the lower

    court imposed two sentences on appellant, one for sale and the other for possession of marijuana.This Court must emphasize that, assuming arguendo, the findings of guilt for both offenses arecorrect, the trial judge nevertheless erred in imposing a separate sentence for possession becausepossession of marijuana is inherent in the crime of selling them. (People v. de Jesus, 145 SCRA 521[1986]; People v. Andiza, 164 SCRA 642 [1988])

    After a careful scrutiny of the records, this Court holds that appellant's guilt in Criminal Case No.5991 (sale of marijuana) has not been proven beyond reasonable doubt.

    First, the extrajudicial confession extracted from the accused on November 29, 1982 is inadmissiblein evidence for being violative of the Constitutional mandate that any person under investigation forthe commission of an offense shall have the right to be informed of his right to remain silent and tohave competent and independent counsel preferably of his own choice. (Art. III, Section 12(l),Constitution)

    The preliminary statement read to the appellant when her sworn statement was executed appears asfollows:

    SALAYSAY NA KUSANG LOOB NA IBINIBIGAY NI ROSALINDA RAMOS Y DAVIDKAY CAPTAIN ARTURO M. CASTILLO PC SA HARAP NI SGT. TAHIL AHAMAD

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    DITO SA HIMPILAN NG CANU, OLONGAPO CITY, NGAYON 29 NG BUWAN NGNOBYEMBRE 1982.

    TAGASIYASAT: Gng. Rosalinda Ramos, ikaw ay nasa ilalim ng isang pagsisiyasatukol sa paglabag sa ipinagbabawal na gamot. Bago kita tanungin ay nais kongmalaman mo ang iyong mga karapatan sa ating bagong saligang batas at ito ay ang

    mga sumusunod:

    1 Ikaw ay may karapatan na huwag sumagot sa aking mga itatanong sa iyo sapagsisiyasat na ito,

    2. Ikaw ay may karapatan na kumuha ng isang abogado upang makatulong sa iyo sapagsisiyasat na ito at

    3. Ano man ang iyong sasabihin sa pagsisiyasat na ito ay maaaring gamitin laban orpabor sa iyo saan mang hukuman dito sa ating bansa.

    TANONG: Ngayon alam no na ang iyong mga karapatan sa ating bagong saligang

    batas ikaw ba ay kusang loob na magbibigay ng isang salaysay na pawangkatotohanan at pawang katotohanan lamang sa pagsisiyasat na ito?;

    SAGOT: Opo. (Exhibit G)

    This Court finds that such recital of rights falls short of the requirement on proper apprisal ofconstitutional rights. We quote the ruling in People v. Nicandro(141 SCRA 289 [1986]):

    When the Constitution requires a person under investigation 'to be informed' of hisright to remain silent and to counsel, it must be presumed to contemplate thetransmission of meaningful information rather than just the ceremonial andperfunctory recitation of an abstract constitutional principle. As a rule, therefore, it

    would not be sufficient for a police officer just to repeat to the person underinvestigation the provisions of Section 20, Article IV of the Constitution. He is not onlyduty- bound to tell the person the rights to which the latter is entitled; he must alsoexplain their effects in practical terms, e.g., what the person under interrogation mayor may not do, and in a language the subject fairly understands. In other words, theright of a person under interrogation 'to be informed implies a correlative obligationon the part of the police investigator to explain, and contemplates an effectivecommunication that results in understanding what is conveyed. Short of this, there isa denial of the right , as it cannot truly be said that the person has been 'informed' ofhis rights. Now, since the right 'to be informed implies comprehension, the degree ofexplanation required will necessary vary, depending upon the education, intelligenceand other relevant personal circumstances of the person under investigation. Sufficeit to say that a simpler and more lucid explanation is needed where the subject is

    unlettered.

    Although the right to counsel is a right that may be waived, such waiver must be voluntary, knowingand intelligent (People v. Caguioa, 95 SCRA 2 [1980]).

    To insure that a waiver is voluntary and intelligent, the Constitution now requires; that for the right tocounsel to be waived, the waiver must be in writing and in the presence of the counsel of theaccused. (Art. III, Section 12(l), Constitution) There is no such written waiverin this case, much lesswas any waiver made in the presence of counsel.

    Fiscal Cabali, who administered the oath on the appellant's extrajudicial confession, and the policeofficers who took it down should know by now that the procedure they followed results in

    incompetent evidence. If the purpose is to get proof which can stand up in court, they should followthe requirements of the Constitution.

    Second, the alleged poseur-buyer, who also happens to be the alleged informant, was neverpresented during trial. The presence and Identity of the poseur-buyer is vital to the case as his veryexistence is being disputed by the accused-appellant who denies having sold marijuana cigarettes toanyone. (People v. Ale, 145 SCRA 50 [1986]) Without the testimony of the poseur-buyer, there is noconvincing evidence pointing to the accused as having sold marijuana. (People v. Fernando, 145

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    SCRA 151 [1986]) In this case, the alleged informant and the alleged poseur-buyer are one and thesame person. We realize that narcotics agents often have to keep their Identities and those of theirinformants confidential. For a prosecution involving the sale or distribution of drugs to prosper in thisparticular case, however, the informant has to testify. The testimony of the poseur-buyer is renderedcompelling by the fact that the police officers were situated three blocks away from where thealleged sale took place. They did not see the actual sale of marijuana. Thus, Sit. Sudiacal testified:

    Q Before you arrested the accused, where did you positionyourselves?

    A We were at the Black and White Open Bar, sir.

    Q How far is that from the place where the accused was sellingcigarettes?

    A It is about three blocks, sir.

    Q You did not actually see the accused selling marijuana?

    A Yes, Sir ...," (TSN, May 4, 1984, p. 8)

    xxx xxx xxx

    Q Did you actually see the buying of the marijuana?

    A No, Mam.

    Q So, you did not see anything?

    A Yes, Mam.

    Q None of the three of you, Sgt. Sudiacal and Captain Castillowitnessed the actual buy of the three sticks of marijuana?

    A Yes, Mam.

    Q Your basis of the alleged buy by the informant is his word that hebought it from the suspect?

    A Yes, Mam. (TSN, April 9, 1986, pp. 125-126)

    It is a known fact that drug dealings are hard to prove in court. Precisely because of this difficulty,buy-bust operations have to be conducted and every effort is taken such that the suspected pusheris caught in flagrante selling prohibited drugs. For the culprit to be convicted, the element of salemust be unequivocally established. In this case, the alleged poseur-buyer who could havecategorically asserted that she bought marijuana from the appellant was not presented by theprosecution. And Sgts. Ahamad and Sudiacal could not attest to the fact of sale because they werethree blocks away. The sale of marijuana was therefore not positively proven.

    Despite the absence of the testimony of the poseur-buyer, the court a quo, however, relied oncircumstantial evidence in concluding that there was indeed a sale:

    In this case, the accused admitted that she was the only one selling cigarettes at thecorner of 3rd Street; the informant told the NARCOM Officers that their 'suspect' is a

    cigarette vendor positioned thereat. The two (2) 'test buy' yielded positive results asthe informant was able to buy four (4) handrolled sticks of marijuana cigarettes fromher, two at a time. The accused did not ask the reason why when she was invited forinvestigation. This act negates innocence and against human nature, especially afterhaving introduced themselves as NARCOM agents. In her control and possession,twenty (20) sticks of similar handrolled marijuana cigarettes were recovered from atrash can under her small table. Her counsel on cross-examination asked Sgt. Tahil

    Ahamad the following (TSN, April 9, 1986, p. 14) 'and in order to search that trash

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    can under the table, you have to ask or request 'Mama Rose' to get out of the way inorder to check the contents of the waste can?' The question was answered, 'Weasked permission from her to stand up so we can look into the contents of her smalltable, sir.

    When investigated, the accused gave her statement which in fact was a confession

    where she admitted having sold marijuana cigarettes. She was taken before theFiscal to subscribe the same. While she alleged that she told the Fiscal (FiscalCabali) that the contents of her statement are not true, why then did she sign itbefore the said Fiscal? Why did she not insist that her denial be registered on thedocument so as to repudiate it? Fear could not be a valid reason as she has alreadyboldly spoken out when she said the contents were not true. The 'marked money'were recovered from her possession. She did not deny that the four (4) five peso billswere taken from her wallet. She was addressed as 'Mama Rose' not once but twiceby the apprehending officers. Her counsel during the cross-examination of theprosecution witnesses and direct examination of the accused called and addressedher as 'Mama Rose', and the informant Identified her not only as Rosalinda Ramosbut also as 'Mama Rose'. (At pp. 73-74, Rollo)

    This Court finds that the cited circumstantial evidence do not establish beyond reasonable doubt thatthere was a sale of marijuana. Considering the severe penalty of reclusion perpetua imposed onthose who sell or distribute drugs, we have to insure that evidence of culpability must pass the test ofthe strictest scrutiny. We also have to take into account the oftrepeated defense in violations of theDangerous Drugs Act that the drugs or the marked money were planted by police officers. Moredirect and positive evidence is essential.

    The failure of the appellant to ask why she was being invited for investigation by the NARCOMofficers does notipso factoindicate her guilt. Fear could have, prevented her from propoundinginquiries to the officers.

    Nor does the fact that' marked money was found in her possession show incontrovertibly that she is

    the seller of marijuana. The appellant is a cigarette vendor. By the nature of her job, there is aconstant exchange of goods for money. It may be far- fetched but it is possible that she came intopossession of the marked money because she accepted it in the course of legitimate sales ofcigarettes. Again, it is only the poseur-buyer who could testify that she gave marked money to theappellant in exchange for marijuana sticks.

    The fact that the appellant signed the extrajudicial confession despite her insistence that its contentswere not true does not necessarily signify guilt. As earlier stated the extra-judicial confession cannotbe accepted as evidence. It is useless for purposes of proof of sale of prohibited drugs.

    Lastly, this Court fails to see how, from her being addressed as Mama Rose by the witnesses andappellant's counsel and the alleged informant poseur-buyer, the sale of marijuana can be inferred.

    Rule 133, Section 6 of the Rules of Court provides:

    Circumstantial evidence is sufficient for conviction if:

    (a) There is more than one circumstance;

    (b) The facts from which the inference are derived are proven; and

    (c) The combination of all the circumstances is such as to produce a convictionbeyond a reasonable doubt.

    For not successfully meeting the above requirements, the enumerated circumstantial evidencecannot be a ground for conviction for the sale of marijuana.

    With respect to Criminal Case No., 5990, however, this Court upholds the lower court's finding thatthe appellant is guilty of possession of marijuana.

    Rule 113 Section 6 (b) of the 1985 Rules of Criminal Procedure provides:

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    SEC. 6.Arrest without warrant. when lawful. A peace officer or a private personmay, without a warrant, arrest a person:

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

    Meanwhile, Section 12 of Rule 126 states:

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

    Sgts. Sudiacal and Ahamad testified that there was an informant who apprised them of the presenceof a drug pusher at the comer of 3rd Street and Rizal Avenue, Olongapo City. Acting on suchinformation and in their presence, their superior, Captain Castillo, gave the informant marked moneyto buy marijuana. The informant, now turned poseur-buyer, returned with two sticks of marijuana.Captain Castillo again gave said informant marked money to purchase :marijuana. The informant-poseur buyer thereafter returned with another two sticks of marijuana. The police officers then

    proceeded to the corner of 3rd Street and Rizal Avenue and effected the arrest of appellant.

    From the above facts, it may be concluded that the arresting police officers had personal knowledgeof facts implicating the appellant with the sale of marijuana to the informant-poseur buyer. We holdtherefore that the arrest was legal and the consequent search which yielded 20 sticks of marijuanawas lawful for being incident to a valid arrest.

    The fact that the prosecution failed to prove the sale of marijuana beyond reasonable doubt does notundermine the legality of the appellant's arrest.

    It is not necessary that the crime should have been established as a fact in order to regard thedetention as legal. The legality of detention does not depend upon the actual commission of the

    crime, but upon the nature of the deed when such characterization may reasonably be inferred bythe officer or functionary to who in the law at the moment leaves the decision for the urgent purposeof suspending the liberty of the citizen (People v. Molleda, 86 SCRA 667 [1978]).

    The obligation to make an arrest by reason of a crime does not presuppose as a necessary requisitefor the fulfillment thereof the indubitable existence of a crime (People v. Ancheta, 68 Phil. 415[1939]).

    The appellant argues that if the twenty sticks of marijuana were in a trash can and it was not shownby clear and convincing evidence that the said trash can belongs to the appellant, then she cannotbe considered as being in possession of marijuana.

    In disposing of this contention, this Court quotes with approval the following arguments of theSolicitor-General:

    Appellant's defense falls against the categorical testimony of the NARCOM agentsthat the trash can was found under the table where her legitimate wares were beingsold. This fact was not denied by appellant. Therefore, she was the only person whohad access to the trash can. The same was under her immediate physical control.She had complete charge of the contents of the trash can under the table to theexclusion of all other persons. In law, actual possession exists when the thing is inthe immediate occupancy and control of the party. But this is not to say that the lawrequires actual possession. In criminal law, possession necessary for conviction ofthe offense of possession of controlled substances with intent to distribute may beconstructive as well as actual (Black's Law Dictionary, Abridge, 5th Edition, pp. 606-

    607). It is only necessary that the defendant must have dominion and control overthe contraband. These requirements are present in the situation described, wherethe prohibited drugs were found inside the trash can placed under the stall owned byappellant. In fact, the NARCOM agents who conducted the search testified that theyhad to ask appellant to stand so that they could look inside the trash can under the'papag' of the appellant. Hence the trash can was positioned in such a way that itwas difficult for another person to use the trash can. The trash can was obviously notfor use by her customers.

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    Appellant's arguments are inherently weak and improbable and cannot stand againstthe clear evidence pointing to her actual possession of the prohibited drug. The rawfacts testified to by the NARCOM agents were corroborated by appellant and theirconclusion-that she had possession of the marijuana sticks found in the trash can- isconsistent with law and reason.

    Appellant further contends that it is hard to believe that she would keep themarijuana sticks in a trash can since it is a precious commodity to pushers and usersthereof.

    The above argument is misleading. The value of the marijuana is not the primaryconsideration in the concealment of the contraband. The primary consideration isescaping detection and arrest. Obviously, the modus operandi was to dissimulate theact of selling and possession of marijuana sticks which carries the capital penalty(sic). Appellant could not display it among her regular wares of cigarettes and fruitsfor sale. She had to hide them from public view, but near enough to have access tothem. The trash can, to her thinking, would be the last place to look for the preciouscommodity. Unfortunately, she was found out. The argument that it was an 'unlikelyplace' to hide the precious contraband is in fact the very consideration in choosing itas the hiding place for the contraband. (At pp. 97-100, Rollo)

    We rule, therefore, that the twenty sticks of marijuana are admissible in evidence and the trial court'sfinding that the appellant is guilty of possession is correct.

    The lower court, however, erred in imposing a fixed penalty of six (6) years and one (1) day forpossession of marijuana. Section 1 of the Indeterminate Sentence Law (Republic Act 4103 asamended) provides that in imposing a prison sentence for an offense punished by a law other thanthe Revised Penal Code, the court shall sentence the accused to an indeterminate sentence, themaximum term of which shall not exceed the maximum fixed by said law and the minimum whichshall not be less than the minimum term prescribed by the same. The penalty prescribed by theDangerous Drugs Act for possession of marijuana is imprisonment ranging from six (6) years and

    one (1) day to twelve (12) years and a fine ranging from P6,000 to P12,000.

    WHEREFORE, the appealed decision in Criminal Case No. 5990 is AFFIRMED but MODIFIED. Theappellant is sentenced to suffer the penalty of imprisonment ranging from six (6) years and one (1)day to nine (9) years and to pay a fine of six thousand (P 6,000) pesos. The appealed decision inCriminal Case No. 5991 is REVERSED and SET ASIDE and the appellant is acquitted on grounds ofreasonable doubt.

    SO ORDERED.

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    Republic of the PhilippinesSUPREME COURT

    Manila

    EN BANC

    G.R. No. L-95630 June 18, 1992

    SPOUSES LEOPOLDO and MA. LUISA VEROY, petitioners,vs.THE HON. WILLIAM L. LAYAGUE, Presiding Judge, Branch XIV, Regional Trial Court at DavaoCity; and BRIG. GEN. PANTALEON DUMLAO, Commanding General, PC-CriminalInvestigation Service,respondents.

    PARAS, J.:

    This was originally a petition forcertiorari, mandamusand prohibition under Rule 65 of the Rules ofCourt:certiorari, to review the Order of the respondent Judge dated October 2, 1990 denying hereinpetitioner's Motion for Hospital Confinement; mandamus, to compel respondent Judge to resolvepetitioners' long pending motion for bail; and prohibition, to enjoin further proceedings on the groundthat the legal basis therefore is unconstitutional for being violative of the due process and equalprotection clauses of the Constitution.

    The facts of this case are as follows:

    Petitioners are husband and wife who owned and formerly resided at No. 13 Isidro St., Skyline

    Village. Catalunan Grande, Davao City. When petitioner Leopoldo Veroy was promoted to theposition of Assistant Administrator of the Social Security System sometime in June, 1988, he and hisfamily transferred to 130 K-8th St., East Kamias, Quezon City, where they are presently residing.The care and upkeep of their residence in Davao City was left to two (2) houseboys, Jimmy Faviaand Eric Burgos, who had their assigned quarters at a portion of the premises. The Veroys wouldoccasionally send money to Edna Soguilon for the salary of the said houseboys and other expensesfor the upkeep of their house. While the Veroys had the keys to the interior of the house, only thekey to the kitchen, where the circuit breakers were located, was entrusted to Edna Soguilon to giveher access in case of an emergency. Hence, since 1988, the key to the master's bedroom as well asthe keys to the children's rooms were retained by herein Petitioners so that neither Edna Soguilonnor the caretakers could enter the house.

    On April 12, 1990, Capt. Reynaldo Obrero of the Talomo Patrol Station, PC/INP, acting upon adirective issued by Metrodiscom Commander Col. Franco Calida, raided the house of hereinpetitioners in Davao City on information that the said residence was being used as a safehouse ofrebel soldiers. They were able to enter the yard with the help of the caretakers but did not enter thehouse since the owner was not present and they did not have a search warrant. Petitioner Ma. Luisawas contacted by telephone in her Quezon City residence by Capt. Obrero to ask permission tosearch the house in Davao City as it was reportedly being used as a hideout and recruitment centerof rebel soldiers. Petitioner Ma. Luisa Veroy responded that she is flying to Davao City to witness thesearch but relented if the search would not be conducted in the presence of Major ErnestoMacasaet, an officer of the PC/INP, Davao City and a long time family friend of the Veroys. Theauthority given by Ma. Luisa Veroy was relayed by Capt. Obrero to Major Macasaet who answeredthat Ma. Luisa Veroy has called him twice by telephone on the matter and that the permission wasgiven on the condition that the search be conducted in his presence.

    The following day, Capt. Obrero and Major Macasaet met at the house of herein petitioners inSkyline Village to conduct the search pursuant to the authority granted by petitioner Ma. LuisaVeroy. The caretakers facilitated their entry into the yard, and using the key entrusted to EdnaSoguilon, they were able to gain entrance into the kitchen. However, a locksmith by the name ofGeorge Badiang had to be employed to open the padlock of the door leading to the children's room.Capt. Obrero and Major Macasaet then entered the children's room and conducted the search. Capt.Obrero recovered a .45 cal. handgun with a magazine containing seven (7) live bullets in a black

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    clutch bag inside an unlocked drawer. Three