PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CONWAY B. OMAWENG, accused-appellant. The Solicitor General for plaintiff-appellee. Joel C. Obar for accused-appellant. SYLLABUS 1. CRIMINAL LAW; DANGEROUS DRUG ACT; ILLEGAL POSSESSION OF PROHIBITED DRUGS; PROOF OF OWNERSHIP THEREOF BY THE ACCUSED NOT REQUIRED. The accused contends that the prosecution failed to prove that he is the owner of the marijuana found inside the travelling bag which he had in his vehicle, a Ford Fiera. Proof of ownership is immaterial. Accused was prosecuted for the dispatching in transit or transporting of prohibited drugs pursuant to Section 4, Article II of R.A. No. 6425, as amended. This section does not require that for one to be liable for participating in any of the proscribed transactions enumerated therein, he must be the owner of the prohibited drug. This section penalizes the pusher, who need not be the owner of the prohibited drug. The law defines pusher as "any person who sells, administers, delivers, or gives away to another, on any terms whatsoever, or distributes, dispatches in transit or transports any dangerous drug or who acts as a broker in any of such transactions, in violation of this Act. [Section 2 (m), R.A. No. 6425, as amended.] In People vs. Alfonso, [186 SCRA (1990)] where the accused was charged with the unlawful transportation of marijuana under the aforesaid Section 4, this Court ruled that ownership is not a basic issue. 2. REMEDIAL LAW; EVIDENCE; CIRCUMSTANTIAL EVIDENCE COMBINATION THEREOF; WARRANTS A CONVICTION BEYOND REASONABLE DOUBT. The facts, as proven by the prosecution, establish beyond cavil that the accused was caught in the act of transporting the prohibited drug or, in other words, in flagrante delicto. That he knew fully well what he was doing is shown beyond moral certainty by the following circumstances: (a) the prohibited drug was found in a travelling bag, (b) he is the owner of the said bag, (c) he concealed the bag behind a spare tire, (d) he was travelling alone, and (e) the Ford Fiera in which he loaded the bag was under his absolute control, pursuant to Section 4, Rule 133 of the Rules of Court (on circumstantial evidence), the combination of all these circumstances is such as to produce a conviction beyond reasonable doubt. Such circumstances, unrebutted by strong and convincing evidence by the accused, even gave rise to the presumption that he is the owner of the prohibited drug. [Section 3(j), Rule 131, Rules of Court.] 3. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCH & SEIZURE; WHEN DEEMED WAIVED. Accused was not subjected to any search which may be stigmatized as a violation of his Constitutional right against unreasonable searches and seizures. [Section 2, Article III, 1987 Constitution.] If one had been made, this Court would be the first to condemn it "as the protection of the citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of the Court." [Rodriguez vs. Villamiel, 65 Phil. 230 (1937).] He willingly gave prior consent to the search and voluntarily agreed to have it conducted on his vehicle and travelling bag. Thus, the accused waived his right against unreasonable searches and seizures. As this Court stated in People vs. Malasugui: (63 Phil. 221, 226 [1936]. See also Vda. de Garcia vs. Locsin, 65 Phil. 689 [1938]; People vs. Donato, 198 SCRA 130 [1991]; People vs. Rodrigueza, 205 SCRA 791 [1992].) ". . . When one voluntarily submits to a search or consents to have it made of (sic) his person or premises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th ed., vol. I, page 631.) The right to be secure from unreasonable search may, like every right, be waived and such waiver may be made either expressly or impliedly." Since in the course of the valid search forty-one (41) packages of drugs were found, it behooved the officers to seize the same; no warrant was necessary for such seizure. Besides, when said packages were identified by the prosecution witnesses and later on formally offered in evidence, the accused did not raise any objection whatsoever. D E C I S I O N DAVIDE, JR., J p: Accused Conway B. Omaweng was originally indicted for the violation of Section 4, Article II of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, in a criminal complaint filed with the Municipal Trial Court of Bontoc, Mountain Province on 12 September 1988.1 Upon his failure to submit counter-affidavits despite the granting of an extension of time to do so, the court declared that he had waived his right to a preliminary investigation and, finding probable cause against the accused, ordered the elevation of the case to the proper court. 2 On 14 November 1988, the Office of the Provincial Fiscal of Mountain Province filed an Information charging the accused with the violation of Section 47 Article II of the Dangerous Drugs Act of 1972, as amended. The accusatory portion thereof reads: Cdpr "That on or about September 12, 1988, at Dantay, Bontoc, Mountain Province, and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did then and there willfully, unlawfully and feloniously dispatch in transit or transport in a Ford Fiera, owned and driven by him, 10 1/4 kilos of processed marijuana in powder form contained in al plastic bags of different sizes which were placed in a travelling bag destained (sic) and intended for delivery, disposition and sale in Sagada, Mountain Province, with full knowledge that said processed marijuana is (sic) prohibited drug or from which (sic) prohibited drug may be manufactured. CONTRARY TO LAW." 3 The case was docketed as Criminal Case No. 713. After his motion for reinvestigation was denied by the Provincial Fiscal, 4 the accused entered a plea of not guilty during his arraignment on 20 June 1989. During the trial on the merits, the prosecution presented four (4) witnesses. The accused did not present any evidence other than portions of the Joint Clarificatory Sworn Statement, dated 23 December 1988, of prosecution witnesses Joseph Layong and David Fomocod. On 21 March 1991, the trial court promulgated its Judgment 5 convicting the accused of the crime of transporting prohibited drugs penalized under Section 4, Article II of R.A. No. 6425, as amended. The dispositive portion of the decision reads: "WHEREFORE, judgment is hereby rendered imposing upon the accused herein the penalty of life imprisonment and a fine of Twenty Five Thousand Pesos. Pursuant to Sec. 20, Art. IV of the aforecited special law, the drugs subject of the crime are ordered confiscated and forfeited in favor of the Government. Accordingly, it is further directed that such drugs so confiscated and forfeited be destroyed without delay per existing rules and regulations on the matter. Costs against the accused. SO ORDERED." 6 Hence, this appeal. In the Appellant's Brief, accused imputes upon the trial court the commission of the following errors. "I . . . IN CONVICTING THE ACCUSED DESPITE INSUFFICIENCY OF EVIDENCE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. II . . . IN NOT CONSIDERING THE JOINT CLARIFICATORY STATEMENT OF THE ARRESTING OFFICERS TO THE EFFECT THAT THE ACCUSED IS NOT THE OWNER OF THE PROHIBITED DRUG SUBJECT OF THIS CASE. III . . . IN NOT RULING THAT THE CONTRABAND SUBJECT OF THE INSTANT CASE IS INADMISSIBLE IN EVIDENCE FOR HAVING BEEN OBTAINED IN VIOLATION OF THE CONSTITUTIONAL RIGHT OF THE ACCUSED AGAINST UNREASONABLE SEARCH (sic) AND SEIZURE." 7 The appeal is without merit. The decision appealed from must be upheld. After a careful review and evaluation of the evidence, We find to have been fully proven the following facts as summarized by the Solicitor General in the Brief for the Appellee. 8 "In the morning of September 12, 1988, Joseph Layong, a PC constable with the Mt. Province PC Command at Bontoc, Mt. Province proceeded with other PC soldiers to Barrio Dantay, Bontoc and, per instruction of their officer, Capt. Eugene Martin, put up a checkpoint at the junction of the roads, one going to Sagada and the other to Bontoc (TSN, November 9, 1989, pp. 3-4). They stopped and checked all vehicles that went through the checkpoint (TSN, April 5, 1990, p. 12). At about 9:15 A.M., Layong and his teammate, Constable David Osborne Famocod (sic), saw and flagged down a cream-colored Ford Fiera bearing Plate No. ABT-634 coming from the Bontoc Poblacion and headed towards Baguio (TSN, November 9, 1989, pp. 4-5, 8). The vehicle was driven by appellant and had no passengers (TSN, November 9, 1989, pp. 4-5). Layong and his companions asked permission to inspect the vehicle and appellant acceded to the request. (TSN, November 9, 1989, pp. 4- 5). When they peered into the rear of the vehicle, they saw a travelling bag which was partially covered by the rim of a spare tire under the passenger seat on the right side of the vehicle (TSN, November 9, 1989, pp. 6, 10, 11). LibLex Layong and his companions asked permission to see the contents of the bag (TSN, November 9, 1989, p. 6). Appellant consented to the request but told them that it only contained some clothes (TSN, November 9, 1989, p. 6). When Layong opened the bag, he found that it contained forty-one (41) plastic packets of different sizes containing pulverized substances (TSN, November 9, 1989, pp. 7, 9). Layong gave a packet to his team leader, constable David Osborne Fomocod, who, after sniffing the stuff concluded that it was marijuana (TSN, November 9, 1989, p. 16). The PC constables, together with appellant, boarded the latter's Ford Fiera and proceeded to the Bontoc poblacion to report the incident to the PC Headquarters (TSN, November 9, 1989, pp. 7-8) The prohibited drugs were surrendered to the evidence custodian, Sgt. Angel Pokling (TSN, November 9, 1989, pp. 7-8). Major Carlos Figueroa, a PC Forensic Chemist at Camp Dangwa, La Trinidad, Benguet, who has conducted more than 2500 professional examinations of marijuana, shabu and cocaine samples, conducted two chemistry examinations of the substance contained in the plastic packets taken from appellant and found them to be positive for hashish or marijuana (TSN, October 24, 1990, pp. 3, 5-81)." 9 Anent the first assigned error, the accused contends that the prosecution failed to prove that he is the owner of the marijuana found inside the travelling bag which he had in his vehicle, a Ford Fiera. Proof of ownership is immaterial. Accused was prosecuted for the dispatching in transit or transporting of prohibited drugs pursuant to Section 4, Article II of R.A. No. 6425, as amended. This section does not require that for one to be liable for participating in any of the proscribed transactions enumerated therein, he must be the owner of the prohibited drug. It simply reads: "SEC. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The penalty of life imprisonment to death and a fine ranging from twenty thousand to thirty thousand pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions. If the victim of the offense is a minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty herein provided shall be imposed." This section penalizes the pusher, who need not be the owner of the prohibited drug. The law defines pusher as "any person who sells, administers, delivers, or gives away to another, on any terms whatsoever, or distributes, dispatches in transit or transports any dangerous drug or who acts as a broker in any of such transactions, in violation of this Act. 10 In People vs. Alfonso, 11 where the accused was charged with the unlawful transportation of marijuana under the aforesaid Section 4, this Court ruled that ownership is not a basic issue. LexLib The facts, as proven by the prosecution, establish beyond cavil that the accused was caught in the act of transporting the prohibited drug or, in other words, in flagrante delicto. That he knew fully well what he was doing is shown beyond moral certainty by the following circumstances: (a) the prohibited drug was found in a travelling bag, (b) he is the owner of the said bag, (c) he concealed the bag behind a spare tire, (d) he was travelling alone, and (e) the Ford Fiera in which he loaded the bag was under his absolute control, pursuant to Section 4, Rule 133 of the Rules of Court (on circumstantial evidence), the combination of all these circumstances is such as to produce a conviction beyond reasonable doubt. Such circumstances, unrebutted by strong and convincing evidence by the accused, even gave rise to the presumption that he is the owner of the prohibited drug. 12 The second assigned error is devoid of merit. The declaration in the joint clarificatory sworn statement executed by the apprehending officers, that the marijuana subject of the case was surreptitiously placed by an unknown person in the bag of the accused, is not supported by evidence. Said sworn statement cannot be used as a basis for exoneration because the very same officers who signed the same reiterated on the witness stand their statements in their original affidavit implicating the accused, both the criminal complaint before the Municipal Trial Court of Lontoc and the information in this case were based on this original affidavit. No probative value could be assigned to it not only because it was procured by the defense under questionable circumstances, but also because the affiants therein merely expressed their personal opinion. The trial court's correct exposition on this point, to which nothing more may be added, deserves to be quoted, thus: "From the portions of the 'Joint Clarificatory Sworn Statement- of prosecution witnesses Layong and Fomocod cited (Exhs. "I" to "I-C"; p 155, Record), the defense would want this Court to draw the inference that the accused Conway Omaweng is innocent as confirmed by no less than the persons who apprehended the suspect in flagranti (sic). In other words, that the said accused is not the owner of the contraband confiscated but someone else; that to (sic) mysterious individual placed the prohibited articles inside the travelling bag of the accused without the knowledge and consent of the latter; and that the identity of this shadowy third person is known by the PC/INP investigators. The isolated declarations, albeit under oath are much too asinine to be true and do not affect the credibilities of the witnesses affiants and the truth of their affirmations on the stand. As gleaned from parts of the record of the reinvestigation of this case conducted by the Provincial Fiscal (Exhs "G" and "D"; pp. 158 and 161, Record), it appears that Layong and Fomocod were prevailed upon to affix their signatures to (sic) the document styled as 'Joint Clarificatory Sworn Statement' by interested persons in a vain ploy to extricate the accused from the morass he got himself into. Testifying in open court, the same witnesses maintained the tenor of their original affidavit supporting the filing of the criminal complaint in the lower court (Exh. "C"; p. 2, Record) No additional information was elicited from said witnesses during their examination from which it can reasonably be deduced that a third person instead of the accused is the culprit and that the suspect is being framed-up for a crime he did not commit. Nonetheless, granting arguendo that the declarations of Layong and Fomocod now the bone of contention, are on the level, the same are but mere opinions and conclusions without bases. Any which way, to believe that any person in his right mind owning several kilos of hot hashish worth tens of thousands of pesos would simply stash it away in the travelling bag of someone he has no previous agreement with is a mockery of common sense. And to think further that the PC/INP agents know of such fact yet they kept the vital information under 'confidential Status' (whatever that means in police parlance) while an innocent person is being prosecuted and practically in the shadow of the gallows for the offense would be stretching human credulity to the snapping point. By and large, the fact remains as the circumstances logically indicate that the accused Conway Omaweng has knowledge of the existence of the contraband inside his vehicle and he was caught red-handed transporting the hot stuff." 13 The third assignment of error hardly deserves any consideration. Accused was not subjected to any search which may be stigmatized as a violation of his Constitutional right against unreasonable searches and seizures. 14 If one had been made, this Court would be the first to condemn it "as the protection of the citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of the Court."15 He willingly gave prior consent to the search and voluntarily agreed to have it conducted on his vehicle and travelling bag. Prosecution witness Joseph Layong testified thus: llcd "PROSECUTOR AYOCHOK: Q When you and David Fomocod saw the travelling bag, what did you do? A When we saw that travelling bag, we asked the driver if we could see the contents. 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? A When I saw that the contents were not clothes, I took some of the contents and showed it to my companion Fomocod and when Fomocod smelled it, he said it was marijuana." 16 This testimony was not dented on cross-examination or rebutted by the accused for he chose not to testify on his own behalf. Thus, the accused waived his right against unreasonable searches and seizures As this Court stated in People vs. Malasugui: 17 ". . . When one voluntarily submits to a search or consents to have it made of (sic) his person or premises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th ed., vol. I, page 631.) The right to be secure from unreasonable search may, like every right, be waived and such waiver may be made either expressly or impliedly." Since in the course of the valid search forty-one (41) packages of drugs were found, it behooved the officers to seize the same; no warrant was necessary for such seizure. Besides, when said packages were identified by the prosecution witnesses and later on formally offered in evidence, the accused did not raise any objection whatsoever. Thus, in the accused's Comments And/Or Objections To Offer of Evidence, 18 We merely find the following: LLphil "EXHIBIT COMMENTS AND/OR OBJECTIONS "A" The bag was not positively identified to be the same bag allegedly found inside the vehicle driven by the accused. The arresting officers failed to show any identifying marks; thug, said bag is an irrelevant evidence not admissible in court; "A-1" to "A-40" Objected to also as irrelevant as the 40 bags now being offered are not the same bags alleged in the information which is 41 bags. The prosecution failed to proved (sic) beyond reasonable doubt that Exhibit "A-1" to "A-40" are the same bags allegedly taken from inside Exhibit "A" because what is supposed to be inside the bag are 41 bags and not 40 bags." xxx xxx xxx WHEREFORE, the decision of Branch 36 of the Regional Trial Court of Bontoc, Mountain Province of 21 March 1991 in Criminal Case No. 713 finding the accused CONWAY B. OMAWENG guilty beyond reasonable doubt of the crime charged, is hereby AFFIRMED. Costs against the accused. SO ORDERED. Gutierrez, Jr., Bidin and Romero, JJ ., concur. Feliciano, J ., is on leave. EN BANC [G.R. No. 119246. January 30, 1998.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO CORREA y CAYTON @ "BOYET," RITO GUNIDA y SESANTE @ "DODONG," and LEONARDO DULAY y SANTOS @ "BOY KUBA", accused-appellants. The Solicitor General for plaintiff-appellee. Virgilio Y. Morales for accused-appellants. SYNOPSIS Accused-appellants were convicted for violation of Section 4, Article II of Republic Act No. 6425, as amended and penalized to death and a fine of Ten Million Pesos by the Regional Trial Court of Manila (Branch 35). The conviction was based on the testimony of the lone witness presented by the prosecution, SPO3 Jesus Faller, the team leader of the nine-member police team of the Drug Enforcement Unit- Western Police District, which responded to the confidential and intelligence reports received by the team about the drug trafficking activity of Leonardo Dulay around Bambang Street, Tondo, Manila. As a result of the operation, the appellants were arrested in the early morning of June 18, 1994 in the act of transporting the 16.1789 kilograms or eight bundles of dried marijuana flowering tops wrapped in pieces of paper and plastic tapes, at the intersection of Bambang Extension and Jose Abad Santos Ave., Tondo, Manila. aEcSIH On the other hand, the accused-appellants interposed the defense of alibi whose testimonies were corroborated by five other witnesses. This Court ruled that there is no law requiring that a testimony of a witness be corroborated in order to be believed. The testimony of a single witness, if credible and positive, is sufficient to produce a conviction. The failure to present all the eyewitnesses to an act does not necessarily give rise to an unfavorable presumption, especially when the testimony of the witness sought to be presented is merely corroborative. A corroborative testimony is not necessary where the details of the crime have clearly been testified to with sufficient clarity. What is of paramount importance in the present case is the positive identification by prosecution witness SPO3 Jesus Faller of the three (3) appellants, who were caught in flagrante delicto transporting the subject dried marijuana flowering tops. This should prevail over the appellants' alibi and denials. cTDaEH The only error committed by the trial court is when it considered the appellants' use of a motor vehicle in the commission of the offense as an aggravating circumstances. thus raising the penalty from reclusion perpetua to death. Simply stated; the motor vehicle which was used to transport prohibited drugs was not purposely sought to facilitate the commission of the crime since such act of transporting constitutes the crime itself. The use of a motor vehicle is inherent in the crime of transporting as it must of necessity accompany the commission thereof; hence, such use is not an aggravating circumstance. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; CREDIBILITY; CREDIBLE AND POSITIVE TESTIMONY OF A SINGLE WITNESS IS SUFFICIENT TO CONVICT. There is no law requiring that a testimony of a witness be corroborated in order to be believed. The testimony of a single witness, if credible and positive, is sufficient to produce a conviction. HTSAEa 2. ID.; ID.; CORROBORATIVE TESTIMONY; NOT NECESSARY WHERE DETAILS OF THE CRIME HAVE CLEARLY BEEN TESTIFIED TO. The failure to present all the eyewitnesses to an act does not necessarily give rise to an unfavorable presumption, especially when the testimony of the witness sought to be presented is merely corroborative. A corroborative testimony is not necessary where the details of the crime have clearly been testified to with sufficient clarity. 3. ID.; ID.; MATTER OF SELECTING AND PRESENTING WITNESSES FOR THE PEOPLE, A PREROGATIVE OF THE PUBLIC PROSECUTOR. The matter of selecting and presenting witnesses for the People is a prerogative of the public prosecutor. Thus, the non-presentation by the prosecution of certain witnesses is not a valid defense for the accused, neither does it work against the prosecution's cause. 4. ID.; ID.; ACCUSED MAY AVAIL OF COMPULSORY JUDICIAL PROCESS WHERE HE BELIEVES THAT TESTIMONIES OF WITNESSES ARE IMPORTANT TO HIS CAUSE. Where, as here, the accused believes that the testimonies of the witnesses are important to his cause, as when he expects them to make declarations inconsistent with that of the principal prosecution witness, then he should avail of them even by compulsory judicial process if necessary. 5. ID.; ID.; PRESUMPTIONS; PRESUMPTION OF REGULAR PERFORMANCE OF DUTY, APPLIED IN CASE AT BAR. We have carefully examined the testimony of SPO3 Jesus Faller to determine whether or not his testimony is a product of fabrication and we find his testimony to be credible. Moreover, being a law enforcer, Faller is presumed to have regularly performed his duty in the absence of proof to the contrary. 6. ID.; ID.; CREDIBILITY; FINDINGS OF FACT OF THE TRIAL COURT, GENERALLY ACCORDED GREAT WEIGHT AND RESPECT ON APPEAL. We should accord great weight and respect to the findings of fact of the trial court which is in a better position to determine questions involving the credibility of witnesses, it having directly heard them and observed their deportment and manner of testifying. In the absence of any showing that the trial court had overlooked certain substantial facts which would alter the conviction of the appellants, we do not find any reason to overturn the trial court's findings as to facts. IcDCaS 7. ID.; ID.; ID.; ALIBI AND DENIALS; CANNOT PREVAIL OVER POSITIVE IDENTIFICATION. What is of paramount importance in the present case is the positive identification by prosecution witness SPO3 Jesus Faller of the three (3) appellants who were caught in flagrante delicto transporting the subject dried marijuana flowering tops. This should prevail over the appellants' alibi and denials of having committed the crime with which they were charged in the lower court, since as between the positive declaration of the prosecution witness and the negative statements of the appellants, the former deserves more credence. 8. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURE; SUBJECT TO WAIVER; CASE AT BAR. The appellants are now precluded from assailing the warrantless search when they voluntarily submitted to it as shown by their actuation during the search and seizure. The appellants never protested when SPO3 Jesus Faller, after identifying himself as a police officer, opened the tin can loaded in the appellants' vehicle and found eight (8) bundles. And when Faller opened one of the bundles, it smelled of marijuana. The NBI later confirmed the eight (8) bundles to be positive for marijuana. Again, the appellants did not raise any protest when they, together with their cargo of drugs and their vehicle, were brought to the police station for investigation and subsequent prosecution. We have ruled in a long line of cases that "When one voluntarily submits to a search or consents to have it made on his person or premises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th ed., Vol. 1, page 631). The right to be secure from unreasonable search may, like every right, be waived and such waiver may be made either expressly or impliedly." The appellants effectively waived their constitutional right against the search and seizure in question by their voluntary submission to the jurisdiction of the trial court, when they entered a plea of not guilty upon arraignment and by participating in the trial. 9. REMEDIAL LAW; ACTIONS; APPEALS; APPEAL THROWS THE WHOLE CASE OPEN TO REVIEW AND IT BECOMES THE DUTY OF THE HIGH TRIBUNAL TO CORRECT ERRORS FOUND IN THE JUDGMENT. The only error committed by the trial court, as we stated in the beginning, is its imposition of the death penalty on the appellants. Although this matter is not assigned as an error by the appellants, however, in a criminal case, an appeal to this Court throws the whole case open to review and it becomes our duty to correct an error as may be found in the judgment appealed from whether it is made the subject of assignment of errors or not. 10. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; USE OF MOTOR VEHICLE; NOT CONSIDERED IN VIOLATION OF SECTION 4, ARTICLE 2 OF REPUBLIC ACT NO. 6425, AS AMENDED (DANGEROUS DRUGS ACT). Section 20, Article 14 of the Revised Penal Code considers as aggravating circumstance a situation when "the crime be committed . . . by means of motor vehicles, airships, or other similar means." However, the use by the appellants of a motor vehicle in this case should not be appreciated as an aggravating circumstance because the very act of transporting the prohibited drug is what is being punished under Section 4, Article II of Republic Act No. 6425 (the Dangerous Drugs Act of 1972), as amended by Section 13 of Republic Act No. 7659 (the "heinous crimes" Law). The act of transporting a prohibited drug, like the one at bar, is a malum prohibitum since it is punished as an offense under a special law. The use of a motor vehicle is inherent in the crime of transporting the prohibited drug. It is a wrongful act because it is prohibited by law. Without the law punishing the act, it cannot be considered a wrong. As such, the mere commission of said act is constitutive of the offense punished and suffices to validly charge and convict an individual caught committing the act so punished, regardless of criminal intent. Simply stated, the motor vehicle which was used to transport prohibited drugs was not purposely sought to facilitate the commission of the crime since such act of transporting constitutes the crime itself, punishable under Section 4, Article II of Republic Act No. 6425, as amended. That a motor vehicle was used in committing the crime is merely incidental to the act of transporting prohibited drugs. The use of a motor vehicle is inherent in the crime of transporting as it must of necessity accompany the commission thereof; hence, such use is not an aggravating circumstance. 11. CRIMINAL LAW; DANGEROUS DRUGS ACT (REPUBLIC ACT NO. 6425, AS AMENDED); ACT OF TRANSPORTING PROHIBITED DRUGS; PENALTY. There being no aggravating or mitigating circumstance which attended the commission of the offense in this case, and considering that the quantity of the subject prohibited drug exceeded 750 grams, the proper penalty that should be imposed on each of the appellants is reclusion perpetua and a fine of Ten Million Pesos. AcCTaD D E C I S I O N MARTINEZ, J p: The courts should not hesitate to wield the sword against drug traffickers whose conscience has been seared by their insatiable greed for instant wealth, thus propelling them to boldly pursue their abominable trade, utterly unconcerned of the pernicious effects of their venomous merchandise which have destroyed the lives and shattered the dreams of hapless victims, especially the vulnerable youth. cdphil This the trial court did in the present case when it imposed the most severe penalty of death and a fine of Ten Million Pesos against the three (3) appellants for delivering and transporting more than 16 kilograms of prohibited dried marijuana flowering tops. While the conviction of the appellants of the crime charged is proper, we find, however, that the penalty of death imposed by the trial court is not in accordance with the law. On 12 July 1994, an Information was filed with the Regional Trial Court of Manila (Branch 35), docketed as Criminal Case No. 94- 137528, indicting appellants Antonio Correa y Cayton @ "Boyet," Rito Gunida y Sesante @ "Dodong," and Leonardo Dulay y Santos @ "Boy Kuba" for having violated Section 4, Article II of Republic Act No. 6425, 1 as amended, allegedly committed as follows: "That on or about June 18, 1994, in the City of Manila, Philippines, the said accused conspiring and confederating together and helping one another, not being authorized by law to possess, sell, deliver, transport, give away to another or distribute any prohibited drug, did then and there willfully, unlawfully, knowingly and jointly deliver or transport eight (8) bundles of dried flowering tops of MARIJUANA wrapped in pieces of papers and plastic tapes weighing 16.1789 kilograms, a prohibited drug. "CONTRARY TO LAW." 2 The Information indicated that the appellants were "All Under Arrest" and that "No Bail (was) Recommended." 3 When arraigned, the appellants pleaded "NOT GUILTY." After trial, the lower court found the appellants guilty as charged, the dispositive portion of the decision dated 03 March 1995 reading thus: "WHEREFORE, judgment is rendered pronouncing the three accused ANTONIO CORREA y CAYTON, @ "Boyet," RITO GUNIDA y SESANTE @ "Dodong," and LEONARDO DULAY y SANTOS @ "Boy Kuba" guilty beyond reasonable doubt of unlawful delivery and transportation of dried marijuana flowering tops weighing 16.1789 kilograms, penalized under Section 4, Article 11 of Republic Act No. 6425, as amended, and further amended by Section 13 in relation to Section 17 of Republic Act No. 7659, and sentencing each of the said three accused to DEATH to be executed by the means provided by law, and to pay a fine of P10,000,000.00, plus the costs. "The eight (8) bundles in brick form of dried marijuana flowering tops (Exhibits B-1 to B-8, inclusive), weighing 16.1789 kilograms are ordered confiscated and forfeited to the Government to be disposed of in accordance with law under the direction and supervision by the Dangerous Drugs Board. Within ten (10) days following the promulgation of this judgment, the Branch Clerk of this Court, is ordered to turn over the two (2) bundles of dried marijuana flowering tops left with this Court to the Dangerous Drugs Custodian, National Bureau of Investigation, as appointed by the Dangerous Drugs Board, for appropriate disposition. The other six (6) bundles of said dried marijuana flowering tops have been left in the custody of the NBI, Forensic Chemistry Division. "The owner-type jeep with plate No. FMR 948 used by the three accused as a means to commit the offense is also ordered confiscated and forfeited in favor of the Government, unless it can be shown that it is in the property of a third person not liable for the offense. "Serve a copy of this Decision on the Executive Director, Dangerous Drugs Board, for his information and guidance. "SO ORDERED." 4 The verdict of conviction by the trial court rested mainly on the testimony of prosecution witness SPO3 Jesus Faller, a police officer assigned at Police Station 3, Western Police District, City of Manila. 5 He was among the nine-member police team of the Drug Enforcement Unit Western Police District Command (DEU- WPDC) which arrested the three (3) appellants in the early morning of 18 June 1994. 6 His account of the arrest, as correctly narrated in the Appellee's Brief, is as follows: "About a week prior to June 18, 1994, the Police Operatives from the Drug Enforcement Unit of the Western Police District Command (DEU-WPDC) had placed under surveillance the movements and activities of appellant Leonardo Dulay on account of confidential and intelligence reports received in said Unit about his drug trafficking around Bambang Street, Tondo, Manila. The police surveillance brought forth positive results and confirmed Dulay's illegal drug trade (TSN, Nov. 22, 1994, pp. 16-17). "On June 17, 1994, at around 8:00 o'clock in the evening, the Unit's Operatives, DEU-WPDC, U.N. Avenue, Ermita, Manila was alerted by a police informant that Dulay, coming from Quezon City, would deliver and transport that night, to Bambang Street, Manila a certain quantity of drugs. Dulay reportedly would pass A. Bonifacio Street on board a semi-stainless owner-type jeep with Plate No. FMR-948. Forthwith, a nine-man team headed by SPO3 Jesus Faller was organized to pursue and bag the suspect. Thereafter, the operatives, together with the informer proceeded to A. Bonifacio Street on board three vehicles. They inconspicuously parked along the side of North Cemetery, boundary of Quezon City and Manila, at around 11:00 o'clock that same evening, and waited for the suspect (Id., pp. 4; 19- 20). "Around 3:00 o'clock in the morning of June 18, 1994, the police informant spotted the approaching vehicle of Dulay and immediately alerted the waiting policemen. The operatives tailed the subject jeepney, taking care that its passengers would not notice that they were being followed (Id., p. 5). "Upon reaching the intersection of Bambang Extension and Jose Abad Santos Avenue, Tondo, Manila, the subject vehicle stopped and parked at a corner. Thereupon, the operatives also stopped and parked their vehicles around the suspect's vehicle and accosted the passengers of the owner-type jeepney. Appellant Antonio Correa was at the driver's seat with appellant Leonardo Dulay sitting beside him in the front seat and appellant Rito Gunida at the back seat (Id., p. 21). The team inspected a cylindrical tin can of El Cielo Vegetable Cooking Lard (Exhibit 'B'), about two feet high, loaded in the vehicle of the appellants. The can contained eight bundles of suspected dried marijuana flowering tops wrapped in pieces of paper and plastic tapes. The team seized the suspected contrabands and marked each bundle consecutively with 'IDR-1' to 'IDR-8' (Exhibits 'B-1' to 'B-8' inclusive). The three suspects were brought to the police headquarters at DEU-WPDC for investigation (Id., pp. 5-9; Exhs. 'E,' 'F' and 'G'). "The packages of suspected marijuana were submitted to the National Bureau of Investigation for laboratory analysis to determine their chemical composition. The tests confirmed that the confiscated stuff were positive for marijuana and weighed 16.1789 kilograms (TSN, Nov. 15, 1994, p. 11; Exhs. 'D' and D-1')." 7 The appellants, on the other hand, had a different story on their arrest. The trial court, in its decision subject for review, has summarized the appellants' version thus: "The common defense interposed by the three accused is in the nature of alibi. The core of their contention is that they were arrested without warrant in Camarin D, Caloocan City. They also denied that they were delivering and transporting dried marijuana flowering tops when they were apprehended. "Also stripped of incidental details, the version of the defense is to the effect that on June 17, 1994, at about 5:00 o'clock in the afternoon, Leonardo Dulay rushed to the Metropolitan Hospital his gravely ill and very weak six months old son Jon-Jon. He was accompanied by his co-accused Antonio Correa, who drove the owner-type jeep which they used, and a neighbor known only as 'Bulik.' At around 11:00 o'clock the same evening, Leonardo Dulay, Antonio Correa and 'Bulik' went back home to get the things of the sick child. However, when they were already near the house of Leonardo Dulay in Camarin D, Caloocan City, some elements of the Western Police District Command blocked their (accused) way, and apprehended them for an alleged charge of trafficking on 'shabu,' and were brought to the WPDC headquarters at U.N. Avenue, where they were detained. ". . . according to accused Rito Gunida, he was picked-up by the police in his house at Camarin II, Area D, Caloocan City, on June 17, 1994, at around 12:00 o'clock midnight. The arresting officers rose (sic) him from his sleep. He was also taken to the headquarters of the WPDC at U.N. Avenue, and there placed in a cell. "In addition to their respective declarations, the three accused likewise offered the testimonies of Marilene de la Rosa, Violeta Almugela, Juanito Balino, Rogelio Altis and Pascual Gillego to corroborate the claim of the defense." 8 Assailing the verdict of conviction, the appellants interpose the following assignment of errors: "THE LOWER COURT ERRED: I IN TAKING COGNIZANCE OF THE CASE, AS ALL THE ACCUSED WERE APPREHENDED AT THEIR RESPECTIVE RESIDENCES IN CAMARIN, KALOOKAN CITY, NOT IN MANILA AS THE LAWMEN MADE IT APPEAR WHERE THE THREE (3) ACCUSED ALLEGEDLY COMMITTED THE OFFENSE. II IN ADMITTING THE EVIDENCE ALLEGEDLY CONFISCATED FROM THE ACCUSED, THE SAME BEING INADMISSIBLE BEING THE FRUIT OF AN ILLEGAL SEARCH CONDUCTED WITHOUT ANY SEARCH WARRANT. III IN BASING ITS DECISION OF CONVICTION OF APPELLANTS SOLELY ON THE UNCORROBORATED TESTIMONY OF SPO3 JESUS FALLER OF THE WPDC DESPITE THE PARTICIPATION OF THE OTHER EIGHT MEMBERS OF THE OPERATIVES THAT ALLEGEDLY TOOK PART IN THE ARREST OF THE THREE (3) ACCUSED. IV IN CONVICTING THE THREE (3) ACCUSED DESPITE THE FAILURE OF THE PROSECUTION TO ESTABLISH THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT." 9 The appellants' submission is palpably without merit. The first, third and fourth assigned errors aforequoted are closely interrelated and, therefore, the same shall be discussed jointly. The appellants plead in exculpation that their version should be believed because the defense has "indubitably established" that they were arrested in their respective residences in Camarin, Caloocan City by the police team of SPO3 Jesus Faller of the Western Police District Command, Manila. The appellants claim that ". . . Witnesses Juanita Balino, Marlene dela Rosa, Violeta Almojuela and Rogelio Altis are unanimous in their declaration that the arresting officers were in Camarin, Kalookan City, when they arrested the three accused. As against the testimony of SPO3 Jesus Faller, the positive declaration of the foregoing witnesses for the defense should prevail. Since SPO3 Jesus Faller belongs to the Western Police District Command, he orchestrated his testimony to make it appear that the arrest of the three accused and the confiscation of the alleged marijuana took place in Bambang, Sta. Cruz, Manila, which is too far and remote from the residences of the three accused who are all residents of Camarin, Kalookan City. The arrest of the three accused in Camarin, Kalookan City, were illegal and the alleged confiscation of evidence invalid, granting that there really were evidence confiscated from the three accused. To cure the flaw in the arrest of the accused and the warrantless confiscation, Faller made it appear that the accused were transporting marijuana in Bambang, Sta. Cruz, Manila and that they tailed the accused until Bambang Street, when in truth and in fact, the three accused were illegally apprehended in Camarin, Kalookan City, and they really have to pass through A. Bonifacio Street, on their way to Western Police Headquarters at the U.N. Avenue. llcd "To avoid inconsistencies in their statements and oral declaration in court, the other eight (8) members of the arresting team . . . were not presented as witnesses and their testimonies were withheld by the prosecution. We do not find any reason why not one of them corroborated the testimony of SPO3 Faller. There is a legal presumption that if an evidence is intentionally withheld when there is opportunity to offer the same, (the said evidence) is deemed to be adverse to the party withholding the same. Not a single corroboration came for the said eight members of the arresting team." 10 (Emphasis ours) That is all the appellants could say in assailing the credibility of prosecution star witness SPO3 Jesus Faller. Nothing was mentioned about any inconsistencies in the testimony of Faller. Neither was there any suggestion that Faller harbored ill-feeling against the appellants. The appellants' allegations that "(t)o cure the flaw in (their) arrest," SPO3 Jesus Faller "orchestrated his testimony" and "made it appear that the accused were transporting marijuana in Bambang, Sta. Cruz, Manila" and were arrested thereat, and that "(t)o avoid inconsistencies in their statements and oral declaration in court, the other eight (8) members of the arresting team. . . were not presented as witnesses," are nothing but mere conjectures and suspicious which have zero probative value. Conjectures and suspicions are not evidence; ergo, they prove nothing. Moreover, the testimonies of the other members of the apprehending team would, at best, have been merely corroborative of Jesus Faller's testimony. Thus, the trial court did not err in giving credence to the uncorroborated testimony of Jesus Faller and in rejecting the appellants' defense of alibi and denial. There is no law requiring that a testimony of a witness be corroborated in order to be believed. 11 The testimony of a single witness, if credible and positive, is sufficient to produce a conviction. 12 The failure to present all the eyewitnesses to an act does not necessarily give rise to an unfavorable presumption, especially when the testimony of the witness sought to be presented is merely corroborative. 13 A corroborative testimony is not necessary where the details of the crime have clearly been testified to with sufficient clarity. 14 The matter of selecting and presenting witnesses for the People is a prerogative of the public prosecutor. 15 Thus, the non-presentation by the prosecution of certain witnesses is not a valid defense for the accused, neither does it work against the prosecution's cause. 16 Where, as here, the accused believes that the testimonies of said witnesses are important to his cause, as when he expects them to make declarations inconsistent with that of the principal prosecution witness, then he should avail of them even by compulsory judicial process if necessary. 17 In any case, the public prosecutor's choice of SPO3 Jesus Faller as the only witness to testify on the appellants' arrest was proper. Faller was the one who received from the informant the confidential information about the illegal drug trafficking activities of appellant Leonardo Dulay. 18 Since the said information was so confidential, Faller placed appellant Dulay under police surveillance with only PO3 Ebia and their informant as his (Faller's) companions. 19 After a week of surveillance, the informant again reported to Faller in the evening of 17 June 1994 that the appellants would deliver illegal drugs that night to Bambang on board a vehicle, and it was Faller who also headed the nine-man police team in tailing the appellants and arresting them after finding the illegal drugs in their possession. 20 Thus, Faller was the best witness to testify on the circumstances of the appellants' arrest. We have carefully examined the testimony of SPO3 Jesus Faller to determine whether or not his testimony is a product of fabrication and we find his testimony to be credible. Moreover, being a law enforcer, Faller is presumed to have regularly performed his duty in the absence of proof to the contrary. 21 We fully agree with the observation of the trial court when it said: "Apart from their inherently weak defense, the three accused have not provided this Court with any other ground to warrant disbelief of the testimony of SPO3 Jesus Faller. They have not as much as hinted that SPO3 Jesus Faller was ill-motivated in testifying against them. This witness of the People is a police officer. As such he is presumed to have carried out and performed regularly his official duties, especially in the absence of any indication in the record showing otherwise. It has not been claimed that SPO3 Jesus Faller has a personal stake and interest in the final outcome of this case, or that he would be benefited or some personal advantage would inure to him if the three accused were convicted. Whatever is the result of this case he would continue to receive his usual remuneration as a police officer. More than these, SPO3 Jesus Faller has been subjected to a lengthy and searching cross-examination by an able and determined defense counsel de parte, such that any falsehood in his narration could have been easily detected and exposed. However, he came out from the ordeal with his narration unimpaired and maintained. "It is a familiar rule consistently applied by the Supreme Court in a long line of cases, thereby making further citations academic, that where there appears no evidence in the record indicating that the principal prosecution witness has been actuated by improper motive in testifying against the accused, the presumption is that he has not been so actuated and his testimony is entitled to full faith and belief. "The contentions of the defense that on June 18, 1994, at about 5:00 o'clock in the afternoon, Leonardo Dulay and Antonio Correa rushed the gravely ill six months old son of the former to the Metropolitan Hospital located at Magdalena Street, Sta. Cruz, Manila, according to Leonardo Dulay (TSN, Dec. 13, 1994, p. 11), or at the corner of Masangkay and Mayhaligue Streets, according to Antonio Correa (TSN, Dec. 19, 1994, p. 22), and that at around 11:00 o'clock in the evening on the same date they returned to Camarin in Caloocan City to get the things of the child, but they were not able to do so because elements of the Western Police District Command, who were waiting near the house of Leonardo Dulay, arrested them (TSN, Dec. 13, 1994, pp. 12 & 15; Id., Dec. 19, 1994, pp. 23-26), do not deserve belief by this Court. Aside from the observed discrepancy in their testimonies about the location of the Metropolitan Hospital, the Booking Sheets and Arrest Reports (Exhibits E and G) conclusively reveal that as early as 4:00 o'clock in the morning on June 18, 1994, they had been in the custody of the Drug Enforcement Unit of the Western Police District Command at U.N. Avenue, Ermita, Manila, undergoing police investigation. Although objected to by the defense counsel on the ground that Antonio Correa and Leonardo Dulay signed Exhibits E and G, respectively, without the assistance of counsel, these documents, however, were offered by the prosecution and admitted by the Court only for the purpose of showing that a police investigation was conducted following the arrest of the two accused. The signatures of the two accused on these documents are, thus, immaterial and will not alter the fact that they were in the Office of the DEU-WPDC at U.N. Avenue, Ermita, Manila, from 4:00 o'clock in the morning on June 18, 1994, being investigated by the police authorities in connection with the offense now in question. "One more thing. The clear implication of the claim of the defense is that the sick child of Leonardo Dulay was confined in the Metropolitan Hospital, otherwise its contention that Leonardo Dulay and Antonio Correa went back to Camarin, Caloocan City to get the things of the child would bear no sense. The hospital records of said child are, therefore, the best evidence which would conclusively confirm their pretense. Surprisingly, however, and for no stated reason, the defense failed to offer in the evidence those hospital records of the son of Leonardo Dulay. The significance of this omission is fatal to the cause of the defense. It means that there were no such hospital records because no child of Leonardo Dulay was hospitalized on or about June 18, 1994, and that this was merely fabricated by the defense to provide some loopholes through which these two accused may elude the law. "The alibi of Rito Gunida that he was sleeping in his house at Camarin II, Area D, Caloocan City, on June 17, 1994, when at around midnight he was awakened and arrested by some policemen cannot outweigh and prevail over the testimony of SPO3 Jesus Faller that he and his co-police officers arrested this accused, together with Leonardo Dulay and Antonio Correa, on June 18, 1994, at more or less, 3:45 o'clock in the morning at Bambang Extension corner Jose Abad Santos Avenue in Tondo, Manila, in the act of delivering and transporting marijuana, using a motorized vehicle. In weighing conflicting statements and declarations of opposing witnesses, the accepted rule consistently applied by the courts is that where the testimony of the principal witness of the prosecution regarding the commission by the accused of the offense in question is positive, clear and trustworthy, like in the case at bar, the latter's denials and explanation cannot outweigh and prevail over such positive, clear and trustworthy evidence of the prosecution. (People vs. Chavez, et al., 117 SCRA 221, 227; People vs. Campana, 124 SCRA 271, 281.) "The attempt of the defense to corroborate its claim that the three accused were arrested in Camarin, Caloocan City, and not in Bambang Extension corner of Abad Santos Avenue, Tondo, Manila, with the testimonies of Marilene de la Rosa, Violeta Almugela, Juanita Balino, Rogelio Altisi and Pascual Gillego, did not provide any improvement to its weak and crippled position. "Marilene de la Rosa is the niece of Leonardo Dulay who finances her studies. (TSN, Jan. 9, 1995, p. 4.) In view of her close relationship with her uncle and the financial support he extends to her, it would be unnatural if she does not feel a very strong bias in favor of her uncle and provider. "Violeta Almugela contradicted the testimonies of Leonardo Dulay and Antonio Correa on a vital aspect of their defense. In the course of her direct examination, she declared: ATTY. MORALES (Defense counsel) Madam witness, where were you on June 17, 1994, at about midnight? A: I was at the Hospital, sir. Q: What Hospital are you referring to? A: Infant Jesus, sir. Q: What time did you arrive at Infant Jesus Hospital? A: At 5:00, sir. Q: Who were with you when you arrived? A: I was with Boy Dulay and Josephine Dulay and a certain Antonio, sir. xxx xxx xxx Q: Where did you proceed? A: We proceeded to Metro Hospital, sir. Q: Where is that situated? A: At Tayuman, Tondo, sir. (TSN, Jan. 9, 1995, pp. 12-14.) "Leonardo Dulay, on the other hand, declared under the direct examination of his counsel: Q: Where is that Metropolitan Hospital situated? A: In Magdalena, sir. Q: Magdalena what? A: At Magdalena, Sta. Cruz, Manila, sir. xxx xxx xxx Q: When did you bring your son to the Metropolitan Hospital? A: On June 18, sir. Q: What time? A: 5:00 o'clock, sir. (TSN, Dec. 13, 1994, pp. 11-12) "There was no mention in the testimony of Leonardo Dulay that his sick son was first taken to the Infant Jesus Hospital at 5:00 o'clock in the afternoon on June 18, 1994. "Antonio Correa, testifying on the same incident, gave another version. He declared: Q: Where is Metropolitan Hospital? A: At Masangkay corner Mayhaligue Street. Q: What City? A: Manila, sir. xxx xxx xxx Q: Why did you go to Metropolitan Hospital? A: In order to have the child of Leonardo Dulay medically attended, sir. xxx xxx xxx Q: What time did you bring the son of Dulay to the Metropolitan Hospital? A: From 5:00 o'clock in the afternoon up to past 11 :00 o'clock. xxx xxx xxx Q: Now, what time did you leave the Metropolitan Hospital? A: Past 11:00 o'clock, sir. (TSN, Dec. 19, 1994, pp. 22-23) "The discrepancies in the testimonies of defense witness Violeta Almugela, accused Leonardo Dulay and accused Antonio Correa cannot be lightly ignored as discrepancies in minor details, because such alleged incident forms a major link in the defense of the accused, and the main basis of their alibi defense. "The testimony of Juanita Balino deserves but a passing consideration by this Court. According to her on June 17, 1994, at about midnight she was in her house in Camarin Petchayan, Caloocan City, when Boy Dulay, Antonio Correa, Gunida and one Violeta Almugela were taken by armed police officers. But because after they passed by she got afraid she went back to sleep. (TSN, Jan. 9, 1995, p. 23-24.) Her testimony was so trivial, such that even the Assistant Prosecutor found her unworthy for further cross-examination. "We have no test of the truth of human testimony, except its conformity to our common knowledge, usual observation, and daily experience. To be worthy of credence, the testimony of a witness should be so natural, reasonable and probable in view of the event which it describes or to which it relates, so as to make it easy for the mind to accept. In this case, despite the startling occurrence which happened before her eyes, which even scared her, Juanita Balino nonchalantly went back to sleep, unconcerned with what may happen next. This is not the usual way a person of her age, 57 years old, and status conducts himself(sic) in the face of a shocking event. "Rogelio A. Altis, Sr., a barangay kagawad of Barangay 178, Zone 15, of Caloocan City, had no personal knowledge of the alleged incident which supposedly took place at about midnight on June 17, 1994. He learned it only on June 20, 1994, when one Ursula Gunida reported it to him. (TSN, Jan. 11, 1995, p. 3) It has not been explained why it took Ursula Gunida until June 20, 1994 to report to the barangay authorities the incident which allegedly happened on June 17, 1994. "The same may be said with respect to the testimony of defense witness Pascual Gillego. He admitted that he learned of the alleged arrest of the three accused only from his neighbors. But he took no steps to report the matter to his superiors in the barangay. . . . (TSN, Jan. 11, 1995, pp. 6, 9). "The testimonies of Rogelio Altis, Sr. and Pascual Gillego are hearsay, and as such it has no probative value and should be disregarded whether objected to or not. If no objection is made, it becomes evidence only by reason of want of such objection, but its admission does not confer upon it any new attribute in point of weight. Its nature and quality remains the same, so far as its intrinsic weakness and incompetency to satisfy the mind are concerned. (People vs. Valero, 112 SCRA 661, 675.)" 22 We should accord great weight and respect to the findings of fact of the trial court which is in a better position to determine questions involving the credibility of witnesses, it having directly heard them and observed their deportment and manner of testifying. 23 In the absence of any showing that the trial court had overlooked certain substantial facts which would alter the conviction of the appellants, we do not find any reason to overturn the trial court's findings as to facts. What is of paramount importance in the present case is the positive identification by prosecution witness SPO3 Jesus Faller of the three (3) appellants, who were caught in flagrante delicto transporting the subject dried marijuana flowering tops. This should prevail over the appellants' alibi and denials of having committed the crime with which they were charged in the lower court, since as between the positive declaration of the prosecution witness and the negative statements of the appellants, the former deserves more credence. 24 In the second, and final assigned error, the appellants assail the admission of the seized marijuana flowering tops as evidence against them, arguing that the same was "the fruit of an illegal search conducted without any search warrant." The appellants' contention is untenable. However, it would serve no useful purpose to discuss at length this alleged error, for the following reasons: (1) The appellants are now precluded from assailing the warrantless search and seizure when they voluntarily submitted to it as shown by their actuation during the search and seizure. The appellants never protested when SPO3 Jesus Faller, after identifying himself as a police officer, opened the tin can loaded in the appellants' vehicle and found eight (8) bundles. 25 And when Faller opened one of the bundles, it smelled of marijuana. 26 The NBI later confirmed the eight (8) bundles to be positive for marijuana. 27 Again, the appellants did not raise any protest when they, together with their cargo of drugs and their vehicle, were brought to the police station for investigation and subsequent prosecution. We have ruled in a long line of cases 28 that: "When one voluntarily submits to a search or consents to have it made on his person or premises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th ed., vol. I, page 631). The right to be secure from unreasonable search may, like every right, be waived and such waiver may be made either expressly or impliedly." (2) The appellants effectively waived their constitutional right against the search and seizure in question by their voluntary submission to the jurisdiction of the trial court, when they entered a plea of not guilty upon arraignment and by participating in the trial. 29 We agree with the trial court that the appellants conspired to commit the offense which they knew to be unlawful: "The established circumstances of this case, considered collectively, demonstrate beyond reasonable doubt the conspiracy among the three accused to commit the offense at bar. They were apprehended at the same time; traveling together in a motorized vehicle from the time they were first spotted by the arresting police officers at A. Bonifacio Street until their actual arrest at Bambang Extension corner Jose Abad Santos Avenue in Tondo, Manila; at an unholy hour of the night (until) around 3:00 to 3:45 o'clock in the morning on June 18, 1994; with Antonio Correa at the steering wheel, Leonardo Dulay seated in front beside the driver and Rito Gunida seated at the back of the motor vehicle; carrying for delivery and transportation a large quantity of dried marijuana flowering tops wrapped in tightly with plastic tapes and concealed in a big tin can of El Cielo Vegetable Cooking Oil (Exhibit B). These factors leave the mind of this Court at ease and free from any doubt that indeed the three accused had conspired and helped one another in the delivery and transportation of the said contraband. Section 21 of Republic Act No. 6425 provides: 'Sec. 21. Attempt and Conspiracy. The same penalty prescribed by this Act for the commission of the offense shall be imposed in case of any attempt or conspiracy commit the same in the following cases: (a) . . . LLjur (b) sale, administration, delivery, distribution and transportation of dangerous drugs; xxx xxx xxx'" 30 It was also duly established that the total weight of the dried marijuana flowering tops involved in this case is 16.1789 kilograms as testified to by NBI Forensic Chemist Emilia A. Rosales. 31 The only error committed by the trial court, as we stated in the beginning, is its imposition of the death penalty on the appellants. Although this matter is not assigned as an error by the appellants, however, in a criminal case, an appeal to this Court throws the whole case open to review and it becomes our duty to correct an error as may be found in the judgment appealed from, whether it is made the subject of assignment of errors or not. 32 The trial court considered the appellants' use of a motor vehicle in the commission of the offense as an aggravating circumstance, thus raising the penalty from reclusion perpetua which is the imposable penalty prescribed by law 33 to death. Justifying the penalty of death, the trial court made the following observation: "In view of the volume of dried marijuana flowering tops involved in this case, and the attendance of the aggravating circumstance that the crime was committed by means of a motor vehicle, the Court, with deep regret and sorrow, finds no other alternative but to impose on each of the three accused the supreme penalty of death and fine prescribed by law. Undoubtedly the three accused used an owner-type jeep with plate No. FMR 948 as a means to carry, deliver and transport their illegal merchandise; to elude detection of their drug trafficking activities by the police authorities ; and to facilitate escape in case their crime is discovered. (People vs. Espejo, 36 SCRA 400.)" 34 (Emphasis ours) True, Section 20, Article 14 of the Revised Penal Code considers as aggravating circumstance a situation when "the crime be committed . . . by means of motor vehicles, airships, or other similar means." However, the use by the appellants of a motor vehicle in this case should not be appreciated as an aggravating circumstance because the very act of transporting the prohibited drug is what is being punished under Section 4, Article II of Republic Act No. 6425 (the Dangerous Drugs Act of 1972), as amended by Section 13 of Republic Act No. 7659 (the "heinous crimes" law). The said law provides: "SEC. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions. Notwithstanding the provision of Section 20 of this Act to the contrary, if the victim of the offense is a minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty herein provided shall be imposed." (Emphasis ours) The act of transporting a prohibited drug, like the one at bar, is a malum prohibitum since it is punished as an offense under a special law. 35 The use of a motor vehicle is inherent in the crime of transporting the prohibited drug. It is a wrongful act because it is prohibited by law. 36 Without the law punishing the act, it cannot be considered a wrong. 37 As such, the mere commission of said act is constitutive of the offense punished and suffices to validly charge and convict an individual caught committing the act so punished, regardless of criminal intent. 38 Admittedly, the law does not define how the act of transporting can be committed. But, how else can one transport something to another place except by the use of a carrier. Black's Law Dictionary defines "transport" as "to carry or convey from one place to another." 39 Under Section 4, "Transportation of Prohibited Drugs" is by itself an offense. Again, Black defines "transportation" as "the movement of goods or persons from one place to another, by a carrier." 40 The operative words in the definition are "to carry or convey." 41 The fact that there is actual conveyance suffices to support a finding that the act of transporting was committed and it is immaterial whether or not the place of destination is reached. 42 Simply stated, the motor vehicle which was used to transport prohibited drugs was not purposely sought to facilitate the commission of the crime since such act of transporting constitutes the crime itself, punishable under Section 4, Article II of Republic Act No. 6425, as amended. That a motor vehicle was used in committing the crime is merely incidental to the act of transporting prohibited drugs. The use of a motor vehicle is inherent in the crime of transporting as it must of necessity accompany the commission thereof; hence, such use is not an aggravating circumstance. Article 62 of the Revised Penal Code, as amended by Section 23 of Republic Act No. 7659, reads: "Art. 62. Effects of the attendance of mitigating or aggravating circumstances and of habitual delinquency. Mitigating or aggravating circumstances and habitual delinquency shall be taken into account for the purpose of diminishing or increasing the penalty in conformity with the following rules: 1. Aggravating circumstances which in themselves constitute a crime specially punishable by law or which are included by the law in defining a crime and prescribing the penalty therefor shall not be taken into account for the purpose of increasing the penalty. xxx xxx xxx 2. The same rule shall apply with respect to any aggravating circumstances inherent in the crime to such a degree that it must of necessity accompany the commission thereof . . . ." (Emphasis ours) The case of People vs. Espejo cited by the trial court in support of its ruling that the use of a motor vehicle in this case is an aggravating circumstance, is one for robbery with homicide punishable under the Revised Penal Code, which has an entirely different factual setting and, therefore, the ruling therein should not be applied in the case at bench. In any event, the finding of the trial court that the appellants' use of the motor vehicle was intended "to elude detection of their drug trafficking activities by the police authorities and to facilitate escape in case their crime is discovered" is baseless. The prosecution failed to establish this matter. Such intention cannot simply be presumed but must be proved by clear and convincing evidence as conclusively as the crime itself. There being no aggravating or mitigating circumstance which attended the commission of the offense in this case, and considering that the quantity of the subject prohibited drug exceeded 750 grams, the proper penalty that should be imposed on each of the appellants is reclusion perpetua and a fine of Ten Million Pesos. 43 WHEREFORE, the judgment of the Regional Trial Court of Manila, Branch 35, in Criminal Case No. 94-137528 is hereby MODIFIED in the sense that the accused-appellants ANTONIO CORREA y CAYTON, RITO GUNIDA y SESANTE and LEONARDO DULAY y SANTOS shall suffer the penalty of reclusion perpetua in its entire duration. In all other respects, the judgment of the trial court is hereby AFFIRMED, with costs against the accused-appellants. SO ORDERED. Narvasa, C .J ., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco and Panganiban, JJ ., concur. THIRD DIVISION [G.R. Nos. 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. SYLLABUS 1. CONSTITUTIONAL LAW; RIGHTS OF ACCUSED UNDER CUSTODIAL INVESTIGATION, CONTEMPLATES AN EFFECTIVE TRANSMISSION OF INFORMATION UNDERSTOOD BY PERSON INVESTIGATED. This Court finds that such recital of rights falls short of the requirement on proper appraisal of constitutional 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 his right to remain silent and to counsel, it must be presumed to contemplate the transmission of meaningful information rather than just the ceremonial and perfunctory 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 under investigation the provisions of Section 20, Article IV of the Constitution. He is not only duty- bound to tell the person the rights to which the latter is entitled; he must also explain their effects in practical terms, e.g., what the person under interrogation may or may not do, and in a language the subject fairly understands. In other words, the right of a person under interrogation 'to be informed' implies a correlative obligation on the part of the police investigator to explain, and contemplates an effective communication that results in understanding what is conveyed. Short of this, there is a denial of the right, as it cannot truly be said that the person has been informed' of his rights. Now, since the right 'to be informed' implies comprehension, the degree of explanation required will necessarily vary, depending upon the education, intelligence and other relevant personal circumstances of the person under investigation. Suffice it to say that a simpler and more lucid explanation is needed where the subject is unlettered." 2. ID.; ID.; WAIVER OF RIGHT TO COUNSEL; REQUISITES. Although the right to counsel is a right that may be waived, such waiver must be voluntary, knowing and 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 to counsel to be waived, the waiver must be in writing and in the presence of the counsel of the accused. (Art. III, Section 12(1), Constitution) There is no such written waiver in this case, much less was any waiver made in the presence of counsel. 3. REMEDIAL LAW; EVIDENCE; PROSECUTION INVOLVING SALE OR DISTRIBUTION OF DRUG; PRESENCE AND IDENTITY OF POSEUR-BUYER. The alleged poseur- buyer, who also happens to be the alleged informant, was never presented during trial. The presence and identity of the poseur-buyer is vital to the case as his very existence is being disputed by the accused-appellant who denies having sold marijuana cigarettes to anyone. (People v. Ale, 145 SCRA 50 [1986]) Without the testimony of the poseur-buyer, there is no convincing evidence pointing to the accused as having sold marijuana. (People v. Fernando, 145 SCRA 151 [1986]) In this case, the alleged informant and the alleged poseur- buyer are one and the same person. We realize that narcotics agents often have to keep their identities and those of their informants confidential. For a prosecution involving the sale or distribution of drugs to prosper in this particular case, however, the informant has to testify. The testimony of the poseur-buyer is rendered compelling by the fact that the police officers were situated three blocks away from where the alleged sale took place. They did not see the actual sale of marijuana. 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 a constant exchange of goods for money. It may be far-fetched but it is possible that she came into possession of the marked money because she accepted it in the course of legitimate sales of cigarettes. Again, it is only the poseur-buyer who could testify that she gave marked money to the appellant in exchange for marijuana sticks. 4. ID.; ID.; ID.; ELEMENT OF SALE MUST BE ESTABLISHED. 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 pusher is caught in flagrante selling prohibited drugs. For the culprit to be convicted, the element of sale must be unequivocally established. In this case, the alleged poseur-buyer who could have categorically asserted that she bought marijuana from the appellant was not presented by the prosecution. And Sgts. Ahamad and Sudiacal could not attest to the fact of sale because they were three blocks away. The sale of marijuana was therefore not positively proven. 5. ID.; ID.; ID.; DIRECT AND POSITIVE EVIDENCE, ESSENTIAL. Considering the severe penalty of reclusion perpetua imposed on those who sell or distribute drugs, we have to insure that evidence of culpability must pass the test of the strictest scrutiny. We also have to take into account the oft-repeated defense in violations of the Dangerous Drugs Act that the drugs or the marked money were planted by police officers. More direct and positive evidence is essential. The failure of the appellant to ask why she was being invited for investigation by the NARCOM officers does not ipso facto indicate her guilt. Fear could have prevented her from propounding inquiries to the officers. The fact that the appellant signed the extra judicial confession despite her insistence that its contents were not true does not necessarily signify guilt. As earlier stated the extra judicial confession cannot be accepted as evidence. It is useless for purposes of proof of sale of prohibited drugs. 6. ID.; ID.; SUFFICIENCY OF CIRCUMSTANTIAL EVIDENCE FOR CONVICTION; REQUISITES. Rule 133, Section 5 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 conviction beyond a reasonable doubt. 7. ID.; ID.; ARREST WITHOUT WARRANT; VALID IN CASE AT BAR. Sgts. Sudiacal and Ahamad testified that there was an informant who apprised them of the presence of a drug pusher at the corner of 3rd Street and Rizal Avenue, Olongapo City. Acting on such information and in their presence, their superior, Captain Castillo, gave the informant marked money to 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 knowledge of facts implicating the appellant with the sale of marijuana to the informant-poseur buyer. We hold therefore that the arrest was legal and the consequent search which yielded 20 sticks of marijuana was lawful for being incident to a valid arrest. 8. ID.; ID.; ID.; LEGALITY THEREOF, NOT AFFECTED BY FAILURE ON PROSECUTION TO PROVE THE COMMISSION OF CRIME. The fact that the prosecution failed to prove the sale of marijuana beyond reasonable doubt does not undermine 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 the detention 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 by the officer or functionary to whom the law at the moment leaves the decision for the urgent purpose of 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 requisite for the fulfillment thereof the indubitable existence of a crime (People v. Ancheta, 68 Phil. 415 [1939]). 9. ID.; ID.; POSSESSION OF PROHIBITED DRUGS; PROVED BEYOND REASONABLE DOUBT IN CASE AT BAR. This Court quotes with approval the following arguments of the Solicitor-General: "Appellant's defense falls against the categorical testimony of the NARCOM agents that the trash can was found under the table where her legitimate wares were being sold. This fact was not denied by appellant. Therefore, she was the only person who had 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 the exclusion of all other persons. In law, actual possession exists when the thing is in the immediate occupancy and control of the party. But this is not to say that the law requires actual possession. In criminal law, possession necessary for conviction of the offense of possession of controlled substances with intent to distribute may be constructive 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 over the contraband. These requirements are present in the situation described, where the prohibited drugs were found inside the trash can placed under the stall owned by appellant. In fact, the NARCOM agents who conducted the search testified that they had 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 it was difficult for another person to use the trash can. The trash can was obviously not for use by her customers. "Appellant's arguments are inherently weak and improbable and cannot stand against the clear evidence pointing to her actual possession of the prohibited drug. The raw facts testified to by the NARCOM agents were corroborated by appellant and their conclusion that she had possession of the marijuana sticks found in the trash can is consistent with law and reason. 10. ID.; ID.; ID.; IMPOSABLE PENALTY. The lower court, however, erred in imposing a fixed penalty of six (6) years and one (1) day for possession of marijuana. Section 1 of the Indeterminate Sentence Law (Republic Act 4103 as amended) provides that in imposing a prison sentence for an offense punished by a law other than the Revised Penal Code, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum which shall not be less than the minimum term prescribed by the same. The penalty prescribed by the Dangerous 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. D E C I S I O N GUTIERREZ, JR., J p: Appellant Rosalinda Ramos seeks the reversal of the decisions of the Regional Trial Court, Branch 73, Third Judicial Region at Olongapo City, finding her guilty beyond reasonable doubt in Criminal Case No. 5990 for violating Section 8 of Republic Act No. 6425 (Dangerous Drugs Act of 1972 as amended) and in Criminal Case No. 5991 for violating Section 4 of the same Act and sentencing her to: 1) Imprisonment of six (6) years and one (1) day and a fine of P6,000.00 in Criminal Case 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-named accused without being lawfully authorized, did then and there wilfully, unlawfully and knowingly have in his/her/ their person, possession and control twenty (20) sticks of marijuana 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-named accused, without being lawfully authorized, did then and there wilfully, unlawfully and knowingly 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 a cigarette vendor by the name of `Mama Rose' was selling marijuana at the corner of 3rd 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 his pocket note (TSN, pp. 5, 14-15, May 4, 1984; p. 4, April 9, 1986). The informer left and after thirty (30) minutes came back and gave to Captain Castillo two (2) sticks of marijuana cigarettes (Exhibit `C-2') which he bought from appellant. Captain Castillo again instructed the informer to make another test buy from the suspect. From his wallet, Captain Castillo extracted another two (2) five-peso bills and before handing the 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 was selling cigarettes to conduct the next test buy while the NARCOM agents waited at the 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 the place 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 again gave to Captain Castillo two (2) sticks of marijuana (Exhibit `C-1'; TSN, p. 23, May 4, 1984; p. 6, April 9, 1986). The team then proceeded to the place where appellant was selling cigarettes. After identifying themselves as NARCOM agents, Capt. Castillo told appellant that she was being placed under arrest for illegal peddling of marijuana. Appellant was requested to take out the contents of her wallet (TSN, pp. 6-7, April 9, 1986, The four marked five-peso bills were found among her possessions and were confiscated after 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 the confiscated five-peso bills (TSN, p. 9, April 9, 1986). Sgt. Ahamad searched the stall of appellant and found twenty (20) sticks of marijuana cigarettes in a trash can placed 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 she swore to before Assistant City Fiscal Domingo Cabali, Jr. (TSN, pp. 5-6. June 20, 1984; Exhibit 'G'). The marijuana sticks confiscated were sent to the Philippine Constabulary Crime Laboratory (PCCL) for analysis. These were confirmed to be marijuana as evidenced by the Chemistry Report No. MD-363-82 of Marlene Salangad, a Forensic Chemist of the 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 was at the corner of 3rd St., and Rizal Avenue, West Tapinac, Olongapo City, selling cigarettes and fruits; that she does not have any table, all she had was a small wooden '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 four others who were more or less 6 to 8 meters away. She was surprised why they were there, and that she was invited by Capt. Castillo to the NARCOM office for investigation to which invitation she said `yes' after which she was taken to the NARCOM office. Before she was taken thereto, the other men searched the buri bags where she used to place her fruits (records does (sic) not show what fruits she was selling) and also her small cigarettes (sic) stand; that they did not find anything under 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 to bring along her cigarette stand; that inside her brown wallet, she has fifty (P50.00) pesos consisting of five pesos and ten pesos; that it was Sudiacal who took her wallet and Sudiacal took five (5) peso bills and told her that four (4) five peso bills are the 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 claimed that she affixed her signatures on the four (4) five peso bills because she was forced by Tahil Ahamad by saying `Mama Rose', you sign this, if you are not going to sign this, something will happen to you, you will get hurt'; that because she is an old woman, she got scared so she signed. When Tahil Ahamad told her to sign, Ahamad was talking to her in a normal manner and seated in front of her; that she cannot remember having signed anything because she was nervous, Capt. Castillo investigated her and thereafter was brought to the Fiscal's Office. She signed a 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 counsel while 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 she likewise was not assisted by counsel at the Fiscal's Office. She claimed that when she 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 THE CONCLUSIONS OF THE TRIAL COURT WITHOUT FACTUAL AND LEGAL LEG TO STAND ON. II THE EVIDENCE OBTAINED AND THE PERSON ARRESTED WITHOUT THE BENEFIT OF A WARRANT OF ARREST AND SEIZURE MAY NOT BE USED AGAINST THE ACCUSED AND ANY CONVICTION FROM SUCH EVIDENCE IS NOT VALID AND A GROUND FOR REVERSAL. III THE TRIAL COURT RELIED HEAVILY ON THE CONFESSION OF THE APPELLANT AND THE CONFESSION WAS EXTRACTED IN VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHTS "TO REMAIN SILENT AND TO COUNSEL'. IV WHEN NOT ALL THE ELEMENTS OF THE OFFENSE ARE PRESENT AND PROVEN, CONVICTION IS NOT PROPER. V THE REQUISITES IN ORDER TO CONVICT ON CIRCUMSTANTIAL EVIDENCE ARE 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 are correct, the trial judge nevertheless erred in imposing a separate sentence for possession because possession 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 extra judicial confession extracted from the accused on November 29, 1982 is inadmissible in evidence for being violative of the Constitutional mandate that any person under 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. (Art. III, Section 12(1), Constitution) The preliminary statement read to the appellant when her sworn statement was executed appears as follows: "SALAYSAY NA KUSANG LOOB NA IBINIBIGAY NI ROSALINDA RAMOS Y DAVID KAY CAPTAIN ARTURO M. CASTILLO PC SA HARAP NI SGT. TAHIL AHAMAD DITO SA HIMPILAN NG CANU, OLONGAPO CITY NGAYON 29 NG BUWAN NG NOBYEMBRE 1982. TAGASIYASAT: Gng. Rosalinda Ramos, ikaw ay nasa ilalim ng isang pagsisiyasat ukol sa paglabag sa ipinagbabawal na gamot. Bago kita tanungin ay nais kong malaman 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 sa pagsisiyasat na ito, 2. Ikaw ay may karapatan na kumuha ng isang abogado upang makatulong sa iyo sa pagsisiyasat na ito at 3. Ano man ang iyong sasabihin sa pagsisiyasat na ito ay maaaring gamitin laban or pabor sa iyo saan mang hukuman dito sa ating bansa. TANONG: Ngayon alam mo na ang iyong mga karapatan sa ating bagong saligang batas ikaw ba ay kusang loob na magbibigay ng isang salaysay na pawang katotohanan 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 appraisal of constitutional 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 his right to remain silent and to counsel, it must be presumed to contemplate the transmission of meaningful information rather than just the ceremonial and perfunctory 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 under investigation the provisions of Section 20, Article IV of the Constitution. He is not only duty-bound to tell the person the rights to which the latter is entitled; he must also explain their effects in practical terms, e.g., what the person under interrogation may or may not do, and in a language the subject fairly understands. In other words, the right of a person under interrogation `to be informed' implies a correlative obligation on the part of the police investigator to explain, and contemplates an effective communication that results in understanding what is conveyed. Short of this, there is a denial of the right, as it cannot truly be said that the person has been informed' of his rights. Now, since the right `to be informed' implies comprehension, the degree of explanation required will necessarily vary, depending upon the education, intelligence and other relevant personal circumstances of the person under investigation. Suffice it 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, knowing and 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 to counsel to be waived, the waiver must be in writing and in the presence of the counsel of the accused. (Art. III, Section 12(1), Constitution) There is no such written waiver in this case, much less was any waiver made in the presence of counsel. Fiscal Cabali, who administered the oath on the appellant's extra judicial confession, and the police officers 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 follow the requirements of the Constitution. Second, the alleged poseur-buyer, who also happens to be the alleged informant, was never presented during trial. The presence and identity of the poseur-buyer is vital to the case as his very existence is being disputed by the accused-appellant who denies having sold marijuana cigarettes to anyone. (People v. Ale, 145 SCRA 50 [1986]) Without the testimony of the poseur-buyer, there is no convincing evidence pointing to the accused as having sold marijuana. (People v. Fernando, 145 SCRA 151 [1986]) In this case, the alleged informant and the alleged poseur-buyer are one and the same person. We realize that narcotics agents often have to keep their identities and those of their informants confidential. For a prosecution involving the sale or distribution of drugs to prosper in this particular case, however, the informant has to testify. The testimony of the poseur-buyer is rendered compelling by the fact that the police officers were situated three blocks away from where the alleged sale took place. They did not see the actual sale of marijuana. Thus, Sgt. Sudiacal testified: "Q. Before you arrested the accused, where did you position yourselves? A. We were at the Black and White Open Bar, sir. Q. How far is that from the place where the accused was selling cigarettes? 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, Ma'am. Q. So, you did not see anything? A. Yes, Ma'am. Q. None of the three of you, Sgt. Sudiacal and Captain Castillo witnessed the actual buy of the three sticks of marijuana? A. Yes, Ma'am. Q. Your basis of the alleged buy by the informant is his word that he bought it from the suspect? A. Yes, Ma'am." (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 pusher is caught in flagrante selling prohibited drugs. For the culprit to be convicted, the element of sale must be unequivocally established. In this case, the alleged poseur-buyer who could have categorically asserted that she bought marijuana from the appellant was not presented by the prosecution. And Sgts. Ahamad and Sudiacal could not attest to the fact of sale because they were three 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 on circumstantial evidence in concluding that there was indeed a sale: "In this case, the accused admitted that she was the only one selling cigarettes at the corner 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 as the informant was able to buy four (4) handrolled sticks of marijuana cigarettes from her, two at a time. The accused did not ask the reason why when she was invited for investigation. This act negates innocence and against human nature, especially after having introduced themselves as NARCOM agents. In her control and possession, twenty (20) sticks of similar handrolled marijuana cigarettes were recovered from a trash 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 can under the table, you have to ask or request 'Mama Rose' to get out of the way in order to check the contents of the waste can?' The question was answered, `We asked permission from her to stand up so we can look into the contents of her small table, 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 the Fiscal to subscribe the same. While she alleged that she told the Fiscal (Fiscal Cabali) that the contents of her statement are not true, why then did she sign it before the said Fiscal? Why did she not insist that her denial be registered on the document so as to repudiate it? Fear could not be a valid reason as she has already boldly 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 bills were taken from her wallet. She was addressed as 'Mama Rose' not once but twice by the apprehending officers. Her counsel during the cross-examination of the prosecution witnesses and direct examination of the accused called and addressed her as 'Mama Rose', and the informant identified her not only as Rosalinda Ramos but also as 'Mama Rose'." (At pp. 73-74, Rollo) This Court finds that the cited circumstantial evidence do not establish beyond reasonable doubt that there was a sale of marijuana. Considering the severe penalty of reclusion perpetua imposed on those who sell or distribute drugs, we have to insure that evidence of culpability must pass the test of the strictest scrutiny. We also have to take into account the oft-repeated defense in violations of the Dangerous Drugs Act that the drugs or the marked money were planted by police officers. More direct and positive evidence is essential. The failure of the appellant to ask why she was being invited for investigation by the NARCOM officers does not ipso facto indicate her guilt. Fear could have prevented her from propounding inquiries 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 a constant exchange of goods for money. It may be far-fetched but it is possible that she came into possession of the marked money because she accepted it in the course of legitimate sales of cigarettes. Again, it is only the poseur-buyer who could testify that she gave marked money to the appellant in exchange for marijuana sticks. The fact that the appellant signed the extra judicial confession despite her insistence that its contents were not true does not necessarily signify guilt. As earlier stated the extra judicial confession cannot be 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 and appellant's counsel and the alleged informant poseur-buyer, the sale of marijuana can be inferred. Rule 133, Section 5 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 conviction beyond a reasonable doubt. For not successfully meeting the above requirements, the enumerated circumstantial evidence cannot 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 that the appellant is guilty of possession of marijuana. Rule 113 Section 6 (b) of the 1985 Rules of Criminal Procedure provides: SEC. 6. Arrest without warrant. when lawful. A peace officer or a private person may, without a warrant, arrest a person: (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. Meanwhile, Section 12 of Rule 126 states: SEC. 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. Sgts. Sudiacal and Ahamad testified that there was an informant who apprised them of the presence of a drug pusher at the corner of 3rd Street and Rizal Avenue, Olongapo City. Acting on such information and in their presence, their superior, Captain Castillo, gave the informant marked money to 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 knowledge of facts implicating the appellant with the sale of marijuana to the informant-poseur buyer. We hold therefore that the arrest was legal and the consequent search which yielded 20 sticks of marijuana was lawful for being incident to a valid arrest. The fact that the prosecution failed to prove the sale of marijuana beyond reasonable doubt does not undermine 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 the detention 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 by the officer or functionary to whom the law at the moment leaves the decision for the urgent purpose of 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 requisite for 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 shown by clear and convincing evidence that the said trash can belongs to the appellant, then she cannot be considered as being in possession of marijuana. In disposing of this contention, this Court quotes with approval the following arguments of the Solicitor-General: "Appellant's defense falls against the categorical testimony of the NARCOM agents that the trash can was found under the table where her legitimate wares were being sold. This fact was not denied by appellant. Therefore, she was the only person who had 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 the exclusion of all other persons. In law, actual possession exists when the thing is in the immediate occupancy and control of the party. But this is not to say that the law requires actual possession. In criminal law, possession necessary for conviction of the offense of possession of controlled substances with intent to distribute may be constructive 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 over the contraband. These requirements are present in the situation described, where the prohibited drugs were found inside the trash can placed under the stall owned by appellant. In fact, the NARCOM agents who conducted the search testified that they had 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 it was difficult for another person to use the trash can. The trash can was obviously not for use by her customers. "Appellant's arguments are inherently weak and improbable and cannot stand against the clear evidence pointing to her actual possession of the prohibited drug. The raw facts testified to by the NARCOM agents were corroborated by appellant and their conclusion that she had possession of the marijuana sticks found in the trash can is consistent with law and reason. "Appellant further contends that it is hard to believe that she would keep the marijuana sticks in a trash can since it is a precious commodity to pushers and users thereof. "The above argument is misleading. The value of the marijuana is not the primary consideration in the concealment of the contraband. The primary consideration is escaping detection and arrest. Obviously, the modus operandi was to dissimulate the act 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 fruits for sale. She had to hide them from public view, but near enough to have access to them. The trash can, to her thinking, would be the last place to look for the precious commodity. Unfortunately, she was found out. The argument that it was an `unlikely place' to hide the precious contraband is in fact the very consideration in choosing it as 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's finding 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 for possession of marijuana. Section 1 of the Indeterminate Sentence Law (Republic Act 4103 as amended) provides that in imposing a prison sentence for an offense punished by a law other than the Revised Penal Code, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum which shall not be less than the minimum term prescribed by the same. The penalty prescribed by the Dangerous 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. The appellant 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 (P6,000) pesos. The appealed decision in Criminal Case No. 5991 is REVERSED and SET ASIDE and the appellant is acquitted on grounds of reasonable doubt. SO ORDERED. Fernan, C .J ., Feliciano and Bidin, JJ ., concur. Cortes, J ., took no part. THIRD DIVISION [G.R. No. 90640. March 29, 1994.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BONIFACIO BARROS, accused-appellant. D E C I S I O N FELICIANO, J p: Bonifacio Barros was charged with violating Section 4 of R.A. No. 6425, as amended (known as the Dangerous Drugs Act of 1972), in an information which read as follows: "That on or about September 6, 1987, from Chackchakan, Bontoc, Mountain Province, to Nacagang, Sabangan, Mountain Province, and within the jurisdiction of this Honorable Court, the above-named accused while being a passenger in a Dangwa Bus with Plate No. ABZ 242, destined for Baguio City, without lawful authority did then and there willfully, unlawfully and feloniously carry with him as part of his baggage and transport about four (4) kilos of dried marijuana which the accused intended for distribution and sale at Baguio City, knowing fully well that said marijuana is a prohibited drug or [a] source of [a] prohibited drug. LLphil Contrary to law." 1 After trial, the trial court convicted Bonifacio Barros of violation of Section 4 of R.A. No. 6425 as amended and sentenced him to suffer the penalty of reclusion perpetua 2 and to pay a fine of P20,000.00. Barros now appeals from the judgment of conviction and essentially asks this Court to determine "Whether the [trial] court deprived [the] accused of his right to due process by: (1) ignoring manifest absence of the mandatory warrant in the arrest and search of the accused; (2) admitting confessions extracted from the accused after two hours of interrogation conducted by four (4) soldiers one after the other under intimidating circumstances; and (3) misappreciation of facts." 3 The relevant facts as found by the trial court and as set forth in the court's decision are as follows: "That on September 6, 1987, M/Sgt. Francis Yag-as and S/Sgt. James Ayan, both members of the P.C. Mountain Province Command, rode the Dangwa Bus bearing Plate No. ABZ-242 bound for Sabangan, Mountain Province. Upon reaching Chackchakan, Bontoc, Mountain Province, the bus stopped and both M/Sgt. Yag-as and S/Sgt. Ayan, who were seated at the back, saw accused carrying a carton, board the bus and seated himself on seat No. 18 after putting the carton under his seat. Thereafter, the bus continued and upon reaching Sabangan, M/Sgt. Yag-as and S/Sgt. Ayan before they alighted, it being their station, called C2C [Fernando] Bongyao to inspect the carton under seat No. 18. After C2C Bongyao inspected the carton, he found out that it contained marijuana and he asked the passengers [who] the owner of the carton [was] but nobody answered. Thereafter, C2C Bongyao alighted with the carton and S/Sgt. Ayan and C2C Bongyao invited the herein accused to the detachment for questioning as accused was the suspected owner of the carton containing marijuana. As both P.C. officers Yag-as and Ayan saw accused, Bonifacio Barros carrying that same carton when he boarded the bus at Chackchakan. That upon entering the detachment the carton was opened in the presence of accused and accused Bonifacio Barros was asked if he owned the carton of marijuana and accused denied [this]. That when accused denied ownership of the carton of marijuana, the P.C. officers called for the bus conductor who pinpointed to Bonifacio Barros as the owner of the carton of marijuana. That during the oral investigation of accused, he finally admitted ownership of the carton (Exhibit 'B') containing [four] 4 paper-wrapped packages of dried marijuana. (Exhibits 'B-1, 'B-2,' 'B-3' and 'B-4'). LexLib . . . [A]fter he was orally investigated, [the accused] was brought to the Abatan General Hospital, Bauko, Mountain Province, for physical examination and a Medico Legal Certificate was issued (Exhibits 'F' and 'F-1'), indicating that accused suffered no physical injuries and that accused was probably under the influence of marijuana. That Dra. Danna Aleta inquired from accused Bonifacio Barros if he smoked marijuana and accused admitted having smoked marijuana. That after accused was medically examined, he was escorted by three members of the P.C. to the P.C. detachment at Tadian, Mountain Province, where the carton of marijuana (Exhibit 'B') was also brought. That at Tadian, a seizure receipt was made together with a certification (Exhibit 'C') pointing out to the fact that approximately 4 kilos of dried marijuana leaves were from accused Bonifacio Barros and which certification was signed by the accused (Exhibit 'C-1') and subscribed before Judge Romualdo P. Awisan (Exhibit 'C-2'). That in connection with the confiscation of the marijuana subject of the instant case and the apprehension of accused Bonifacio Barros, the P.C. officers who figured in this case namely M/Sgt. Yag-as and S/Sgt. Ayan and C2C Bongyao have correspondingly executed their sworn statements (Exhibits 'A', 'A-1, 'A-2', 'D', 'D-1' and 'D-2'). . . . [S]amples of the marijuana were taken from each of the four packages marked Exhibits 'B-1', 'B-2', 'B-3', and 'B-4' and placed in four separate envelopes, following an order of the court to that effect and were hand-carried by Police Officer Jack Masilian to Camp Dangwa, La Trinidad, Benguet for laboratory test. That Capt. Carlos Figueroa, the Forensic Expert conducted two kinds of test on the four samples sent by the court and found them to be positive of marijuana as per his report No. D-011-88. (Exhibits 'I' and 'I-1'). 4 The defense of the accused on the facts consisted of a simple denial of the ownership or possession of the carton box containing the four (4) kilos of marijuana. The trial court summarized the story of the accused in the following manner: "That accused Bonifacio Barros since 1984 was employed at the Honeymoon Disco Pad, Baguio City. That on September 5, 1987, accused was sent by his Manager, Engineer Arsenio Cuanguey to Bontoc, Mountain Province, to get their records from one Billy Cuanguey at Chackchakan, Bontoc, Mountain Province. That upon arriving at Chackchakan, Bontoc, Mountain Province, accused looked for the residence of Billy Cuanguey and he was pointed to a house where someone was tending a store. That accused asked the man if Billy Cuanguey was there and the man answered that he did not know where Billy went. So accused asked the man if Billy left [in] his room the tapes and records and the man said he did not know. Thereafter, accused asked the man to stay over night in that house where Billy was staying as it was the instruction of his manager. That the following day, September 6, 1987, after taking breakfast, accused, was going back to Baguio. On that morning of September 6, 1987, accused Bonifacio Barros boarded the Dangwa Bus at Chackchakan, Bontoc, Mountain Province bound for Baguio City. That when the Dangwa Bus reached the P.C. Checkpoint, soldiers went inside the bus and checked the baggages. That a soldier fished out a carton under the seat of [the] accused and shouted who owns the carton but nobody answered. Thereafter, the soldier went down with the carton and moments later returned to the bus and called accused Bonifacio Barros to alight from the bus. That Mr. Barros was surprised why he was ordered to alight and accused took his baggage which consisted of a pasiking and went down the bus. That accused was led by the soldiers to a house where his pasiking was taken and his clothes removed and his wallet taken. Accused was made to accept ownership of the carton of marijuana but he refused. cdrep . . . [A]t 11:00 o'clock that same day, September 6, 1987, three soldiers escorted accused to the hospital and from the hospital, they proceeded to the Municipality of Tadian, Mountain Province. That upon reaching Tadian, accused was brought to the P.C. Camp and there he saw someone typing. Later, the soldiers allegedly presented to accused some papers which he was asked to sign but accused refused. That accused was threatened and if he refused to sign the papers that something will happen to him. That moments later, accused was threatened [by] a soldier [who] pointed a gun to him and told him to sign the paper and because of fear, he had to sign the document marked Exhibit 'C.' Thereafter, the soldiers allegedly threatened again accused and asked him to sign his name on the inside part of the cover of the carton of marijuana. Exhibit 'X' for the court and Exhibit 'B-5' for the prosecution. That after staying at Tadian for one night, accused was brought back to Sabangan and later transferred to the Bontoc Provincial Jail." 5 Turning to the legal defenses of the accused, we consider first his allegation that the police authorities had impermissibly extracted confessions from him after two (2) hours of interrogation, "under intimidating circumstances," by four (4) soldiers one after the other. The accused complains that he was not informed of his rights to remain silent and to counsel, that he had not waived his rights as an accused person, and that he had signed a confession involuntarily and without the assistance of counsel. He essentially contends that the confession is inadmissible as evidence against him. We find, however, that it is not necessary to pass upon the above contention of appellant Barros. For the trial court in reaching its judgment of conviction had not taken into consideration the statements which had been obtained from the appellant during the interrogation conducted by the police officers. The trial court, so far as can be determined from its decision, totally disregarded Exhibits "C", "E" and "B-5," the alleged uncounselled confessions. The trial court made very clear the bases of its conclusion that the accused was guilty beyond reasonable doubt of the offense charged; those bases did not include the alleged confessions: "First M/Sgt. Francis Yag-as and S/Sgt. James Ayan testified that they saw the accused carrying the carton (Exhibit 'B') when he boarded the bus at Chackchakan, Bontoc, Mountain Province. That the bus conductor pointed to accused at the checkpoint of Sabangan, Mountain Province. That accused is the owner of the carton (Exhibit 'B'). That the carton (Exhibit 'B') which contained four packages of dried marijuana leaves (Exhibits 'B-1', 'B-2', 'B-3' and 'B-4') was fished out from under the seat of the accused which fact was admitted by the accused himself. Second That per testimony of Dra. Danna Aleta, she examined accused Bonifacio Barros and that he suffered no physical injuries that would show that the accused was in anyway maltreated by the police authorities, and this fact was also admitted by accused to the effect that he was never harmed by the police nor the soldiers. Dra. Aleta also found that the accused was under the influence of drug[s] and that the accused admitted [to] her that he, accused, smoked marijuana. This is clear evidence that accused is not only a pusher of marijuana but also a user of said prohibited drugs. (See Exhibits 'F' and 'F-1' and TSN Page 24 Orpecio). Third The samples taken from Exhibits 'B-1', 'B-2', 'B-3' and 'B-4' sent by the court for laboratory test at Camp Dangwa, La Trinidad, Benguet were all positive of marijuana per Report No. D-011-88 (Exhibits 'I' and 'I-1') of Captain Carlos Figueroa, forensical expert. Lastly, accused's testimony in his own behalf does not impress the court at it lacks the ring of truth. Besides, it is devoid of any corroboration. Our Supreme Court in this respect said: 'The weak and uncorroborated denial of the accused cannot prevail over the clear, positive and straightforward testimony of prosecution witnesses [sic].' (People vs. Acelajao, 148 SCRA 142).'" 6 We turn, therefore, to the second legal defense asserted by appellant Barros i.e., that his constitutional right against unreasonable searches and seizures had been violated by the police authorities. The relevant constitutional provisions are found in Sections 2 and 3 [2], Article III of the 1987 Constitution which read as follows: "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 witness as he may produce, and particularly describing the place to be searched and the persons or things to be seized. Sec. 3. . . . (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding." The general rule is that a search and seizure must be carried out through or with a judicial warrant; otherwise such search and seizure becomes "unreasonable" within the meaning of the above quoted constitutional provision. 7 The evidence secured thereby i.e., the "fruits" of the search and seizure will be inadmissible in evidence "for any purpose in any proceeding." 8 The requirement that a judicial warrant must be obtained prior to the carrying out of a search and seizure is, however, not absolute. There are certain exceptions recognized in our law, one of which relates to the search of moving vehicles. 9 Peace officers may lawfully conduct searches of moving vehicles automobiles, trucks, etc. without need of a warrant, it not being practicable to secure a judicial warrant before searching a vehicle, since such vehicle can be quickly moved out of the locality or jurisdiction in which the warrant may be sought. 10 In carrying out warrantless searches of moving vehicles, however, peace officers are limited to routine checks, that is, the vehicles are neither really searched nor their occupants subjected to physical or body searches, the examination of the vehicles being limited to visual inspection. In Valmonte vs. De Villa, 11 the Court stated: "[N]ot all searches and seizures are prohibited. Those which are reasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case. Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds, or simply looks into a vehicle, or flashes a light therein, these do not constitute unreasonable search." (Citations omitted) LLpr When, however, a vehicle is stopped and subjected to an extensive search, such a warrantless search would be constitutionally permissible only if the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender or the contents or cargo of the vehicle are or have been instruments or the subject matter or the proceeds of some criminal offense. 12 This Court has in the past found probable cause to conduct without a judicial warrant an extensive search of moving vehicles in situations where (1) there had emanated from a package the distinctive smell of marijuana; 13 (2) agents of the Narcotics Command ("Narcom") of the Philippine National Police ("PNP") had received a confidential report from informers that a sizeable volume of marijuana would be transported along the route where the search was conducted; 14 (3) Narcom agents were informed or "tipped off" by an undercover "deep penetration" agent that prohibited drugs would be brought into the country on a particular airline flight on a given date; 15 (4) Narcom agents had received information that a Caucasian coming from Sagada, Mountain Province, had in his possession prohibited drugs and when the Narcom agents confronted the accused Caucasian, because of a conspicuous bulge in his waistline, he failed to present his passport and other identification papers when requested to do so; 16 and (5) Narcom agents had received confidential information that a woman having the same physical appearance as that of the accused would be transporting marijuana. 17 In the case at bar, however, we have been unable to find in the record of this case any circumstance which constituted or could have reasonably constituted probable cause for the peace officers to search the carton box allegedly owned by appellant Barros. The carrying of such a box by appellant onto a passenger bus could not, by itself , have convinced M/Sgt. Francis Yag-as and S/Sgt. James Ayan either that the appellant was a law violator or the contents of the box were instruments or the subject matter or proceeds of some criminal offense. The carrying of carton boxes is a common practice among our people, especially those coming from the rural areas since such boxes constitute the most economical kind of luggage possible. The peace officers here involved had not received any information or "tip- off" from an informer; no such a "tip-off" was alleged by the police officers before or during the trial. The police officers also did not contend that they had detected the odor of dried marijuana, or appellant Barros had acted suspiciously in the course of boarding the bus and taking a seat during the trip to Sabangan, nor in the course of being asked whether he owned the carton box later ascertained to contain four (4) kilos of marijuana. The testimony of the law enforcement officers who had apprehended the accused (M/Sgt. Francis Yag-as and S/Sgt. James Ayan), and who had searched the box in his possession, (C2C Fernando Bongyao), simply did not suggest or indicate the presence of any such probable cause. M/Sgt. Francis Yag-as testified as follows: "Direct Examination by Fiscal Moises Ayochok: xxx xxx xxx Q: On September 6, 1987, do you recall if you reported for duty? A: Yes, sir. Q: And where did you go on the morning of September 6, 1987? A: I went to Sabangan, sir. Q: What transportation did you use? A: Dangwa Bus with Plate No. ABZ-242. Q: Where did you board the Dangwa Bus? A: At the Dangwa Terminal at Bontoc. Q: When you said you boarded the bus with Plate No. ABZ-242 which started for Baguio City from Bontoc, Mountain Province, and while it stopped at Chackchakan, Bontoc, Mountain Province, was there anything that happened? xxx xxx xxx A: When the bus stopped at Sitio Chackchakan, we saw a person carrying a baggage or carton and boarded the bus then took his seat, seat No. 18. Q: What was he carrying that time Mr. witness? cdrep A: A carton. Q: And where did he place that carton which he was carrying? A: In front of seat No. 18 where he sat. Q: You mean inside the bus? A: Yes. Q: And after this person boarded the bus at sitio Chackchakan and holding a carton and placed it in front of seat No. 18, what happened to the bus afterwards? A: It proceeded to Sabangan. Q: And at Sabangan, Mountain Province, what happened, if any? A: The bus stopped for the routinary checkpoint and inspection. Q: When they [were at] the routinary checkpoint, what happened? Atty. Sokoken: He did not say routinary checkpoint. He said routinary inspection. Fiscal Ayochok: We substitute the words inspection with checkpoint to satisfy the objection of counsel. Q: What happened when you stopped for the routinary inspection? A: We called C2C Bongyao a member of the detachment to inspect the baggage of the suspect and when C2C . . . Atty. Sokoken: We request that [the] witness answers the question that he testifies [to] not in the narrative way. Fiscal Ayochok: He is answering the question. Court: Let the witness finish. A: When Bongyao inspected the baggage of the suspect and he found out that it contained MJ. Q: What do you mean MJ? A: Marijuana. xxx xxx xxx" 18 For his part, S/Sgt. James Ayan testified as follows: "Direct Examination: xxx xxx xxx Q: And in the morning of September 6, 1987, do you recall where you were particularly in the afternoon? A: In the morning of September 6, 1987, we rode on a Dangwa bus [with Plate] No. ABZ-242 going to Sabangan. Q: You said we. Who was your companion that time? A: Master Sgt. Yag-as, sir. Q: And when this bus reached Chackchakan, Bontoc, Mountain Province, what did you see? A: We saw a civilian board the bus we were riding carrying a carton. Q: And where did this civilian who boarded the bus which you were riding on place that carton? LLpr A: He placed the carton under the seat of No. 18. Q: Inside the bus, Mr. witness? A: Inside the bus, sir. Q: And what about the passenger who boarded the bus carrying the carton baggage, where did he go? A: He sat facing the seat No. 18. Q: Between seat No. 18 and the seat seated by the civilian who brought the carton, where was the carton exactly located? A: As far as I know, sir, it was located just beneath seat No. 18. Q: When this bus which you rode on which the passenger carrying the carton luggage you saw reached Sabangan what happened there? A: When the bus reached Sabangan that we were riding, it was stopped for routinary inspection. Q: What happened next? A: We called C2C Bongyao to inspect the baggage that we have just seen at Chackchakan. Q: Did he inspect the baggage? A: Yes, sir. Q: And what was the contents of that baggage if there was any? A: It turned out that the contents of the baggage was MJ sir. Q: You mean marijuana? A: Yes, sir. xxx xxx xxx Cross Examination: xxx xxx xxx Q: You stated that on September 6, 1987, a Dangwa bus stopped at Sabangan, Mt. Province for purposes of military check-up, is that correct? A: Routinary inspection, sir. Q: But it was not you who entered the Dangwa bus for routinary check-up? A: We were there riding in the bus, sir, and we called C2C Bongyao to come. Q: So your purpose in riding inside the Dangwa bus was actually to see that person carrying this carton which is marked Exhibit 'B'? A: No, sir, because I am a detachment commander at Sabangan and that is why I called one of my men, sir. Q: So that you have full knowledge that from Chackchakan, Bontoc, going to Sabangan, there is already marijuana being carried inside that bus? A: That is only our suspect [should be suspicion], sir. Q: Would you please tell this Honorable Court why you have not inspected it when you arrived at Alab? Why have you waited to reach Sabangan to inspect it? llcd A: Because it is the checkpoint, sir, at Nacagang, Sabangan. Q: Are you now admitting that you do not have authority to inspect the baggage here in Bontoc? A: We just wanted it checked in Sabangan, sir. Q: Could you give us a very special reason why you have to wait in Sabangan? A: Because we are stationed in Sabangan and that is the checkpoint. Fiscal Ayochok: Why argue with the witness? It is up for them to check it at the proper checkpoint. Court: Sustained. xxx xxx xxx" 19 The testimony of C2C Fernando Bongyao is much briefer, but equally uninformative: "Direct Examination: Q: On September 6, 1987, at around 9:30 a.m., do you recall having reported for duty at Nacagang, Sabangan, Mountain Province? A: Yes, sir. Q: And while you were on duty at Nacagang, Sabangan, was there anything unusual that happened that time? A: Yes, sir. Q: What was that Mr. witness? A: When we were on the checkpoint, the bus stopped bearing Plate No. ABZ-242. Q: When the bus stopped, what did you do? A: While on my way to check the bus, Master Sergeant Yag-as and Ayan called for me, sir, and they told me that a carton was placed under seat No. 18, sir. Q: And when you were told to inspect that carton under seat No. 18, did you inspect that carton? A: I inspected it, sir. cdrep Q: You said you inspected that carton, what did you do in inspecting that carton? A: I inserted my hand inside and when I removed my hand, it was a stuff of marijuana, sir. xxx xxx xxx 20 So far as the record itself is concerned, therefore, it would appear that there existed no circumstance which might reasonably have excited the suspicion of the two (2) police officers riding in the same bus as appellant Barros. They asked the police officers at the checkpoint at Sabangan to inspect the box allegedly carried by appellant Barros apparently on a mere guess that appellant Barros might be carrying something in the nature of contraband goods. There was, in other words, nothing to show that appellant Barros was then in the process of "actually committing" or "attempting to commit" a crime. 21 There was, moreover, nothing on the record that could have reasonably led the two (2) police officers to believe that "an offense [had] in fact just been committed" when appellant Barros boarded the bus at Chackchakan or when he was asked whether he owned the box here involved at the checkpoint in Sabangan. The two (2) police officers, according to the record, had no "personable knowledge of facts indicating that the person to be arrested (appellant Barros) had committed it." There was, in brief, no basis for a valid warrantless arrest. Accordingly, the search and seizure of the carton box was equally non-permissible and invalid. 22 The "fruits" of the invalid search and seizure i.e., the four (4) kilos of marijuana should therefore not have been admitted in evidence against appellant Barros. The Solicitor General, however, contends that appellant Barros had waived any irregularities which may have attended his arrest. Presumably, the Solicitor General also argues that appellant Barros has waived the non-admissibility of the carton (Exhibit "B") which contained four (4) packages of dried marijuana leaves (Exhibits "B- 1", "B-2", "B-3" and "B-4". The Solicitor General said: ". . . [E]ven assuming in gratia argumenti that irregularities attended the arrest of appellant, still the same cannot be questioned at this late stage. Well-settled is the doctrine laid down in the case of Callanta vs. Villanueva (77 SCRA 377), and later reiterated in the more recent case of Bagcal vs. Villaraza (120 SCRA 525), that 'posting of [a] bail bond constitutes waiver of any irregularity attending the arrest of a person and estops him from questioning its validity.' Here, appellant had in fact posted the required bail to obtain his provisional liberty, albeit his application was subsequently denied (see TSN, Feb. 10, 1988, p. 65). Consistent with jurisprudence, therefore, he should be deemed to have waived any irregularity attending his arrest, if any there be, and cannot now be heard to assail the same." 23 It might be supposed that the non-admissibility of evidence secured through an invalid warrantless arrest or a warrantless search and seizure may be waived by an accused person. The a priori argument is that the invalidity of an unjustified warrantless arrest, or an arrest effected with a defective warrant of arrest may be waived by applying for and posting of bail for provisional liberty, so as to estop as accused from questioning the legality or constitutionality of his detention or the failure to accord him a preliminary investigation. We do not believe, however, that waiver of the latter (by, e.g., applying for and posting of bail) necessarily constitutes, or carries with it, waiver of the former an argument that the Solicitor General appears to be making impliedly. Waiver of the non-admissibility of the "fruits" of an invalid warrantless arrest and of a warrantless search and seizure is not casually to be presumed, if the constitutional right against 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 formally offered in evidence by the prosecution. 24 We consider that appellant's objection to the admission of such evidence was made clearly and seasonably and that, under the circumstances, no intent to waive his rights under the premises can be reasonably inferred from his conduct before or during the trial. LexLib In the dissenting opinion, my learned brother Melo, J. takes the view that appellant Barros had waived his rights by his "stoic deportment" consisting of failure to object to the search by the police authorities immediately after the opening of the carton box: ". . . In point of fact, when the police authorities inspected the carton of marijuana and asked accused-appellant who owned the box, accused-appellant denied ownership of the box or carton and failed to even mutter the least bit of protest (p. 3, Decision). His demeanor should therefore be construed as implicit acquiescence to the search inasmuch as the objection thereto is vulnerable to express or implied waiver (People vs. Kaqui Malasuqui (63 Phil. 221 [1936]); 1 Bernas, Constitution of the Republic of the Philippines, First ed., 1987, p. 108). . . ." 25 It is submitted, with respect, that Kaqui Malasuqui is not applicable to the case at bar; rather it is People vs. Burgos, 26 promulgated fifty (50) years after Kaqui Malasuqui, that is applicable. In Burgos, this Court ruled that the accused is not to be presumed to have waived the unlawful search conducted on the 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 the existence of such a right; and lastly, that said person had an actual intention to relinquish the right (Pasion Vda. de Garcia vs. Locsin, 65 Phil. 689). The fact that the accused failed to object to the entry into his house does not amount to a permission to make a search therein (Magoncia vs. Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. de Garcia vs. Locsin (supra): xxx xxx xxx . . . As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law.' (Citation omitted). We apply the rule that: 'courts indulge every reasonable presumption against waiver of fundamental constitutional rights and that we do not presume acquiescence in the loss of fundamental rights.' (Johnson vs. Zerbts, 304 U.S. 458)." 27 (Emphasis supplied) Kaqui Malasuqui is not applicable to the instant case, because there the Court explicitly found that there was probable cause for the warrantless arrest of the accused and therefore, the warrantless search effected immediately thereafter was equally lawful. In Kaqui Malasuqui, a Chinese merchant was found lying on the ground with several nasty wounds in the head; one resulted in skull fracture and proved fatal. He died in the hospital to which he had been immediately brought by a policeman. Mr. Malasuqui became a suspect because when the victim was found, still alive, and upon being asked who had attacked him, laconically answered, "Kagui." On the same day, the accused Kaqui Malasuqui was arrested and a search of his person was conducted without objection from the accused. Before the body search of the accused was carried out, the accused voluntarily surrendered to the police authorities a couple of bracelets belonging to the deceased victim and when asked if he had anything else to surrender, he, in a trembling voice, answered in the negative. The police thereupon conducted a body search of the accused, without any objection from him; the search resulted in the production of additional personal effects belonging to the deceased victim. Under these circumstances, the Court ruled that: "When one voluntarily submits to a search or consents to have it made of 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 every right, be waived and such waiver may be made either expressly or impliedly." A propos my distinguished brother Melo, J 's suggestion that the right against an unlawful warrantless search or arrest is personal and may not be invoked by the accused's counsel during trial, it is relevant to note that the law (the Rules of Court) specifies the proper time when objections to admission of evidence must be raised and that in the case at bar, a timely objection was made by appellant Barros. Finally, the accused's silence during the warrantless search should not be lightly taken as consent to that search, but rather construed as explained by the Court in Burgos, 28 and as pointed out by Mr. Justice Laurel, a "demonstration of regard for the supremacy of the law." LLjur It is, of course, possible that appellant Barros may in fact have been guilty of transporting the four (4) kilos of marijuana. His guilt must, however, be established by constitutional means. The non- admissibility of evidence secured through a disregard of the constitutional right of the accused against unreasonable searches and seizures is the sanction imposed by the Constitution for disregard of such right; the sanction is a powerful one, for it renders inutile the work done by the police officers, by the prosecutor and by the trial court. It is a sanction which this Court has no choice but to apply in the instant case. WHEREFORE, for all the foregoing, the decision of the Regional Trial Court, Branch 35, Bontoc, Mountain Province, in Criminal Case No. 687 is hereby REVERSED and SET ASIDE and appellant is hereby ACQUITTED of the crime charged, the evidence lawfully before the trial court not being sufficient to establish his guilt thereof beyond reasonable doubt. No costs. SO ORDERED. Bidin, Romero, and Vitug, JJ., concur. Melo, J., please see dissenting opinion. EN BANC [G.R. No. 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 Davao City; and BRIG. GEN. PANTALEON DUMLAO, Commanding General, PC- Criminal Investigation Service, respondents. SYLLABUS 1. CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARMS (P.D. 1866); RULE ON THE CONSTITUTIONALITY THEREOF. The issue of constitutionality of Presidential Decree No. 1866 has been laid to rest in the case of Misolas v. Panga, G.R. No. 83341, January 30, 1990 (181 SCRA 648), where this Court held that the declaration of unconstitutionality of the third paragraph of Section 1 of Presidential Decree No. 1866 is wanting in legal basis since it is neither a bill of attainder nor does it provide a possibility of a double jeopardy. 2. ID.; ID.; NOT REPEALED BY REPUBLIC ACT 6968; REASON THEREFOR. Petitioners' contention that Republic Act 6968 has repealed Presidential Decree No. 1866 is bereft of merit. It is a cardinal rule of statutory construction that where the words and phrases of a statute are not obscure or ambiguous, its meaning and the intention of the legislature must be determined from the language employed, and where there is no ambiguity in the words, there is no room for construction (Provincial Board of Cebu v. Presiding Judge of Cebu, CFI, Br. IV, G.R. No. 34695, March 7, 1989 [171 SCRA 1]). A perusal of the aforementioned laws would reveal that the legislature provided for two (2) distinct offenses: (1) illegal possession of firearms under Presidential Decree No. 1866; and (2) rebellion, coup d'etat, sedition and disloyalty under Republic Act 6968; evidently involving different subjects which were not clearly shown to have eliminated the others. 3. ID.; ID.; ANIMUS POSSIDENDI MUST BE PROVED; APPLICATION IN CASE AT BAR. Petitioners contend that Section 1 of Presidential Decree No. 1866 is couched in general or vague terms. The terms "deal in," "acquire," "dispose" or "possess" are capable of various interpretations such that there is no definiteness as to whether or not the definition includes "constructive possession" or how the concept of constructive possession should be applied. Petitioners were not found in actual possession of the firearm and ammunitions. They were in Quezon City while the prohibited articles were found in Davao City. Yet they were being charged under Presidential Decree No. 1866 upon the sole circumstance that the house wherein the items were found belongs to them. Otherwise stated, other than their ownership of the house in Skyline Village, there was no other evidence whatsoever that herein petitioners possessed or had in their control the items seized. Neither was it shown that they had the intention to possess the Firearms or to further rebellion. 4. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCH; RULE AND EXCEPTIONS; NOT PRESENT IN CASE AT BAR. Petitioners aver that while they concede that Capt. Obrero had permission from Ma. Luisa Veroy to break open the door of their residence, it was merely for the purpose of ascertaining thereat the presence of the alleged "rebel" soldiers. The permission did not include any authority to conduct a room to room search once inside the house. The items taken were, therefore, products of an illegal search, violative of their constitutional rights. As such, they are inadmissible in evidence against them. The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures (Article III, Section 2 of the 1987 Constitution). However, the rule that searches and seizures must be supported by a valid warrant is not an absolute one. Among the recognized exceptions thereto are: (1) a search incidental to an arrest; (2) a search of a moving vehicle; and (3) seizure of evidence in plain view (People v. Lo Ho Wing, G.R. No 88017, January 21, 1991 [193 SCRA 122]). None of these exceptions pertains to the case at bar. The reason for searching the house of herein petitioners is that it was reportedly being used as a hideout and recruitment center for rebel soldiers. While Capt. Obrero was able to enter the compound, he did not enter the house because he did not have a search warrant and the owners were not present. This shows that he himself recognized the need for a search warrant, hence, he did not persist in entering the house but rather contacted the Veroys to seek permission to enter the same. Permission was indeed granted by Ma. Luisa Veyor to enter the house but only to ascertain the presence of rebel soldiers. Under the circumstances it is undeniable that the police officers had ample time to procure a search warrant but did not. 5. ID.; ID.; COMMISSION THEREOF CONSIDERED MALUM PROHIBITUM. Undeniably, the offense of illegal possession of firearms is malum prohibitum but is does not follow that the subject thereof is necessarily illegal per se. Motive is immaterial in mala prohibita but the subjects of this kind of offense may not be summarily seized simply because they are prohibited. A search warrant is still necessary. Hence, the rule having been violated and no exception being applicable, the articles seized were confiscated illegally and are therefore protected by the exclusionary principle. They cannot be used as evidence against the petitioners in the criminal action against them for illegal possession of firearms. (Roan v. Gonzales, 145 SCRA 689-690 [1986]). Besides, assuming that there was indeed a search warrant, still in mala prohibita, while there is no need of criminal intent, there must be knowledge that the same existed. Without the knowledge or voluntariness there is no crime. D E C I S I O N PARAS, J p: This was originally a petition for certiorari, mandamus and prohibition under Rule 65 of the Rules of Court: certiorari, to review the Order of the respondent Judge dated October 2, 1990 denying herein petitioner's Motion for Hospital Confinement; mandamus, to compel respondent Judge to resolve petitioners' long pending motion for bail; and prohibition, to enjoin further proceedings on the ground that the legal basis therefore is unconstitutional for being violative of the due process and equal protection clauses of the Constitution. prcd 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 the position of Assistant Administrator of the Social Security System sometime in June, 1988, he and his family 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 Favia and Eric Burgos, who had their assigned quarters at a portion of the premises. The Veroys would occasionally send money to Edna Soquilon for the salary of the said houseboys and other expenses for the upkeep of their house. While the Veroys had the keys to the interior of the house, only the key to the kitchen, where the circuit breakers were located, was entrusted to Edna Soquilon to give her access in case of an emergency. Hence, since 1988, the key to the master's bedroom as well as the keys to the children's rooms were retained by herein petitioners so that neither Edna Soquilon nor the caretakers could enter the house. On April 12, 1990, Capt. Reynaldo Obrero of the Talomo Patrol Station, PC/INP, acting upon a directive issued by Metrodiscom Commander Col. Franco Calida, raided the house of herein petitioners in Davao City on information that the said residence was being used as a safehouse of rebel soldiers. They were able to enter the yard with the help of the caretakers but did not enter the house since the owner was not present and they did not have a search warrant. Petitioner Ma. Luisa was contacted by telephone in her Quezon City residence by Capt. Obrero to ask permission to search the house in Davao City as it was reportedly being used as a hideout and recruitment center of rebel soldiers. Petitioner Ma. Luisa Veroy responded that she is flying to Davao City to witness the search but relented if the search would not be conducted in the presence of Major Ernesto Macasaet, an officer of the PC/INP, Davao City and a long time family friend of the Veroys. The authority given by Ma. Luisa Veroy was relayed by Capt. Obrero to Major Macasaet who answered that Ma. Luisa Veroy has called him twice by telephone on the matter and that the permission was given 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 in Skyline Village to conduct the search pursuant to the authority granted by petitioner Ma. Luisa Veroy. The caretakers facilitated their entry into the yard, and using the key entrusted to Edna Soquilon, they were able to gain entrance into the kitchen. However, a locksmith by the name of Ceorge 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 clutch bag inside an unlocked drawer. Three (3) half-full jute sacks containing printed materials of RAM-SFP (samples of which were attached as Annexes "H" and "H-1" of the petition) (Rollo, pp. 49-55) were also found in the children's room. A search of the children's recreation and study area revealed a big travelling bag containing assorted polo shirts, men's brief, two (2) pieces polo barong and short sleeve striped gray polo, sweat shirt, two (2) pairs men's socks, a towel made in U.S.A., one blanket, a small black bag, Gandhi brand, containing a book entitled "Islamic Revolution Future Path of the Nation", a road map of the Philippines, a telescope, a plastic bag containing assorted medicines and religious pamphlets was found in the master's bedroom. Sgt. Leo Justalero was instructed by Capt. Obrero to make an inventory and receipt of the articles seized in the house (Annex "F" of the petition, Rollo, p. 48). Said receipt was signed by Eric Burgos, one of the caretakers, and George Badiang, the locksmith, as witnesses. Sgt. Justalero turned over the articles to Sgt. Rodolfo Urbano at the police station. The case was referred for preliminary investigation to Quezon City Assistant Prosecutor Rodolfo Ponferrada who was designated Acting Provincial Prosecutor for Davao City by the Department of Justice through Department Order No. 88 dated May 16, 1990. In a resolution dated August 6, 1990, Fiscal Ponferrada recommended the filing of an Information against herein petitioners for Violation of Presidential Decree No. 1866 (Illegal Possession of Firearms and Ammunitions in Furtherance of Rebellion) (Annex "L" of the Petition, Rollo, p. 71). Hence, on August 8, 1990, an Information for the said offense was filed by the Office of the City Prosecutor of Davao City before the Regional Trial Court, 11th Judicial Region, Davao City, docketed as Criminal Case No. 20595-90 and entitled "People of the Philippines v. Atty. Leopoldo Veroy and Mrs. Maria Luisa Veroy" (Annex "K" of the Petition, Rollo, p. 70). No bail was recommended by the prosecution. The aforementioned resolution dated August 6, 1990 of Fiscal Ponferrada was received by the petitioners on August 13, 1990. On the same day, the latter filed a Motion for Bail before herein respondent Judge Layague which was denied on August 17, 1990 for being premature since at that time, petitioners had not yet been arrested. Despite the fact that the warrants for their arrest have not yet been served on them, herein petitioners voluntarily surrendered themselves to Brig. Gen. Pantaleon Dumlao, PC-CIS Chief, since it was the CIS that initiated the complaint. However, the latter refused to receive them on the ground that his office has not yet received copies of their warrants of arrest. prLL In the meantime, on August 15, 1990, herein petitioners were admitted to the St. Luke's Hospital for various ailments brought about or aggravated by the stress and anxiety caused by the filing of the criminal complaint. On August 17, 1990, Brig. Gen. Dumlao granted their request that they be allowed to be confined at the hospital and placed under guard thereat. In an Indorsement dated August 20, 1990, the CIS through Capt. Benjamin de los Santos, made its return to the trial court informing the latter of the voluntary surrender of herein petitioners and the fact that they were under hospital confinement. Herein Petitioner reiterated their Motion for Bail. In an Order dated August 24, 1990 (Annex "M" of the Petition, Rollo, p. 74), the hearing for the Motion for bail was set for August 31, 1990 to enable the prosecution to present evidence in opposition to said motion. The prosecution filed its written opposition (Annex "N" of the Petition, Rollo, p. 75) on August 28, 1990, arguing that the evidence of petitioners' guilt was strong and thereafter presented its evidence. On September 21, 1990, respondent Judge required the CIS to produce the bodies of herein petitioners on October 1, 1990 for arraignment (Annex "O" of the Petition, Rollo, p. 76). Upon their arraignment, herein petitioners entered a plea of not guilty and filed an "Urgent Motion for Hospital Confinement" (Annex "OO" of the Petition, Rollo, p. 77) which was denied by the court in its Order dated October 2, 1990 (Annex "P" of the Petition, Rollo, p. 80). It likewise ordered their commitment at the Davao City Rehabilitation Center, Ma-a, Davao City pending trial on the merits. Herein petitioners argued orally a motion for reconsideration which was opposed by the prosecution. At the conclusion thereof, the court a quo issued a second order (Annex "Q" of the Petition, Rollo, p. 83) denying their motion for reconsideration and as to the alternative prayer to reopen the motion for hospital confinement, set the continuance thereof to October 17, 1990. It was further ordered that the petitioners shall remain under the custody of the PC-CIS pending resolution of the case. Meanwhile, petitioners were returned to the St. Luke's Hospital where their physical condition remained erratic. On or about October 18, 1990, herein petitioners were informed that Brig. Gen. Dumlao had issued a directive for their transfer from the St. Luke's Hospital to Camp Crame on the basis of the October 2, 1990 Order (Annex "Q" of the Petition, Rollo, p. 83). Petitioners made representations that the tenor of the court order warranted maintenance of the status quo, i.e., they were to continue their hospital confinement. However, Brig. Gen. Dumlao informed them that unless otherwise restrained by the court, they would proceed with their transfer pursuant to the order of the trial court. Hence, this petition. On October 25, 1990 this Court issued a Temporary Restraining Order, effective immediately and continuing until further orders from this Court ordering: (a) respondent Hon. William L. Layague to refrain from further proceeding with petitioners' "Motion for Hospital Confinement" in Criminal Case No. 20595-90 entitled "People of the Philippines v. Leopoldo Veroy and Ma. Luisa Veroy"; and (b) respondent Brig. Gen. Pantaleon Dumlao to refrain from transferring petitioners from the St. Luke's Hospital (Rollo, pp. 84-A to 84-C). On November 2, 1990, respondent Judge issued an order denying petitioners' Motion for Bail (Annex "A" of the Second Supplemental Petition, Rollo, p. 133). Petitioners filed a Supplemental Petition on November 7, 1990 (Rollo, p. 105) and a Second Supplemental Petition on November 16, 1990 (Rollo, p. 120) which sought to review the order of the trial court dated November 29, 1990 denying their petition for bail. Acting on the Supplemental Petition filed by petitioners and taking into consideration several factors such as: a) that the possibility that they will flee or evade the processes of the court is fairly remote; b) their poor medical condition; and c) the matters in their Second Supplemental Petition especially since the prosecution's evidence refers to constructive possession of the disputed firearms in Davao City through the two (2) caretakers while petitioners lived in Manila since 1988, this Court, on November 20, 1990, granted petitioners' provisional liberty and set the bail bond at P20,000.00 each (Rollo, p. 141). Petitioners posted a cash bond in the said amount on November 23, 1990 (Rollo, pp. 143-145). The petition was given due course on July 16, 1991 (Rollo, p. 211). Respondents adopted their Comment dated December 28, 1990 (Rollo, pp. 182-191) as their Memorandum while petitioners filed their Memorandum on September 9, 1991 (Rollo, pp. 218-269). llcd As submitted by the respondents, and accepted by petitioners, the Petition for mandamus to compel respondent judge to resolve petitioners' Motion for Bail, and the petition for certiorari to review the order of respondent judge initially denying their Motion for Hospital Confinement, were rendered moot and academic by the resolutions of this Court dated November 20, 1990 and October 25, 1990, respectively. What remains to be resolved is the petition for prohibition where petitioners raised the following issues: 1. Presidential Decree No. 1866, or at least the third paragraph of Section 1 thereof, is unconstitutional for being violative of the due process and equal protection clauses of the Constitution; 2. Presidential Decree No. 1866 has been repealed by Republic Act No. 6968; 3. Assuming the validity of Presidential Decree No. 1866, the respondent judge gravely abused his discretion in admitting in evidence certain articles which were clearly inadmissible for being violative of the prohibition against unreasonable searches and seizures. The issue of constitutionality of Presidential Decree No. 1866 has been laid to rest in the case of Misolas v. Panga, G.R. No. 83341, January 30, 1990 (181 SCRA 648), where this Court held that the declaration of unconstitutionality of the third paragraph of Section 1 of Presidential Decree No. 1866 is wanting in legal basis since it is neither a bill of attainder nor does it provide a possibility of a double jeopardy. Likewise, petitioners' contention that Republic Act 6968 has repealed Presidential Decree No. 1866 is bereft of merit. It is a cardinal rule of statutory construction that where the words and phrases of a statute are not obscure or ambiguous, its meaning and the intention of the legislature must be determined from the language employed, and where there is no ambiguity in the words, there is no room for construction (Provincial Board of Cebu v. Presiding Judge of Cebu, CFI, Br. IV, G.R. No. 34695, March 7, 1989 [171 SCRA 1]). A perusal of the aforementioned laws would reveal that the legislature provided for two (2) distinct offenses; (1) illegal possession of firearms under Presidential Decree No. 1866; and (2) rebellion, coup d'etat, sedition and disloyalty under Republic Act 6968; evidently involving different subjects which were not clearly shown to have eliminated the others. But petitioners contend that Section 1 of Presidential Decree No. 1866 is couched in general or vague terms. The terms "deal in", "acquire", "dispose" or "possess" are capable of various interpretations such that there is no definiteness as to whether or not the definition includes "constructive possession" or how the concept of constructive possession should be applied. Petitioners were not found in actual possession of the firearm and ammunitions. They were in Quezon City while the prohibited articles were found in Davao City. Yet they were being charged under Presidential Decree No. 1866 upon the sole circumstance that the house wherein the items were found belongs to them (Memorandum for Petitioners, Rollo, pp. 242-244). Otherwise stated, other than their ownership of the house in Skyline Village, there was no other evidence whatsoever that herein petitioners possessed or had in their control the items seized (Ibid., pp. 248-250). Neither was it shown that they had the intention to possess the Firearms or to further rebellion (Ibid., p. 252). In a similar case, the revolver in question was found in appellant's store and the question arose whether he had possession or custody of it within the meaning of the law. This Court held that: "The animus possidendi must be proved in opium cases where the prohibited drug was found on the premises of the accused and the same rule is applicable to the possession of firearms. The appellant denied all knowledge of the existence of the revolver, and the Government's principal witness stated that there were a number of employees in the store. The only testimony which tends to show that the appellant had the possession or custody of this revolver is the inference drawn from the fact that it was found in his store, but we think that this inference is overcome by the positive testimony of the appellant, when considered with the fact that there were a number of employees in the store, who, of course, could have placed the revolver in the secret place where it was found without the knowledge of the appellant. At least there is a very serious doubt whether he knew of the existence of this revolver. In such case the doubt must he resolved in favor of the appellant." (U.S. v. Jose and Tan Bo., 34 Phil. 724 [1916]) But more importantly, petitioners question the admissibility in evidence of the articles seized in violation of their constitutional right against unreasorable search and seizure. Petitioners aver that while they concede that Capt. Obrero had permission from Ma. Luisa Veroy to break open the door of their residence, it was merely for the purpose of ascertaining thereat the presence of the alleged "rebel" soldiers. The permission did not include any authority to conduct a room to room search once inside the house. The items taken were, therefore, products of an illegal search, violative of their constitutional rights. As such, they are inadmissible in evidence against them. The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures (Article III, Section 2 of the 1987 Constitution). However, the rule that searches and seizures must be supported by a valid warrant is not an absolute one. Among the recognized exceptions thereto are: (1) a search incidental to an arrest; (2) a search of a a moving vehicle; and (3) seizure of evidence in plain view (People v. Lo Ho Wing, G.R. No. 88017, January 21, 1991 [193 SCRA 122]). None of these exceptions pertains to the case at bar. The reason for searching the house of herein petitioner is that it was reportedly being used as a hideout and recruitment center for rebel soldiers. While Capt. Obrero was able to enter the compound, he did not enter the house because he did not have a search warrant and the owners were not present. This shows that he himself recognized the need for a search warrant, hence, he did not persist in entering the house but rather contacted the Veroys to seek permission to enter the same. Permission was indeed granted by Ma. Luisa Veroy to enter the house but only to ascertain the presence of rebel soldiers. Under the circumstances it is undeniable that the police officers had ample time to procure a search warrant but did not. In a number of cases decided by this Court (Guazon v. De Villa, supra.; People v. Aminnudin. G.R. No. L-74869, July 6, 1988 [163 SCRA 402]; Alih v. Castro, G.R. No. L-69401, June 23, 1987 [151 SCRA 279]), warrantless searches were declared illegal because the officials conducting the search had every opportunity to secure a search warrant. The objects seized, being products of illegal searches, were inadmissible in evidence in the criminal actions subsequently instituted against the accused-appellants (People v. Cendana, G.R. No. 84715, October 17, 1990 [190 SCRA 538]). Undeniably, the offense of illegal possession of firearms is malum prohibitum but it does not follow that the subject thereof is necessarily illegal per se. Motive is immaterial in mala prohibita but the subjects of this kind of offense may not be summarily seized simply because they are prohibited. A search warrant is still necessary. Hence, the rule having been violated and no exception being applicable, the articles seized were confiscated illegally and are therefore protected by the exclusionary principle. They cannot be used as evidence against the petitioners in the criminal action against them for illegal possession of firearms. (Roan v. Gonzales, 145 SCRA 689-690 [1986]). Besides, assuming that there was indeed a search warrant, still in mala prohibita, while there is no need of criminal intent, there must be knowledge that the same existed. Without the knowledge or voluntariness there is no crime. PREMISES CONSIDERED, the petition is granted and the criminal case against the petitioners for illegal possession of firearms is DISMISSED. SO ORDERED Narvasa, C .J ., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Grio- Aquino, Medialdea, Regalado, Davide, Jr., Romero and Bellosillo, JJ ., concur. FIRST DIVISION [G.R. No. 93516. August 12, 1992.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BASILIO DAMASO @ Bernardo/BERNIE MENDOZA @ KA DADO, accused-appellant. The Solicitor General for plaintiff-appellee. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; HEARSAY EVIDENCE; HAS NO PROBATIVE VALUE WHETHER OBJECTED TO OR NOT; CASE AT BAR. The testimonies in case at bar are hearsay because the witnesses testified on matters not on their own personal knowledge. The Solicitor General, however, argues that while the testimonies may be hearsay, the same are admissible because of the failure of counsel for appellant to object thereto. It is true that the lack of objection to a hearsay testimony results in its being admitted as evidence. But, one should not be misled into thinking that since these testimonies are admitted as evidence, they now have probative value. Hearsay evidence, whether objected to or not, cannot be given credence. In People v. Valero, We emphatically declared that: "The failure of the defense counsel to object to the presentation of incompetent evidence, like hearsay evidence or evidence that violates the rule of res inter alios acta, or his failure to ask for the striking out of the same does not give such evidence any probative value. The lack of objection may make any incompetent evidence admissible. But admissibility of evidence should not be equated with weight of evidence. Hearsay evidence whether objected to or not has no probative value." (L-45283-84, March 19, 1982, 112 SCRA 675) 2. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS AGAINST UNREASONABLE SEARCH AND SEIZURE; PURPOSE. The right against unreasonable searches and seizures is enshrined in the Constitution (Article III, Section 2). The purpose of the law is to prevent violations of private security in person and property, and unlawful invasions of the sanctity of the home by officers of the law acting under legislative or judicial sanction and to give remedy against such usurpations when attempted (see Alvero v. Dizon, 76 Phil. 637, 646). However, such right is not absolute. 3. ID.; ID.; ID.; EXCEPTIONS. There are instances when a warrantless search and seizure becomes valid, namely: (1) search incidental to an arrest; (2) search of a moving vehicle; and (3) seizure of evidence in plain view (Manipon, Jr. v. Sandiganbayan, L-58889, July 31, 1986, 143 SCRA 267, 276). 4. ID.; ID.; ID.; BEING A PERSONAL RIGHT, CANNOT BE WAIVED BY ANYONE EXCEPT THE PERSON WHOSE RIGHTS ARE INVADED OR WHO IS EXPRESSLY AUTHORIZED TO DO SO IN HIS BEHALF. The constitutional immunity from unreasonable searches and seizures, being a personal one, cannot be waived by anyone except the person whose rights are invaded or one who is expressly authorized to do so in his or her behalf (De Garcia v. Locsin, 65 Phil. 689, 695). In the case at bar, the records show that appellant was not in his house at that time Luz Tanciangco and Luz Morados, his alleged helper, allowed the authorities to enter it. We find no evidence that would establish the fact that Luz Morados was indeed the appellant's helper or if it was true that she was his helper, that the appellant had given her authority to open his house in his absence. The prosecution likewise failed to show if Luz Tanciangco has such an authority. Without this evidence, the authorities' intrusion into the appellant's dwelling cannot be given any color of legality. While the power to search and seize is necessary to the public welfare, still it must be exercised and the law enforced without transgressing the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government (Rodriguez v. Evangelista, 65 Phil. 230, 235). As a consequence, the search conducted by the authorities was illegal. It would have been different if the situation here demanded urgency which could have prompted the authorities to dispense with a search warrant. But the record is silent on this point. 5. ID.; ID.; ID.; VIOLATION THEREOF CANNOT BE JUSTIFIED BY THE URGENCY OF THE RAID. The fact that they came to the house of the appellant at nighttime, does not grant them the license to go inside his house. In Alih v. Castro, We ruled that: "The respondents cannot even plead the urgency of the raid because it was in fact not urgent. They knew where the petitioners were. They had every opportunity to get a search warrant before making the raid. If they were worried that the weapons inside the compound would be spirited away, they could have surrounded the premises in the meantime, as a preventive measure. There was absolutely no reason at all why they should disregard the orderly processes required by the Constitution and instead insist on arbitrarily forcing their way into the petitioner's premises with all the menace of a military invasion." (G.R. No. 69401, June 23, 1987, 151 SCRA 279, 286) 6. CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARMS (P.D. NO. 1866); EXISTENCE OF FIREARM AND THAT THE ACCUSED WHO POSSESSED OR OWNED THE FIREARM DOES NOT HAVE THE CORRESPONDING LICENSE MUST BE PROVED. In crimes of illegal possession of firearm as in this case, the prosecution has the burden to prove the existence of the firearm and that the accused who possessed or owned the firearm does not have the corresponding license for it. Since the gun as identified at the trial differs from the gun described in the amended information, the corpus delicti (the substance of the crime, the fact that a crime has actually been committed) has not been fully established. This circumstance coupled with dubious claims of appellant's connection to the house (where the gun was found) have totally emasculated the prosecution's case. 7. ID.; ID.; NOT ABSORBED IN THE CRIME OF SUBVERSION; REASON THEREFOR. The argument raised by the defense that the crime of subversion absorbs the crime of illegal possession of firearm in furtherance of or incident to or in connection with the crime of subversion. It appears that the accused-appellant is facing a separate charge of subversion. The defense submits that the trial court should have peremptorily dismissed this case in view of the subversion charge. In People of the Philippines v. Asuncion, et al., WE set forth in no uncertain terms the futility of such argument. We quote: "If We are to espouse the theory of the respondents that force and violence are the very essence of subversion, then it loses its distinction from rebellion. In People v. Liwanag (G.R. 27683, 1976, 73 SCRA 473, 480 [1976])., the Court categorically distinguished subversion from rebellion, and held: 'Violation of Republic Act No. 1700, or subversion, as it is more commonly called, is a crime distinct from that of actual rebellion. The crime of rebellion is committed by rising publicly and taking up arms against the Government for any of the purposes specified in Article 134 of the Revised Penal Code; while the Anti-Subversion Act (Republic Act No. 1700) punishes affiliation or membership in a subversive organization as defined therein. In rebellion, there must be a public uprising and taking of arms against the Government; whereas, in subversion, mere membership in a subversive association is sufficient and the taking up of arms by a member of a subversive organization against the Government is but a circumstance which raises the penalty to be imposed upon the offender.' "The first Whereas clause of R.A.. 1700 states that the CPP is an organized conspiracy to overthrow the Government, not only by force and violence but also by deceit, subversion and other illegal means. This is a recognition that subversive acts do not only constitute force and violence (contrary to the arguments of private respondents), but may partake of other forms as well. One may in fact be guilty of subversion by authoring subversive materials, where force and violence is neither necessary or indispensable." The Court upheld the validity of the charge under the third paragraph of Section 1 of P.D. 1866. The Court opined that the dictum in the Hernandez case is not applicable in that case, considering that the legislature deemed it fit to provide for two distinct offenses" (1) illegal possession of firearms qualified by subversion (P.D. 1866) and (2) subversion qualified by the taking up of arms against the Government (R.A. 1700). 'The practical result of this may be harsh or it may pose grave difficulty on an accused in instances similar to those that obtain in the present case, but the wisdom of the legislature in the lawful exercise of its power to enact laws is something that the Court cannot inquire into. . ." (G.R. Nos. 83837-42, April 22, 1991). D E C I S I O N MEDIALDEA, J p: The accused-appellant, Basilio Damaso, was originally charged in an information filed before the Regional Trial Court of Dagupan City with violation of Presidential Decree No. 1866 in furtherance of, or incident to, or in connection with the crime of subversion, together with Luzviminda Morados y Galang @ Ka Mel, Teresita Calosa y Macabangon @ Ka Tessie, Ricardo Calosa y Perez @ Ka Ric, Marites Calosa y Evangelista @ Ka Tess, Eric Tanciangco y Capira @ Ka Ric and Luz Tanciangco y Pencial @ Ka Luz (Records, p. 3). Such information was later amended to exclude all the above- enumerated persons except the accused-appellant from the criminal charge. The amended information reads: "That on or about the 19th day of June, 1988, in the City of Dagupan, Philippines, and within the territorial jurisdiction of this Honorable Court, the above-named accused, Basilio DAMASO @ Bernardo/Bernie Mendoza @ KA DADO, did then and there, wilfully, unlawfully and criminally, have in his possession, custody and control one (1) M14 Rifle bearing Serial No. 1249935 with magazine and Fifty-Seven (57) live ammunition, in furtherance of, or incident to, or in connection with the crime of subversion, filed against said accused in the above-entitled case for Violation of Republic Act 1700, as amended by Executive order No. 276. prLL "Contrary to Third Paragraph of Sec. 1, P.D. 1866." (Records, p. 20) Upon arraignment, the accused-appellant pleaded not guilty to the crime charged (Records, p. 37). Trial on the merits ensued. The prosecution rested its case and offered its exhibits for admission. The counsel for accused-appellant interposed his objections to the admissibility of the prosecution's evidence on grounds of its being hearsay, immaterial or irrelevant and illegal for lack of a search warrant. On these bases, he, thereafter, manifested that he was not presenting any evidence for the accused (TSN, December 28, 1989, p. 139). On January 17, 1990, the trial court rendered its decision, the dispositive portion of which states: "WHEREFORE, the Court finds accused Basilio Damaso alias Bernardo/Bernie Mendoza alias Ka Dado guilty beyond reasonable doubt of Violation of Presidential Decree Number 1866, and considering that the Violation is in furtherance of, or incident to, or in connection with the crime of subversion, pursuant to Section 1, Paragraph 3 of Presidential Decree Number 1866 hereby sentences the accused to suffer the penalty of Reclusion Perpetua and to pay the costs of the proceedings. "The M14 Rifle bearing Serial Number 1249935 and live ammunition and all the articles and/or items seized on June 19, 1988 in connection with this case and marked and submitted in court as evidence are ordered confiscated and forfeited in favor of the government, the same to be turned over to the Philippine Constabulary Command at Lingayen, Pangasinan. "SO ORDERED." (Rollo, p. 31) Thus, this present recourse with the following assignment of errors: A. THE TRIAL COURT ERRED IN FINDING ACCUSED APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ILLEGAL POSSESSION OF FIREARMS AND AMMUNITIONS IN FURTHERANCE OF, OR INCIDENT TO, OR IN CONNECTION WITH THE CRIME OF SUBVERSION DESPITE THE WOEFULLY INADEQUATE EVIDENCE PRESENTED BY THE PROSECUTION. B. THE COURT ERRED IN CONVICTING THE ACCUSED WHEN THE QUALIFYING CIRCUMSTANCES OF SUBVERSION WAS NOT PROVEN BY THE PROSECUTION. C. THE LOWER COURT ERRED IN CONSIDERING AS EVIDENCE THE FIREARMS DOCUMENTS AND ITEMS LISTED IN EXHIBIT E AFTER THEY WERE DECLARED INADMISSIBLE WITH FINALITY BY ANOTHER BRANCH OF THE SAME COURT AND THE SAID EVIDENCE ARE THE FRUITS OF AN ILLEGAL SEARCH. D. THE TRIAL COURT ERRED IN DENYING THE MOTIONS TO QUASH FILED BY ACCUSED-APPELLANT BECAUSE THE SEPARATE CHARGE FOR SUBVERSION AGAINST HIM ABSORBED THE CHARGE FOR ILLEGAL POSSESSION OF FIREARMS IN FURTHERANCE OR OF INCIDENT TO, OR IN CONNECTION WITH THE CRIME OF SUBVERSION." (pp. 55-66, Rollo) The antecedent facts are set forth by the Solicitor General in his Brief, as follows: "On June 18, 1988, Lt. Candido Quijardo, a Philippine Constabulary officer connected with the 152nd PC Company at Lingayen, Pangasinan, and some companions were sent to verify the presence of CPP/NPA members in Barangay Catacdang, Arellano-Bani, Dagupan City. In said place, the group apprehended Gregorio Flameniano, Berlina Aritumba, Revelina Gamboa and Deogracias Mayaoa. When interrogated, the persons apprehended revealed that there was an underground safehouse at Gracia Village in Urdaneta, Pangasinan. After coordinating with the Station Commander of Urdaneta, the group proceeded to the house in Gracia Village. They found subversive documents, a radio, a 1 x 7 caliber .45 firearm and other items (pp. 4, 6-7, tsn, October 23, 1989). LLpr "After the raid, the group proceeded to Bonuan, Dagupan City, and put under surveillance the rented apartment of Rosemarie Aritumba, sister of Berlina Aritumba whom they earlier arrested. They interviewed Luzviminda Morados, a visitor of Rosemarie Aritumba. She stated that she worked with Bernie Mendoza, herein appellant. She guided the group to the house rented by appellant. When they reached the house, the group found that it had already been vacated by the occupants. Since Morados was hesitant to give the new address of Bernie Mendoza, the group looked for the Barangay Captain of the place and requested him to point out the new house rented by appellant. The group again required Morados to go with them. When they reached the house, the group saw Luz Tanciangco outside. They told her that they already knew that she was a member of the NPA in the area. At first, she denied it, but when she saw Morados she requested the group to go inside the house. Upon entering the house, the group, as well as the Barangay Captain, saw radio sets, pamphlets entitled 'Ang Bayan', xerox copiers and a computer machine. They also found persons who were companions of Luz Tanciangco (namely, Teresita Calosa, Ricardo Calosa, Marites Calosa, Eric Tanciangco and Luzviminda Morados). The group requested the persons in the house to allow them to look around. When Luz Tanciangco opened one of the rooms, they saw books used for subversive orientation, one M-14 rifle, bullets and ammunitions, Kenwood radio, artificial beard, maps of the Philippines, Zambales, Mindoro an(d) Laguna and other items. They confiscated the articles and brought them to their headquarters for final inventory. They likewise brought the persons found in the house to the headquarters for investigation. Said persons revealed that appellant was the lessee of the house and owned the items confiscated therefrom (pp. 8-12, tsn, ibid; pp. 2-4, 6, 8-10, 31, tsn, October 31, 1989)." (p. 5, Brief of Plaintiff-Appellee, p. 91, Rollo) While We encourage and support law enforcement agencies in their drive against lawless elements in our society, We must, however, stress that the latter's efforts to this end must be done within the parameters of the law. In the case at bar, not only did We find that there are serious flaws in the method used by the law officers in obtaining evidence against the accused-appellant but also that the evidence as presented against him is weak to justify conviction. We reverse. The records of this case show that the accused-appellant was singled out as the sole violator of P.D. No. 1866, in furtherance of, or incident to, or in connection with the crime of subversion. Yet, there is no substantial and credible evidence to establish the fact that the appellant is allegedly the same person as the lessee of the house where the M-14 rifle and other subversive items were found or the owner of the said items. The prosecution presented two witnesses who attested to this fact, thus: "Lieutenant Candito Quijardo Fiscal "Q: How about this Bernie Mendoza, who was the one renting the house? "A: He was not around at that time, but according to Luz (Tanciangco) who mentioned the name Bernie Mendoza (as) the one who was renting the house and at the same time claiming that it was Bernie Mendoza who owns the said items." (TSN of October 31, 1989, p. 40) xxx xxx xxx "Q: I am showing you another picture which we request to be marked as Exhibit 'K-2,' tell us if it has any connection to the house? "A: The same house, sir. "Q: Now, this person who according to you allegedly occupied the house at Bonuan Gueset, by the name of Bernie Mendoza, in your capacity as a Military officer, did you find out the identity? "A: I am not the proper (person) to tell the real identity of Bernie de Guzman. Cdpr "Q: Can you tell the Honorable Court the proper person who could tell the true identity of Bernie Mendoza? "A: The Intelligence of the Pangasinan PC Command. "Q: Can you name these officers? "A: Captain Roberto Rosales and his assistant, First Lt. Federico Castro. (ibid, pp. 54-55) "M/Sgt. Artemio Gomez "Q: That underground house, do you know who was the principal occupant of that house? xxx xxx xxx "A: During our conversation with the occupants, they revealed that a certain Ka Bernie is the one occupying the house, Bernie Mendoza alias Basilio Damaso. " . . . (TSN, December 27, 1989, pp. 126-128) Clearly, the aforequoted testimonies are hearsay because the witnesses testified on matters not on their own personal knowledge. The Solicitor General, however, argues that while the testimonies may be hearsay, the same are admissible because of the failure of counsel for appellant to object thereto. It is true that the lack of objection to a hearsay testimony results in its being admitted as evidence. But, one should not be misled into thinking that since these testimonies are admitted as evidence, they now have probative value. Hearsay evidence, whether objected to or not, cannot be given credence. In People v. Valero, We emphatically declared that: "The failure of the defense counsel to object to the presentation of incompetent evidence, like hearsay evidence or evidence that violates the rule of res inter alios acta, or his failure to ask for the striking out of the same does not give such evidence any probative value. The lack of objection may make any incompetent evidence admissible. But admissibility of evidence should not be equated with weight of evidence. Hearsay evidence whether objected to or not has no probative value." (L-45283-84, March 19, 1982, 112 SCRA 675, italics supplied) It is unfortunate that the prosecution failed to present as witnesses the persons who knew the appellant as the lessee and owner of the M-14 rifle. In this way, the appellant could have exercised his constitutional right to confront the witnesses and to cross-examine them for their truthfulness. Likewise, the records do not show any other evidence which could have identified the appellant as the lessee of the house and the owner of the subversive items. To give probative value to these hearsay statements and convict the appellant on this basis alone would be to render his constitutional rights useless and without meaning. Even assuming for the sake of argument that the appellant is the lessee of the house, the case against him still will not prosper, the reason being that the law enforcers failed to comply with the requirements of a valid search and seizure proceedings. prLL The right against unreasonable searches and seizures is enshrined in the Constitution Article III, Section 2. The purpose of the law is to prevent violations of private security in person and property, and unlawful invasions of the sanctity of the home by officers of the law acting under legislative or judicial sanction and to give remedy against such usurpations when attempted (see Rivero v. Dizon, 76 Phil. 637, 646). However, such right is not absolute. There are instances when a warrantless search and seizure becomes valid, namely: (1) search incidental to an arrest; (2) search of a moving vehicle, and (3) seizure of evidence in plain view (Manipon, Jr. v. Sandiganbayan, L-58889, July 31, 1986, 143 SCRA 267, 267). None of these exceptions is present in this case. The Solicitor General argues otherwise. He claims, that the group of Lt. Quijardo entered the appellant's house upon invitation of Luz Tanciangco and Luzviminda Morados, helper of the appellant; that when Luz Tanciangco opened one of the rooms, they saw a copier machine, computer, M-14 rifle, bullets and ammunitions, radio set and more subversive items, that technically speaking, there was no search as the group was voluntarily shown the articles used in subversion; that besides, a search may be validly conducted without a search warrant with the consent of the person searched as in this case, appellant's helper and Luz Tanciangco allowed them to enter and to look around the appellant's house; and that since the evidence seized was in plain view of the authorities, the same may be seized without a warrant. We are not persuaded. The constitutional immunity from unreasonable searches and seizures, being a personal one cannot he waived by anyone except the person whose rights are invaded or one who is expressly authorized to do so in his or her behalf (De Garcia v. Locsin, 65 Phil. 689 695). In the case at bar, the records show that appellant was not in his house at that time Luz Tanciangco and Luz Morados, his alleged helper, allowed the authorities to enter it (TSN, October 31, 1989, p. 10). We find no evidence that would establish the fact that Luz Morados was indeed the appellant's helper, or if it was true that she was his helper, that the appellant had given her authority to open his house in his absence. The prosecution likewise failed to show if Luz Tanciangco has such an authority. Without this evidence, the authorities' intrusion into the appellant's dwelling cannot be given any color of legality. While the power to search and seize is necessary to the public welfare, still it must be exercised and the law enforced without transgressing the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government (Rodriguez v. Evangelista, 65 Phil. 230, 235). As a consequence, the search conducted by the authorities was illegal. It would have been different if the situation here demanded urgency which could have prompted the authorities to dispense with a search warrant. But the record is silent on this point. The fact that they came to the house of the appellant at nighttime (Exh. J, p. 7, Records), does not grant them the license to go inside his house. In Alih v. Castro, We ruled that: "The respondents cannot even plead the urgency of the raid because it was in fact not urgent. They knew where the petitioners were. They had every opportunity to get a search warrant before making the raid. If they were worried that the weapons inside the compound would be spirited away, they could have surrounded the premises in the meantime, as a preventive measure. There was absolutely no reason at all why they should disregard the orderly processes required by the Constitution and instead insist on arbitrarily forcing their way into the petitioner's premises with all the menace of a military invasion." (G.R. No. 69401, June 23, 1987, 151 SCRA 279, 286) Another factor which illustrates the weakness of the case against the accused-appellant is in the identification of the gun which he was charged to have illegally possessed. In the amended information (supra, pp. 1-2), the gun was described as an M-14 rifle with serial no. 1249935. Yet, the gun presented at the trial bore a different serial number thus: "FISCAL: Q. Will you kindly restate again the items that you found inside the house? Lt. Quijardo: A. When she opened the doors of the rooms that we requested for, we immediately saw different kinds of books of which we believed to be used for subversive orientation and the M-14 rifle. prcd" Q. In what portion of the house did you find this M-14 rifle which you mentioned? A. In the same room of which the subversive documents were placed. Q. If this firearm would be shown to you would you be able to identify the same? A. Yes, sir. Q. I am showing to you a rifle bearing a serial number 1249985 which for purposes of identification, may we request your Honor, that this rifle be marked as Exhibit 'D.' COURT: Mark it. "FISCAL: Q. Kindly examine the said firearm and tell the Honorable Court the relation of that firearm to the firearm which according to you found inside the room allegedly occupied by one Bernie Mendoza? A. This is the same rifle which was discovered during our raid in the same house." (TSN, October 31, 1989, pp. 36-38, italics supplied) The Solicitor General contends that the discrepancy is merely a typographical error. We do not think so. This glaring error goes into the substance of the charge. Its correction or lack of it could spell the difference between freedom and incarceration of the accused-appellant. In crimes of illegal possession of firearm as in this case, the prosecution has the burden to prove the existence of the firearm and that the accused who possessed or owned the firearm does not have the corresponding license for it. Since the gun as identified at the trial differs from the gun described in the amended information, the corpus delicti (the substance of the crime, the fact that a crime has actually been committed) has not been fully established. This circumstance coupled with dubious claims of appellant's connection to the house (where the gun was found) have totally emasculated the prosecution's case. But even as We find for the accused-appellant, We, take exception to the argument raised by the defense that the crime of subversion absorbs the crime of illegal possession of firearm in furtherance of or incident to or in connection with the crime of subversion. It appears that the accused-appellant is facing a separate charge of subversion. The defense submits that the trial court should have peremptorily dismissed this case in view of the subversion charge. In People of the Philippines v. Asuncion, et al., We set forth in no uncertain terms the futility of such argument. We quote: "If We are to espouse the theory of the respondents that force and violence are the very essence of subversion, then it loses its distinction from rebellion. In People v. Liwanag (G.R. No. 27683, 1976, 73 SCRA 473, 480 [1976])., the Court categorically distinguished subversion from rebellion, and held: 'Violation of Republic Act No. 1700, or subversion, as it is more commonly called, is a crime distinct from that of actual rebellion. The crime of rebellion is committed by rising publicly and taking up arms against the Government for any of the purposes specified in Article 134 of the Revised Penal Code; while the Anti-Subversion Act (Republic Act No. 1700) punishes affiliation or membership in a subversive organization as defined therein. In rebellion, there must he a public uprising and taking of arms against the Government; whereas, in subversion, mere membership in a subversive association is sufficient and the taking up of arms by a member of a subversive organization against the Government is but a circumstance which raises the penalty to be imposed upon the offender.' (Italics supplied) "Furthermore, in the case of Buscayno v. Military Commission (G.R. 58284, 109 SCRA 289 [1981]), this Court said that subversion, like treason, is a crime against national security, while rebellion is a crime against public order. Rising publicly and taking arms against the Government is the very element of the crime of rebellion. On the other hand, R.A. 1700 was enacted to outlaw the Communist Party of the Philippines (CPP), other similar associations and its successors because their existence and activities constitute a clear, present and grave danger to national security. "The first Whereas clause of R.A. 1700 states that the CPP is an organized conspiracy to overthrow the Government, not only by force and violence but also by deceit, subversion and other illegal means. This is a recognition that subversive acts do not only constitute force and violence (contrary to the arguments of private respondents), but may partake of other forms as well. One may in fact be guilty of subversion by authoring subversive materials, where force and violence is neither necessary or indispensable." llcd "Private respondents contended that the Court in Misolas v. Panga impliedly ruled that if an accused is simultaneously charged with violation of P.D. 1866 and subversion, the doctrine of absorption of common crimes as applied in rebellion could have found application therein. The respondents relied on the opinion of this Court when it said: ' . . . in the present case, petitioner is being charged specifically for the qualified offense of illegal possession of firearms and ammunition under PD 1866. HE IS NOT BEING CHARGED WITH THE COMPLEX CRIME OF SUBVERSION WITH ILLEGAL POSSESSION OF FIREARMS. NEITHER IS HE BEING SEPARATELY CHARGED FOR SUBVERSION AND FOR ILLEGAL POSSESSION OF FIREARMS. Thus, the rulings of the Court in Hernandez, Geronimo and Rodriguez find no application in this case.' "This is however a mere obiter. In the above case, the Court upheld the validity of the charge under the third paragraph of Section 1 of P.D. 1866. The Court opined that the dictum in the Hernandez case is not applicable in that case, considering that the legislature deemed it fit to provide for two distinct offenses: (1) illegal possession of firearms qualified by subversion (P.D. 1866 and (2) subversion qualified by the taking up of arms against the Government (R.A. 1700). `The practical result of this may be harsh or it may pose grave difficulty on an accused in instances similar to those that obtain in the present case, but the wisdom of the legislature in the lawful exercise of its power to enact laws is something that the Court cannot inquire into . . . " (G.R. Nos. 83837-42, April 22, 1992) Nonetheless, the evidence in hand is too weak to convict the accused- appellant of the charge of illegal possession of firearm in furtherance of, or incident to or in connection with the crime of subversion, We are therefore, left with no option, but to acquit the accused on reasonable doubt. ACCORDINGLY, the decision appealed from is hereby REVERSED and the appellant is ACQUITTED with costs de oficio. SO ORDERED. Grio-Aquino and Bellosillo, JJ ., concur. Cruz, J., concurs. 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 THE ASAC, ACTING DIRECTOR, NATIONAL BUREAU OF INVESTIGATION, CITY FISCAL OF DAVAO, SENIOR NBI AGENT OF DAVAO, EARL REYNOLDS, AND/OR ANY OF THEIR AUTHORIZED REPRESENTATIVES, respondents. A. Romero for petitioners. Solicitor General Antonio P. Barredo, Assistant Solicitor General Pacifico P. de Castro and Solicitor Augusto M. Amores for respondents. SYNOPSIS Petitioner contended that the forfeiture of copra and coffee made by the Collector of Customs was invalid because it was based on documents and papers illegally seized by Government agents through violence and intimidation. They claimed that the hotel room then being rented by petitioner Tomas Velasco was raided without any search warrant and in the absence at the time of said petitioner or any other person, except one Teofila Ibaez, a mere manicurist. Respondents, however, contended that there was consent, because Teofila Ibaez who appeared to be the wife of Tomas Velasco, upon being informed of the purpose of the search, invited the officers to enter and search the hotel room and even voluntarily gave the documents and things requested by the officers. The Supreme Court held that the state policy of minimizing smuggling must be carried out with due respect for constitutional rights, and that whenever there is a showing that the safeguards of the fundamental law are disregarded, then judicial redress is appropriate. But such is not the case here. Even if Teofila Ibaez, who could be aptly described as the wrong person, at the wrong place, and at the wrong time, was not the legal wife of petitioner Tomas Velasco, the officers of the law could not be blamed if they acted on the appearances. There was a person inside who from all indications was ready to accede to their request. Even common courtesy alone would have precluded them from inquiring too closely as to why she was there. Under all the circumstances, the Supreme Court concluded that there was consent sufficient in law to dispense with the need for a search warrant. SYLLABUS 1. CONSTITUTIONAL LAW; SEARCH AND SEIZURE; STEPS TAKEN BY ADMINISTRATIVE AUTHORITIES TO MINIMIZE SMUGGLING MUST NOT CONFLICT WITH CONSTITUTIONAL RIGHTS. The Supreme Court, understandably and appropriately in the decision of cases coming before it, is called upon to act with due care to avoid putting obstacles to the governmental policy to minimize if not to do away entirely, with the evil and corruption that smuggling brings in its wake. Nonetheless, the steps 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 guarantee against unreasonable search and seizure is invoked, there is need to scrutinize the facts rigorously to preclude any infringement thereof. 2. ID.; ID.; SEARCH OR SEIZURE CANNOT BE STIGMATIZED AS UNREASONABLE IF CONSENT BE SHOWN. There has been marked receptivity on the part of the Supreme Court to claims based on the protection of the search and seizure clause of the Constitution, whenever properly invoked. However, it cannot admit of doubt that a search or seizure cannot be stigmatized as unreasonable and thus offensive to the Constitution if consent be shown. For this immunity from unwarranted intrusion is a personal right which may be waived either expressly or impliedly. 3. ID.; ID.; A RENTED HOTEL ROOM IS WITHIN THE CONSTITUTIONAL PROTECTION OF A GUARANTEE INTENDED TO PROTECT ONE'S PRIVACY. A hotel room rented by a person is within the constitutional protection of a guarantee intended to protect one's privacy. In such a place, the insistence on being free from any unwelcome intrusion is likely to be more marked. 4. ID.; ID.; CIRCUMSTANCES SHOWING EXISTENCE OF CONSENT SUFFICIENT IN LAW TO DISPENSE WITH NEED FOR A SEARCH WARRANT. Where, at the time the government agents entered and searched the hotel room then being rented by petitioner, a woman who appeared to be the wife of petitioner was inside the room, and, upon being informed of the purpose of the search, invited the officers to enter and search the room and even voluntarily gave the documents and things requested by the officers, even if the said woman, who could be aptly described as the wrong person, at the wrong place, at the wrong time, was not the wife of petitioner, but a mere manicurist by occupation, the officers of the law could not be blamed if they acted on the appearances. There was a person inside who from all indications was ready to accede to their request. Even common courtesy alone would have precluded them from inquiring too closely as to why she was there. Under said circumstances, there was consent sufficient in law to dispense with the need for a search warrant. D E C I S I O N FERNANDO, J p: This Court, understandably and appropriately in the decision of cases coming before it, is called upon to act with due care to avoid putting obstacles to the governmental policy "to minimize, if not to do away entirely, with the evil and corruption that smuggling brings in its wake . . ." 1 Nonetheless, the steps 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 guarantee against unreasonable search and seizure is invoked, there is a need to scrutinize the facts rigorously to preclude any infringement thereof. In this special civil action for certiorari, prohibition and mandamus which arose from the seizures made by the Collector of Customs of Davao of 1,480 sacks of copra and 86 sacks of coffee from the M/V motor vessel Jolo Lema, our decision of November 29, 1974 in Nasiad v. Court of Tax Appeals 2 made clear that there was no failure to comply with the requirements of the law in effecting the same. The seizure was therefore declared lawful by the Court of Tax Appeals, and its decision was affirmed by us. 3 The only question left then is whether the search conducted by a party headed by respondent Earl Reynolds, Senior NBI Agent of Davao, 4 without the search warrant for the hotel room of petitioner Tomas Velasco, who entered into a contract with the other petitioner, Jose G. Lopez, the awardee of such Philippine Reparations Commission vessel, for its operation and use ostensibly for fishing, 5 is violative of such constitutional provision. 6 The 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 the action. The relevant facts as found in the aforesaid Nasiad decision read as follows: "As noted in the appealed decision, the issue submitted 'for resolution is the legality of the seizure made by the Collector of Customs of Davao of the 1,408 sacks of copra and 86 sacks of coffee allegedly owned by the petitioners.' Then came this portion: 'Petitioners claim that the 1,408 sacks of copra and 86 sacks of coffee in question were purchased in Kiamba, Lumatin, and Lumasal, all in the province of Cotabato, from a certain Osmea Juanday. Petitioners contend that, inasmuch as the said goods were not imported and of foreign origin, they are not legally subject to seizure and forfeiture. They likewise contend that the forfeiture made by the Collector of Customs of Davao was invalid because the 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 contends that the evidence is sufficient to hold that the goods in question came from Indonesia and subsequently 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 of NBI, 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 proceedings instituted administratively by the Collector of Customs of Davao.' It was then set forth: 'The voluminous [evidence] of record clearly show that M/V [Jolo Lema] had been under strict surveillance by the combined team of agents of the NBI, PC, RASAC, and City Police of Davao prior to its apprehension at a private wharf in Batjak, Sasa, Davao City; that the said M/V [Jolo Lema] was skippered (sic) by Capt. Aquilino Pantinople and chartered by Mr. Tomas Velasco; during the period from the latter part of August to September 18, 1966, the said vessel was in Indonesian waters where it loaded copra and coffee beans from Taruna, Pitta, and Mangenito, all of Indonesia . . .; that in its trip to Indonesia it brought various merchandise from the Philippines which were exchanged and/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 a way to Tahuna, Indonesia . . . before proceeding to Davao City where it was apprehended on September 19, 1966.' Then came the reference to the evidence and the testimonies of the witnesses of both parties, being appraised by respondent Court, which did not find any ground to discredit the finding of respondent Collector of Customs. As therein pointed out: 'The evidence does not show any plausible motive for respondent's witnesses to falsify the truth because they represent different agencies of the government. From all appearances, they have no personal interest whatsoever over the goods subject of the forfeiture proceedings. Besides, petitioners have not adduced any evidence showing that they were enemies of the witnesses for the government. In short, no iota of evidence was ever presented by the petitioners to destroy the integrity of the government witnesses and to cast a cloud of doubt on their testimonies.' Also: 'The decision of the Collector of Customs of Davao shows that a petitioner herein and at the same time one of the claimants of the confiscated copra and coffee beans, 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 government agents.' Then, lastly: 'Moreover, petitioners failed to explain satisfactorily, much less refute the vital testimony of Fiscal Mariano Umali of the Department of Justice, Manila that the various Indonesian documents . . . duly authenticated by the Indonesian Consulate in Manila, show in clear detail that the vessel M/V Jolo Lema was in Indonesia during the period from the latter part of August to September 18, 1966, and that it loaded copra and coffee beans therein before the said vessel returned to Davao City on September 19, 1966. Petitioners' failure to successfully dispute or destroy said testimony by competent and reliable evidence strongly indicates that the copra and coffee beans in question were imported from Indonesia.'" 7 On the question of the search of the hotel room, the petition alleged that at about 3:00 o'clock in the afternoon 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 hotel room then being rented by petitioner Tomas Velasco without any search warrant and in the absence at the time of such petitioner Tomas Velasco or the presence of any other person, except one Teofila Ibaez, a mere manicurist of Davao City by occupation, and "forcibly opened luggages and boxes from which only several documents and papers were found, then seized, confiscated and took away the same." 8 There was this refutation of such allegation in the answer presented by respondents, represented by the then Solicitor General, 9 now Associate Justice, Antonio P. Barredo: "(a) After Captain 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 in Davao City, to ask for said documents; (b) Although petitioner Velasco was not inside the hotel room, respondent Reynolds, after identifying himself as a police officer and after explaining his purpose, 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 things contained 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 confiscated the documents and things contained therein, since that was not necessary because . . . Mrs. Tomas Velasco voluntarily opened the baggages and suitcases and gave their contents of documents and things 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 Lucero Cordero, a joint sworn statement of Antonio Bonotan, Vicente Dubria, Alberto Morgady and Virgilio Humol; 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 of the search and seizure clause of the Constitution, whenever properly invoked. So it was made clear from the leading case of Alvarez v. Court of First Instance. 11 It has been thus since then. 12 Such was the case likewise under previous organic acts. 3 There is this succinct restatement of what is embraced in the guarantee in the latest case of Lim v. Ponce de Leon, 14 with Justice Martin as ponente: "There can be no question that without the proper search warrant, no public official has the right to enter the premises of another without his consent for the purpose of search and seizure." 15 It does not admit of doubt therefore that a search or seizure cannot be stigmatized as unreasonable and thus offensive to the Constitution if consent be shown. Such a view is implicit in People v. Malasugui. 16 For this immunity from unwarranted intrusion 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 person who was the occupant of the hotel room then rented by petitioner Velasco. It cannot be contended that 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 any unwelcome intrusion is likely to be more marked. 18 Was there, however, consent sufficient in law to dispense 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 the wife 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 things requested by said officers. This fact could be gleaned from the following records of the two seizure cases involving the vessel M/V Jolo Lema and its cargo of Indonesian copra and coffee: (a) On September 19, 1966, Teofila Ibaez, wife of petitioner Tomas Velasco, issued a written statement which states that '. . . I have voluntarily and freely allowed my husband's and my personal belongings to be searched and freely gave the following items.' . . . (b) On the same date, she; issued another certification which reads in part, viz.: '. . . That I have voluntarily turned over for safekeeping and verification the following.' . . . (c) Also on the same date, she issued still another certification which reads partially, thus: '. . . that I have freely and voluntarily allowed the search of my and my husband'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 Tomas Velasco never filed any 'report for robbery or other offenses . . . against any member of the NBI or the PC during the period from September 19, 1966 to the present,' . . .." 19 Their memorandum likewise included as an annex an affidavit from Benjamin Doronal Y. Yaez, the assistant manager of the Skyroom Hotel. It was worded thus: "That on September 19, 1966 at around 3:00 to 4:00 o'clock in the afternoon, a joint NBI, PC and Davao City Police Commando Team conducted a search on Room 220 of the Skyroom Hotel occupied by Mr. and Mrs. Tomas Velasco; That before said search was conducted, [Teofila Ibaez], the actual occupant of the room at the time, voluntarily consented to the request of Atty. [Earl Reynolds] and Lt. [Romeo Arceo] to search their room (Rm. 220) after the 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 her handbag which was found to contain a .45 caliber pistol and likewise voluntarily opened the maletas which 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 the search, 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 were present when the said search was being conducted; That said search was conducted in a peaceful and orderly manner . . .." 20 There was an attempt on the part of petitioners to counteract the force of the above recital by an affidavit of one Corazon Y. Velasco, 21 who stated that she is the legal wife of petitioner Tomas Velasco, and another by such petitioner himself. 22 reiterating such a fact and that the person who was present at his hotel room was one Teofila Ibaez, "a manicurist by occupation." 23 Their effort appurtenant thereto is doomed to failure. If such indeed were the case, then it is much 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 readily and immediately. Under the circumstances, that was the most prudent course of action. It would save her and even petitioner Velasco himself from any gossip or innuendo. Nor could the officers of the law be blamed if they would act on the appearances. There was a person inside who from all indications was ready to accede to their request. Even common courtesy alone would have precluded 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 the need 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 the festering sore of smuggling must be carried out with due respect for constitutional rights. It is a truism in law that a desirable end cannot be attained by illegal means. Whenever there is a showing, therefore, that the safeguards of the fundamental law are disregarded, more specifically the guarantee 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 mentioned in Nasiad v. Court of Tax Appeals, 24 involving the very same occurrence, the only difference being that the petitioners there were the importers of the smuggled goods, this Court had affirmed the validity of the seizure proceeding. No injustice can therefore be claimed by petitioners. WHEREFORE, the petition for certiorari, prohibition and mandamus is dismissed. Costs against petitioners. Antonio, Muoz Palma, Aquino and Concepcion, Jr., JJ., concur. Barredo, J., took no part. FIRST DIVISION [G.R. No. 136292. January 15, 2002.] RUDY CABALLES y TAIO, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. De Jesus Orioste & Lim for petitioner. The Solicitor General for respondents. SYNOPSIS The Regional Trial Court of Santa Cruz, Laguna convicted petitioner Rudy Caballes of the crime of theft for stealing aluminum cable conductors worth P55,244.45 belonging to the National Power Corporation. Accordingly, it sentenced petitioner to a prison term and ordered him to indemnify private complainant. On appeal, the Court of Appeals affirmed the judgment of conviction but deleted the award of damages and modified the penalty imposed. STaAcC Hence, this appeal by certiorari. Petitioner questioned the validity of the warrantless search and seizure made by the police officers, and the admissibility of the evidence obtained by virtue thereof. The searches without warrant of moving vehicles is allowed provided such searches are made at borders or 'constructive borders', like checkpoints. The mere mobility of these vehicles, however, does not give the police officers unlimited discretion to conduct indiscriminate searches without warrants if made within the interior of the territory and in the absence of probable cause. In the case at bar, the vehicle of the petitioner was flagged down because the police officers who were on routine patrol became suspicious when they saw that the back of the vehicle was covered with kakawati leaves which, according to them, was unusual and uncommon. The Court held that the fact that the vehicle looked suspicious simply because it is not common for such to be covered with kakawati leaves does not constitute "probable cause'' as would justify the conduct of a search without a warrant. In addition, the police authorities did not claim to have received any confidential report or tipped information that petitioner was carrying stolen cable wires in his vehicle, which could otherwise have sustained their suspicion. Our jurisprudence is replete with cases where tipped information has become a sufficient probable cause to effect a warrantless search and seizure. Unfortunately, none exists in this case. Furthermore, it cannot be said that the cable wires found in petitioner's vehicle were in plain view, making its warrantless seizure valid. It was clear from the records that the cable wires were not exposed to sight because they were placed in sacks and covered by kakawati leaves. The police officers even have to ask petitioner what was loaded in his vehicle. Moreover, it was not established by clear and positive proof that the petitioner consented to the search or intentionally surrendered his right against unreasonable search. Thus, the articles seized from petitioner could not be used as evidence against him. For lack of evidence to establish his guilt, the Court acquitted petitioner of the crime charged. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES; EXCLUSIONARY RULE; BARS ADMISSION OF EVIDENCE OBTAINED IN VIOLATION OF THE RIGHT; EXCEPTIONS. Enshrined in our Constitution is the inviolable right of the people to be secure in their persons and properties against unreasonable searches and seizures, as defined under Section 2, Article III thereof. The exclusionary rule under Section 3(2), Article III of the Constitution bars the admission of evidence obtained in violation of such right. The constitutional proscription against warrantless searches and seizures is not absolute but admits of certain exceptions, namely: (1) warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence; (2) seizure of evidence in plain view; (3) search of moving vehicles; (4) consented warrantless search; (5) customs search; (6) stop and frisk situations (Terry search); and (7) exigent and emergency circumstances. 2. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS SEARCH AND SEIZURE; REASONABLENESS OR UNREASONABLENESS OF SEARCH OR SEIZURE IS PURELY A JUDICIAL QUESTION; CASE AT BAR. In cases where warrant is necessary, the steps prescribed by the Constitution and reiterated in the Rules of Court must be complied with. In the exceptional events where warrant is not necessary to effect a valid search or seizure, or when the latter cannot be performed except without a warrant, what constitutes a reasonable or unreasonable search or seizure is purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched and the character of the articles procured. 3. ID.; ID.; WARRANTLESS SEARCH OF MOVING VEHICLES; ALLOWED PROVIDED THE SAME WAS MADE AT CONSTRUCTIVE BORDERS. Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity. Thus, the rules governing search and seizure have over the years been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge a requirement which 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. We might add that a warrantless search of a moving vehicle is justified on the ground that 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. Searches without warrant of automobiles is also allowed for the purpose of preventing violations of smuggling or immigration laws, provided such searches are made at borders or 'constructive borders' like checkpoints near the boundary lines of the State. ACaDTH 4. ID.; ID.; ID.; REQUIRES PROBABLE CAUSE; EXISTENCE OF PROBABLE CAUSE NOT DETERMINED BY FIXED FORMULA BUT IS RESOLVED ACCORDING TO THE FACTS OF EACH CASE. The mere mobility of these vehicles, however, does not give the police officers unlimited discretion to conduct indiscriminate searches without warrants if made within the interior of the territory and in the absence of probable cause. Still and all, the important thing is that there was probable cause to conduct the warrantless search, which must still be present in such a case. Although the term eludes exact definition, probable cause signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man's belief that the person accused is guilty of the offense with which he is charged; or the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched. The required probable cause that will justify a warrantless search and seizure is not determined by a fixed formula but is resolved according to the facts of each case. 5. ID.; ID.; ID.; "STOP-AND-SEARCH" AT POLICE CHECKPOINTS; NOT ILLEGAL PER SE; ROUTINE INSPECTIONS; NOT VIOLATIVE OF RIGHT AGAINST UNREASONABLE SEARCHES; LIMITATIONS; CASE AT BAR. One such form of search of moving vehicles is the "stop-and- search" without warrant at military or police checkpoints which has been declared to be not illegal per se, for as long as it is warranted by the exigencies of public order and conducted in a way least intrusive to motorists. A checkpoint may either be a mere routine inspection or it may involve an extensive search. Routine inspections are not regarded as violative of an individual's right against unreasonable search. The search which is normally permissible in this instance is limited to the following instances: (1) where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds; (2) simply looks into a vehicle; (3) flashes a light therein without opening the car's doors; (4) where the occupants are not subjected to a physical or body search; (5) where the inspection of the vehicles is limited to a visual search or visual inspection; and (6) where the routine check is conducted in a fixed area. None of the foregoing circumstances is obtaining in the case at bar. The police officers did not merely conduct a visual search or visual inspection of herein petitioner's vehicle. They had to reach inside the vehicle, lift the kakawati leaves and look inside the sacks before they were able to see the cable wires. It cannot be considered a simple routine check. 6. ID.; ID.; ID.; EXTENSIVE CHECK OF VEHICLE, WHEN PERMISSIBLE. In the case of United States vs. Pierre, the Court held that the physical intrusion of a part of the body of an agent into the vehicle goes beyond the area protected by the Fourth Amendment, to wit: "The Agent . . . stuck his head through the driver's side window. The agent thus effected a physical intrusion into the vehicle . . . [W]e are aware of no case holding that an officer did not conduct a search when he physically intruded part of his body into a space in which the suspect had a reasonable expectation of privacy. [The] Agent['s] . . . physical intrusion allowed him to see and to smell things he could not see or smell from outside the vehicle . . . In doing so, his inspection went beyond that portion of the vehicle which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers, and into the area protected by the Fourth amendment, just as much as if he had stuck his head inside the open window of a home." On the other hand, when a vehicle is stopped and subjected to an extensive search, such a warrantless search would be constitutionally permissible only if the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender or they will find the instrumentality or evidence pertaining to a crime in the vehicle to be searched. This Court has in the past found probable cause to conduct without a judicial warrant an extensive search of moving vehicles in situations where (1) there had emanated from a package the distinctive smell of marijuana; (2) agents of the Narcotics Command ("Narcom") of the Philippine National Police ("PNP") had received a confidential report from informers that a sizeable volume of marijuana would be transported along the route where the search was conducted; (3) Narcom agents had received information that a Caucasian coming from Sagada, Mountain Province, had in his possession prohibited drugs and when the Narcom agents confronted the accused Caucasian, because of a conspicuous bulge in his waistline, he failed to present his passport and other identification papers when requested to do so; (4) Narcom agents had received confidential information that a woman having the same physical appearance as that of the accused would be transporting marijuana; (5) the accused who were riding a jeepney were stopped and searched by policemen who had earlier received confidential reports that said accused would transport a large quantity of marijuana; and (6) where the moving vehicle was stopped and searched on the basis of intelligence information and clandestine reports by a deep penetration agent or spy one who participated in the drug smuggling activities of the syndicate to which the accused belonged that said accused were bringing prohibited drugs into the country. STcEIC 7. ID.; ID.; ID.; FACT THAT VEHICLE LOOKS SUSPICIOUS DOES NOT CONSTITUTE PROBABLE CAUSE. In the case at bar, the vehicle of the petitioner was flagged down because the police officers who were on routine patrol became suspicious when they saw that the back of the vehicle was covered with kakawati leaves which, according to them, was unusual and uncommon. We hold that the fact that the vehicle looked suspicious simply because it is not common for such to be covered with kakawati leaves does not constitute "probable cause" as would justify the conduct of a search without a warrant. 8. ID.; ID.; ID.; TIPPED INFORMATION; A SUFFICIENT CAUSE TO EFFECT WARRANTLESS SEARCH AND SEIZURE. In People vs. Chua Ho San, we held that the fact that the watercraft used by the accused was different in appearance from the usual fishing boats that commonly cruise over the Bacnotan seas coupled with the suspicious behavior of the accused when he attempted to flee from the police authorities do not sufficiently establish probable cause. In addition, the police authorities do not claim to have received any confidential report or tipped information that petitioner was carrying stolen cable wires in his vehicle which could otherwise have sustained their suspicion. Our jurisprudence is replete with cases where tipped information has become a sufficient probable cause to effect a warrantless search and seizure. Unfortunately, none exists in this case. 9. ID.; ID.; ID.; PLAIN VIEW DOCTRINE; OBJECT ITSELF IS PLAINLY EXPOSED TO SIGHT; CASE AT BAR. It cannot likewise be said that the cable wires found in petitioner's vehicle were in plain view, making its warrantless seizure valid. Jurisprudence is to the effect that an object is in plain view if the object itself is plainly exposed to sight. Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be seized without a warrant. However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized. In other words, if the package is such that an experienced observer could infer from its appearance that it contains the prohibited article, then the article is deemed in plain view. It must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband or otherwise subject to seizure. It is clear from the records of this case that the cable wires were not exposed to sight because they were placed in sacks and covered with leaves. The articles were neither transparent nor immediately apparent to the police authorities. They had no clue as to what was hidden underneath the leaves and branches. As a matter of fact, they had to ask petitioner what was loaded in his vehicle. In such a case, it has been held that the object is not in plain view which could have justified mere seizure of the articles without further search. 10. ID.; ID.; ID.; CONSENTED WARRANTLESS SEARCHES AND SEIZURE; CONSENT MUST BE VOLUNTARY AND MUST BE SHOWN BY CLEAR AND CONVINCING EVIDENCE; BURDEN OF PROOF LIES ON THE STATE. Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. The consent must be voluntary in order to validate an otherwise illegal detention and search, i.e., the consent is unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion. Hence, consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence. The question whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given: (1) the age of the defendant; (2) whether he was in a public or secluded location; (3) whether he objected to the search or passively looked on; (4) the education and intelligence of the defendant; (5) the presence of coercive police procedures; (6) the defendant's belief that no incriminating evidence will be found; (7) the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the possibly vulnerable subjective state of the person consenting. It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given. 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 instance, the accused even verbally replied to the request demonstrating that he also understood the nature and consequences of such request. 11. ID.; ID.; ID.; ID.; CASES UPHOLDING VALIDITY THEREOF, CITED. In Asuncion vs. Court of Appeals, the apprehending officers sought the permission of petitioner to search the car, to which the latter agreed. Petitioner therein himself freely gave his consent to said search. In People vs. Lacerna, the appellants who were riding in a taxi were stopped by two policemen who asked permission to search the vehicle and the appellants readily agreed. In upholding the validity of the consented search, the Court held that appellant himself who was "urbanized in mannerism and speech expressly said that he was consenting to the search as he allegedly had nothing to hide and had done nothing wrong. In People vs. Cuizon, the accused admitted that they signed a written permission stating that they freely consented to the search of their luggage by the NBI agents to determine if they were carrying shabu. In People vs. Montilla, it was held that the accused spontaneously performed affirmative acts of volition by himself opening the bag without being forced or intimidated to do so, which acts should properly be construed as a clear waiver of his right. In People vs. Omaweng, the police officers asked the accused if they could see the contents of his bag to which the accused said "you can see the contents but those are only clothings." Then the policemen asked if they could open and see it, and accused answered "you can see it." The Court said there was a valid consented search. ScAaHE 12. ID.; ID.; ID.; ID.; WAIVER OF CONSTITUTIONAL GUARANTEE AGAINST OBTRUSIVE SEARCHES; REQUISITES; CONSENT GIVEN UNDER COERCIVE CIRCUMSTANCES IS NO CONSENT WITHIN THE CONSTITUTIONAL GUARANTEE; CASE AT BAR. In case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it is fundamental that to constitute a waiver, it must first appear that (1) the right exists; (2) that the person involved had knowledge, either actual or constructive, of the existence of such right, and (3) the said person had an actual intention to relinquish the right. In the case at bar, the evidence is lacking that the petitioner intentionally surrendered his right against unreasonable searches. The manner by which the two police officers allegedly obtained the consent of petitioner for them to conduct the search leaves much to be desired. When petitioner's vehicle was flagged down, Sgt. Noceja approached petitioner and "told him I will look at the contents of his vehicle and he answered in the positive." We are hard put to believe that by uttering those words, the police officers were asking or requesting for permission that they be allowed to search the vehicle of petitioner. For all intents and purposes, they were informing, nay, imposing upon herein petitioner that they will search his vehicle. The "consent" given under intimidating or coercive circumstances is no consent within the purview of the constitutional guaranty. 13. ID.; ID.; ID.; ID.; CONSENT OF ACCUSED TO BE SEARCHED MUST BE ESTABLISHED BY CLEAR AND POSITIVE PROOF. In addition, in cases where this Court upheld the validity of consented search, it will be noted that the police authorities expressly asked, in no uncertain terms, for the consent of the accused to be searched. And the consent of the accused was established by clear and positive proof. In the case of herein petitioner, the statements of the police officers were not asking for his consent; they were declaring to him that they will look inside his vehicle. Besides, it is doubtful whether permission was actually requested and granted because when Sgt. Noceja was asked during his direct examination what he did when the vehicle of petitioner stopped, he answered that he removed the cover of the vehicle and saw the aluminum wires. It was only after he was asked a clarificatory question that he added that he told petitioner he will inspect the vehicle. To our mind, this was more of an afterthought. Likewise, when Pat. de Castro was asked twice in his direct examination what they did when they stopped the jeepney, his consistent answer was that they searched the vehicle. He never testified that he asked petitioner for permission to conduct the search. 14. ID.; ID.; ID.; ID.; FAILURE OF ACCUSED TO OBJECT NOT CONSTRUED AS IMPLIED ACQUIESCENCE TO THE WARRANTLESS SEARCH. Neither can petitioner's passive submission be construed as an implied acquiescence to the warrantless search. In People vs. Barros, appellant Barros, who was carrying a carton box, boarded a bus where two policemen were riding. The policemen inspected the carton and found marijuana inside. When asked who owned the box, appellant denied ownership of the box and failed to object to the search. The Court there struck down the warrantless search as illegal and held that the accused is not to be presumed to have waived the unlawful search conducted simply because he failed to object, citing the ruling in the case of People vs. Burgos, to wit: "As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizens in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law." D E C I S I O N PUNO, J p: This is an appeal by certiorari from the decision 1 of respondent Court of Appeals dated September 15, 1998 which affirmed the judgment rendered by the Regional Trial Court of Santa Cruz, Laguna, finding herein petitioner, Rudy Caballes y Taio, guilty beyond reasonable doubt of the crime of theft, and the resolution 2 dated November 9, 1998 which denied petitioner's motion for reconsideration. TcDaSI In an Information 3 dated October 16, 1989, petitioner was charged with the crime of theft committed as follows: "That on or about the 28th day of June, 1989, in the Municipality of Pagsanjan, and/or elsewhere in the Province of Laguna, and within the jurisdiction of this Honorable Court, the above-named accused, with intent of gain, and without the knowledge and consent of the owner thereof, the NATIONAL POWER CORPORATION, did then and there wilfully, unlawfully and feloniously take, steal and carry away about 630-kg of Aluminum Cable Conductors, valued at P27,450.00, belonging to and to the damage and prejudice of said owner National Power Corp., in the aforesaid amount. CONTRARY TO LAW." During the arraignment, petitioner pleaded not guilty and hence, trial on the merits ensued. The facts are summarized by the appellate court as follows: "[At] about 9:15 p.m. of June 28, 1989, Sgt. Victorino Noceja and Pat. Alex de Castro, while on a routine patrol in Barangay Sampalucan, Pagsanjan, Laguna, spotted a passenger jeep unusually covered with "kakawati" leaves. Suspecting that the jeep was loaded with smuggled goods, the two police officers flagged down the vehicle. The jeep was driven by appellant. When asked what was loaded on the jeep, he did not answer; he appeared pale and nervous. With appellant's consent, the police officers checked the cargo and they discovered bundles of 3.08 mm aluminum/galvanized conductor wires exclusively owned by National Power Corporation (NPC). The conductor wires weighed 700 kilos and valued at P55,244.45. Noceja asked appellant where the wires came from and appellant answered that they came from Cavinti, a town approximately 8 kilometers away from Sampalucan. Thereafter, appellant and the vehicle with the high- voltage wires were brought to the Pagsanjan Police Station. Danilo Cabale took pictures of the appellant and the jeep loaded with the wires which were turned over to the Police Station Commander of Pagsanjan, Laguna. Appellant was incarcerated for 7 days in the Municipal jail. In defense, appellant interposed denial and alibi. He testified that he is a driver and resident of Pagsanjan, Laguna; a NARCOM civilian agent since January, 1988 although his identification card (ID) has already expired. In the afternoon of June 28, 1989, while he was driving a passenger jeepney, he was stopped by one Resty Fernandez who requested him to transport in his jeepney conductor wires which were in Cavinti, Laguna. He told Resty to wait until he had finished his last trip for the day from Santa Cruz, Laguna. On his way to Santa Cruz, Laguna, he dropped by the NARCOM headquarters and informed his superior, Sgt. Callos, that something unlawful was going to happen. Sgt. Callos advised him to proceed with the loading of the wires and that the former would act as back-up and intercept the vehicle at the Sambat Patrol Base in Pagsanjan. After receiving those instructions, he went back to see Resty. Although Resty had his own vehicle, its tires were old so the cable wires were loaded in appellant's jeep and covered with kakawati leaves. The loading was done by about five (5) masked men. He was promised P1,000.00 for the job. Upon crossing a bridge, the two vehicles separated but in his case, he was intercepted by Sgt. Noceja and Pat. De Castro. When they discovered the cables, he told the police officers that the cables were loaded in his jeep by the owner, Resty Fernandez. But despite his explanation, he was ordered to proceed to police headquarters where he was interrogated. The police officers did not believe him and instead locked him up in jail for a week." 4 On April 27, 1993, the court a quo rendered judgment 5 the dispositive portion of which reads: "WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of Theft of property worth P55,244.45, the Court hereby sentences him to suffer imprisonment from TWO (2) [YEARS], FOUR (4) MONTHS, and ONE (1) DAY of Prision Correccional, as minimum, to TEN (10) YEARS of Prision Mayor, as maximum, to indemnify the complainant National Power Corporation in the amount of P55,244.45, and to pay the costs." On appeal, the Court of Appeals affirmed the judgment of conviction but deleted the award for damages on the ground that the stolen materials were recovered and modified the penalty imposed, to wit: "WHEREFORE, the appealed decision is hereby AFFIRMED with the modification that appellant RUDY CABALLES is found guilty beyond reasonable doubt as principal in theft, defined and penalized under Articles 308 and 309, par. 1, Revised Penal Code, and there being no modifying circumstances, he is hereby meted an indeterminate penalty of Four (4) years, Nine (9) months and Eleven (11) days of prision correccional, as minimum term, to Eight (8) years, Eight (8) months and one (1) day of prision mayor, as maximum term. No civil indemnity and no costs." 6 Petitioner comes before us and raises the following issues: "(a) Whether or not the constitutional right of petitioner was violated when the police officers searched his vehicle and seized the wires found therein without a search warrant and when samples of the wires and references to them were admitted in evidence as basis for his conviction; (b) Whether or not respondent Court erred in rejecting petitioner's defense that he was engaged in an entrapment operation and in indulging in speculation and conjecture in rejecting said defense; and (c) Whether or not the evidence of the prosecution failed to establish the guilt of petitioner beyond reasonable doubt and thus failed to overcome the constitutional right of petitioner to presumption of innocence." The conviction or acquittal of petitioner hinges primarily on the validity of the warrantless search and seizure made by the police officers, and the admissibility of the evidence obtained by virtue thereof. In holding that the warrantless search and seizure is valid, the trial court ruled that: "As his last straw of argument, the accused questions the constitutionality of the search and validity of his arrest on the ground that no warrant was issued to that effect. The Court cannot again sustain such view. In the case of People v. Lo Ho [Wing], G.R. No. 88017, January 21, 1991, it has been held that 'considering that before a warrant can be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge a requirement which 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, a warrantless search of a moving vehicle is justified on grounds of practicability.' The doctrine is not of recent vintage. In the case of Valmonte vs. de Villa, G.R. No. 83988, May 24, 1990 (Resolution on Motion for Reconsideration, September 29, 1989), it was ruled that 'automobiles because of their mobility may be searched without a warrant upon facts not justifying warrantless search of a resident or office. . . . To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many instances' (Ibid.). In Umil v. Ramos, 187 SCRA 311, and People vs. Ortiz, 191 SCRA 836, the Supreme Court held that a search may be made even without a warrant where the accused is caught in flagrante. Under the circumstances, the police officers are not only authorized but are also under obligation to arrest the accused even without a warrant." 7 Petitioner contends that the flagging down of his vehicle by police officers who were on routine patrol, merely on "suspicion" that "it might contain smuggled goods," does not constitute probable cause that will justify a warrantless search and seizure. He insists that, contrary to the findings of the trial court as adopted by the appellate court, he did not give any consent, express or implied, to the search of the vehicle. Perforce, any evidence obtained in violation of his right against unreasonable search and seizure shall be deemed inadmissible. Enshrined in our Constitution is the inviolable right of the people to be secure in their persons and properties against unreasonable searches and seizures, as defined under Section 2, Article III thereof, which reads: "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." The exclusionary rule under Section 3(2), Article III of the Constitution bars the admission of evidence obtained in violation of such right. The constitutional proscription against warrantless searches and seizures is not absolute but admits of certain exceptions, namely: (1) warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence; 8 (2) seizure of evidence in plain view; 9 (3) search of moving vehicles; 10 (4) consented warrantless search; 11 (5) customs search; (6) stop and frisk situations (Terry search); 12 and (7) exigent and emergency circumstances. 13 In cases where warrant is necessary, the steps prescribed by the Constitution and reiterated in the Rules of Court must be complied with. In the exceptional events where warrant is not necessary to effect a valid search or seizure, or when the latter cannot be performed except without a warrant, what constitutes a reasonable or unreasonable search or seizure is purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched and the character of the articles procured. 14 It is not controverted that the search and seizure conducted by the police officers in the case at bar was not authorized by a search warrant. The main issue is whether the evidence taken from the warrantless search is admissible against the appellant. Without said evidence, the prosecution cannot prove the guilt of the appellant beyond reasonable doubt. I. Search of moving vehicle Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity. 15 Thus, the rules governing search and seizure have over the years been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge a requirement which 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. We might add that a warrantless search of a moving vehicle is justified on the ground that 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. 16 Searches without warrant of automobiles is also allowed for the purpose of preventing violations of smuggling or immigration laws, provided such searches are made at borders or 'constructive borders' like checkpoints near the boundary lines of the State. 17 The mere mobility of these vehicles, however, does not give the police officers unlimited discretion to conduct indiscriminate searches without warrants if made within the interior of the territory and in the absence of probable cause. 18 Still and all, the important thing is that there was probable cause to conduct the warrantless search, which must still be present in such a case. Although the term eludes exact definition, probable cause signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man's belief that the person accused is guilty of the offense with which he is charged; or the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched. 19 The required probable cause that will justify a warrantless search and seizure is not determined by a fixed formula but is resolved according to the facts of each case. 20 One such form of search of moving vehicles is the "stop-and-search" without warrant at military or police checkpoints which has been declared to be not illegal per se, 21 for as long as it is warranted by the exigencies of public order 22 and conducted in a way least intrusive to motorists. 23 A checkpoint may either be a mere routine inspection or it may involve an extensive search. Routine inspections are not regarded as violative of an individual's right against unreasonable search. The search which is normally permissible in this instance is limited to the following instances: (1) where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds; 24 (2) simply looks into a vehicle; 25 (3) flashes a light therein without opening the car's doors; 26 (4) where the occupants are not subjected to a physical or body search; 27 (5) where the inspection of the vehicles is limited to a visual search or visual inspection; 28 and (6) where the routine check is conducted in a fixed area." 29 None of the foregoing circumstances is obtaining in the case at bar. The police officers did not merely conduct a visual search or visual inspection of herein petitioner's vehicle. They had to reach inside the vehicle, lift the kakawati leaves and look inside the sacks before they were able to see the cable wires. It cannot be considered a simple routine check. In the case of United States vs. Pierre, 30 the Court held that the physical intrusion of a part of the body of an agent into the vehicle goes beyond the area protected by the Fourth Amendment, to wit: "The Agent . . . stuck his head through the driver's side window. The agent thus effected a physical intrusion into the vehicle . . . [W]e are aware of no case holding that an officer did not conduct a search when he physically intruded part of his body into a space in which the suspect had a reasonable expectation of privacy. [The] Agent[s] . . . physical intrusion allowed him to see and to smell things he could not see or smell from outside the vehicle . . . In doing so, his inspection went beyond that portion of the vehicle which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers, and into the area protected by the Fourth amendment, just as much as if he had stuck his head inside the open window of a home." On the other hand, when a vehicle is stopped and subjected to an extensive search, such a warrantless search would be constitutionally permissible only if the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender or they will find the instrumentality or evidence pertaining to a crime in the vehicle to be searched. 31 This Court has in the past found probable cause to conduct without a judicial warrant an extensive search of moving vehicles in situations where (1) there had emanated from a package the distinctive smell of marijuana; (2) agents of the Narcotics Command ("Narcom") of the Philippine National Police ("PNP") had received a confidential report from informers that a sizeable volume of marijuana would be transported along the route where the search was conducted; (3) Narcom agents had received information that a Caucasian coming from Sagada, Mountain Province, had in his possession prohibited drugs and when the Narcom agents confronted the accused Caucasian, because of a conspicuous bulge in his waistline, he failed to present his passport and other identification papers when requested to do so; (4) Narcom agents had received confidential information that a woman having the same physical appearance as that of the accused would be transporting marijuana; 32 (5) the accused who were riding a jeepney were stopped and searched by policemen who had earlier received confidential reports that said accused would transport a large quantity of marijuana; and (6) where the moving vehicle was stopped and searched on the basis of intelligence information and clandestine reports by a deep penetration agent or spy one who participated in the drug smuggling activities of the syndicate to which the accused belonged that said accused were bringing prohibited drugs into the country. 33 In the case at bar, the vehicle of the petitioner was flagged down because the police officers who were on routine patrol became suspicious when they saw that the back of the vehicle was covered with kakawati leaves which, according to them, was unusual and uncommon. Pat. Alex de Castro recounted the incident as follows: "ATTY. SANTOS Q Now on said date and time do you remember of any unusual incident while you were performing your duty? A Yes, sir, at that time and date myself and Police Sgt. Noceja were conducting patrol in the said place when we spotted a suspicious jeepney so we stopped the jeepney and searched the load of the jeepney and we found out (sic) these conductor wires. Q You mentioned about the fact that when you saw the jeepney you became suspicious, why did you become suspicious? A Because the cargo was covered with leaves and branches, sir. Q When you became suspicious upon seeing those leaves on top of the load what did you do next, if any? A We stopped the jeepney and searched the contents thereof, sir." 34 The testimony of Victorino Noceja did not fare any better: "ATTY. SANTOS Q When you saw the accused driving the said vehicle, what did you do? A Because I saw that the vehicle being drawn by Caballes was covered by kakawati leaves, I became suspicious since such vehicle should not be covered by those and I flagged him, sir." 35 We hold that the fact that the vehicle looked suspicious simply because it is not common for such to be covered with kakawati leaves does not constitute "probable cause" as would justify the conduct of a search without a warrant. In People vs. Chua Ho San, 36 we held that the fact that the watercraft used by the accused was different in appearance from the usual fishing boats that commonly cruise over the Bacnotan seas coupled with the suspicious behavior of the accused when he attempted to flee from the police authorities do not sufficiently establish probable cause. Thus: "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 . . ., 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, confidential report and/or positive identification by informers of courier of prohibited drug and/or the time and place where they will transport/deliver the same, suspicious demeanor or behavior, and suspicious bulge in the waist 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. . . .." (italics supplied) In addition, the police authorities do not claim to have received any confidential report or tipped information that petitioner was carrying stolen cable wires in his vehicle which could otherwise have sustained their suspicion. Our jurisprudence is replete with cases where tipped information has become a sufficient probable cause to effect a warrantless search and seizure. 37 Unfortunately, none exists in this case. II. Plain view doctrine It cannot likewise be said that the cable wires found in petitioner's vehicle were in plain view, making its warrantless seizure valid. Jurisprudence is to the effect that an object is in plain view if the object itself is plainly exposed to sight. Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be seized without a warrant. However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized. In other words, if the package is such that an experienced observer could infer from its appearance that it contains the prohibited article, then the article is deemed in plain view. It must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband or otherwise subject to seizure. 38 It is clear from the records of this case that the cable wires were not exposed to sight because they were placed in sacks 39 and covered with leaves. The articles were neither transparent nor immediately apparent to the police authorities. They had no clue as to what was hidden underneath the leaves and branches. As a matter of fact, they had to ask petitioner what was loaded in his vehicle. In such a case, it has been held that the object is not in plain view which could have justified mere seizure of the articles without further search. 40 III. Consented search Petitioner contends that the statement of Sgt. Victorino Noceja that he checked the vehicle "with the consent of the accused" is too vague to prove that petitioner consented to the search. He claims that there is no specific statement as to how the consent was asked and how it was given, nor the specific words spoken by petitioner indicating his alleged "consent." At most, there was only an implied acquiescence, a mere passive conformity, which is no "consent" at all within the purview of the constitutional guarantee. Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. The consent must be voluntary in order to validate an otherwise illegal detention and search, i.e., the consent is unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion. 41 Hence, consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence. 42 The question whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. 43 Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given: (1) the age of the defendant; (2) whether he was in a public or secluded location; (3) whether he objected to the search or passively looked on; 44 (4) the education and intelligence of the defendant; (5) the presence of coercive police procedures; (6) the defendant's belief that no incriminating evidence will be found; 45 (7) the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the possibly vulnerable subjective state of the person consenting. 46 It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given. 47 In the case at bar, Sgt. Victorino Noceja testified on the manner in which the search was conducted in this wise: "WITNESS Q On June 28, 1989, where were you? A We were conducting patrol at the poblacion and some barangays, sir. xxx xxx xxx Q After conducting the patrol operation, do you remember of any unusual incident on said date and time? A Yes, sir. Q What is that incident? A While I was conducting my patrol at barangay Sampalucan, I saw Rudy Caballes driving a vehicle and the vehicle contained aluminum wires, sir. xxx xxx xxx Q When you saw the accused driving the said vehicle, what did you do? A Because I saw that the vehicle being driven by Caballes was covered by kakawati leaves, I became suspicious since such vehicle should not be covered by those and I flagged him, sir. Q Did the vehicle stop? A Yes, sir, and after said vehicle stop[ped], I removed the cover of said vehicle and by so doing, I saw the aluminum wires. Q Before you saw the aluminum wires, did you talk to the accused? A Yes, sir, I asked him what his load was. Q What was the answer of Caballes? A He did not answer and I observed him to be pale, "nagpapamutla" (sic), so I told him I will look at the contents of his vehicle and he answered in the positive. Q And after you saw for yourself the aluminum wires loaded on the jeep, what did you do? A I asked him where those wires came from and he answered those came from the Cavinti area, sir." 48 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 instance, the accused even verbally replied to the request demonstrating that he also understood the nature and consequences of such request. 49 In Asuncion vs. Court of Appeals, 50 the apprehending officers sought the permission of petitioner to search the car, to which the latter agreed. Petitioner therein himself freely gave his consent to said search. In People vs. Lacerna, 51 the appellants who were riding in a taxi were stopped by two policemen who asked permission to search the vehicle and the appellants readily agreed. In upholding the validity of the consented search, the Court held that appellant himself who was "urbanized in mannerism and speech" expressly said that he was consenting to the search as he allegedly had nothing to hide and had done nothing wrong. In People vs. Cuizon, 52 the accused admitted that they signed a written permission stating that they freely consented to the search of their luggage by the NBI agents to determine if they were carrying shabu. In People vs. Montilla, 53 it was held that the accused spontaneously performed affirmative acts of volition by himself opening the bag without being forced or intimidated to do so, which acts should properly be construed as a clear waiver of his right. In People vs. Omaweng, 54 the police officers asked the accused if they could see the contents of his bag to which the accused said "you can see the contents but those are only clothings." Then the policemen asked if they could open and see it, and accused answered "you can see it." The Court said there was a valid consented search. In case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it is fundamental that to constitute a waiver, it must first appear that (1) the right exists; (2) that the person involved had knowledge, either actual or constructive, of the existence of such right; and (3) the said person had an actual intention to relinquish the right. 55 In the case at bar, the evidence is lacking that the petitioner intentionally surrendered his right against unreasonable searches. The manner by which the two police officers allegedly obtained the consent of petitioner for them to conduct the search leaves much to be desired. When petitioner's vehicle was flagged down, Sgt. Noceja approached petitioner and "told him I will look at the contents of his vehicle and he answered in the positive." We are hard put to believe that by uttering those words, the police officers were asking or requesting for permission that they be allowed to search the vehicle of petitioner. For all intents and purposes, they were informing, nay, imposing upon herein petitioner that they will search his vehicle. The "consent" given under intimidating or coercive circumstances is no consent within the purview of the constitutional guaranty. In addition, in cases where this Court upheld the validity of consented search, it will be noted that the police authorities expressly asked, in no uncertain terms, for the consent of the accused to be searched. And the consent of the accused was established by clear and positive proof. In the case of herein petitioner, the statements of the police officers were not asking for his consent; they were declaring to him that they will look inside his vehicle. Besides, it is doubtful whether permission was actually requested and granted because when Sgt. Noceja was asked during his direct examination what he did when the vehicle of petitioner stopped, he answered that he removed the cover of the vehicle and saw the aluminum wires. It was only after he was asked a clarificatory question that he added that he told petitioner he will inspect the vehicle. To our mind, this was more of an afterthought. Likewise, when Pat. de Castro was asked twice in his direct examination what they did when they stopped the jeepney, his consistent answer was that they searched the vehicle. He never testified that he asked petitioner for permission to conduct the search. 56 Neither can petitioner's passive submission be construed as an implied acquiescence to the warrantless search. In People vs. Barros, 57 appellant Barros, who was carrying a carton box, boarded a bus where two policemen were riding. The policemen inspected the carton and found marijuana inside. When asked who owned the box, appellant denied ownership of the box and failed to object to the search. The Court there struck down the warrantless search as illegal and held that the accused is not to be presumed to have waived the unlawful search conducted simply because he failed to object, citing the ruling in the case of People vs. Burgos, 58 to wit: "As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizens in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law." Casting aside the cable wires as evidence, the remaining evidence on record are insufficient to sustain petitioner's conviction. His guilt can only be established without violating the constitutional right of the accused against unreasonable search and seizure. WHEREFORE, the impugned decision is REVERSED and SET ASIDE, and accused Rudy Caballes is hereby ACQUITTED of the crime charged. Cost de oficio. EDATSI SO ORDERED. Davide, Jr., C.J., Kapunan, Pardo and Ynares-Santiago, JJ., concur. EN BANC [G.R. No. 142531. October 15, 2002.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANILO ASIS y FONPERADA and GILBERT FORMENTO y SARICON, accused-appellants. The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellants. SYNOPSIS On the basis of the circumstantial evidence presented by the prosecution, the trial court found appellants guilty of the complex crime of robbery with homicide and sentenced each to suffer the penalty of death. Hence, this automatic review of the case. The Supreme Court ruled that the prosecution's evidence did not prove the guilt of appellants beyond reasonable doubt; hence, their constitutional right to be presumed innocent remains and must be upheld. In criminal cases, the prosecution has the onus probandi of establishing the guilt of the accused. The burden must be discharged by the prosecution on the strength of its own evidence, not on the weakness of that for the defense. Hence, circumstantial evidence that has not been adequately established, much less corroborated, cannot be the basis of conviction. Suspicion alone is insufficient, the required quantum of evidence being proof beyond reasonable doubt. The Court also ruled that to sustain a conviction for the complex crime of robbery with homicide, which is primarily an offense against property, it is essential that the robbery be proved beyond reasonable doubt. Proof of the homicide alone is not sufficient to support a conviction for the aforesaid complex crime. In robbery with homicide cases, the prosecution needs to prove these elements: (a) that taking of personal property is perpetrated by means of violence or intimidation against person; (b) the property taken belongs to another; (c) the taking is characterized by intent to gain or animus lucrandi; and (d) on the occasion of the robbery or by reason thereof, the crime of homicide here used in its generic sense is committed. In the case at bar, the Court acquitted appellants because the circumstances narrated by the prosecution engendered doubt rather than moral certainty on their guilt. cHaCAS SYLLABUS 1. REMEDIAL LAW; EVIDENCE; CIRCUMSTANTIAL EVIDENCE; WHEN SUFFICIENT TO CONVICT ACCUSED. Certainly, it is not only by direct evidence that the accused may be convicted of the crime charged. Circumstantial evidence is resorted to when direct testimony would result in setting felons free and deny proper protection to the community. The former is not a "weaker form of evidence vis--vis the latter." The accused may be convicted on the basis of circumstantial evidence, provided the proven circumstances constitute an unbroken chain leading to one fair reasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty person. "Circumstantial evidence is akin to a tapestry; it should be made up of strands which create a pattern when interwoven." This pattern should be reasonably consistent with the hypothesis that the accused is guilty and at the same time totally inconsistent with the proposition that he or she is innocent. The Rules on Evidence allow conviction by means of circumstantial evidence as follows: "SEC. 4. Circumstantial evidence, when sufficient. Circumstantial evidence is sufficient for conviction if: (a) There is more than one circumstance; (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt." 2. ID.; CRIMINAL PROCEDURE; OBJECTION INVOLVING ARREST OR TRIAL COURT'S PROCEDURE OF ACQUIRING JURISDICTION OVER THE PERSON OF THE ACCUSED MUST BE MADE BEFORE ARRAIGNMENT. Settled is the rule that any objection involving the arrest or the trial court's procedure of acquiring jurisdiction over the person of the accused must be made before the arraignment; otherwise, the objection is deemed waived. 3. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES; CANNOT BE WAIVED BY ANYONE EXCEPT THE PERSON WHOSE RIGHTS ARE INVADED OR WHO IS EXPRESSLY AUTHORIZED TO DO SO ON HIS BEHALF. Primarily, the constitutional right against unreasonable searches and seizures, being a personal one, cannot be waived by anyone except the person whose rights are invaded or who is expressly authorized to do so on his or her behalf. In the present case, the testimonies of the prosecution witnesses show that at the time the bloodstained pair of shorts was recovered, Appellant Formento, together with his wife and mother, was present. Being the very subject of the search, necessarily, he himself should have given consent. Since he was physically present, the waiver could not have come from any other person. 4. CRIMINAL LAW; ROBBERY WITH HOMICIDE; ELEMENTS. [I]n robbery with homicide cases, the prosecution needs to prove these elements: (a) the taking of personal property is perpetrated by means of violence or intimidation against a person; (b) the property taken belongs to another; (c) the taking is characterized by intent to gain or animus lucrandi; and (d) on the occasion of the robbery or by reason thereof, the crime of homicide here used in its generic sense is committed. 5. REMEDIAL LAW; EVIDENCE; BURDEN OF PROOF; IN CRIMINAL CASES, THE PROSECUTION HAS ONUS PROBANDI OF ESTABLISHING GUILT OF ACCUSED. In criminal cases, the prosecution has the onus probandi of establishing the guilt of the accused. Ei incumbit probatio non qui negat. He who asserts not he who denies must prove. The burden must be discharged by the prosecution on the strength of its own evidence, not on the weakness of that for the defense. Hence, circumstantial evidence that has not been adequately established, much less corroborated, cannot be the basis of conviction. Suspicion alone is insufficient, the required quantum of evidence being proof beyond reasonable doubt. Indeed, "the sea of suspicion has no shore, and the court that embarks upon it is without rudder or compass." 6. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF RIGHTS; ACCUSED'S RIGHT TO BE PRESUMED INNOCENT UNTIL PROVEN GUILTY; CAN BE OVERTHROWN ONLY BY PROOF BEYOND REASONABLE DOUBT. It must be stressed that in our criminal justice system, the overriding consideration is not whether the court doubts the innocence of the accused, but whether it entertains a reasonable doubt as to their guilt. Where there is no moral certainty as to their guilt, they must be acquitted even though their innocence may be questionable. The constitutional right to be presumed innocent until proven guilty can be overthrown only by proof beyond reasonable doubt. D E C I S I O N PANGANIBAN, J p: Circumstantial evidence that merely arouses suspicions or gives room for conjecture is not sufficient to convict. It must do more than just raise the possibility, or even the probability, of guilt. It must engender moral certainty. Otherwise, the constitutional presumption of innocence prevails, and the accused deserves acquittal. CaASIc The Case For automatic review before this Court is the March 8, 2000 Decision 1 of the Regional Trial Court (RTC) of Manila (Branch 54) in Criminal Case No. 98-163090, finding Danilo Asis y Fonperada and Gilbert 2 Formento y Saricon guilty beyond reasonable doubt of robbery with homicide aggravated by abuse of confidence, superior strength and treachery. The decretal portion of the Decision reads as follows: "WHEREFORE, the two (2) accused are found guilty beyond reasonable doubt of the crime of Robbery with Homicide with the generic aggravating circumstances of abuse of confidence, superior strength and treachery; and each is sentenced to death under Article 294, par. 1 of the Revised Penal Code; they are also ordered to jointly and severally pay P100,000.00 as damages to the heirs of the victim." 3 Appellants were charged in an Information 4 dated February 18, 1998, worded as follows: 5 "That on or about February 10, 1998, in the City of Manila, Philippines, the said accused, conspiring and confederating together and mutually helping each other, did then and there wilfully, unlawfully and feloniously, with intent to gain and by means of force and violence upon person, to wit: by then and there stabbing one YU HING GUAN @ ROY CHING with a bladed instrument on the different parts of the body thereafter take, rob and carry away the following, to wit: Cash money in the amount of P20,000.00 one (1) wristwatch one (1) gold necklace and undetermined items or all in the total amount of P20,000.00 more or less, belonging to said YU HING GUAN @ ROY CHING against his will, to the damage and prejudice of the said owner in the aforesaid amount more or less of P20,000.00, Philippine Currency, and as a result thereof, he sustained mortal stab wounds which were the direct and immediate cause of his death." 6 When arraigned on July 9, 1998, both appellants pleaded not guilty. 7 Found to be deaf-mutes, they were assisted, not only by a counsel de oficio, 8 but also by an interpreter from the Calvary Baptist Church. After due trial, appellants were found guilty and sentenced to death. The Facts Version of the Prosecution In its Brief, 9 the Office of the Solicitor General (OSG) detailed the facts in the following manner: "The prosecution presented nine (9) witnesses. Although none of them had actually seen the crime committed, strong and substantial circumstantial evidence abound linking beyond reasonable doubt both appellants to the crime. "As culled from the records, hereunder are the pertinent facts of the case: "George Huang, the nephew of the victim Yu Hing Guan a.k.a. Roy Ching, always passes by the store of the victim at 1042 Benavidez Street, Binondo, Manila to bring food stuff, ice and other things to his uncle and mother, Diana Yu, who work[s] in the office of said store. "On February 9, 1998, at around 6:30 o'clock in the morning, Huang arrived at the victim's store and discovered that the steel door of the store was locked from the outside. When he opened the steel door, he found everything to be normal except for the inner door which had always been left open but which was closed at that time with only a chair blocking it. "When he removed the blocking chair, he discovered the body of his uncle, Yu Hing Guan a.k.a. Roy Ching (victim), lying prostrate on the ground with a knife embedded on his nape. He closed the door and proceeded to Luneta, where [his] mother exercises, to inform her of what he saw. After informing [his] mother, Huang first went to the Chinatown Police Station and reported the incident; thereafter, he went to another station located in Soler corner Reina Regente to report the incident again. "Diana Yu, the sister of the victim, testified that on February 9, 1998, before 8:30 o'clock in the evening, she was in the office of her brother where she was working at 1042 Benavidez St., Binondo, Manila. She saw the two appellants, namely: Danilo Asis and Gilbert Formento, and her brother (the victim), who are all deaf-mutes, talking in sign language. She testified that Danilo Asis frequented the office of the victim, while Gilbert Formento came only on the night of February 9, 1998. At around 8:30 o'clock in the evening, she left the office, leaving both appellants and the victim behind. The following morning, at around 7:30 o'clock in the morning, her son, George Huang, informed her of her brother's (victim's) death. Upon learning of said incident, she went to the office where she saw her brother's body. She discovered that the sales proceeds of the preceding day were missing and the necklace of her brother (victim) which he always wore was also missing. "On re-direct examination, Diana testified that she suspected both appellants, especially Gilbert Formento, to have perpetrated the crime because of the fact that she saw the pair of shorts of the victim in the bag of appellant Gilbert Formento. "Jimmy Pagaduan testified that he was a helper in the Yu Hing Guan Auto Supply for five years already. He saw the two appellants everyday in the store of the victim. Furthermore, he testified that as far as he knows, Danilo Asis owed the victim PhP3,000.00 and that he saw a list thereof which the victim showed him. On February 9, 1998, he left the store at around 6:00 o'clock in the evening and he saw both appellants conversing with the victim. "SPO2 Pablo Ileto of WPD Homicide Section testified that on February 11, 1998, he was at Barangay Sto. Ni[]o, Hagunoy, Bulacan together with Sgt. Napoleon Timbol, PO3 Luis Chico, and witness, Diana Yu. The three (3) of them were trying to locate the whereabouts of appellant Gilbert Formento in connection with the death of Yu Hing Guan a.k.a. Roy Ching. They coordinated with the Hagunoy Bulacan police and searched the area. Diana Yu saw Gilbert Formento in a delivery truck and she pointed him to them. Thereafter, they invited Gilbert Formento to their office at the WPD Homicide Section. But before going to the WPD station, they first brought Gilbert Formento to his house. Upon reaching the house, Diana Yu asked from the wife of the suspect for the stolen money. However, they could not understand each other, so the wife gave Diana Yu the bag of Gilbert Formento where Diana Yu noticed the pair of shorts which belonged to the victim. PO2 Ileto noticed what appears to be blood stains on the pair of shorts. "SPO1 Benito Cabatbat testified that he, together with SPO1 Alfredo Opriasa, SPO1 Raul Olavario, the photographer SPO2 Tabio, and fingerprint technician Domingo Daclan of the District Crime Laboratory Division went to the crime scene to conduct the investigation on February 10, 1998. Upon arriving at the scene, they saw the victim lying prostrate on the ground, barefooted, and clad only in brief. "After photographing the victim, the team went upstairs where traces of blood were seen on the second and third floors. "During the course of investigation, SPO1 Cabatbat received a phone call from a relative informing him that one of the suspects, appellant Danilo Asis, went back to the scene of the crime. Afterwards, they brought Danilo Asis to the police station for investigation, who expectedly denied having anything to do with the killing of the victim. "During investigation (February 10, 1998), SPO1 Balatbat noticed that there was a bloodstain in Asis' T-shirt. "During the presentation of prosecution witness Dr. Olga Bausa, they stipulated that the bloodstains found in the white t-shirt with a lettering of 'Collorrific' and in the short pants were human blood." 10 (Citations omitted) Version of the Defense On the other hand, appellants' version of the facts is as follows: 11 "GILBERT FORMENTO is a deaf-mute who is one of the accused in this case. He testified through sign interpreter, Mrs. Nelda Bahena. On February 9, 1998 at about 11 am., he was in the house of Roy Ching[.] They talked about things and events. When he left the house of Ching he proceeded to Bulacan while Asis went to Luneta. He denied having in possession of the clothes of Ching found with him in Bulacan. A policeman met him in his house in Sto. Nino, Hagunoy, Bulacan. They handcuffed him immediately. He was whipped for the first time in his life. He was brought to Manila at Funeraria Paz. The relatives of Roy Ching were pointing to him while he was being whipped by the two policemen. "NESTOR PAGLINAWAN is a friend of Danilo Asis. He is a vendor who vends at the PICC area. He testified that accused-appellant Danilo Asis occasionally help[s] him in vending by guarding his selling items and preparing coffee. He communicated with accused- appellant Asis through sign language. He had known Asis for five years. On February 9, 1998, at about 10:00 p.m., Danilo Asis was with him at the PICC. Accused-appellant Asis stayed with him until 7:00 am of the following day. "DANILO ASIS is a deaf-mute and one of the accused in this case. He testified through sign interpreters, Ms. Theta Figuerres and Mrs. Nelda Bahena. Roy Ching was his friend since 1995. On February 9, 1998, he went to the store of Roy Ching because he was called by Ching to help him in his store. When he arrived at Ching's store, Gilbert Formento was there already. The three of them drank beer. He left the store at 9:00 p.m., ahead of Gilbert Formento. He proceeded to PICC to help his friend Nestor, a cigarette vendor. "He denied killing Ching. When he went back to Roy Ching's store at 10 a.m. the following day, he felt depressed upon knowing that Roy Ching was dead. He was arrested and incarcerated on that same day." 12 (Citations omitted) Ruling of the Trial Court The RTC held that the "crime charged and proved is robbery with homicide under Article 294, No. 1 of the Revised Penal Code." 13 It ruled that "although no witnesses to the actual killing and robbery were presented, the circumstantial evidence including the recovery of bloodstained clothing from both accused definitely proved that the two (2) . . . committed the crime." 14 Finally, the RTC also appreciated the aggravating circumstances of abuse of confidence, superior strength and treachery and thus sentenced both appellants to the supreme penalty of death. Hence, this automatic review before us. 15 Issues In their Brief, appellants fault the trial court with the following assignment of errors: "I The trial court gravely erred in finding the accused-appellants guilty beyond reasonable doubt of the crime of robbery with homicide notwithstanding the insufficiency of the circumstantial evidence presented by the prosecution. "II The trial court gravely erred in concluding that evident premeditation, treachery and conspiracy attended the killing of Roy Ching. "III The trial court gravely erred in not considering the physical infirmities of the two accused-appellants who are deaf-mutes." 16 The Court's Ruling The appeal is meritorious. The prosecution's evidence does not prove the guilt of appellants beyond reasonable doubt; hence, their constitutional right to be presumed innocent remains and must be upheld. Main Issue: Sufficiency of Prosecution Evidence In the present appeal, two things stand out: first, there were no eyewitnesses to the robbery or to the homicide; and second, none of the items allegedly stolen were recovered or presented in evidence. Appellants argue that, the pieces of circumstantial evidence submitted by the prosecution are insufficient to prove their guilt beyond reasonable doubt. The prosecution counters that these pieces of evidence, taken together, necessarily lead to their conviction. Certainly, it is not only by direct evidence that the accused may be convicted of the crime charged. 17 Circumstantial evidence is resorted to when direct testimony would result in setting felons free and deny proper protection to the community. 18 The former is not a "weaker form of evidence vis--vis the latter." 19 The accused may be convicted on the basis of circumstantial evidence, provided the proven circumstances constitute an unbroken chain leading to one fair reasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty person. 20 "Circumstantial evidence is akin to a tapestry; it should be made up of strands which create a pattern when interwoven." 21 This pattern should be reasonably consistent with the hypothesis that the accused is guilty and at the same time totally inconsistent with the proposition that he or she is innocent. 22 The Rules on Evidence 23 allow conviction by means of circumstantial evidence as follows: "SEC. 4. Circumstantial evidence, when sufficient. Circumstantial evidence is sufficient for conviction if: (a) There is more than one circumstance; (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt." Bloodstained Trousers The prosecution argues that the strongest piece of evidence damning appellants is the victim's bloodstained pair of short pants recovered from the bag of Gilbert Formento. It argues that since the trousers were recovered from one of the appellants, then Rule 131 (j) of the Revised Rules of Court should apply. The said provision is worded, thus: "Sec. 3. Disputable presumptions. The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: xxx xxx xxx (j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, that things which a person possesses, or exercises acts of ownership over, are owned by him;" 24 We disagree. It escapes this Court how the recovery of a bloodstained pair of shorts allegedly owned by the victim should give rise to the presumption that one of the appellants was the "taker and doer of the whole act" 25 of robbery with homicide. By itself, the retrieval of the pair of shorts does not prove that appellants, or even just one of them, robbed the trouser owner of cash and jewelry and also killed him, as charged in the Information. Neither does it show that appellants, or one of them, perpetrated the aggression leading to the victim's death. Furthermore, the ownership of the pair of shorts was not definitively determined. And even granting for the sake of argument that it indeed belonged to the victim, still, there is no evidence to prove that it was taken from him on the night of the homicide. Neither can it be ruled out that he might have lent it or gave it to either one of the two. It was neither extraordinary nor impossible for him to have allowed Appellant Formento to use it, considering that they were friends, and that they shared a commonality as deaf-mutes. The OSG harps on the bloodstains found on the shorts. But as testified to by the pathologist 26 who examined them, although the origin was human blood, the blood grouping could not be determined. 27 Thus, its mere presence on the pair of shorts did not in any way support the prosecution's theory linking appellants to the crime. Evidence Is Inadmissible In any event, appellants' argument of illegal search and seizure cannot simply be brushed aside, considering the guarantee so sacredly enshrined in our Constitution. There is no question that appellants were collared without any arrest warrant. Neither was there any valid search warrant obtained against them. However, they never questioned the legality of their arrest through a motion to quash the Information. Instead, they entered a plea of not guilty and participated in the trial. Settled is the rule that any objection involving the arrest or the trial court's procedure of acquiring jurisdiction over the person of the accused must be made before the arraignment; otherwise, the objection is deemed waived. 28 Indeed, appellants do not now question the legality of their arrest. What they object to is the introduction of the bloodstained pair of shorts allegedly recovered from the bag of Appellant Formento. They argue that the search was illegally done, making the obtainment of the pair of shorts illegal and taints them as inadmissible. The prosecution, on the other hand, contends that it was the wife of appellant who voluntarily surrendered the bag that contained the bloodstained trousers of the victim. 29 Her act, it claims, constituted a valid consent to the search without a warrant. 30 We clarify. Primarily, the constitutional right against unreasonable searches and seizures, being a personal one, cannot be waived by anyone except the person whose rights are invaded or who is expressly authorized to do so on his or her behalf. 31 In the present case, the testimonies of the prosecution witnesses show that at the time the bloodstained pair of shorts was recovered, Appellant Formento, together with his wife and mother, was present. Being the very subject of the search, necessarily, he himself should have given consent. Since he was physically present, the waiver could not have come from any other person. The OSG cites Lopez v. Commissioner of Customs, 32 which validated a waiver of a warrantless search, when a woman thought to be the wife of the accused but who later turned out to be a manicurist surrendered to the police the papers belonging to the appellant. The instant appeal, however, presents a different situation, because here the accused himself was present when the search was made. Hence, consent should have been obtained from or given by him. In Lopez, the accused was not present when the search was made; hence, the consent given by the occupant of the hotel room was deemed the consent of the accused who was then renting the space. The OSG's argument loses even more cogency when evaluated against the well-settled principles on searches and seizures without warrants. To constitute a valid waiver, it must be shown that first, the right exists; second, the person involved had knowledge, actual or constructive, of the existence of such a right; and third, the person had an actual intention to relinquish the right. 33 How could Appellant Formento have consented to a warrantless search when, in the first place, he did not understand what was happening at that moment? The prosecution witnesses themselves testified that there was no interpreter to assist him a deaf-mute during the arrest, search and seizure. Naturally, it would seem that he indeed consented to the warrantless search, as the prosecution would want this Court to believe. As early as 1938, Justice Jose P. Laurel pointed out in Pasion vda. de Garcia v. Locsin: "As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law." 34 This point becomes even more pronounced in the present case, in which appellant is a deaf-mute, and there was no interpreter to explain to him what was happening. His seeming acquiescence to the search without a warrant may be attributed to plain and simple confusion and ignorance. Verily, "courts indulge every reasonable presumption against waiver of fundamental constitutional rights and . . . we do not presume acquiescence [to] the loss of fundamental rights." 35 Neither can the OSG claim that appellant's wife voluntarily surrendered the bag that contained the bloodstained trousers of the victim. 36 As admitted by Prosecution Witness PO2 Pablo Ileto, the victim's sister and appellant's wife "cannot understand each other." 37 Eventually, appellant's wife gave the belongings of Gilbert Formento where the bloodstained shorts of the victim were recovered. 38 How can the surrender of appellant's belongings in this case be voluntary, when the person surrendering them did not even understand the person she was communicating with? To be sure, the OSG cannot even use the argument that the search was made by a private individual, the victim's sister, and thereby skirt the issue of constitutional protection against unlawful searches by the State. The victim's sister herself testified against this argument as follows: "ATTY. FONTANILLA Q So Gilbert Formento was not wearing the alleged trouser[s]? A The bag was given by his mother or his wife, sir. Q To whom? A To the policemen, sir. Q And they searched this, is that right? A Yes sir." 39 This testimony clearly forecloses the assertion that it was not the police authorities who conducted the search. This testimony in fact belies that of PO2 Pablo Ileto 40 that it was the prosecution witness who was talking to appellant's wife, and who conducted the search that yielded the bloodstained shortpants. All told, the bloodstained pair of shorts was a piece of evidence seized on the occasion of an unlawful search and seizure. Thus, it is tainted and should thus be excluded for being the proverbial fruit of the poisonous tree. 41 In the language of the fundamental law, it shall be inadmissible in evidence for any purpose in any proceeding. 42 Bloodstained Shirt The prosecution then contends that when the other appellant, Danilo Asis, was brought to the police station for investigation the following day, the police found bloodstain on his shirt. Again, this fact cannot be taken as an indication of guilt on the part of Appellant Asis. It does not point to the conclusion that he was involved in the crime charged against him. We cannot agree that since there was bloodstain on his clothing, ergo, he committed the robbery and the attendant killing. At most, this piece of circumstantial evidence, taken with the other one, may lead to suspicion. But courts do not rely on circumstantial evidence that merely arouses suspicion or conjecture. 43 For circumstantial evidence to lead to conviction, it must do more than just raise the mere possibility or even probability of guilt. 44 It must engender moral certainty. Motive for the Crime The prosecution then attempts to ascribe motive to appellants by arguing that one of them, Appellant Asis, allegedly owed the victim P6,070. 45 Indeed, motive becomes material when the evidence is circumstantial or inconclusive, and there is some doubt on whether a crime has been committed or whether the accused has committed it. 46 But the prosecution's contention again fails, as the fact of indebtedness was never conclusively established. According to the sister of the victim, Asis still owed her brother the amount of P6,070. Yet, during the testimony of the said appellant, it was shown that it was actually the victim who had been indebted to the former. The prosecution, in fact, uses this testimony of Asis to bolster its claim that he became "madder and madder" at the victim. Coming from the prosecution itself, this argument casts doubts on whether it was appellant who owed the victim or the other way around. The Public Attorney's Office, the defense counsel, correctly points out that the victim himself had made the entries in his logbook which served as bases for the prosecution's averment that appellant owed him some amount. The sister, who was explaining the entries, admitted that she had no personal knowledge thereof. More important, their veracity was never established. Neither were the erasures or scratches thereon sufficiently explained. To show that there was sufficient motive to commit the crime charged, the prosecution uses the testimony of Asis that he got "madder and madder" at the victim. This statement is too speculative to deserve serious consideration. The Last Persons Seen Talking with the Victim It is also argued that appellants were the last persons seen with the victim; ergo, the suspicion that they were the authors of the crime. Admittedly, this circumstance may raise a speculation, but it is insufficient to establish their guilt. As this Court has consistently stressed, mere suspicions and speculations can never be the bases of conviction in a criminal case. 47 Neither is the mere presence of appellants at the locus criminis sufficient to implicate them. Their being at the store of the victim was not unusual, as testified to by the witnesses. In fact, it was established that he and appellants had known one another well, and that they had regularly met at his store. Moreover, there was paucity of evidence indicating that, other than appellants, no other person had or could have had access to the store where he was robbed and killed. As they themselves correctly observe, their complicity in the crime becomes even more doubtful because, as testified to by his sister, the neighbors heard shouts; these could not have come from deaf-mutes. Furthermore, appellants question the non-presentation of the results of the tests conducted on the fingerprints lifted from the crime scene. Appellants Pointed to Each Other? Finally, we do not find any evidence that appellants indeed pointed to one another as the author of the crime charged. In fact, even during their cross-examination, neither of them specifically shifted the blame to the other. When questioned by the public prosecutor, they even denied having done so. All told, to sustain a conviction for the complex crime of robbery with homicide, which is primarily an offense against property, it is essential that the robbery be proved beyond reasonable doubt. 48 Proof of the homicide alone is not sufficient to support a conviction for the aforesaid complex crime. 49 Essential to robbery is the taking, with intent to gain, of personal property belonging to another by means of violence or intimidation against another person by the use of force upon things. There is robbery with homicide when, by reason or on the occasion of a robbery with the use of violence against or intimidation of persons, homicide is also committed. 50 Accordingly, in robbery with homicide cases, the prosecution needs to prove these elements: (a) the taking of personal property is perpetrated by means of violence or intimidation against a person; (b) the property taken belongs to another; (c) the taking is characterized by intent to gain or animus lucrandi; and (d) on the occasion of the robbery or by reason thereof, the crime of homicide here used in its generic sense is committed. 51 Robbery Completely Unsubstantiated The prosecution tried its best to prove the crime of homicide, even if unsuccessfully, but in the process, it left the crime of robbery totally unsubstantiated. More glaring is the fact that the Information charged appellants "as conspiring and confederating together and mutually helping each other." 52 Yet, the RTC Decision found them both guilty of the crime charged without any pronouncement as to the presence of conspiracy. To serve effectively as a basis for conviction, conspiracy must be proved as convincingly as the criminal act itself. 53 Had the alleged conspiracy to commit the crime been established, then the precise modality of each individual conspirator becomes secondary. The applicable rule in conspiracy is that the act of one shall be deemed to be the act of all. 54 The degree of actual participation in the commission of the crime is immaterial. 55 However, since there was neither proof nor finding of conspiracy, then the extent of the individual participation of each appellant should have been clearly delineated. In criminal cases, the prosecution has the onus probandi of establishing the guilt of the accused. 56 Ei incumbit probatio non qui negat. He who asserts not he who denies must prove. 57 The burden must be discharged by the prosecution on the strength of its own evidence, not on the weakness of that for the defense. 58 Hence, circumstantial evidence that has not been adequately established, much less corroborated, cannot be the basis of conviction. 59 Suspicion alone is insufficient, the required quantum of evidence being proof beyond reasonable doubt. 60 Indeed, "the sea of suspicion has no shore, and the court that embarks upon it is without rudder or compass." 61 It must be stressed that in our criminal justice system, the overriding consideration is not whether the court doubts the innocence of the accused, but whether it entertains a reasonable doubt as to their guilt. 62 Where there is no moral certainty as to their guilt, they must be acquitted even though their innocence may be questionable. The constitutional right to be presumed innocent until proven guilty can be overthrown only by proof beyond reasonable doubt. 63 In the final analysis, the circumstances narrated by the prosecution engender doubt rather than moral certainty on the guilt of appellants. In view of the above findings, we deem it unnecessary to deal with the other issues raised by appellants. WHEREFORE, the automatically appealed Decision of the Regional Trial Court of Manila (Branch 54) in Criminal Case No. 98-163090 is SET ASIDE. Danilo Asis and Gilbert Formento are ACQUITTED on reasonable doubt, and ordered immediately RELEASED from custody, unless they are being held for some other lawful cause. The director of the Bureau of Corrections is ORDERED to implement this Decision forthwith and to INFORM this Court, within five (5) days from receipt hereof, of the date appellants were actually released from confinement. Costs de oficio. IETCAS SO ORDERED. Davide, Jr., C.J., Puno, Vitug, Sandoval-Gutierrez, Corona, Carpio- Morales and Callejo, Sr., JJ., concur. Bellosillo, Mendoza, Quisumbing, Ynares-Santiago, Carpio and Austria-Martinez, JJ., are on official leave. SECOND DIVISION [G.R. No. 144037. September 26, 2003.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NOEL TUDTUD y PAYPA and DINDO BOLONG y NARET, accused- appellants. The Solicitor General for plaintiff-appellee. Roberto Q. Canete for accused-appellant N. Tudtud. Camilo F. Narava and Alejandro Cabal for accused-appellant D. Bolong SYNOPSIS Appellants assailed before the Supreme Court the decision of the Regional Trial Court of Davao City finding them guilty beyond reasonable doubt of the crime of illegal possession of prohibited drugs and sentenced to suffer imprisonment of reclusion perpetua. Appellants contended that the marijuana leaves were seized in violation of their right against unreasonable searches and seizures, hence, inadmissible in evidence. aSHAIC In acquitting the appellants, the Court held that the search of appellants' box did not come under the recognized exceptions to a valid warrantless search; hence, the marijuana leaves obtained thereby were inadmissible in evidence. First, the arresting officers' knowledge that appellant was in possession of marijuana cannot be described as "personal" having learned the same only from their informer, who in turn, obtained the information only from his neighbors and the friends of appellant Tudtud. Hence, the information was hearsay, not of personal knowledge. Second, appellants were neither performing any overt act or acting in a suspicious manner that would hint that a crime had been, was being, or was about to be, committed. If the arresting officers' testimonies are to be believed, appellants were merely helping each other carry a carton box. Although appellant Tudtud did appear afraid and perspiring, pale and trembling, this was only after, not before, he was asked to open the box containing the marijuana leaves. Third, the arresting officers were not impelled by any urgency that would allow them to do away with the requisite warrant. Records showed that the police had ample opportunity to apply for a warrant Fourth, there was no valid waiver of rights against unreasonable searches and seizures. The fact that appellant Tudtud did not resist, and opened the box himself when requested to by the police officers, did not amount to permission to the search. Appellant's implied acquiescence, if at all, could not have been more than mere passive conformity given under coercive or intimidating circumstances and was, thus, considered no consent at all within the purview of the constitutional guarantee. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES; EVIDENCE OBTAINED IN VIOLATION OF THE RIGHT IS INADMISSIBLE IN EVIDENCE. The right against unreasonable searches and seizures is secured by Section 2, Article III of the Constitution, which states: SEC. 2. The right of the people to be secured 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 places to be searched and the persons or things to be seized. The rule is that a search and seizure must be carried out through or with a judicial warrant; otherwise, such search and seizure becomes "unreasonable" within the meaning of. the above quoted constitutional provision, and any evidence secured thereby, will be inadmissible in evidence "for any purpose in any proceeding." Section 3 (2), Article III of the Constitution explicitly provides: (2) Any evidence obtained in violation of... the preceding section shall be inadmissible for any purpose in any proceeding. 2 ID.; ID.; ID.; ID.; EXCEPTIONS. The proscription in Section 2, Article III, however, covers only "unreasonable" searches and seizures. The following instances are not deemed "unreasonable" even in the absence of a warrant: 1. Warrantless search incidental to a lawful arrest. (Sec. 12, Rule 126 of the Rules of Court and prevailing jurisprudence); 2. Search of evidence in "plain view." The elements are: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who have the right to be where they are; (c) the evidence must be immediately apparent; (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 inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity; 4. Consented warrantless search; 5. Customs search; 6. Stop and Frisk; and 7. Exigent and emergency circumstances. 3. ID.; ID.; ID.; WAIVER OF THE RIGHT; REQUISITES TO BE VALID; NOT ESTABLISHED IN CASE AT BAR.- Finally, there is an effective waiver of rights against unreasonable searches and seizures if the following requisites are present: 1. It must appear that the rights exist; 2. The person involved had knowledge, actual or constructive, of the existence of such right; 3. Said person had an actual intention to relinquish the right. Here, the prosecution failed to establish the second and third requisites. Records disclose that when the police officers introduced themselves as such and requested appellant that they see the contents of the carton box supposedly containing the marijuana, appellant Tudtud said "it was alright." He did not resist and opened the box himself. 4. ID.; ID.; ID.; ID.; FAILURE OF A PERSON TO OBJECT TO A SEARCH DOES NOT AMOUNT TO PERMISSION THERETO. The fundamental law and jurisprudence require more than the presence of these circumstances to constitute a valid waiver of the constitutional right against unreasonable searches and seizures. Courts indulge every reasonable presumption against waiver of fundamental constitutional rights; acquiescence in the loss of fundamental rights is not to be presumed. The fact that a person failed to object to a search does not amount to permission thereto. ... As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. Thus, even in cases where the accused voluntarily handed her bag or the chairs containing marijuana to the arresting officer, this Court held there was no valid consent to the search. 5. ID.; ID.; ID.; ID.; ACCUSED'S LACK OF OBJECTION TO SEARCH AND SEIZURE NOT TANTAMOUNT TO VOLUNTARY SUBMISSION TO WARRANTLESS SEARCH AND SEIZURE; CASE AT BAR.- Appellants' implied acquiescence, if at all, could not have been more than mere passive conformity given under coercive or intimidating circumstances and is, thus, considered no consent at all within the purview of the constitutional guarantee. Consequently, appellants' lack of objection to the search and seizure is not tantamount to a waiver of his constitutional right or a voluntary submission to the warrantless search and seizure. As the search of appellants' box does not come under the recognized exceptions to a valid warrantless search, the marijuana leaves obtained thereby are inadmissible in evidence. And as there is no evidence other than the hearsay testimony of the arresting officers and their informant, the conviction of appellants cannot be sustained. 6. ID.; ID.; ID.; ELABORATED. The Bill of Rights is the bedrock of constitutional government. If people are stripped naked of their rights as human beings, democracy cannot survive and government becomes meaningless. This explains why the Bill of Rights, contained as it is in Article III of the Constitution, occupies a position of primacy in the fundamental law way above the articles on governmental power. The right against unreasonable search and seizure in turn is at the top of the hierarchy of rights, next only to, if not on the same plane as, the right to life, liberty and property, which is protected by the due process clause. This is as it should be for, as stressed by a couple of noted freedom advocates, the right to personal security which, along with the right to privacy, is the foundation of the right against unreasonable search and seizure "includes the right to exist, and the right to enjoyment of life while existing." Emphasizing such right, this Court declared in People v. Aruta: Unreasonable searches and seizures are the menace against which the constitutional guarantees afford full protection. While the power to search and seize may at times be necessary to the public welfare, still it may be exercised and the law enforced without transgressing the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government. Those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of order. Order is too high a price to pay for the loss of liberty. As Justice Holmes declared: "1 think it is less evil that some criminals escape than that the government should play an ignoble part." It is simply not allowed in free society to violate a law to enforce another, especially if the law violated is the Constitution itself. Thus, given a choice between letting suspected criminals escape or letting the government play an ignoble part, the answer, to this Court, is clear and ineluctable. 7. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARRESTS AND SEARCHES; A SEARCH SUBSTANTIALLY CONTEMPORANEOUS WITH AN ARREST CAN PRECEDE THE ARREST IF THE POLICE HAVE PROBABLE CAUSE TO MAKE THE ARREST AT THE OUTSET OF THE SEARCH.-- It is significant to note that the search in question preceded the arrest. Recent jurisprudence holds that the arrest must precede the search; the process cannot be reversed. Nevertheless, a search substantially contemporaneous with an arrest can precede the arrest if the police have probable cause to make the arrest at the outset of the search. The question, therefore, is whether the police in this case had probable cause to arrest appellants. 8 ID.; ID.; ID.; ID.; PROBABLE CAUSE; DEFINED. Probable cause has been defined as: 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 of the peace officers making the arrest. 9. ID.; ID.; ID.; RELIABLE INFORMATION ALONE INSUFFICIENT TO JUSTIFY WARRANTLESS ARREST. The long-standing rule in this jurisdiction, applied with a great degree of consistency, is that "reliable information" alone is not sufficient to justify a warrantless arrest under Section 5 (a), Rule 113. The rule requires, in addition, that the accused perform some overt act that would indicate that he "has committed, is actually committing, or is attempting to commit an offense." 10. ID.; ID.; ID.; ELEMENTS. Personal knowledge was also required in the case of People v. Doria. Recently, in People v. Binad Sy Chua, this Court declared invalid the arrest of the accused, who was walking towards a hotel clutching a sealed Zest-O juice box. For the exception in Section 5 (a), Rule 113 to apply, this Court ruled, two elements must concur: (1) the person to be arrested must execute an overt act indicating 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. Reliable information alone is insufficient. 11. ID.; ID.; ID.; ID.; NOT PRESENT IN CASE AT BAR. Appellants in this case were neither performing any overt act or acting in a suspicious manner that would hint that a crime has been, was being, or was about to be, committed. If the arresting officers' testimonies are to be believed, appellants were merely helping each other carry a carton box. Although appellant Tudtud did appear "afraid and perspiring," "pale" and "trembling," this was only after, not before, he was asked to open the said box. In no sense can the knowledge of the herein arresting officers that appellant Tudtud was in possession of marijuana be described as "personal," having learned the same only from their informant Solier. Solier, for his part, testified that he obtained his information only from his neighbors and the friends of appellant Tudtud: . . . In other words, Solier's information itself is hearsay. He did not even elaborate on how his neighbors or Tudtud's friends acquired their information that Tudtud was responsible for the proliferation of drugs in their neighborhood. Indeed, it appears that P01 Floreta himself doubted the reliablility of their informant. The prosecution, on re-direct examination, did not attempt to extract any explanation from POI Floreta for his telling silence. Confronted with such a dubious informant, the police perhaps felt it necessary to conduct their own "surveillance." This "surveillance," it turns out, did not actually consist of staking out appellant Tudtud to catch him in the act of plying his illegal trade, but of a mere "gather[ing] of information from the assets there." The police officers who conducted such "surveillance" did not identify who these "assets" were or the basis of the latter's information. Clearly, such information is also hearsay, not of personal knowledge. 12. ID.; ID.; ID.; MERE SUBJECTIVE CONCLUSIONS OF A POLICE OFFICER CONCERNING THE EXISTENCE OF PROBABLE CAUSE NOT BINDING ON THE COURTS .Given that the police had adequate time to obtain the warrant, P01 Floreta's testimony that the real reason for their omission was their belief that they lacked sufficient basis to obtain the same assumes greater significance. It may be conceded that "the mere subjective conclusions of a police officer concerning the existence of probable cause is not binding on [the courts] which must independently scrutinize the objective facts to determine the existence of probable cause" and that "a court may also find probable cause in spite of an officer's judgment that none exists." However, the fact that the arresting officers felt that they did not have sufficient basis to obtain a warrant, despite their own information-gathering efforts, raises serious questions whether such "surveillance" actually yielded any pertinent information and even whether they actually conducted any information-gathering at all, thereby eroding any claim to personal knowledge. 13. ID.; ID.; ID.; UNJUSTIFIED WHERE POLICE OFFICERS HAVE AMPLE OPPORTUNITY TO PROCURE A WARRANT; CASE AT BAR. - Neither were the arresting officers impelled by any urgency that would allow them to do away with the requisite warrant, P01 Desierto's assertions of lack of time notwithstanding. Records show that the police had ample opportunity to apply for a warrant, having received Solier's information at around 9:00 in the morning; Tudtud, however, was expected to arrive at around 6:00 in the evening of the same day. In People v. Encinada, supra, the Court ruled that there was sufficient time to procure a warrant where the police officers received at 4:00 in the afternoon an intelligence report that the accused, who was supposedly carrying marijuana, would arrive the next morning at 7:00 a.m.:. . . 14. ID.; ID.; ID.; REGULARITY IN THE PERFORMANCE OF OFFICIAL FUNCTION CANNOT BE INVOKED WHERE THE WARRANTLESS ARREST IS IN DEROGATION OF A CONSTITUTIONAL RIGHT. On the other hand, because a warrantless search is in derogation of a constitutional right, peace officers who conduct it cannot invoke regularity in the performance of official functions and shift to the accused the burden of proving that the search was unconsented. 15. ID.; ID.; ID.; RULE THEREON STRICTLY CONSTRUED. Nevertheless, the great majority of cases conforms to the rule in Burgos, which, in turn, more faithfully adheres to the letter of Section 5(a), Rule 113. Note the phrase "in his presence" therein, connoting personal knowledge on the part of the arresting officer. The right of the accused to be secure against any unreasonable searches on and seizure of his own body and any deprivation of his liberty being a most basic and fundamental one, the statute or rule that allows exception to the requirement of a warrant of arrest is strictly construed. Its application cannot be extended beyond the cases specifically provided by law. QUISUMBING, J., dissenting opinion: 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES; EXCLUSIONARY RULE; EXCEPTION. Section 2, Article III of the Constitution, ordains that search and seizure must be carried out through or on the strength of a judicial warrant, absent which such search and seizure becomes "unreasonable" and that evidence secured on the occasion of such an unreasonable search and seizure shall be inadmissible in evidence for any purpose in any proceeding. But this exclusionary rule is not, however, an absolute and rigid proscription. Section 5(a), Rule 113 of the Rules of Court provides one such exception where 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. In the case at hand. appellants were caught in flagrante delicto, since they carrying marijuana at the time of their arrest. A warrantless arrest, under this circumstance, is legitimate. It also necessarily cloaks the arresting officer with authority to search and seize from the offender contraband or prohibited material and whatever may be used as proof of the offense being committed. 2. REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH AND SEIZURE; WARRANTLESS SEARCH AND SEIZURE; REQUIRES PROBABLE CAUSE. However, the instances of permissible arrests set out in Section 5(a) of Rule 113, do not dispense with the requisite probable cause before a warrantless search and seizure can be lawfully conducted. In these cases, probable cause must only be based on reasonable ground of suspicion or belief that a crime has been committed or is about to be committed. The required probable cause that will justify a warrantless search and seizure is not determined by a fixed formula but is resolved according to the facts of each case. 3. ID.; ID.; ID.; ID.; JUSTIFIED BY LACK OF MATERIAL TIME TO APPLY FOR A SEARCH WARRANT. The warrantless search and seizure is further justified by lack of material time to apply for a search warrant. Faced with such on-the-spot information that Tudtud would arrive that same day with the prohibited drugs, the law enforcers had to respond quickly. As often said, it is necessary to adopt a realistic appreciation of the physical and tactical problems of the police, instead of critically viewing them from the placid and clinical environment of judicial chambers, if courts of justice wish to be of understanding assistance to law enforcement agencies in the fight against crime. 4. ID.; ID.; ID.; ID.; ILLEGAL DRUGS DISCOVERED AS A RESULT OF CONSENTED SEARCH IS ADMISSIBLE IN EVIDENCE .Moreover, appellants consented to the search in this case. This, to me, is established not merely from the words but the actions taken hereon. When the officers approached appellants, they formally introduced themselves as policemen. They inquired from appellants about the contents of their luggage, and requested appellant Tudtud to open the box. Although trembling, appellant Tudtud agreed to the request. Neither did appellant Bolong resist the search. In People vs. Cuizon, we held that illegal drugs discovered as a result of consented search is admissible in evidence. And, in People vs. Montilla, when an individual voluntarily submits to a search or consents to have the same conducted upon his person or premises, he is precluded from later complaining thereof. 5. ID.; EVIDENCE; CONSPIRACY; PRESENT IN CASE AT BAR The conspiracy to commit the offense between appellants Noel Tudtud and Dindo Bolong clearly appears from the records. They were apprehended at the same time. They alighted together from the bus at the highway corner of Toril, Davao City. Appellant Bolong was helping his co-appellant Tudtud carry the "King Flakes" carton box, which contained what turned out to be a large quantity of dried marijuana leaves covered by dried fish and concealed in plastic and newspaper wrapper. These factors convince me that indeed the two appellants had conspired together and helped each other in the commission of the offense. 6. ID.; ID.; DEFENSE OF FRAME-UP; VIEWED WITH DISFAVOR; CASE AT BAR. As the trial court explained, the frame-up angle in this case that appellants wish to peddle in their defense does not inspire belief. Like alibi, the defense of frame-up is viewed with disfavor, because it is easily concocted. It is a common and standard line of defense in cases arising from violations of the Dangerous Drugs Act. Appellant Tudtud's alibi that he came from Kabacan, North Cotabato, where he sold Levis jeans, is uncorroborated. In his memorandum, he referred to Exh. "F", claiming that the apprehending officers had confiscated the six pants then in his possession, although Exh. "F" refers to the entry in the police blotter on the arrest of both appellants, with no mention of a plastic bag containing 6 Levis jeans. In the same vein, the defense of appellant Dindo Bolong, that he took the bus from Hagonoy, Davao del Sur, after delivering invitations for his cousin's wedding, remains a bare allegation that is not substantiated. The version of the incident by the police officers, coming as it did from law enforcers presumed to have regularly performed their duty in the absence of proof to the contrary, and accepted as credible by the trial court, has not been discredited at all by appellants who claimed a frame-up without sufficient bases. 7. ID.; ID.; CREDIBILITY OF WITNESSES; TESTIMONY OF POLICE INFORMANT IN AN ILLEGAL DRUG CASE MERELY CUMULATIVE AND CORROBORATIVE OF THE APPREHENDING OFFICERS' EYEWITNESS TESTIMONIES .Appellants next assail the credibility of the civilian informant, witness Bobong Solier, on the ground that various informations and complaints had been filed against him in the City Court and Regional Trial Court of Davao City. But it should be stressed that witness Solier's testimony is not essential for the conviction of the appellants. Testimonies of the police informant in an illegal drug case is merely cumulative and corroborative of the apprehending officers' eyewitness testimonies. Moreover, Solier's tip-off was not the sole basis for the police operation in this case as there was prior surveillance conducted by the police. As it stands, Solier's testimony merely buttressed the case for the prosecution. 8. ID.; ID.; ID.; TRIAL COURT'S EVALUATION THEREOF ENTITLED TO GREAT RESPECT AND WILL NOT BE DISTURBED ON APPEAL. The investigative including laboratory procedures adopted in this regard by Chief Inspector Noemi Austero are being criticized by appellants. They lament that the Duquenois' Levine Test conducted by Austero at the PNP Crime Laboratory on the confiscated leaves was inconclusive in regard to determining whether the confiscated items were indeed marijuana, absent any confirmatory or other tests. However, nothing on record effectively negate the finding of the trial court that the test was regularly performed. The trial court's evaluation of the credibility of witnesses and their testimonies is entitled to great respect and will not be disturbed on appeal, unless there appears on record some facts of weight and substance that have been overlooked, misapprehended, or misapplied by the trial court. 9. CRIMINAL LAW; REPUBLIC ACT NO. 6425, AS AMENDED; ILLEGAL POSSESSION OF MARIJUANA; ELEMENTS; PRESENT IN CASE AT BAR. The elements of illegal possession of marijuana are: (a) the accused is in possession of an item or object which is identified to be a prohibited drug; (b) such possession is not authorized by law; and (c) the accused freely and consciously possessed the said drug. The identity of either appellant as a possessor of the seized marijuana leaves is not an issue. Both were caught in flagrante delicto in a standard police operation. The substance found in appellants' possession was identified after laboratory analysis by Philippine National Police forensic chemist Noemi Austero to be marijuana. Appellants' lack of authority to possess these items was also established. 10. ID.; ID.; ID.; POSSESSION OF A PROHIBITED DRUG PER SE CONSTITUTES PRIMA FACIE EVIDENCE OF KNOWLEDGE OR ANIMUS POSSIDENDI SUFFICIENT TO CONVICT AN ACCUSED ABSENT A SATISFACTORY EXPLANATION OF SUCH POSSESSION; CASE AT BAR. Appellants' awareness of the prohibited drug's character is also irrefutable. When stopped by the policemen, appellant Tudtud was holding the plastic bag in one hand and a carton box in his other hand, with appellant Bolong was helping him in carrying said box. Irrefutably, appellants' animus possidendi existed together with the possession or control of said articles. Recently, in People v. Tee, we held that possession of a prohibited drug per se constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused absent a satisfactory explanation of such possession. In effect, the onus probandi must be shifted to the accused to explain the absence of knowledge or consciousness of the element of possession of the contraband, i.e. his animus possidendi. Appellants, in this case, have failed to discharge this exculpatory burden. 11. ID.; ID.; ID.; IMPOSABLE PENALTY. In sentencing both appellants to reclusion perpetua and in imposing a fine of P500,000 upon each of them, the trial court was not in error but only enforcing law and policy on prohibited and dangerous drugs. Under R.A. No. 6425 as amended by R.A. No. 7659, the penalty or reclusion perpetua to death and a fine ranging from five hundred thousand pesos (P500,000) to ten million pesos (P10,000,000) shall be imposed if the quantity of marijuana involved in a conviction for possession of marijuana or Indian hemp is 750 grams or more. In the present case, the Chemistry Report submitted by forensic chemist Noemi Austero states that the subject prohibited drugs were: "(a) Dried suspected Marijuana fruiting tops weighing 3,200 grams contained in a "King Flakes" box, and (b) Dried suspected Marijuana leaves weighing 890.0 grams contained in pink and white plastic bag." The quantity of the confiscated marijuana as proved by the prosecution weighs more than 4 kilos, much in excess of 750 grams cited, by the law as baseline for the penalty involved. In the absence of any aggravating or mitigating circumstance, the lower penalty of reclusion perpetua should be properly imposed, in view of Art. 63 of the Revised Penal Code. IEDHAT D E C I S I O N TINGA, J p: . . . . It is desirable that criminals should be detected, and to that end that all available evidence should be used. It also is 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 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. EAHDac So wrote Justice Oliver Wendell Holmes in Olmstead v. U.S. 1 On this occasion, this Court is made to choose between letting suspected criminals escape or letting the government play an ignoble part. Sometime during the months of July and August 1999, the Toril Police Station, Davao City received a report from a "civilian asset" named Bobong Solier about a certain Noel Tudtud. 2 Solier related that his neighbors have been complaining about Tudtud, who was allegedly responsible for the proliferation of marijuana in their area. 3 Reacting to the report, PO1 Ronald Desierto, PO1 Ramil Floreta and their superior, SPO1 Villalonghan, 4 all members of the Intelligence Section of the Toril Police Station, conducted surveillance in Solier's neighborhood in Sapa, Toril, Davao City. 5 For five days, they gathered information and learned that Tudtud was involved in illegal drugs. 6 According to his neighbors, Tudtud was engaged in selling marijuana. 7 On August 1, 1999, Solier informed the police that Tudtud had headed to Cotabato and would be back later that day with new stocks of marijuana. 8 Solier described Tudtud as big-bodied and short, and usually wore a hat. 9 At around 4:00 in the afternoon that same day, a team composed of PO1 Desierto, PO1 Floreta and SPO1 Villalonghan posted themselves at the corner of Saipon and McArthur Highway to await Tudtud's arrival. 10 All wore civilian clothes. 11 About 8:00 later that evening, two men disembarked from a bus and helped each other carry a carton 12 marked "King Flakes." 13 Standing some five feet away from the men, PO1 Desierto and PO1 Floreta observed that one of the men fit Tudtud's description. 14 The same man also toted a plastic bag. 15 PO1 Floreta and PO1 Desierto then approached the suspects and identified themselves as police officers. 16 PO1 Desierto informed them that the police had received information that stocks of illegal drugs would be arriving that night. 17 The man who resembled Tudtud's description denied that he was carrying any drugs. 18 PO1 Desierto asked him if he could see the contents of the box. 19 Tudtud obliged, saying, "it was alright." 20 Tudtud opened the box himself as his companion looked on. 21 The box yielded pieces of dried fish, beneath which were two bundles, one wrapped in a striped plastic bag 22 and another in newspapers. 23 PO1 Desierto asked Tudtud to unwrap the packages. 24 They contained what seemed to the police officers as marijuana leaves. 25 The police thus arrested Tudtud and his companion, informed them of their rights and brought them to the police station. 26 The two did not resist. 27 The confiscated items were turned over to the Philippine National Police (PNP) Crime Laboratory for examination. 28 Forensic tests conducted by Police Chief Inspector Noemi Austero, forensic chemist of the PNP Crime Laboratory, Region XI, on specimens taken from the confiscated items confirmed the police officers' suspicion. The plastic bag contained 3,200 grams of marijuana leaves while the newspapers contained another 890 grams. 29 Police Chief Inspector Austero reduced her findings in her report, Physical Sciences Report No. D-220-99 dated 2 August 1999. 30 Noel Tudtud and his companion, Dindo Bulong, were subsequently charged 31 before the Regional Trial Court (RTC) of Davao City with illegal possession of prohibited drugs. 32 Upon arraignment, both accused pleaded not guilty. 33 The defense, however, reserved their right to question the validity of their arrest and the seizure of the evidence against them. 34 Trial ensued thereafter. The prosecution presented five witnesses, namely, arresting officers PO1 Desierto and PO1 Floreta, their civilian informant Bobong Solier, forensic chemist Police Chief Inspector Noemi Austero, and SPO3 Nicolas Algabre, exhibit custodian of the PNP Crime Laboratory. Said witnesses testified to the foregoing narration of facts. aHDTAI The accused, denying the charges against them, cried frame-up. Noel Tudtud recalled that on August 1, 1999 he had gone to Kabacan, North Cotabato to sell pairs of Levi's pants, which was his "sideline." 35 At about 5:00 in the afternoon, he returned to Davao City by bus. 36 Upon reaching Toril, Tudtud, along with less than ten passengers, got down the bus. 37 Suddenly, a man who identified himself as a police officer approached him, pointing a .38 caliber revolver. 38 The man told him not to run. 39 Tudtud raised his arms and asked, "Sir, what is this about?" 40 The man answered that he would like to inspect the plastic bag Tudtud was carrying, and instructed Tudtud to open the bag, which revealed several pairs of Levi's pants. 41 The man then directed Tudtud to open a carton box some two meters away. 42 According to Tudtud, the box was already there when he disembarked the bus. 43 Tudtud told the man the box was not his, but proceeded to open it out of fear after the man again pointed his revolver at him. 44 Tudtud discovered pieces of dried fish, underneath which was something wrapped in cellophane. 45 "What is that?" the man asked. 46 Tudtud replied that he did not know. 47 Without even unwrapping the cellophane, the man said it was marijuana and abruptly handcuffed Tudtud. 48 Simultaneously, another man was pointing a firearm at Dindo Bolong at the other side of the street, some eight meters from Tudtud. 49 Bolong recounted that he was on his way to a relative in Daliao after attending a cousin's wedding in Hagonoy, Davao del Sur when he was accosted. 50 After alighting the bus, Bolong crossed the street. 51 Someone then approached him and pointed a gun at him. 52 The man ordered him not to move and handcuffed him. 53 Bolong asked why he was being arrested but the man just told him to go with them. 54 The suspects were then taken to the police station where, they would later claim, they met each other for the first time. 55 Assailing the credibility of informant Bobong Solier, the defense offered the testimonies of Felicia Julaton, 56 Branch 3 Clerk of Court, Claudio Bohevia, 57 Branch 7 Clerk of Court, and Mercedita Abunda, 58 Branch 9 Utility Clerk, all of the Davao City Municipal Trial Circuit Court. They testified and presented court documents showing that one "Bobo" or "Bobong" Ramirez was charged in their respective branches with various crimes, specifically, light threats, less serious physical injuries and robbery. The defense asserted that the "Bobo" or "Bobong" Ramirez accused in these cases is the same person as the informant Bobong Solier. 59 Swayed by the prosecution's evidence beyond reasonable doubt, the RTC rendered judgment convicting both accused as charged and sentencing them to suffer the penalty of reclusion perpetua and to pay a fine of P500,000.00. 60 On appeal, Noel Tudtud and Dindo Bolong assign, among other errors, the admission in evidence of the marijuana leaves, which they claim were seized in violation of their right against unreasonable searches and seizures. The right against unreasonable searches and seizures is secured by Section 2, Article III of the Constitution, which states: SEC. 2. The right of the people to be secured 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 places to be searched and the persons or things to be seized. The rule is that a search and seizure must be carried out through or with a judicial warrant; otherwise, such search and seizure becomes "unreasonable" within the meaning of the above-quoted constitutional provision, and any evidence secured thereby, will be inadmissible in evidence "for any purpose in any proceeding." 61 Section 3 (2), Article III of the Constitution explicitly provides: (2) Any evidence obtained in violation of . . . the preceding section shall be inadmissible for any purpose in any proceeding. The proscription in Section 2, Article III, however, covers only "unreasonable" searches and seizures. The following instances are not deemed "unreasonable" even in the absence of a warrant: 1. Warrantless search incidental to a lawful arrest. (Sec. 12, Rule 126 of the Rules of Court and prevailing jurisprudence); 2. Search of evidence in "plain view." The elements are: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who have the right to be where they are; (c) the evidence must be immediately apparent; (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 inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity; 4. Consented warrantless search; 5. Customs search; 6. Stop and Frisk; and 7. Exigent and emergency circumstances. 62 The RTC justified the warrantless search of appellants' belongings under the first exception, as a search incident to a lawful arrest. It cited as authorities this Court's rulings in People v. Claudio, 63 People v. Tangliben, 64 People v. Montilla, 65 and People v. Valdez. 66 The Office of the Solicitor General (OSG), in arguing for the affirmance of the appealed decision, invokes the cases of People v. Maspil, Jr., 67 People v. Malmstedt, 68 and People v. Bagista. 69 A search incidental to a lawful arrest is sanctioned by the Rules of Court. Prior to its revision in 2000, Section 12, 70 Rule 126 of said Rules read as follows: SEC. 12. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant. Section 5 (a), Rule 113 of the Rules, in turn, allows warrantless arrests: SEC. 5. Arrest without warrant; when lawful. A peace officer or a 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 It is significant to note that the search in question preceded the arrest. Recent jurisprudence holds that the arrest must precede the search; the process cannot be reversed. 71 Nevertheless, a search substantially contemporaneous with an arrest can precede the arrest if the police have probable cause to make the arrest at the outset of the search. 72 The question, therefore, is whether the police in this case had probable cause to arrest appellants. Probable cause has been defined as: 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 of the peace officers making the arrest. 73 The long-standing rule in this jurisdiction, applied with a great degree of consistency, is that "reliable information" alone is not sufficient to justify a warrantless arrest under Section 5 (a), Rule 113. The rule requires, in addition, that the accused perform some overt act that would indicate that he "has committed, is actually committing, or is attempting to commit an offense." In the leading case of People v. Burgos, 74 this Court held that "the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personal knowledge of that fact. The offense must also be committed in his presence or within his view." 75 In Burgos, the authorities obtained information that the accused had forcibly recruited one Cesar Masamlok as member of the New People's Army, threatening the latter with a firearm. Upon finding the accused, the arresting team searched his house and discovered a gun as well as purportedly subversive documents. This Court, in declaring then Section 6 (a), Rule 113 of the Rules of Court inapplicable, ruled that: There is no such personal knowledge in this case. Whatever knowledge was possessed by the arresting officers, it came in its entirety from the information furnished by Cesar Masamlok. The location of the firearm was given by the appellant's wife. At the time of the appellant's arrest, he was not in actual possession of any firearm or subversive document. Neither was he committing any act which could be described as subversive. He was, in fact, plowing his field at the time of the arrest. The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the requirement of warrants of arrest is strictly construed. Any exception must clearly fall within the situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the rule on arrests without warrant or extend its application beyond the cases specifically provided by law. To do so would infringe upon personal liberty and set back a basic right so often violated and so deserving of full protection. 76 Consequently, the items seized were held inadmissible, having been obtained in violation of the accused's constitutional rights against unreasonable searches and seizures. AHCTEa In People v. Aminnudin, 77 this Court likewise held the warrantless arrest and subsequent search of appellant therein illegal, given the following circumstances: . . . the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that he 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 former pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his arrest. The identification by the informer was the probable cause as determined by the officers (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him. 78 Thus, notwithstanding tips from confidential informants and regardless of the fact that the search yielded contraband, the mere act of looking from side to side while holding one's abdomen, 79 or of standing on a corner with one's eyes moving very fast, looking at every person who came near, 80 does not justify warrantless arrest under said Section 5 (a). Neither does putting something in one's pocket, 81 handing over one's baggage, 82 riding a motorcycle, 83 nor does holding a bag on board a trisikad 84 sanction State intrusion. The same rule applies to crossing the street per se. 85 Personal knowledge was also required in the case of People v. Doria. 86 Recently, in People v. Binad Sy Chua, 87 this Court declared invalid the arrest of the accused, who was walking towards a hotel clutching a sealed Zest-O juice box. For the exception in Section 5 (a), Rule 113 to apply, this Court ruled, two elements must concur: (1) the person to be arrested must execute an overt act indicating 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. Reliable information alone is insufficient. In the following cases, the search was held to be incidental to a lawful arrest because of "suspicious" circumstances: People v. Tangliben 88 (accused was "acting suspiciously"), People v. Malmstedt 89 (a bulge on the accused's waist), and People v. de Guzman 90 (likewise a bulge on the waist of the accused, who was wearing tight-fitting clothes). There is, however, another set of jurisprudence that deems "reliable information" sufficient to justify a search incident to a warrantless arrest under Section 5 (a), Rule 113, thus deviating from Burgos. To this class of cases belong People v. Maspil, Jr., 91 People v. Bagista, 92 People v. Balingan, 93 People v. Lising, 94 People v. Montilla, 95 People v. Valdez, 96 and People v. Gonzales. 97 In these cases, the arresting authorities were acting on information regarding an offense but there were no overt acts or suspicious circumstances that would indicate that the accused has committed, is actually committing, or is attempting to commit the same. Significantly, these cases, except the last two, come under some other exception to the rule against warrantless searches. Thus, Maspil, Jr. involved a checkpoint search, Balingan was a search of a moving vehicle, Bagista was both, and Lising and Montilla were consented searches. Nevertheless, the great majority of cases conforms to the rule in Burgos, which, in turn, more faithfully adheres to the letter of Section 5(a), Rule 113. Note the phrase "in his presence" therein, connoting personal knowledge on the part of the arresting officer. The right of the accused to be secure against any unreasonable searches on and seizure of his own body and any deprivation of his liberty being a most basic and fundamental one, the statute or rule that allows exception to the requirement of a warrant of arrest is strictly construed. Its application cannot be extended beyond the cases specifically provided by law. 98 The cases invoked by the RTC and the OSG are, therefore, gravely misplaced. In Claudio, 99 the accused, who was seated aboard a bus in front of the arresting officer, put her bag behind the latter, thus arousing the latter's suspicion. In Tangliben and Malmstedt, the accused had also acted suspiciously. As noted earlier, Maspil, Jr., Bagista and Montilla were justified by other exceptions to the rule against warrantless searches. Montilla, moreover, was not without its critics. There, majority of the Court held: Appellant insists that the mere fact of seeing a person carrying a traveling bag and a carton box should not elicit the slightest suspicion of the commission of any crime since that is normal. But precisely, it is in the ordinary nature of things that drugs being illegally transported are necessarily hidden in containers and concealed from view. Thus, the officers could reasonably assume, and not merely on a hollow suspicion since the informant was by their side and had so informed them, that the drugs were in appellant's luggage. It would obviously have been irresponsible, if now downright absurd under the circumstances, to require the constable to adopt a "wait and see" attitude at the risk of eventually losing the quarry. Here, there were sufficient facts antecedent to the search and seizure that, at the point prior to the search were already constitutive of probable cause, and which by themselves could properly create in the minds of the officers a well-grounded and reasonable belief that appellant was in the act of violating the law. The search yielded affirmance both of that probable cause and the actuality that appellant was then actually committing a crime by illegally transporting prohibited drug. With these attendant facts, it is ineluctable that appellant was caught in flagrante delicto, hence his arrest and the search of his belongings without the requisite warrant were both justified. 100 While concurring with the majority, Mr. Justice Vitug reserved his vote on the discussion on the warrantless search being incidental to a lawful arrest. Mr. Justice Panganiban, joined by Messrs. Justices Melo and Puno, filed a Separate Opinion. Although likewise concurring in the majority's ruling that appellant consented to the inspection of his baggage, Justice Panganiban disagreed with the conclusion that the warrantless search was incidental to a lawful arrest. He argued that jurisprudence required personal knowledge on the part of the officers making the in flagrante delicto arrest. In Montilla, the appellant "did not exhibit any overt act or strange conduct that would reasonably arouse in their minds suspicion that he was embarking on some felonious enterprise." Law and jurisprudence in fact require stricter grounds for valid arrests and searches without warrant than for the issuance of warrants therefore. In the former, the arresting person must have actually witnessed the crime being committed or attempted by the person sought to be arrested; or he must have personal knowledge of facts indicating that the person to be arrested perpetrated the crime that had just occurred. In the latter case, the judge simply determines personally from testimonies of witnesses that there exists reasonable grounds to believe that a crime was committed by the accused. xxx xxx xxx To say that "reliable tips" constitute probable cause for a warrantless arrest or search is in my opinion, a dangerous precedent and places in great jeopardy the doctrines laid down in many decisions made by this Court, in its effort to zealously guard and protect the sacred constitutional right against unreasonable arrests, searches and seizures. Everyone would be practically at the mercy of so-called informants, reminiscent of the makapilis during the Japanese occupation. Any one whom they point out to a police officer as a possible violator of the law could then be subject to search and possible arrest. This is placing limitless power upon informants who will no longer be required to affirm under oath their accusations, for they can always delay their giving of tips in order to justify warrantless arrests and searches. Even law enforcers can use this as an oppressive tool to conduct searches without warrants, for they can always claim that they received raw intelligence information only on the day or afternoon before. This would clearly be a circumvention of the legal requisites for validly effecting an arrest or conducting a search and seizure. Indeed the majority's ruling would open loopholes that would allow unreasonable arrests, searches and seizures. 101 Montilla would shortly find mention in Justice Panganiban's concurring opinion in People v. Doria, supra, where this Court ruled: Accused-Appellant Gaddao was arrested solely on the basis of the alleged identification made by her co-accused. PO3 Manlangit, however, declared in his direct examination that appellant Doria named his co-accused in response to his (PO3 Manlangit's) query as to where the marked money was. Appellant Doria did not point to appellant Gaddao as his associate in the drug business, but as the person with whom he left the marked bills. This identification does not necessarily lead to the conclusion that appellant Gaddao conspired with her co-accused in pushing drugs. Appellant Doria may have left the money in her house, with or without any conspiracy. Save for accused-appellant Doria's word, the Narcom agents had no showing that the person who affected the warrantless arrest had, in his own right, knowledge of facts implicating the person arrested to the perpetration of a criminal offense, the arrest is legally objectionable. 102 [Italics in the original.] Expressing his accord with Mr. Justice Puno's ponencia, Justice Panganiban said that Doria "rightfully brings the Court back to well- settled doctrines on warrantless arrests and searches, which have seemingly been modified through an obiter in People v. Ruben Montilla." 103 Montilla, therefore, has been seemingly discredited insofar as it sanctions searches incidental to lawful arrest under similar circumstances. At any rate, Montilla was a consented search. As will be demonstrated later, the same could not be said of this case. That leaves the prosecution with People v. Valdez, which, however, involved an "on-the-spot information." The urgency of the circumstances, an element not present in this case, prevented the arresting officer therein from obtaining a warrant. HASTCa Appellants in this case were neither performing any overt act or acting in a suspicious manner that would hint that a crime has been, was being, or was about to be, committed. If the arresting officers' testimonies are to be believed, appellants were merely helping each other carry a carton box. Although appellant Tudtud did appear "afraid and perspiring," 104 "pale" 105 and "trembling," 106 this was only after, not before, he was asked to open the said box. In no sense can the knowledge of the herein arresting officers that appellant Tudtud was in possession of marijuana be described as "personal," having learned the same only from their informant Solier. Solier, for his part, testified that he obtained his information only from his neighbors and the friends of appellant Tudtud: Q What was your basis in your report to the police that Tudtud is going to Cotabato and get stocks of marijuana? A Because of the protest of my neighbors who were saying who will be the person whou [sic] would point to him because he had been giving trouble to the neighborhood because according to them there are [sic] proliferation of marijuana in our place. That was the complained [sic] of our neighbors. Q Insofar as the accused Tudtud is concerned what was your basis in reporting him particularly? A His friends were the once who told me about it. Q For how long have you know [sic] this fact of alleged activity of Tudtud in proliferation of marijuana? A About a month. xxx xxx xxx Q Regarding the report that Tudtud went to Cotabato to get stocks of marijuana which led to his apprehension sometime in the evening of August 1 and according to the report [which] is based on your report my question is, how did you know that Tudtud will be bringing along with him marijuana stocks on August 1, 1999? xxx xxx xxx A Because of the information of his neighbor. 107 In other words, Solier's information itself is hearsay. He did not even elaborate on how his neighbors or Tudtud's friends acquired their information that Tudtud was responsible for the proliferation of drugs in their neighborhood. Indeed, it appears that PO1 Floreta himself doubted the reliability of their informant. He testified on cross-examination: Q You mean to say that Bobot Solier, is not reliable? A He is trustworthy. Q Why [did] you not consider his information not reliable if he is reliable? A (witness did not answer). ATTY. CAETE: Never mind, do not answer anymore. That's all. 108 The prosecution, on re-direct examination, did not attempt to extract any explanation from PO1 Floreta for his telling silence. Confronted with such a dubious informant, the police perhaps felt it necessary to conduct their own "surveillance." This "surveillance," it turns out, did not actually consist of staking out appellant Tudtud to catch him in the act of plying his illegal trade, but of a mere "gather[ing] of information from the assets there." 109 The police officers who conducted such "surveillance" did not identify who these "assets" were or the basis of the latter's information. Clearly, such information is also hearsay, not of personal knowledge. Neither were the arresting officers impelled by any urgency that would allow them to do away with the requisite warrant, PO1 Desierto's assertions of lack of time 110 notwithstanding. Records show that the police had ample opportunity to apply for a warrant, having received Solier's information at around 9:00 in the morning; Tudtud, however, was expected to arrive at around 6:00 in the evening of the same day. 111 In People v. Encinada, supra, the Court ruled that there was sufficient time to procure a warrant where the police officers received at 4:00 in the afternoon an intelligence report that the accused, who was supposedly carrying marijuana, would arrive the next morning at 7:00 a.m.: Even if the information was received by Bolonia about 4:00 p.m. of May 20, 1992 at his house, there was sufficient time to secure a warrant of arrest, as the M/V Sweet Pearl was not expected to dock until 7:00 a.m. the following day. Administrative Circular No. 13 allows application for search warrants even after office hours: "3. Raffling shall be strictly enforced, except only in case where an application for search warrant may be filed directly with any judge whose jurisdiction the place to be searched is located, after office hours, or during Saturdays, Sundays, and legal holidays, in which case the applicant is required to certify under oath the urgency of the issuance thereof after office hours, or during Saturdays, Sundays and legal holidays;" . . . . The same procedural dispatch finds validation and reiteration in Circular No. 19, series of 1987, entitled "Amended Guidelines and Procedures on Application for search warrants for Illegal Possession of Firearms and Other Serious Crimes Filed in Metro Manila Courts and Other Courts with Multiple Salas": "This Court has received reports of delay while awaiting raffle, in acting on applications for search warrants in the campaign against loose firearms and other serious crimes affecting peace and order. There is a need for prompt action on such applications for search warrant. Accordingly, these amended guidelines in the issuance of a search warrant are issued: 1. All applications for search warrants relating to violation of the Anti-subversion Act, crimes against public order as defined in the Revised Penal Code, as amended, illegal possession of firearms and/or ammunition and violations of the Dangerous Drugs Act of 1972, as amended, shall no longer be raffled and shall immediately be taken cognizance of and acted upon by the Executive Judge of the Regional Trial Court, Metropolitan Trial Court, and Municipal Trial Court under whose jurisdiction the place to be searched is located. 2. In the absence of the Executive Judge, the Vice-Executive Judge shall take cognizance of and personally act on the same. In the absence of the Executive judge or Vice-Executive judge, the application may be taken cognizance of and acted upon by any judge of the Court where application is filed. 3. Applications filed after office hours, during Saturdays, Sundays and holidays, shall likewise be taken cognizance of and acted upon by any judge of the Court having jurisdiction of the place to be searched, but in such cases the applicant shall certify and state the facts under oath, to the satisfaction of the judge, that its issuance is urgent. 4. Any judge acting on such application shall immediately and without delay personally conduct the examination of the applicant and his witnesses to prevent the possible leakage of information. He shall observe the procedures, safeguards, and guidelines for the issuance of search warrants provided for in this Court's Administrative Circular No. 13, dated October 1, 1985." 112 [Italics in the original.] Given that the police had adequate time to obtain the warrant, PO1 Floreta's testimony that the real reason for their omission was their belief that they lacked sufficient basis to obtain the same assumes greater significance. This was PO1 Floreta's familiar refrain: Q When Solier reported to you that fact, that Tudtud will be coming from Cotabato to get that (sic) stocks, you did not go to court to get a search warrant on the basis of the report of Bobot Solier? A No. Q Why? A Because we have no real basis to secure the search warrant. Q When you have no real basis to secure a search warrant, you have also no real basis to search Tudtud and Bulong at that time? A Yes, sir. xxx xxx xxx Q And Bobot Solier told you that Tudtud, that he would already bring marijuana? A Yes, Sir. Q And this was 9:00 a.m.? A Yes, Sir. Q The arrival of Tudtud was expected at 6:00 p.m.? A Yes, Sir. Q Toril is just 16 kilometers from Davao City? A Yes, Sir. Q And the Office of the Regional Trial Court is only about 16 kilometers, is that correct? A Yes, Sir. Q And it can be negotiated by thirty minutes by a jeep ride? A Yes, Sir. Q And you can asked [sic] the assistance of any prosecutor to apply for the search warrant or the prosecutor do [sic] not assist? A They help. Q But you did not come to Davao City, to asked [sic] for a search warrant? A As I said, we do not have sufficient basis. 113 It may be conceded that "the mere subjective conclusions of a police officer concerning the existence of probable cause is not binding on [the courts] which must independently scrutinize the objective facts to determine the existence of probable cause" and that "a court may also find probable cause in spite of an officer's judgment that none exists." 114 However, the fact that the arresting officers felt that they did not have sufficient basis to obtain a warrant, despite their own information-gathering efforts, raises serious questions whether such "surveillance" actually yielded any pertinent information and even whether they actually conducted any information-gathering at all, thereby eroding any claim to personal knowledge. ECaScD Finally, there is an effective waiver of rights against unreasonable searches and seizures if the following requisites are present: 1. It must appear that the rights exist; 2. The person involved had knowledge, actual or constructive, of the existence of such right; 3. Said person had an actual intention to relinquish the right. 115 Here, the prosecution failed to establish the second and third requisites. Records disclose that when the police officers introduced themselves as such and requested appellant that they see the contents of the carton box supposedly containing the marijuana, appellant Tudtud said "it was alright." He did not resist and opened the box himself. The fundamental law and jurisprudence require more than the presence of these circumstances to constitute a valid waiver of the constitutional right against unreasonable searches and seizures. Courts indulge every reasonable presumption against waiver of fundamental constitutional rights; acquiescence in the loss of fundamental rights is not to be presumed. 116 The fact that a person failed to object to a search does not amount to permission thereto. . . . . As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to all search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. 117 [Emphasis supplied.] Thus, even in cases where the accused voluntarily handed her bag 118 or the chairs 119 containing marijuana to the arresting officer, this Court held there was no valid consent to the search. On the other hand, because a warrantless search is in derogation of a constitutional right, peace officers who conduct it cannot invoke regularity in the performance of official functions and shift to the accused the burden of proving that the search was unconsented. 120 In any case, any presumption in favor of regularity would be severely diminished by the allegation of appellants in this case that the arresting officers pointed a gun at them before asking them to open the subject box. Appellant Tudtud testified as follows: Q This person who approached you according to you pointed something at you[.] [What] was that something? A A 38 cal. Revolver. Q How did he point it at you? A Like this (Witness demonstrating as if pointing with his two arms holding something towards somebody). Q This man[,] what did he tell you when he pointed a gun at you? A He said do not run. Q What did you do? A I raised my hands and said "Sir, what is this about?" Q Why did you call him Sir? A I was afraid because when somebody is holding a gun, I am afraid. Q Precisely, why did you address him as Sir? A Because he was holding a gun and I believed that somebody who is carrying a gun is a policeman. Q When you asked him what is this? What did he say? A He said "I would like to inspect what you are carrying. ["] xxx xxx xxx Q What did you say when you were asked to open that carton box? A I told him that is not mine. Q What did this man say? A He again pointed to me his revolver and again said to open. Q What did you do? A So I proceeded to open for fear of being shot. 121 Appellants' implied acquiescence, if at all, could not have been more than mere passive conformity given under coercive or intimidating circumstances and is, thus, considered no consent at all within the purview of the constitutional guarantee. 122 Consequently, appellants' lack of objection to the search and seizure is not tantamount to a waiver of his constitutional right or a voluntary submission to the warrantless search and seizure. 123 As the search of appellants' box does not come under the recognized exceptions to a valid warrantless search, the marijuana leaves obtained thereby are inadmissible in evidence. And as there is no evidence other than the hearsay testimony of the arresting officers and their informant, the conviction of appellants cannot be sustained. The Bill of Rights is the bedrock of constitutional government. If people are stripped naked of their rights as human beings, democracy cannot survive and government becomes meaningless. This explains why the Bill of Rights, contained as it is in Article III of the Constitution, occupies a position of primacy in the fundamental law way above the articles on governmental power. 124 The right against unreasonable search and seizure in turn is at the top of the hierarchy of rights, 125 next only to, if not on the same plane as, the right to life, liberty and property, which is protected by the due process clause. 126 This is as it should be for, as stressed by a couple of noted freedom advocates, 127 the right to personal security which, along with the right to privacy, is the foundation of the right against unreasonable search and seizure "includes the right to exist, and the right to enjoyment of life while existing." Emphasizing such right, this Court declared in People v. Aruta: Unreasonable searches and seizures are the menace against which the constitutional guarantees afford full protection. While the power to search and seize may at times be necessary to the public welfare, still it may be exercised and the law enforced without transgressing the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government. Those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of order. Order is too high a price to pay for the loss of liberty. As Justice Holmes declared: "I think it is less evil that some criminals escape than that the government should play an ignoble part." It is simply not allowed in free society to violate a law to enforce another, especially if the law violated is the Constitution itself. 128 Thus, given a choice between letting suspected criminals escape or letting the government play an ignoble part, the answer, to this Court, is clear and ineluctable. WHEREFORE, the Decision of the Regional Trial Court of Davao City is REVERSED. Appellants Noel Tudtud y Paypa and Dindo Bolong y Naret are hereby ACQUITTED for insufficiency of evidence. The Director of the Bureau of Prisons is ordered to cause the immediate release of appellants from confinement, unless they are being held for some other lawful cause, and to report to this Court compliance herewith within five (5) days from receipt hereof. cEaTHD SO ORDERED. Bellosillo, Austria-Martinez and Callejo, Sr., JJ ., concur. U.S. Supreme Court CHIMEL v. CALIFORNIA, 395 U.S. 752 (1969) 395 U.S. 752 CHIMEL v. CALIFORNIA. CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. No. 770. Argued March 27, 1969. Decided June 23, 1969. Police officers, armed with an arrest warrant but not a search warrant, were admitted to petitioner's home by his wife, where they awaited petitioner's arrival. When he entered he was served with the warrant. Although he denied the officers' request to "look around," they conducted a search of the entire house "on the basis of the lawful arrest." At petitioner's trial on burglary charges, items taken from his home were admitted over objection that they had been unconstitutionally seized. His conviction was affirmed by the California appellate courts, which held, despite their acceptance of petitioner's contention that the arrest warrant was invalid, that since the arresting officers had procured the warrant "in good faith," and since in any event they had had sufficient information to constitute probable cause for the arrest, the arrest was lawful. The courts also held that the search was justified as incident to a valid arrest. Held: Assuming the arrest was valid, the warrantless search of petitioner's house cannot be constitutionally justified as incident to that arrest. Pp. 755-768. (a) An arresting officer may search the arrestee's person to discover and remove weapons and to seize evidence to prevent its concealment or destruction, and may search the area "within the immediate control" of the person arrested, meaning the area from which he might gain possession of a weapon or destructible evidence. Pp. 762-763. (b) For the routine search of rooms other than that in which an arrest occurs, or for searching desk drawers or other closed or concealed areas in that room itself, absent well-recognized exceptions, a search warrant is required. P. 763. (c) While the reasonableness of a search incident to arrest depends upon "the facts and circumstances - the total atmosphere of the case," those facts and circumstances must be viewed in the light of established Fourth Amendment principles, and the only reasoned distinction is one between (1) a search of the person arrested and the area within his reach, and (2) more extensive searches. Pp. 765- 766. [395 U.S. 752, 753] (d) United States v. Rabinowitz, 339 U.S. 56 , and Harris v. United States, 331 U.S. 145 , on their facts, and insofar as the principles they stand for are inconsistent with this decision, are no longer to be followed. P. 768. (e) The scope of the search here was unreasonable under the Fourth and Fourteenth Amendments, as it went beyond petitioner's person and the area from within which he might have obtained a weapon or something that could have been used as evidence against him, and there was no constitutional justification, in the absence of a search warrant, for extending the search beyond that area. P. 768. 68 Cal. 2d 436, 439 P.2d 333, reversed. Keith C. Monroe, by appointment of the Court, 394 U.S. 940 , argued the cause and filed briefs for petitioner. Ronald M. George, Deputy Attorney General of California, argued the cause for respondent. With him on the brief were Thomas C. Lynch, Attorney General, and William E. James, Assistant Attorney General. MR. JUSTICE STEWART delivered the opinion of the Court. This case raises basic questions concerning the permissible scope under the Fourth Amendment of a search incident to a lawful arrest. The relevant facts are essentially undisputed. Late in the afternoon of September 13, 1965, three police officers arrived at the Santa Ana, California, home of the petitioner with a warrant authorizing his arrest for the burglary of a coin shop. The officers knocked on the door, identified themselves to the petitioner's wife, and asked if they might come inside. She ushered them into the house, where they waited 10 or 15 minutes until the petitioner returned home from work. When the petitioner entered the house, one of the officers handed him the arrest warrant and asked for permission to "look around." The petitioner objected, but was advised that [395 U.S. 752, 754] "on the basis of the lawful arrest," the officers would nonetheless conduct a search. No search warrant had been issued. Accompanied by the petitioner's wife, the officers then looked through the entire three-bedroom house, including the attic, the garage, and a small workshop. In some rooms the search was relatively cursory. In the master bedroom and sewing room, however, the officers directed the petitioner's wife to open drawers and "to physically move contents of the drawers from side to side so that [they] might view any items that would have come from [the] burglary." After completing the search, they seized numerous items - primarily coins, but also several medals, tokens, and a few other objects. The entire search took between 45 minutes and an hour. At the petitioner's subsequent state trial on two charges of burglary, the items taken from his house were admitted into evidence against him, over his objection that they had been unconstitutionally seized. He was convicted, and the judgments of conviction were affirmed by both the California Court of Appeal, 61 Cal. Rptr. 714, and the California Supreme Court, 68 Cal. 2d 436, 439 P.2d 333. Both courts accepted the petitioner's contention that the arrest warrant was invalid because the supporting affidavit was set out in conclusory terms, 1 but held that since the arresting officers had procured the warrant "in good faith," and since in any event they had had sufficient information to constitute probable cause for the petitioner's arrest, that arrest had been lawful. From this conclusion the appellate courts went on to hold that the search of the petitioner's home [395 U.S. 752, 755] had been justified, despite the absence of a search warrant, on the ground that it had been incident to a valid arrest. We granted certiorari in order to consider the petitioner's substantial constitutional claims. 393 U.S. 958 . Without deciding the question, we proceed on the hypothesis that the California courts were correct in holding that the arrest of the petitioner was valid under the Constitution. This brings us directly to the question whether the warrantless search of the petitioner's entire house can be constitutionally justified as incident to that arrest. The decisions of this Court bearing upon that question have been far from consistent, as even the most cursory review makes evident. Approval of a warrantless search incident to a lawful arrest seems first to have been articulated by the Court in 1914 as dictum in Weeks v. United States, 232 U.S. 383 , in which the Court stated: "What then is the present case? Before answering that inquiry specifically, it may be well by a process of exclusion to state what it is not. It is not an assertion of the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime." Id., at 392. That statement made no reference to any right to search the place where an arrest occurs, but was limited to a right to search the "person." Eleven years later the case of Carroll v. United States, 267 U.S. 132 , brought the following embellishment of the Weeks statement: "When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held[395 U.S. 752, 756] as evidence in the prosecution." Id., at 158. (Emphasis added.) Still, that assertion too was far from a claim that the "place" where one is arrested may be searched so long as the arrest is valid. Without explanation, however, the principle emerged in expanded form a few months later in Agnello v. United States, 269 U.S. 20 - although still by way of dictum: "The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted. See Carroll v. United States,267 U.S. 132, 158 ; Weeks v. United States, 232 U.S. 383, 392 ." 269 U.S., at 30 . And in Marron v. United States, 275 U.S. 192 , two years later, the dictum of Agnello appeared to be the foundation of the Court's decision. In that case federal agents had secured a search warrant authorizing the seizure of liquor and certain articles used in its manufacture. When they arrived at the premises to be searched, they saw "that the place was used for retailing and drinking intoxicating liquors." Id., at 194. They proceeded to arrest the person in charge and to execute the warrant. In searching a closet for the items listed in the warrant they came across an incriminating ledger, concededly not covered by the warrant, which they also seized. The Court upheld the seizure of the ledger by holding that since the agents had made a lawful arrest, "[t]hey had a right without a warrant contemporaneously to search the place in order to find and seize the things used to carry on the criminal enterprise." Id., at 199. [395 U.S. 752, 757] That the Marron opinion did not mean all that it seemed to say became evident, however, a few years later in Go-Bart Importing Co. v. United States, 282 U.S. 344 , and United States v. Lefkowitz, 285 U.S. 452 . In each of those cases the opinion of the Court was written by Mr. Justice Butler, the author of the opinion in Marron. In Go- Bart, agents had searched the office of persons whom they had lawfully arrested, 2 and had taken several papers from a desk, a safe, and other parts of the office. The Court noted that no crime had been committed in the agents' presence, and that although the agent in charge "had an abundance of information and time to swear out a valid [search] warrant, he failed to do so."282 U.S., at 358 . In holding the search and seizure unlawful, the Court stated: "Plainly the case before us is essentially different from Marron v. United States, 275 U.S. 192 . There, officers executing a valid search warrant for intoxicating liquors found and arrested one Birdsall who in pursuance of a conspiracy was actually engaged in running a saloon. As an incident to the arrest they seized a ledger in a closet where the liquor or some of it was kept and some bills beside the cash register. These things were visible and accessible and in the offender's immediate custody. There was no threat of force or general search or rummaging of the place." 282 U.S., at 358 . This limited characterization of Marron was reiterated in Lefkowitz, a case in which the Court held unlawful a search of desk drawers and a cabinet despite the fact that the search had accompanied a lawful arrest. 285 U.S., at 465 . The limiting views expressed in Go-Bart and Lefkowitz were thrown to the winds, however, in Harris v. United [395 U.S. 752, 758] States, 331 U.S. 145 , decided in 1947. In that case, officers had obtained a warrant for Harris' arrest on the basis of his alleged involvement with the cashing and interstate transportation of a forged check. He was arrested in the living room of his four-room apartment, and in an attempt to recover two canceled checks thought to have been used in effecting the forgery, the officers undertook a thorough search of the entire apartment. Inside a desk drawer they found a sealed envelope marked "George Harris, personal papers." The envelope, which was then torn open, was found to contain altered Selective Service documents, and those documents were used to secure Harris' conviction for violating the Selective Training and Service Act of 1940. The Court rejected Harris' Fourth Amendment claim, sustaining the search as "incident to arrest." Id., at 151. Only a year after Harris, however, the pendulum swung again. In Trupiano v. United States, 334 U.S. 699 , agents raided the site of an illicit distillery, saw one of several conspirators operating the still, and arrested him, contemporaneously "seiz[ing] the illicit distillery." Id., at 702. The Court held that the arrest and others made subsequently had been valid, but that the unexplained failure of the agents to procure a search warrant - in spite of the fact that they had had more than enough time before the raid to do so - rendered the search unlawful. The opinion stated: "It is a cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable. . . . This rule rests upon the desirability of having magistrates rather than police officers determine when searches and seizures are permissible and what limitations should be placed upon such activities. . . . To provide the necessary security against unreasonable intrusions upon the private lives of [395 U.S. 752, 759] individuals, the framers of the Fourth Amendment required adherence to judicial processes wherever possible. And subsequent history has confirmed the wisdom of that requirement. . . . . . "A search or seizure without a warrant as an incident to a lawful arrest has always been considered to be a strictly limited right. It grows out of the inherent necessities of the situation at the time of the arrest. But there must be something more in the way of necessity than merely a lawful arrest." Id., at 705, 708. In 1950, two years after Trupiano, 3 came United States v. Rabinowitz, 339 U.S. 56 , the decision upon which California primarily relies in the case now before us. In Rabinowitz, federal authorities had been informed that the defendant was dealing in stamps bearing forged overprints. On the basis of that information they secured a warrant for his arrest, which they executed at his one- room business office. At the time of the arrest, the officers "searched the desk, safe, and file cabinets in the office for about an hour and a half," id., at 59, and seized 573 stamps with forged overprints. The stamps were admitted into evidence at the defendant's trial, and this Court affirmed his conviction, rejecting the contention that the warrantless search had been unlawful. The Court held that the search in its entirety fell within the principle giving law enforcement authorities "[t]he right `to search the place where the arrest is made in order to find and seize things connected with the crime . . . .'" Id., at 61. Harris was regarded as "ample authority" for that conclusion. Id., at 63. The opinion rejected the rule of Trupiano that "in seizing goods and articles, law enforcement agents must secure and use search warrants [395 U.S. 752, 760] wherever reasonably practicable." The test, said the Court, "is not whether it is reasonable to procure a search warrant, but whether the search was reasonable." Id., at 66. Rabinowitz has come to stand for the proposition, inter alia, that a warrantless search "incident to a lawful arrest" may generally extend to the area that is considered to be in the "possession" or under the "control" of the person arrested. 4 And it was on the basis of that proposition that the California courts upheld the search of the petitioner's entire house in this case. That doctrine, however, at least in the broad sense in which it was applied by the California courts in this case, can withstand neither historical nor rational analysis. Even limited to its own facts, the Rabinowitz decision was, as we have seen, hardly founded on an unimpeachable line of authority. As Mr. Justice Frankfurter commented in dissent in that case, the "hint" contained in Weeks was, without persuasive justification, "loosely turned into dictum and finally elevated to a decision." 339 U.S., at 75 . And the approach taken in cases such as Go-Bart, Lefkowitz, and Trupiano was essentially disregarded by the Rabinowitz Court. Nor is the rationale by which the State seeks here to sustain the search of the petitioner's house supported by a reasoned view of the background and purpose of the Fourth Amendment. Mr. Justice Frankfurter wisely pointed out in his Rabinowitz dissent that the Amendment's proscription of "unreasonable searches and seizures" [395 U.S. 752, 761] must be read in light of "the history that gave rise to the words" - a history of "abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution . . . ." 339 U.S., at 69 . The Amendment was in large part a reaction to the general warrants and warrantless searches that had so alienated the colonists and had helped speed the movement for independence. 5 In the scheme of the Amendment, therefore, the requirement that "no Warrants shall issue, but upon probable cause," plays a crucial part. As the Court put it in McDonald v. United States, 335 U.S. 451 : "We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. . . . And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative." Id., at 455-456. [395 U.S. 752, 762] Even in the Agnello case the Court relied upon the rule that "[b]elief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause." 269 U.S., at 33 . Clearly, the general requirement that a search warrant be obtained is not lightly to be dispensed with, and "the burden is on those seeking [an] exemption [from the requirement] to show the need for it . . . ." United States v. Jeffers, 342 U.S. 48, 51 . Only last Term in Terry v. Ohio, 392 U.S. 1 , we emphasized that "the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure," id., at 20, 6 and that "[t]he scope of [a] search must be `strictly tied to and justified by' the circumstances which rendered its initiation permissible." Id., at 19. The search undertaken by the officer in that "stop and frisk" case was sustained under that test, because it was no more than a "protective . . . search for weapons." Id., at 29. But in a companion case, Sibron v. New York, 392 U.S. 40 , we applied the same standard to another set of facts and reached a contrary result, holding that a policeman's action in thrusting his hand into a suspect's pocket had been neither motivated by nor limited to the objective of protection. 7 Rather, the search had been made in order to find narcotics, which were in fact found. A similar analysis underlies the "search incident to arrest" principle, and marks its proper extent. When an [395 U.S. 752, 763] arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area "within his immediate control" - construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs - or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. 8 The "adherence to judicial processes" mandated by the Fourth Amendment requires no less. This is the principle that underlay our decision in Preston v. United States, 376 U.S. 364 . In that case three men had been arrested in a parked car, which had later been towed to a garage and searched by police. We held the search to have been unlawful under the Fourth Amendment, despite the contention that it had [395 U.S. 752, 764] been incidental to a valid arrest. Our reasoning was straightforward: "The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime - things which might easily happen where the weapon or evidence is on the accused's person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest." Id., at 367. 9 The same basic principle was reflected in our opinion last Term in Sibron. That opinion dealt with Peters v. New York, No. 74, as well as with Sibron's case, and Peters involved a search that we upheld as incident to a proper arrest. We sustained the search, however, only because its scope had been "reasonably limited" by the "need to seize weapons" and "to prevent the destruction of evidence," to which Preston had referred. We emphasized that the arresting officer "did not engage in an unrestrained and thoroughgoing examination of Peters and his personal effects. He seized him to cut short his flight, and he searched him primarily for weapons." 392 U.S., at 67 . It is argued in the present case that it is "reasonable" to search a man's house when he is arrested in it. But that argument is founded on little more than a subjective view regarding the acceptability of certain sorts of police [395 U.S. 752, 765] conduct, and not on considerations relevant to Fourth Amendment interests. Under such an unconfined analysis, Fourth Amendment protection in this area would approach the evaporation point. It is not easy to explain why, for instance, it is less subjectively "reasonable" to search a man's house when he is arrested on his front lawn - or just down the street - than it is when he happens to be in the house at the time of arrest. 10 As Mr. Justice Frankfurter put it: "To say that the search must be reasonable is to require some criterion of reason. It is no guide at all either for a jury or for district judges or the police to say that an `unreasonable search' is forbidden - that the search must be reasonable. What is the test of reason which makes a search reasonable? The test is the reason underlying and expressed by the Fourth Amendment: the history and the experience which it embodies and the safeguards afforded by it against the evils to which it was a response." United States v. Rabinowitz, 339 U.S., at 83 (dissenting opinion). Thus, although "[t]he recurring questions of the reasonableness of searches" depend upon "the facts and circumstances - the total atmosphere of the case," id., at 63, 66 (opinion of the Court), those facts and circumstances must be viewed in the light of established Fourth Amendment principles. [395 U.S. 752, 766] It would be possible, of course, to draw a line between Rabinowitz and Harris on the one hand, and this case on the other. For Rabinowitz involved a single room, and Harris a four-room apartment, while in the case before us an entire house was searched. But such a distinction would be highly artificial. The rationale that allowed the searches and seizures in Rabinowitz and Harris would allow the searches and seizures in this case. No consideration relevant to the Fourth Amendment suggests any point of rational limitation, once the search is allowed to go beyond the area from which the person arrested might obtain weapons or evidentiary items. 11 The only reasoned distinction is one between a search of the person arrested and the area within his reach on the one hand, and more extensive searches on the other. 12 [395 U.S. 752, 767] The petitioner correctly points out that one result of decisions such as Rabinowitz and Harris is to give law enforcement officials the opportunity to engage in searches not justified by probable cause, by the simple expedient of arranging to arrest suspects at home rather than elsewhere. We do not suggest that the petitioner is necessarily correct in his assertion that such a strategy was utilized here, 13 but the fact remains that had he been arrested earlier in the day, at his place of employment rather than at home, no search of his house could have been made without a search warrant. In any event, even apart from the possibility of such police tactics, the general point so forcefully made by Judge Learned Hand in United States v. Kirschenblatt, 16 F.2d 202, remains: "After arresting a man in his house, to rummage at will among his papers in search of whatever will convict him, appears to us to be indistinguishable from what might be done under a general warrant; indeed, the warrant would give more protection, for presumably it must be issued by a magistrate. True, by hypothesis the power would not exist, if the supposed offender were not found on the premises; [395 U.S. 752, 768] but it is small consolation to know that one's papers are safe only so long as one is not at home." Id., at 203. Rabinowitz and Harris have been the subject of critical commentary for many years, 14 and have been relied upon less and less in our own decisions. 15 It is time, for the reasons we have stated, to hold that on their own facts, and insofar as the principles they stand for are inconsistent with those that we have endorsed today, they are no longer to be followed. Application of sound Fourth Amendment principles to the facts of this case produces a clear result. The search here went far beyond the petitioner's person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him. There was no constitutional justification, in the absence of a search warrant, for extending the search beyond that area. The scope of the search was, therefore, "unreasonable" under the Fourth and Fourteenth Amendments, and the petitioner's conviction cannot stand. 16 Reversed.
SECOND DIVISION [G.R. No. 83260. April 18, 1990.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUAN DE LA CRUZ y GONZALES and REYNALDO BELTRAN y ANIBAN, accused-appellants. The Solicitor General for plaintiff-appellee. Augusto J. Salas for accused-appellants. SYLLABUS 1. CRIMINAL LAW; ENTRAPMENT; BUY-BUST OPERATION; EFFECTIVE MEANS OF APPREHENDING DRUG PEDDLER IN FLAGRANTE DELICTO. The Solicitor General explains that a buy-bust operation is the method employed by peace officers to trap and catch a malefactor in flagrante delicto. It is essentially a form of entrapment since the peace officer neither instigates nor induces the accused to commit a crime. Entrapment is the employment of such ways and means for the purpose of trapping or capturing a lawbreaker from whose mind the criminal intent originated. Oftentimes, it is the only effective way of apprehending a criminal in the act of the commission of the offense. 2. ID.; ID.; ID.; SEARCH WARRANT, NOT NECESSARY, RATIONALE; CONFISCATED ARTICLES, ADMISSIBLE IN EVIDENCE. While it is conceded that in a buy-bust operation, there is seizure of evidence from one's person without a search warrant, needless to state a search warrant is not necessary, the search being incident to a lawful arrest. A peace officer 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. It is a matter of judicial experience that in the arrest of violators of the Dangerous Drugs Act in a buy-bust operation, the malefactors were invariably caught red-handed. There being no violation of the constitutional right against unreasonable search and seizure, the confiscated articles are admissible in evidence. 3. REMEDIAL LAW; EVIDENCE; ABSENCE OF CIVILIAN WITNESS IN DRUG CASES; DOES NOT UNDERMINE THE CASE FOR PROSECUTION; RATIONALE. The absence of any civilian witness should not undermine the case for the prosecution. The natural reaction of a civilian to inhibit himself from being a witness to a crime is understandable. A criminal proceeding entails a lot of unavoidable inconveniences, aside from the time involved in attendance as a witness in investigations and hearings. Adding to this the inherent fear of reprisal, we have the natural reticence and abhorrence of most people to get involved in a criminal case. At any rate, the testimony of other witnesses in this case would only be cumulative or corroborative as they would only be repeating the facts already amply testified to by the government witnesses. Credence should be accorded to the prosecution's evidence more so as it consisted mainly of testimonies of policemen. Law enforcers are presumed to have regularly performed their duty in the absence of proof to the contrary. Appellant reproaches the prosecution for not presenting the civilian informer as a witness. It is settled that the non- presentation of a certain witness by the prosecution is not a sufficiently plausible defense. If the accused believes that the testimony of said witness is important to his cause, he should avail thereof, even by compulsory judicial process if necessary. Furthermore, the non-presentation of some prosecution witnesses does not detract from the prosecution's case, since the number of such witnesses who should be called to testify is addressed to the sound discretion of the prosecuting officers. 4. ID.; ID.; RECEIPT OF MARIJUANA FROM ACCUSED PREPARED AT THE SCENE OF THE CRIME; NEED NOT BE THE ORIGINAL COPY; CASE AT BAR. Appellant maintains that the court below should have rejected Exhibit E, which evidences the receipt of marijuana from appellant and which was prepared by Sgt. Vicente Jimenez, in the absence of the original receipt prepared at the scene of the crime by P/Pfc. Arcoy who was the poseur-buyer. We agree with the Solicitor General, since this is borne out by the records, that Exhibit E is actually based on, as it is merely a clearer copy of, the receipt prepared at the scene of the crime by P/Pfc. Arcoy. Since the draft receipt had to be prepared hurriedly at the scene in order that the accused could be brought to the Narcotics Command, such draft receipt was not clearly written, so Sgt. Vicente Jimenez mechanically transferred the written entries of P/Pfc. Arcoy into a more legible copy. Nonetheless, there is no dispute that Sgt. Jimenez, a member of the team, had personal knowledge of the facts set forth in both receipts, being an eyewitness to the events that had transpired. 5. ID.; ID.; NON-PRESENTATION OF MARKED MONEY, DOES NOT MILITATE AGAINST THE PROSECUTION'S CASE. The testimony of T/Sgt. Jaime Raposas, the team leader who gave P/Pfc. Arcoy the money to pay for the marijuana, is challenged in that he failed to identify the marked money utilized in the operation. Appellant insists that the marked money must be recorded, if not photographed, in order to be admissible as evidence. This is clutching at evidentiary and argumental straws. As found by the trial court, the money was in the possession of P/Pfc. Arcoy who had been assigned as the poseur-buyer. In the ensuing transaction, the foil of marijuana was handed to Arcoy by appellant and then Arcoy gave the money to accused Juan dela Cruz. Suffice it to say that even if the money given to De la Cruz was not presented in court, the same would not militate against the People's case. In fact, there was even no need to prove that the marked money was handed to the appellants in payment of the goods. The crime could have been consummated by the mere delivery of the prohibited drugs. What the law proscribes is not only the act of selling but also, albeit not limited to, the act of delivering. In the latter case, the act of knowingly passing a dangerous drug to another personally or otherwise, and by any means, with or without consideration, consummates the offense. 6. ID.; ID.; CREDIBILITY OF WITNESS; FINDINGS OF TRIAL COURT; GIVEN GREAT WEIGHT AND HIGHEST DEGREE OF RESPECT. On the trial court's rejection of the testimony of the alleged two disinterested witnesses for the defense, namely, Lolita Mendoza and Maribeth Manapat, we find no reason to disturb its ruling. We reiterate the time-honored principle that on the issue of which version to accept, the findings of the trial court on the credibility of witnesses are given great weight and the highest degree of respect by the appellate court. Subject to exceptions which do not obtain in the present case, the trial court is in a better position to decide this question, having seen and heard the witnesses themselves and observed their deportment and manner of testifying during the trial. 7. ID.; ID.; ID.; ACCUSED MUST PROVE THAT THE WITNESS WAS PROMPTED BY EVIL MOTIVE IN TESTIFYING AGAINST HIM. Appellant imputes insidious motives on the part of the military to manufacture evidence, theorizing that a buy-bust operation is for the purpose either of extorting money or, in line with alleged internal policies, complying with a quota of arrests. These are bare unsupported allegations. From the evidence of record, we find no reason why the prosecution witnesses should fabricate their testimonies and implicate appellant in such a serious crime. The defense has not established any cogent motive for the police officers to falsely charge the accused with peddling marijuana. As found by the trial court, there is not even a breath, much less an accusation by the defense, that the military and police personnel involved were indeed engaged in such nefarious activities. D E C I S I O N REGALADO, J p: Accused-appellant Juan de la Cruz y Gonzales and his co-accused Reynaldo Beltran y Aniban were charged in Criminal Case No. 87- 54417 of the Regional Trial Court of Manila with violation of Section 4, Art. II, in relation to Section 21, Article IV of Republic Act No. 6425, as amended, in an information which reads: "That on or about May 4, 1987, in the City of Manila, Philippines, the said accused, conspiring and confederating together and mutually helping each other, not being authorized by law to sell, deliver, give away to another or distribute any prohibited drug, did then and there wilfully, unlawfully, and knowingly sell, deliver or give away to another the following: 1. One (1) cigarette foil wrapper containing marijuana; 2. Two (2) cigarette foil wrapper (sic) containing marijuana which are prohibited drugs. "Contrary to law." 1 The accused, who were assisted by a counsel de oficio, pleaded not guilty when arraigned on May 26, 1987. On August 18, 1987, trial on the merits started, with the prosecution thereafter presenting as its witnesses P/Pfc. Adolfo Arcoy, P/Capt. Luena Layador, T/Sgt. Jaime Raposas, Sgt. Vicente Jimenez, and S/Sgt. Armando Isidro. On its part, the defense presented both accused, Lolita Mendoza and Maribeth Manapat as its witnesses. The court a quo, in a comparative evaluation of evidence, painstakingly summarized the clashing factual versions of the prosecution and defense, as follows: ". . . On its part, the prosecution alleged that after receiving a confidential report from Arnel, their informant, a 'buy-bust' operation was conducted by the 13th Narcotics Regional Unit through a team composed of T/Sgt. Jaime Raposas as Team Leader, S/Sgt. Rodelito Obice, Sgt. Dante Yang, Sgt. Vicente Jimenez, P/Pfc. Adolfo Arcoy as poseur-buyer and Pat. Deogracias Gorgonia at Maliclic St., Tondo, Manila at around 2:30 o'clock in the afternoon of May 4, 1987 to catch the pusher/s. P/Pfc. Adolfo Arcoy acted as the poseur-buyer with Arnel as his companion to buy marijuana worth P10.00 from the two accused, Juan de la Cruz and Reynaldo Beltran. At the scene, it was Juan de la Cruz whom Arcoy first negotiated (with) on the purchase and when Arcoy told De la Cruz that he was buying P10.00 worth of marijuana, De la Cruz instructed Reynaldo Beltran to give one aluminum foil of marijuana which Beltran got from his pants' pocket and delivered it to Arcoy. After ascertaining that the foil of suspected marijuana was really marijuana, Arcoy gave the prearranged signal to his teammates by scratching his head and his teammates who were strategically positioned in the vicinity, converged at the place, identified themselves as NARCOM agents and effected the arrest of De la Cruz and Beltran. The P10.00 marked bill (Exhibit C-1) used by Arcoy was found in the possession of Juan de la Cruz together with two aluminum foils and containing marijuana (Exhibits 'B-2' and 'B-3'). "Traversing this version is that of the defense which, in brief, consists of a denial to (sic) the prosecution's theory and the claim that accused Juan de la Cruz, who was then suffering from loose bowel movement, was all the time in bed at their place at 3034 Maliclic St., Tondo, Manila; that he never left their place throughout that day of May 4, 1987; that he never had a visitor on that day and that he was never engaged in the sale of marijuana. The NARCOM agents raided his place without search warrant or without first securing his previous permission. One searched thoroughly his place, the second acted as a guard posted at the door of De la Cruz' place and the third agent was a mere observer. His place was ransacked and he was even bodily searched. As regards accused Reynaldo Beltran, he was arrested by the same group (prior to the arrest of Juan de la Cruz) while he was playing 'pool' at Aling Ely's place along Maliclic St. that afternoon and that without much ado, he was taken because he was fingered by one Arnel to be engaged in selling marijuana. Both accused were brought to a parked vehicle of the raiding team. From there, they were taken to NARCOM headquarters for investigation where for the first time they came to know that they were being charged of selling marijuana." 2 Finding the version of the prosecution more worthy of credit, the court a quo rendered its decision 3 on March 15, 1988, the decretal portion of which states: "WHEREFORE, in the light of the foregoing consideration, the Court finds the accused, JUAN DE LA CRUZ y GONZALES and REYNALDO BELTRAN y ANIBAN, guilty beyond reasonable doubt of the Violation of Section 4, Article II, in relation to Section 21, Article IV, both of Republic Act No. 6425, otherwise known as Dangerous Drugs Act of 1972, as further amended by Presidential Decree No. 1675 and as charged in the Information, and, accordingly, hereby sentences each of them to suffer the penalty of reclusion perpetua, with the accessory penalties provided by law; to pay a fine of TWENTY THOUSAND (P20,000.00) PESOS, Philippine currency, without subsidiary imprisonment in case of insolvency, and each to pay one-half of the costs. "The three (3) aluminum foils containing marijuana (Exhibits 'B-2' to 'B-4') placed in an empty Marlboro pack (Exhibit 'B-1') are hereby ordered confiscated and forfeited in favor of the government and once this Decision shall become final and executory, the same shall be turned over to the Dangerous Drugs Board through the Director, National Bureau of Investigation, Manila, for proper disposition while the P10.00 bill (Exhibit 'C-1') bearing Serial No. F-215962 shall be returned to T/Sgt. Jaime Raposas. "Furnish copy of this Decision to the Honorable Supreme Court through the Honorable Court Administrator." 4 From this decision, accused Juan de la Cruz y Gonzales and co- accused Reynaldo Beltran y Aniban interposed the instant appeal. In a letter of the Warden, Manila City Jail, dated March 3, 1989, 5 the Court was informed of the death of accused-appellant Juan de la Cruz y Gonzales on February 21, 1989. Counsel de oficio having thereafter submitted a certified true copy of the death certificate of the accused, 6 as directed by the Court, the criminal case against said accused-appellant was dismissed in our resolution of September 25, 1989. 7 The present appellate proceeding is, therefore, limited only to appellant Reynaldo Beltran y Aniban who now faults the trial court with the following assignment of errors: prLL 1. The Buy-Bust Operation being done to enforce Republic Act 6425 is unconstitutional and any evidence acquired under such method should not be admissible in court. 2. The Buy-Bust Operation should be declared illegal for it breeds corruption of police and military officers through planting of evidence for purposes of extortion. 3. The Court erred in giving probable value to the confiscated marijuana sticks despite the fact that no civilian or other neutral person signed as a witness to its taking. If it were true, there must be at least one civic-minded citizen who could easily be convinced by the police to witness it. 4. The Court erred in considering the evidence, Exhibits "B-2," "B-3" and "B-4", as the very once confiscated. If they were the very ones taken from the accused, the original receipt prepared at the scene of the crime would not have been thrown away by the very agent who acted as the buyer. Exhibit "E" should have been given no probative value for having been executed by someone who did not actually confiscate the marijuana. 5. The Court erred in giving probative value to the Buy-Bust Operation when even the alleged marked money utilized in the operation could not be Identified by the leader, T/Sgt. Jaime Raposas. 6. The Court erred in not giving value to the testimony of the two disinterested witnesses for the defense, namely, Lolita Mendoza and Maribeth Manapat, whose testimony corroborated substantially that of the accused. 7. The Court erred in concluding that there was no motive for the military to manufacture evidence. It is common knowledge that apprehensions of this kind are made to fill up a quota of arrest in cases handled to comply with standard operating procedure and efficiency reports. 8 We affirm the judgment of conviction. Appellant assails, unconstitutional, the manner in which the so-called buy-bust operation is conducted in order to enforce the Dangerous Drugs Act. He stigmatizes it as no different from seizure of evidence from one's person or abode without a search warrant. He argues that this procedure is pregnant with opportunities, and gives rise to situations, for corrupting our law enforcers. We are not unmindful of the fact that the common modus operandi of narcotic agents in utilizing poseur-buyers does not always commend itself as the most reliable way to go after violators of the Dangerous Drugs Act as it is susceptible of mistakes as well as harassment, extortion and abuse. 9 By the very nature of this anti-narcotics operation, the possibility of abuse is great. 10 We are not, however, inclined to shackle the hands of narcotics agents whose task, as it is, is already formidable and attended with great risk, lest their dedicated efforts for the apprehension and successful prosecution of prohibited drug violators be unduly hampered. The proliferation of drug addiction and trafficking has already reached an alarming level and has spawned a network of incorrigible, cunning and dangerous operations. Our experience has proven entrapment to be an effective means of apprehending drug peddlers as exemplified by this case. The Solicitor General explains that a buy-bust operation is the method employed by peace officers to trap and catch a malefactor in flagrante delicto. It is essentially a form of entrapment since the peace officer neither instigates nor induces the accused to commit a crime. 11 Entrapment is the employment of such ways and means for the purpose of trapping or capturing a lawbreaker from whose mind the criminal intent originated. Oftentimes, it is the only effective way of apprehending a criminal in the act of the commission of the offense. 12 While it is conceded that in a buy-bust operation, there is seizure of evidence from one's person without a search warrant, needless to state a search warrant is not necessary, the search being incident to a lawful arrest. 13 A peace officer 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. 14 It is a matter of judicial experience that in the arrest of violators of the Dangerous Drugs Act in a buy-bust operation, the malefactors were invariably caught red-handed. 15 There being no violation of the constitutional right against unreasonable search and seizure, the confiscated articles are admissible in evidence. prLL Appellant castigates the prosecution for not having presented any civilian or other neutral person who could attest that the foils of marijuana were indeed confiscated from him. The absence of any civilian witness should not undermine the case for the prosecution. The natural reaction of a civilian to inhibit himself from being a witness to a crime is understandable. A criminal proceeding entails a lot of unavoidable inconveniences, aside from the time involved in attendance as a witness in investigations and hearings. Adding to this the inherent fear of reprisal, we have the natural reticence and abhorrence of most people to get involved in a criminal case. At any rate, the testimony of other witnesses in this case would only be cumulative or corroborative as they would only be repeating the facts already amply testified to by the government witnesses. Credence should be accorded to the prosecution's evidence more so as it consisted mainly of testimonies of policemen. Law enforcers are presumed to have regularly performed their duty in the absence of proof to the contrary. 16 Appellant maintains that the court below should have rejected Exhibit E, which evidences the receipt of marijuana from appellant and which was prepared by Sgt. Vicente Jimenez, in the absence of the original receipt prepared at the scene of the crime by P/Pfc. Arcoy who was the poseur-buyer. We agree with the Solicitor General, since this is borne out by the records, that Exhibit E is actually based on, as it is merely a clearer copy of, the receipt prepared at the scene of the crime by P/Pfc. Arcoy. Since the draft receipt had to be prepared hurriedly at the scene in order that the accused could be brought to the Narcotics Command, such draft receipt was not clearly written, so Sgt. Vicente Jimenez mechanically transferred the written entries of P/Pfc. Arcoy into a more legible copy. 17 Nonetheless, there is no dispute that Sgt. Jimenez, a member of the team, had personal knowledge of the facts set forth in both receipts, being an eyewitness to the events that had transpired. LexLib The testimony of T/Sgt. Jaime Raposas, the team leader who gave P/Pfc. Arcoy the money to pay for the marijuana, is challenged in that he failed to identify the marked money utilized in the operation. Appellant insists that the marked money must be recorded, if not photographed, in order to be admissible as evidence. This is clutching at evidentiary and argumental straws. As found by the trial court, the money was in the possession of P/Pfc. Arcoy who had been assigned as the poseur-buyer. In the ensuing transaction, the foil of marijuana was handed to Arcoy by appellant and then Arcoy gave the money to accused Juan dela Cruz. 18 Suffice it to say that even if the money given to De la Cruz was not presented in court, the same would not militate against the People's case. 19 In fact, there was even no need to prove that the marked money was handed to the appellants in payment of the goods. The crime could have been consummated by the mere delivery of the prohibited drugs. What the law proscribes is not only the act of selling but also, albeit not limited to, the act of delivering. In the latter case, the act of knowingly passing a dangerous drug to another personally or otherwise, and by any means, with or without consideration, consummates the offense. 20 On the trial court's rejection of the testimony of the alleged two disinterested witnesses for the defense, namely, Lolita Mendoza and Maribeth Manapat, we find no reason to disturb its ruling. We reiterate the time-honored principle that on the issue of which version to accept, the findings of the trial court on the credibility of witnesses are given great weight and the highest degree of respect by the appellate court. Subject to exceptions which do not obtain in the present case, the trial court is in a better position to decide this question, having seen and heard the witnesses themselves and observed their deportment and manner of testifying during the trial. 21 Appellant imputes insidious motives on the part of the military to manufacture evidence, theorizing that a buy-bust operation is for the purpose either of extorting money or, in line with alleged internal policies, complying with a quota of arrests. 22 These are bare unsupported allegations. From the evidence of record, we find no reason why the prosecution witnesses should fabricate their testimonies and implicate appellant in such a serious crime. The defense has not established any cogent motive for the police officers to falsely charge the accused with peddling marijuana. As found by the trial court, there is not even a breath, much less an accusation by the defense, that the military and police personnel involved were indeed engaged in such nefarious activities. 23 Finally, appellant reproaches the prosecution for not presenting the civilian informer as a witness. 24 It is settled that the non- presentation of a certain witness by the prosecution is not a sufficiently plausible defense. If the accused believes that the testimony of said witness is important to his cause, he should avail thereof, even by compulsory judicial process if necessary. Furthermore, the non-presentation of some prosecution witnesses does not detract from the prosecution's case, since the number of such witnesses who should be called to testify is addressed to the sound discretion of the prosecuting officers. 25 WHEREFORE, the judgment of the Regional Trial Court of Manila in Criminal Case No. 87-54417, insofar as accused-appellant Reynaldo Beltran y Aniban is concerned, is hereby AFFIRMED. SO ORDERED. Melencio-Herrera, Paras, Padilla and Sarmiento, JJ., concur. FIRST DIVISION [G.R. No. 84079. May 6, 1991.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NESTOR KALUBIRAN, accused-appellant. The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; FACTUAL FINDINGS OF TRIAL JUDGE; ACCORDED WITH RESPECT BY APPELLATE COURT. This Court places much reliance upon the factual findings of the trial judge who has the advantages of directly observing the witnesses on the stand and to gauge by their demeanor whether they are being true to their oath or lying in their teeth. Such an opportunity is not available to the appellate judge, who must depend on the inanimate record that cannot reveal the tell-tale signs by which the truth may be discerned and the falsehood exposed. Lacking any showing of arbitrariness and there is none in the case at bar such findings of the trial court cannot be faulted by this Court. 2. ID.; ID.; CREDIBILITY OF WITNESS' TESTIMONY; NOT AFFECTED BY MINOR INCONSISTENCIES. There are some inconsistencies in the testimonies of the prosecution witnesses but we do not find them substantial enough to impair the essential veracity of their narration of Kalubiran's arrest as it actually happened. We have said often enough that such imperfections may in fact bolster rather than emasculate a person's credibility as one cannot be expected to remember a particular incident with unerring accuracy in every minute detail. 3. ID.; ID.; SALE OF PROHIBITED DRUGS; MAY TAKE PLACE IN PUBLIC PLACE AND IN PUBLIC VIEW. The defense argues that Kalubiran would not have sold marijuana at a public place and in plain view of the people as this would be contrary to human nature and caution. We are not impressed. The people he was with at the time were his own group, friends who were probably aware of his unlawful trade and did not care much what he did. Moreover, it is to be expected that he did not sell the marijuana openly or with reckless fanfare but with appropriate furtiveness, as befitted his shameful trade. At any rate, we have already observed in People vs. Paco that: Drug-pushing when done on a small level as in this case belongs to that class of crimes that may be committed at anytime and at any place. After the offer to buy is accepted and the exchange is made, the illegal transaction is completed in a few minutes. The fact that the parties are in a public place and in the presence of other people may not always discourage them from pursuing their illegal trade as these factors may even serve to camouflage the same. Hence, the Court has sustained the conviction of drug pushers caught selling illegal drugs in a billiard hall (People vs. Rubio, G.R. No. 66875, June 19, 1986, 142 SCRA 329, and other cases). 4. ID.; ID.; ID.; MARKED MONEY PAID TO SELLER; SUFFICIENTLY IDENTIFIED IN CASE AT BAR. The argument that the marijuana and the marked money were not sufficiently identified must also be rejected. The exhibits were placed in a steel cabinet by Villamor for safekeeping before he personally took the marijuana to the PC Crime Laboratory for examination. It was also Villamor who had also earlier initiated the P5.00 bill and later identified it at the trial as the money paid to the accused- appellant in exchange for the two sticks of marijuana. 5. CONSTITUTIONAL LAW; BILL OF RIGHTS; WARRANTLESS ARREST LAWFUL IN CASE AT BAR. The defense posture that Kalubiran's arrest and search violated the Bill of Rights demonstrates an unfamiliarity with the applicable rules and jurisprudence. The accused-appellant was arrested in flagrante delicto as a result of the entrapment and so came under Section 5, Rule 113 of the Rules of Court, authorizing a warrantless arrest of any person actually committing a crime. The search was made as an incident of a lawful arrest and so was also lawful under Section 12 of Rule 116. In addition to the aforecited Rules, there is abundant jurisprudence justifying warrantless searches and seizures under the conditions established in this case. 6. ID.; ID.; PRESUMPTION OF INNOCENCE; MAY BE OVERCOME WITH OVERWHELMING EVIDENCE ESTABLISHING THE GUILT OF THE ACCUSED. It is futile for Kalubiran to invoke the constitutional presumption of innocence because it has been overcome with overwhelming evidence establishing his guilt. His defense is not only weak; what is worse for him is that the prosecution is clearly strong and has proved his offense beyond the whisper of a doubt. D E C I S I O N CRUZ, J p: The accused-appellant is questioning his conviction by the Regional Trial Court of Dumaguete City of selling marijuana in violation of the Dangerous Drugs Act. He contends that the trial court erred in giving credence to the evidence of the prosecution, in violating his constitutional rights against unreasonable searches and seizures, and in not according him the presumption of innocence. Nestor Kalubiran was arrested on July 12, 1985, at about nine o'clock in the evening, at Real Street in Dumaguete City, by elements of the Narcotics Command stationed in that city. His arrest was the result of a "buy-bust" operation in which Pat. Leon Quindo acted as the buyer while the other team members lay in wait to arrest Kalubiran at the pre-arranged signal. Quindo approached the accused-appellant, who was with a group of friends in front of the Gamo Memorial Clinic, and asked if he could "score," the jargon for buying marijuana. Kalubiran immediately produced two sticks of marijuana, for which Quindo paid him a previously marked P5.00 bill. Quindo then gave the signal and Cpl. Levi Dorado approached and arrested Kalubiran. Dorado frisked the accused-appellant. He recovered the marked money and found 17 more sticks of marijuana on Kalubiran's person. The other team members, namely M/Sgt. Ranulfo Villamor and Sgt. Ruben Laddaran, came later in a jeep, where they boarded Kalubiran to take him to the police station. The 19 sticks of marijuana were marked and then taken to the PC Crime Laboratory, where they were analyzed, with positive results, as reported and later testified on by Forensic Chemist Myrna Arreola. The above-named Narcotics agents all testified and corroborated each other in narrating the "buy-bust" operation. As might be expected, the defense had a different version of the accused-appellant's arrest. Kalubiran said he and his friends were in front of the Gamo Memorial Clinic that evening of July 12, 1985, when a jeep stopped in front of them and several persons alighted. One of them whom he subsequently identified as Quindo approached and frisked him. Finding nothing on him, Quindo went back to the jeep, and he for his part left for his house. However, he was called back by another person he later came to know as Villamor. He was told at gun point to board the jeep and taken to PC headquarters, then to the police station. He was released the following day with the help of a lawyer his girl friend, Norma Diez, had contacted. He denied having sold marijuana and insisted that the 19 sticks of marijuana and the marked bill never came from him. llcd Norma Diez corroborated Kalubiran. So did the other defense witness, Bob Reloj, except that he testified he was also frisked and likewise taken to PC headquarters and later to the police station, where he and Kalubiran were detained for three days. After examining and evaluating the evidence of the parties, Judge Enrique C. Garrovillo found in favor of the prosecution, declared Kalubiran guilty as charged, and sentenced him to life imprisonment plus a P20,000.00 fine and the costs. It is from this judgment that Kalubiran has filed this appeal. This Court places much reliance upon the factual findings of the trial judge who has the advantages of directly observing the witnesses on the stand and to gauge by their demeanor whether they are being true to their oath or lying in their teeth. Such an opportunity is not available to the appellate judge, who must depend on the inanimate record that cannot reveal the tell-tale signs by which the truth may be discerned and the falsehood exposed. Lacking any showing of arbitrariness and there is none in the case at bar such findings of the trial court cannot be faulted by this Court. There are indeed some inconsistencies in the testimonies of the prosecution witnesses but we do not find them substantial enough to impair the essential veracity of their narration of Kalubiran's arrest as it actually happened. We have said often enough that such imperfections may in fact bolster rather than emasculate a person's credibility as one cannot be expected to remember a particular incident with unerring accuracy in every minute detail. It is the defense evidence that in fact suffers from the defects it would impute to the prosecution. While it has not been shown that the Narcotics agents were acting with ulterior motives rather than merely pursuing their duties, Norma Diez's testimony is reasonably suspect as she is the girl friend of Kalubiran and can be expected to be loyal to him, to the point of even lying for him. As for Reloj, his inconsistency with Kalubiran's testimony is not merely insignificant but loudly proclaims its own falsity. It is noted that Reloj said he was also arrested with the accused-appellant and the two of them were detained at the police station for three days. The accused-appellant said he was the only one arrested and that he was released the following morning. The defense argues that Kalubiran would not have sold marijuana at a public place and in plain view of the people as this would be contrary to human nature and caution. We are not impressed. The people he was with at the time were his own group, friends who were probably aware of his unlawful trade and did not care much what he did. Moreover, it is to be expected that he did not sell the marijuana openly or with reckless fanfare but with appropriate furtiveness, as befitted his shameful trade. LexLib At any rate, we have already observed in People vs. Paco 1 that: Drug-pushing when done on a small level as in this case belongs to that class of crimes that may be committed at anytime and at any place. After the offer to buy is accepted and the exchange is made, the illegal transaction is completed in a few minutes. The fact that the parties are in a public place and in the presence of other people may not always discourage them from pursuing their illegal trade as these factors may even serve to camouflage the same. Hence, the Court has sustained the conviction of drug pushers caught selling illegal drugs in a billiard hall (People vs. Rubio, G.R. No. 66875, June 19, 1986, 142 SCRA 329; People vs. Sarmiento, G.R. No. 72141, January 12, 1987, 147 SCRA 252), in front of a store (People vs. Khan, supra) along a street at 1:45 p.m. (People vs. Toledo, G.R. No. 67609, November 22, 1985, 140 SCRA 259), and in front of a house (People vs. Policarpio, G.R. No. 69844, February 23, 1988). The defense posture that Kalubiran's arrest and search violated the Bill of Rights demonstrates an unfamiliarity with the applicable rules and jurisprudence. The accused-appellant was arrested in flagrante delicto as a result of the entrapment and so came under Section 5, Rule 113 of the Rules of Court, authorizing a warrantless arrest of any person actually committing a crime. The search was made as an incident of a lawful arrest and so was also lawful under Section 12 of Rule 116. In addition to the aforecited Rules, there is abundant jurisprudence justifying warrantless searches and seizures under the conditions established in this case. 2 The argument that the marijuana and the marked money were not sufficiently identified must also be rejected. The exhibits were placed in a steel cabinet by Villamor for safekeeping before he personally took the marijuana to the PC Crime Laboratory for examination. It was also Villamor who had also earlier initiated the P5.00 bill and later identified it at the trial as the money paid to the accused- appellant in exchange for the two sticks of marijuana. The Court notes that Kalubiran was accused only of selling the two sticks of marijuana under Section 4 of the Dangerous Drugs Act when he should also have been charged with possession of the 17 other sticks found on his person at the time of his arrest. It is unfortunate that he cannot be held to answer for the second offense because he has not been impleaded in a separate information for violation of Section 8 of the said law. It is futile for Kalubiran to invoke the constitutional presumption of innocence because it has been overcome with overwhelming evidence establishing his guilt. His defense is not only weak; what is worse for him is that the prosecution is clearly strong and has proved his offense beyond the whisper of a doubt. cdll Persons like the accused-appellant deserve the severe sanctions of the law for the misery they spread among our people, especially the youth, many of whom have forfeited their future because of the evil influence of drugs. The strong arm of the law must never weaken against the onslaughts of this terrible affliction. WHEREFORE, the appealed judgment is AFFIRMED in toto. SO ORDERED. Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., concur. EN BANC [G.R. No. 91107. June 19, 1991.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MIKAEL MALMSTEDT, * defendant-appellant. The Solicitor General for plaintiff-appellee. Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for defendant-appellant. D E C I S I O N 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 The group composed of seven (7) NARCOM officers, in coordination with Tublay Police Station, set up a checkpoint at the designated area at about 10:00 o'clock in the morning and inspected all vehicles coming from the Cordillera Region. At about 1:30 o'clock in the afternoon, the bus where accused was riding was stopped. Sgt. Fider and CIC Galutan boarded the bus and announced that they were members of the NARCOM and that they would conduct an inspection. The two (2) NARCOM officers started their inspection from the front going towards the rear of the bus. Accused who was the sole foreigner riding the bus was seated at the rear thereof. During the inspection, CIC Galutan noticed a bulge on accused's waist. Suspecting the bulge on accused's waist to be a gun, the officer asked for accused's passport and other identification papers. When accused failed to comply, the officer required him to bring out whatever it was that was bulging on his waist. The bulging object turned out to be a pouch bag and when accused opened the same bag, as ordered, the officer noticed four (4) suspicious-looking objects wrapped in brown packing tape, prompting the officer to open one of the wrapped objects. The wrapped objects turned out to contain hashish, a derivative of marijuana. Thereafter, accused was invited outside the bus for questioning. But before he alighted from the bus, accused stopped to get two (2) travelling bags from the luggage carrier. Upon stepping out of the bus, the officers got the bags and opened them. A teddy bear was found in each bag. Feeling the teddy bears, the officer noticed that there were bulges inside the same which did not feel like foam stuffing. It was only after the officers had opened the bags that accused finally presented his passport. Accused was then brought to the headquarters of the NARCOM at Camp Dangwa, La Trinidad, Benguet for further investigation. At the investigation room, the officers opened the teddy bears and they were found to also contain hashish. Representative samples were taken from the hashish found among the personal effects of accused and the same were brought to the PC Crime Laboratory for chemical analysis. In the chemistry report, it was established that the objects examined were hashish, a prohibited drug which is a derivative of marijuana. Thus, an information was filed against accused for violation of the Dangerous Drugs Act. During the arraignment, accused entered a plea of "not guilty." For his defense, he raised the issue of illegal search of his personal effects. He also claimed that the hashish was planted by the NARCOM officers in his pouch bag and that the two (2) travelling bags were not owned by him, but were merely entrusted to him by an Australian couple whom he met in Sagada. He further claimed that the Australian couple intended to take the same bus with him but because there were no more seats available in said bus, they decided to take the next ride and asked accused to take charge of the bags, and that they would meet each other at the Dangwa Station. Likewise, accused alleged that when the NARCOM officers demanded for his passport and other identification papers, he handed to one of the officers his pouch bag which was hanging on his neck containing, among others, his passport, return ticket to Sweden and other papers. The officer in turn handed it to his companion who brought the bag outside the bus. When said officer came back, he charged the accused that there was hashish in the bag. He was told to get off the bus and his picture was taken with the pouch bag placed around his neck. The trial court did not give credence to accused's defense. LibLex 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 II 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 425, as amended. SO ORDERED." 4 Seeking the reversal of the decision of the trial court finding him guilty of the crime charged, accused argues that the search of his personal effects was illegal because it was made without a search warrant and, therefore, the prohibited drugs which were discovered during the illegal search are not admissible as evidence against him. The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. 5 However, where the search is made pursuant to a lawful arrest, there is no need to obtain a search warrant. A lawful arrest without a warrant may be made by a peace officer or a private person under the following circumstances. 6 "SEC. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. (6a, 17a)." Accused was searched and arrested while transporting prohibited drugs (hashish). A crime was actually being committed by the accused and he was caught in flagrante delicto. Thus, the search made upon his personal effects falls squarely under paragraph (1) of the foregoing provisions of law, which allow a warrantless search incident to a lawful arrest. 7 While it is true that the NARCOM officers were not armed with a search warrant when the search was made over the personal effects of accused, however, under the circumstances of the case, there was sufficient probable cause for said officers to believe that accused was then and there committing a crime. LLphil 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, 10 or where the accused was acting suspiciously, 11 and attempted to flee. 12 Aside from the persistent reports received by the NARCOM that vehicles coming from Sagada were transporting marijuana and other prohibited drugs, their Commanding Officer also received information that a Caucasian coming from Sagada on that particular day had prohibited drugs in his possession. Said information was received by the Commanding Officer of NARCOM the very same morning that accused came down by bus from Sagada on his way to Baguio City. When NARCOM received the information, a few hours before the apprehension of herein accused, that a Caucasian travelling from Sagada to Baguio City was carrying with him prohibited drugs, there was no time to obtain a search warrant. In the Tangliben case, 13 the police authorities conducted a surveillance at the Victory Liner Terminal located at Bgy. San Nicolas, San Fernando Pampanga, against persons engaged in the traffic of dangerous drugs, based on information supplied by some informers. Accused Tangliben who was acting suspiciously and pointed out by an informer was apprehended and searched by the police authorities. It was held that when faced with on-the spot information, the police officers had to act quickly and there was no time to secure a search warrant. It must be observed that, at first, the NARCOM officers merely conducted a routine check of the bus (where accused was riding) and the passengers therein, and no extensive search was initially made. It was only when one of the officers noticed a bulge on the waist of accused, during the course of the inspection, that accused was required to present his passport. The failure of accused to present his identification papers, when ordered to do so, only managed to arouse the suspicion of the officer that accused was trying to hide his identity. For is it not a regular norm for an innocent man, who has nothing to hide from the authorities, to readily present his identification papers when required to do so? The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession, plus the suspicious failure of the accused to produce his passport, taken together as a whole, led the NARCOM officers to reasonably believe that the accused was trying to hide something illegal from the authorities. From these circumstances arose a probable cause which justified the warrantless search that was made on the personal effects of the accused. In other words, the acts of the NARCOM officers in requiring the accused to open his pouch bag and in opening one of the wrapped objects found inside said bag (which was discovered to contain hashish) as well as the two (2) travelling bags containing two (2) teddy bears with hashish stuffed inside them, were prompted by accused's own attempt to hide his identity by refusing to present his passport, and by the information received by the NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession. To deprive the NARCOM agents of the ability and facility to act accordingly, including, to search even without warrant, in the light of such circumstances, would be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society. WHEREFORE, premises considered, the appealed judgment of conviction by the trial court is hereby AFFIRMED. Costs against the accused-appellant. SO ORDERED. Melencio-Herrera, Paras, Feliciano, Bidin, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur. Sarmiento, J., is on leave. THIRD DIVISION [G.R. No. 120431. April 1, 1998.] RODOLFO ESPANO, accused-petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. Ceferino Padua Law Office for petitioner. The Solicitor General for respondents. SYNOPSIS This is a petition for review of the decision of the court of Appeals in CA G.R. CR No. 13976 dated January 16, 1995 which affirmed in toto the judgment of the Regional Trial Court of Manila, Branch 1, convicting petitioner Rodolfo Espano for violation of Article II Section 8 of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972. The records of the case reveal that herein petitioner was caught in possession of and under his custody twelve plastic cellophane bags weighing 5.5 grams containing crushed flowering tops, marijuana which is a prohibited drug. In his appeal before the Supreme Court, petitioner contends that the trial and appellate courts erred in convicting him because (1) the pieces of evidence seized were inadmissible; (2) the superiority of his constitutional right to be presumed innocent over the doctrine of presumption of regularity; (3) he was denied the constitutional right of confrontation and to compulsory process; and (4) his conviction was based on evidence which was irrelevant and not properly identified. CIScaA The Supreme Court finds that there was no compelling reason to reverse the decisions of the trial and appellate courts. In this case, the findings of the trial court that the prosecution witnesses were more credible than those of the defense must stand. Petitioner failed to show that Pat. Romeo Pagilagan, in testifying against him, was motivated by reasons other than his duty to curb drug abuse and had any intent to falsely impute to him such a serious crime as possession of prohibited drugs. In the absence of such ill motive, the presumption of regularity in the performance of his official duty must prevail. Furthermore, the defense of alibi set up by petitioner deserved scant consideration. He simply contended that he was in his house sleeping at the time of the incident. Lastly, the two cellophane bags of marijuana seized were admissible in evidence because he was caught in flagranti as a result of a buy-bust operation conducted by police officers. However, as for the other ten cellophane bags of marijuana found at petitioner's residence, the same are inadmissible in evidence considering that the said bags were seized at petitioner's house after his arrest, hence, do not fall under the exceptions provided under Article III, Section 2 of the 1987 Constitution. In view thereof, the instant petition is denied and the challenged decision is affirmed with modification as to the penalty. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; FINDINGS OF TRIAL COURTS ON THE CREDIBILITY OF WITNESSES DESERVE A HIGH DEGREE OF RESPECT; CASE AT BAR. It is a well-settled doctrine that findings of trial courts on the credibility of witness deserve a high degree of respect. Having observed the deportment of witnesses during the trial, the trial judge is in a better position to determine the issue of credibility and, thus, his findings will not be disturbed during appeal in the absence of any clear and showing that he had overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which could have altered the conviction of the appellants. In this case, the findings of the trial court that the prosecution witnesses were more credible that those of the defense must stand. Petitioner failed to show that Pat. Pagilagan, in testifying against him, was motivated by reasons other than his duty to curb drug abuse and had any intent to falsely impute to him such a serious crime as possession of prohibited drugs. In the absence of such ill motive, the presumption of regularity in the performance of his official duty must prevail. 2. ID.; ID.; ID.; CLAIM OF FRAME-UP, LIKE ALIBI, IS A DEFENSE THAT HAS BEEN INVARIABLY VIEWED BY THE COURT WITH DISFAVOR; CASE AT BAR. The defense set up by petitioner does not deserve any consideration. He simply contended that he was in his house sleeping at the time of the incident. This court has consistently held that alibi is the weakest of all defenses; and for it to prosper, the accused has the burden of proving that he was not at the scene of the crime at the time of its commission and that it was physically impossible for him to be there. Moreover, the "claim of 'frame-up,' like alibi, is a defense that has been invariably viewed by the Court with disfavor for it can just as easily be concocted but difficult to prove, and is a common and standard line of defense in most prosecutions arising from violations of the Dangerous Drugs Act." No clear and convincing evidence was presented by petitioner to prove his defense of alibi. 3. ID.; CRIMINAL PROCEDURE; WARRANTLESS ARREST; THE MARIJUANA SEIZED FROM PETITIONER'S HOUSE AFTER HIS ARREST IS INADMISSIBLE IN EVIDENCE; CASE AT BAR. The 1987 Constitution guarantees freedom against unreasonable searches and seizures under Article III, Section 2 which provides: "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized." An exception to the said rule is a warrantless search incidental to a lawful arrest of dangerous weapons or anything which may be used as proof of the commission of an offense. It may extend beyond the person of the one arrested to include the premises or surroundings under his immediate control. In this case, the ten cellophane bags of marijuana seized at petitioner's house after his arrest at Pandacan and Zamora Streets do not fall under the said exceptions. . . . The articles seized from petitioner during his arrest were valid under the doctrine of search made incidental to a lawful arrest. The warrantless search made in his house, however, which yielded ten cellophane bags of marijuana became unlawful since the police officers were not armed with a search warrant at the time. Moreover, it was beyond the reach and control of petitioner. HTScEI 4. CRIMINAL LAW; REPUBLIC ACT NO. 6425 AS AMENDED BY REPUBLIC ACT 7659; IF THE QUANTITY OF MARIJUANA INVOLVED IS LESS THAN 750 GRAMS, THE IMPOSABLE PENALTY RANGES FROM PRISION CORRECCIONAL TO RECLUSION TEMPORAL; CASE AT BAR. This Court finds petitioner Rodolfo Espano guilty beyond reasonable doubt of violating Article II, Section 8, in relation to Section 2 (e-L)(I) of Republic Act No. 6425, as amended. Under the said provision, the penalty imposed is six years and one day to twelve years and a fine ranging from six thousand to twelve thousand pesos. With the passage of Republic Act No. 7659, which took effect on December 31, 1993, the imposable penalty shall now depend on the quantity of drugs recovered. Under the provisions of Republic Act No. 7659, Section 20, and as interpreted in People v. Simon (234 SCRA 555 [1994]) and People v. Lara, (236 SCRA 291 [1994]) if the quantity of marijuana involved is less than 750 grams, the imposable penalty ranges from prision correccional to reclusion temporal. Taking into consideration that petitioner is not a habitual delinquent, the amendatory provision is favorable to him and the quantity of marijuana involved is less than 750 grams, the penalty imposed under Republic Act No. 7659 should be applied. 5. ID.; ID.; PROPER PENALTY THEREOF; CASE AT BAR. There being no mitigating nor aggravating circumstances, the imposable penalty shall be prision correccional in its medium period. Applying the Indeterminate Sentence Law, the maximum penalty shall be taken from the medium period of prision correccional, which is two (2) years, four (4) months and one (1) day to four (4) years and two (2) months, while the minimum shall be taken from the penalty next lower in degree, which is one (1) month and one (1) day to six (6) months of arresto mayor. cSDHEC D E C I S I O N ROMERO, J p: This is a petition for review of the decision of the Court of Appeals in CA-G.R. CR No. 13976 dated January 16, 1995, 1 which affirmed in toto the judgment of the Regional Trial Court of Manila, Branch 1, convicting petitioner Rodolfo Espano for violation of Article II, Section 8 of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act. aisadc Petitioner was charged under the following information: "That on or about July 14, 1991, in the City of Manila, Philippines the said accused, not being authorized by law to possess or use any prohibited drug, did then and there wilfully, unlawfully and knowingly have in his possession and under his custody and control twelve (12) plastic cellophane (bags) containing crushed flowering tops, marijuana weighing 5.5 grams which is prohibited drug. Contrary to law." 2 The evidence for the prosecution, based on the testimony of Pat. Romeo Pagilagan, shows that on July 14, 1991, at about 12:30 a.m., he and other police officers, namely, Pat. Wilfredo Aquilino, Simplicio Rivera, and Erlindo Lumboy of the Western Police District (WPD), Narcotics Division went to Zamora and Pandacan Streets, Manila to confirm reports of drug pushing in the area. They saw petitioner selling "something" to another person. After the alleged buyer left, they approached petitioner, identified themselves as policemen, and frisked him. The search yielded two plastic cellophane tea bags of marijuana . When asked if he had more marijuana, he replied that there was more in his house. The policemen went to his residence where they found ten more cellophane tea bags of marijuana. Petitioner was brought to the police headquarters where he was charged with possession of prohibited drugs. On July 24, 1991, petitioner posted bail 3 and the trial court issued his order of release on July 29, 1991. 4 Annabelle Alip, forensic chemist of the WPD Criminal Investigation Laboratory Section, testified that the articles sent to her by Pat. Wilfredo Aquino regarding the apprehension of a certain Rodolfo Espano for examination tested positive for marijuana, with total weight of 5.5 grams. By way of defense, petitioner that on said evening, he was sleeping in house and was awakened only when the policemen handcuffed him. He alleged that the policemen were looking for his brother-in-law Lauro, and when they could not find the latter, he was brought to the police station for investigation and later indicted for possession of prohibited drugs. His wife Myrna corroborated his story. The trial court rejected petitioner's defense as a "mere afterthought" and found the version of the prosecution "more credible and trustworthy." Thus, on August 14, 1992, the trial court rendered a decision, convicting petitioner of the crime charged, the dispositive portion of which reads: "WHEREFORE there being proof beyond reasonable doubt, the court finds the accused Rodolfo Espano y Valeria guilty of the crime of violation of Section 8, Article II, in relation to Section 2 (e-L) (I) of Republic Act No. 6425 as amended by Batas Pambansa Blg. 179, and pursuant to law hereby sentences him to suffer imprisonment of six (6) years and one (1) day to twelve (12) years and to pay a fine of P6,000.00 with subsidiary imprisonment in case of default plus costs. The marijuana is declared fortified in favor of government and shall be turned over to the Dangerous Drugs Board without delay. SO ORDERED." 5 Petitioner appealed the decision to the Court of Appeals. The appellate court, however, affirmed the decision of the trial court in toto. Hence, this petition. Petitioner contends that the trial and appellate courts erred in convicting him on the basis of the following: (a) the pieces of evidence seized were inadmissible; (b) the superiority of his constitutional right to be presumed innocent over the doctrine of presumption of regularity; (c) he was denied the constitutional right of confrontation and to compulsory process; and (d) his conviction was based on evidence which was irrelevant and not properly identified. After a careful examination of the records of the case, this Court finds no compelling reason sufficient to reverse the decisions of the trial and appellate courts. First, it is a well settled doctrine that findings of trial courts on the credibility of witnesses deserve a high degree of respect. Having observed the deportment of witnesses during the trial, the trial judge is in a better position to determine the issue of credibility and, thus, his findings will not be disturbed during appeal in the absence of any clear showing that he had overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which could have altered the conviction of the appellants. 6 In this case, the findings of the trial court that the prosecution witnesses were more credible than those of the defense must stand. Petitioner failed to show that Pat. Pagilagan, in testifying against him, was motivated by reasons other than his duty to curb drug abuse and had any intent to falsely impute to him such a serious crime as possession of prohibited drugs. In the absence of such ill motive, the presumption of regularity of his official duty must prevail. In People v. Velasco, 7 this Court reiterated the doctrine of presumption of regularity in the performance of official duty which provides: ". . . Appellant failed to establish that Pat. Godoy and the other members of the buy-bust team are policemen engaged in mulcting or other unscrupulous activities who where motivated either by the desire to extort money or exact personal vengeance, or by sheer whim and caprice, when they entrapped her. And in the absence of proof of any intent on the part of the police authorities to falsely impute such a serious crime against appellant, as in this case, the presumption of regularity in the performance of official duty, . . ., must prevail over the self-serving and uncorroborated claim of appellant that she had been framed." 8 Furthermore, the defense set up by petitioner does not deserve any consideration. He simply contended that he was in his house sleeping at the time of the incident. This Court has consistently held that alibi is the weakest of all defenses; and for it to prosper, the accused has the burden of proving that he was not at the scene of the crime of its commission and that it was physically impossible for him to be there. Moreover, the "claim of a 'frame-up', like alibi, is a defense that has been invariably viewed by the Court with disfavor for it can just as easily be concocted but difficult to prove, and is a common and standard line of defense in most prosecutions arising from violations of the Dangerous Drugs Act." 9 No clear and convincing evidence was presented by petitioner to prove his defense of alibi. Second, petitioner contends that the prosecution's failure to present the alleged informant in court cast a reasonable doubt which warrants his acquittal. This is again without merit, since failure of the prosecution to produce the informant in court is of no moment especially when he is not even the best witness to establish the fact that a buy-bust operation had indeed been conducted. In this case, Pat. Pagilagan, one of the policemen who apprehended petitioner, testified on the actual incident of July 14, 1991, and identified him as the one they caught in possession of prohibited drugs. Thus, "We find that the prosecution had satisfactorily proved its case against appellants. There is no compelling reason for us to overturn the finding of the trial court that the testimony of Sgt. Gamboa, the lone witness for the prosecution, was straightforward, spontaneous and convincing. The testimony of a sole witness, if credible and positive and satisfies the court beyond reasonable doubt, is sufficient to convict." 10 Thus on the basis of Pat. Pagilagan's testimony, the prosecution was able to prove that petitioner indeed committed the crime charged; consequently, the finding of conviction was proper. Lastly, the issue on the admissibility of the marijuana seized should likewise be ruled upon. Rule 113 Section 5(a) of the Rules of Court provides: "A peace officer or a private person may, without a warrant, arrest a person: a. when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; xxx xxx xxx." Petitioner's arrest falls squarely under the aforecited rule. He was caught in flagranti as a result of a buy-bust operation conducted by police officers on the basis of information received regarding the illegal trade of drugs within the area of Zamora and Pandacan Streets, Manila. The police officer saw petitioner handing over something to an alleged buyer. After the buyer left, they searched him and discovered two cellophanes of marijuana. His arrest was, therefore, lawful and the two cellophane bags of marijuana seized were admissible in evidence, being the fruits of the crime. As for the ten cellophane bags of marijuana found at petitioner's residence, however, the same inadmissible in evidence. The 1987 Constitution guarantees freedom against unreasonable searches and seizures under Article III, Section 2 which provides: "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purposes shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized." An exception to the said rule is a warrantless search incidental to a lawful arrest for dangerous weapons or anything which may be used as proof of the commission of an offense. 11 It may extend beyond the person of the one arrested to include the premises or surroundings under his immediate control. In this case, the ten cellophane bags of marijuana seized at petitioner's house after his arrest at Pandacan and Zamora Streets do not fall under the said exceptions. In the case of People v. Lua, 12 this Court held: "As regards the brick of marijuana found inside the appellant's house, the trial court correctly ignored it apparently in view of its inadmissibility. While initially the arrest as well as the body search was lawful, the warrantless search made inside the appellant's house became unlawful since the police operatives were not armed with a search warrant. Such search cannot fall under "search made incidental to a lawful arrest," the same being limited to body search and to that point within reach or control of the person arrested, or that which may furnish him with the means of committing violence or of escaping. In the case at bar, appellant was admittedly outside his house when he was arrested. Hence, it can hardly be said that the inner portion of his house was within his reach or control." The articles seized from petitioner during his arrest were valid under the doctrine of search made incidental to a lawful arrest. The warrantless search made in his house, however, which yielded ten cellophane bags of marijuana became unlawful since the police officers were not armed with a search warrant at the time. Moreover, it was beyond the reach and control of petitioner. In sum, this Court finds petitioner Rodolfo Espano guilty beyond reasonable doubt of violating Article II, Section 8, in relation to Section 2 (e-L) (I) of Republic Act No. 6425, as amended. Under the said provision, the penalty imposed is six years and one day to twelve years and a fine ranging from six thousand to twelve thousands pesos. With the passage of Republic Act No. 7659, with took effect on December 31, 1993, the imposable penalty shall now depend on the quantity of drugs recovered. Under the provisions of Republic Act No. 7659, Section 20, and as interpreted in People v. Simon 13 and People v. Lara, 14 if the quantity of marijuana involved is less than 750 grams, the imposable penalty ranges from prision correccional to reclusion temporal. Taking into consideration that petitioner is not a habitual delinquent, the amendatory provision is favorable to him and the quantity of marijuana involved is less than 750 grams, the penalty imposed under Republic Act No. 7659 should be applied. There being no mitigating nor aggravating circumstances, the imposable penalty shall be prision correccional in its medium period. Applying the Indeterminate Sentence Law, the maximum penalty shall be taken from the medium period of prision correccional, which is two (2) years, four (4) months and one (1) day to four (4) years and two (2) months, while the minimum shall be taken from the penalty next lower in degree, which is one (1) month and one (1) day six (6) months of arresto mayor. WHEREFORE, the instant petition is hereby DENIED. The decision of the Court of Appeals in C.A.-G.R. CR No. 13976 dated January 16, 1995 is AFFIRMED with the MODIFICATION that petitioner Rodolfo Espano is sentenced to suffer an indeterminate penalty of TWO (2) months and ONE (1) day of arresto mayor, as minimum of TWO (2) years, FOUR (4) months and ONE (1) day of prision correccional, as minimum. SO ORDERED. Narvasa, C .J ., Kapunan and Purisima, JJ ., concur. Aisadc THIRD DIVISION [G.R. No. L-63630. April 6, 1990.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MEDEL TANGLIBEN Y BERNARDINO, defendant-appellant. The Office of the Solicitor General for plaintiff-appellee. Katz N. Tierra for defendant-appellant. SYLLABUS 1. REMEDIAL LAW; 1985 RULES ON CRIMINAL PROCEDURE; EXCEPTIONS TO THE REQUIRING SEARCH WARRANT; CASE AT BAR. One of the exceptions to the general rule requiring a search warrant is a search incident to a lawful arrest. Thus, Section 12 of Rule 126 of the 1985 Rules on Criminal Procedure provides: "Section 12. Search incident to a lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant." Meanwhile, Rule 113, Sec. 5(a) provides: ". . . A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense." Accused was caught in flagrante, since he was carrying marijuana at the time of his arrest. This case therefore falls squarely within the exception. The warrantless search was incident to a lawful arrest and is consequently valid. Although the trial court's decision did not mention it, the transcript of stenographic notes reveals that there was an informer who pointed to the accused- appellant as carrying marijuana. (TSN, pp. 52-53) Faced with such on-the-spot information, the police officers had to act quickly. There was not enough time to secure a search warrant. We cannot therefore apply the ruling in Aminnudin to the case at bar. To require search warrants during on-the-spot apprehensions of drug pushers, illegal possessors of firearms, jueteng collectors, smugglers of contraband goods, robbers, etc. would make it extremely difficult, if not impossible to contain the crimes with which these persons are associated. 2. ID.; EVIDENCE; CREDIBILITY OF WITNESS; TRIAL COURT'S FINDING; ENTITLED TO GREAT RESPECT AND ACCORDED THE HIGHEST CONSIDERATION. 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. 3. ID.; ID.; REGULARITY OF OFFICIAL ACTS RELATIVE TO ADMISSIBILITY OF STATEMENT TAKEN DURING IN- CUSTODY INTERROGATION, MUST BE PROVED DURING TRIAL. The alleged extrajudicial confession of the accused which, on the other hand, he categorically denied in court, that he is transporting the marijuana leaves to Olongapo City cannot be relied upon. Even assuming it to be true, the extrajudicial confession cannot be admitted because it does not appear in the records that the accused, during custodial investigation, was apprised of his rights to remain silent and to counsel and to be informed of such rights. In People v. Duero, 104 SCRA 379 [1981], the Court pronounced that "inasmuch as the prosecution failed to prove that before Duero made his alleged oral confession he was informed of his rights to remain silent and to have counsel and because there is no proof that he knowingly and intelligently waived those rights, his confession is inadmissible in evidence. This ruling was reiterated in People v. Tolentino, 145 SCRA 597 [1986], where the Court added that: "In effect, the Court not only abrogated the rule on presumption of regularity of official acts relative to admissibility of statements taken during in-custody interrogation but likewise dispelled any doubt as to the full adoption of the Miranda doctrine in this jurisdiction It is now incumbent upon the prosecution to prove during a trial that prior to questioning, the confessant was warned of his constitutionally protected rights." 4. ID.; ID.; DANGEROUS DRUG ACT (R.A. 6425); PROPER AUTHENTICATION OF MARIJUANA LEAVES SEIZED; SUFFICIENTLY COMPLIED IN CASE AT BAR. 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 chemist 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. 5. ID.; ID.; ID.; NON-PRESENTATION OF INFORMER NOT FATAL TO PROSECUTION'S CASE. 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). 6. ID.; ID.; ID.; ACTUAL POSSESSION OF MARIJUANA LEAVES; PROVED BEYOND REASONABLE DOUBT. 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 possession. D E C I S I O N GUTIERREZ, JR., J p: 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 in 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 mission was aimed not only against persons who may commit misdemeanors at the said place but also on persons who may be engaging in the traffic of dangerous drugs based on informations supplied by informers; that it was around 9:30 in the evening that said Patrolmen noticed a person carrying a red 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. 910, Rollo) Only the accused testified in his defense. His testimony is narrated by the trial court as follows: "The accused declared that he got married on October 25, 1981 and his wife begot a child on June 10, 1982; that he was formerly employed in the poultry farm of his uncle Alejandro Caluma in Antipolo, Rizal; that he is engaged in the business of selling poultry medicine and feeds, including chicks, and used to conduct his business at Taytay, Rizal; that he goes to Subic at times in connection with his business and whenever he is in Subic, he used to buy C- rations from one Nena Ballon and dispose the same in Manila; that he never left his residence at Antipolo, Rizal, on March 2, 1982; that on March 3, 1982, he went to Subic to collect a balance of P100.00 from a customer thereat and to buy C-rations; that he was able to meet Nena Ballon at 6:00 o'clock in the evening and he stayed in Nena's house up to 8:00 o'clock because he had a drinking spree with Nena's son; that he tried to catch the 8:00 o'clock trip to Manila from Olongapo City but he failed and was able to take the bus only by 9:00 o'clock that evening; that it was a Victory Liner Bus that he rode and because he was tipsy, he did not notice that the bus was only bound for San Fernando Pampanga; that upon alighting at the Victory Liner Compound at San Fernando, Pampanga he crossed the street to wait for a bus going to Manila; that while thus waiting for a bus, a man whom he came to know later as Pat. Punzalan, approached him and asked him if he has any residence certificate; that when he took out his wallet, Pat. Punzalan got the wallet and took all the money inside the wallet amounting to P545.00; that Pat. Punzalan told him that he'll be taken to the municipal building for verification as he may be an NPA member; that at the municipal building, he saw a policeman, identified by him later as Pat. Silverio Quevedo, sleeping but was awakened when he arrived; that Pat. Quevedo took him upstairs and told him to take out everything from his pocket saying that the prisoners inside the jail may get the same from him; that inside his pocket was a fifty-peso bill and Pat. Quevedo took the same, telling him that it shall be returned to him but that it was never returned to him; that he was thereafter placed under detention and somebody told him that he is being charged with possession of marijuana and if he would like to be bailed out, somebody is willing to help him; and, that when he was visited by his wife, he told his wife that Patrolman Silverio Quevedo took away all his money but he told his wife not to complain anymore as it would be useless." (Rollo, pp. 10-11) Appellant, through counsel de oficio Atty. Enrique Chan, raised the lone assignment of error in his appeal: "THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANT AND FINDING HIM GUILTY OF THE CRIME CHARGED ON INSUFFICIENT AND DOUBTFUL EVIDENCE." (At p. 48, Rollo) The Solicitor-General likewise filed his brief, basically reiterating 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: "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. Claudio, 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 Pano, 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. Aminnudin, 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 existing in the case before us, which led the Court to declare the seizure as invalid. As stated therein: prLL "The present case presented no such urgency. From the conflicting declarations of the PC witnesses, it is clear that they had at least two days within which they could have obtained a warrant of arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was identified. The date of its arrival was certain. And from the information they had received, they could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of Rights was ignored altogether because the PC lieutenant who was the head of the arresting team, had determined on his own authority that a 'search warrant was not necessary.' " In contrast, the case before us presented urgency. Although the trial court's decision did not mention it, the transcript of stenographic notes reveals that there was an informer who pointed to the accused- appellant as carrying marijuana. (TSN, pp. 52-53) Faced with such on-the-spot information, the police officers had to act quickly. There was not enough time to secure a search warrant. We cannot therefore apply the ruling in Aminnudin to the case at bar. To require search warrants during on-the-spot apprehensions of drug pushers, illegal possessors of firearms, jueteng collectors, smugglers of contraband goods, robbers, etc. would make it extremely difficult, if not impossible to contain the crimes with which these persons are associated. Accused-appellant likewise asserts that the package of marijuana leaves supposedly seized from him was never authenticated and therefore should not have been admitted as evidence. He capitalizes on the fact that the marijuana package brought by Patrolman Roberto Quevedo to the PC Crime Laboratory for examination did not contain a tag bearing the name of the accused. We rule, however, that since Patrolman Quevedo testified that he gave the marijuana package together with a letter-request for examination, and the forensic chemist Marilene Salangad likewise testified that she received the marijuana together with the letter-request and said letter-request bore the name of the accused, then the requirements of proper authentication of evidence were sufficiently complied with. The marijuana package examined by the forensic chemist 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: LLjur "The testimony of prosecution witnesses Patrolmen Silverio Quevedo and Romeo Punzalan are positive and sufficiently clear to show the commission by the accused of the offense herein charged. 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 their (sic) being no showing that they are prejudiced against the accused, their testimonies deserve full credit. The testimonies of the afore-mentioned patrolmen that what they found in the possession of the accused were marijuana leaves were corroborated by the examination findings conducted by Pat. Roberto Quevedo (Exhibit H) and by Forensic Chemist Marlene 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 of the accused that Pat. Silverio Quevedo got his fifty-peso bill and never returned the same to him. If the two 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 leaves 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. LibLex We take exception, however, to the trial court's finding that: "The dried marijuana leaves found in the possession of the accused weighs one (1) kilo, more or less. The intent to transport the same is clear from the testimony of Pat. Silverio Quevedo who declared, among other things, that when he confronted the accused that night, the latter told him that he (accused) is bringing the marijuana leaves to Olongapo City. Moreover, considering the quantity of the marijuana leaves found in the possession of the accused and the place he was arrested which is at San Fernando, Pampanga, a place where the accused is not residing, it can be said that the intent to transport the marijuana leaves has been clearly established." (Rollo, pp. 13-14) The alleged extrajudicial confession of the accused which, on the other hand, he categorically denied in court, that he is transporting the marijuana leaves to Olongapo City cannot be relied upon. Even assuming it to be true, the extrajudicial confession cannot be admitted because it does not appear in the records that the accused, during custodial investigation, was apprised of his rights to remain silent and to counsel and to be informed of such rights. In People v. Duero, 104 SCRA 379 [1981], the Court pronounced that "inasmuch as the prosecution failed to prove that before Duero made his alleged oral confession he was informed of his rights to remain silent and to have counsel and because there is no proof that he knowingly and intelligently waived those rights, his confession is inadmissible in evidence. This ruling was reiterated in People v. Tolentino, 145 SCRA 597 [1986], where the Court added that: "In effect, the Court not only abrogated the rule on presumption of regularity of official acts relative to admissibility of statements taken during in-custody interrogation but likewise dispelled any doubt as to the full adoption of the Miranda doctrine in this jurisdiction It is now incumbent upon the prosecution to prove during a trial that prior to questioning, the confessant was warned of his constitutionally protected rights." The trial judge likewise found the marijuana to weigh one kilo, more or less, and from this finding extracted a clear intent to transport the marijuana leaves. It may be pointed out, however, that although the information stated the weight to be approximately one kilo, the forensic chemist who examined the marijuana leaves testified that the marijuana weighed only 600 grams. Such amount is not a considerable quantity as to conclusively confer upon the accused an intent to transport the marijuana leaves. Nor can it be said that the intent to transport is clearly established from the fact that the accused was arrested at San Fernando, Pampanga, a place which is not his residence. Conviction of a crime with an extremely severe penalty must be based on evidence which is clearer and more convincing than the inferences in this case. LexLib What was therefore proved beyond reasonable doubt is not his intent to transport the marijuana leaves but his actual possession. The offense committed by the appellant is possession of marijuana under Section 8 of Republic Act No. 6425 (Dangerous Drugs Act of 1972 as amended). WHEREFORE, the judgment of conviction by the trial court is hereby AFFIRMED but MODIFIED. The appellant is sentenced to suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and fine of Six Thousand (P6,000.00) Pesos. SO ORDERED. Fernan, C.J., Feliciano, Bidin and Cortes, JJ., concur. EN BANC [G.R. Nos. 130568-69. March 21, 2000.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CHE CHUN TING alias "DICK", accused-appellant. The Solicitor General for plaintiff-appellee. Teddy C. Macapagal for accused-appellant. SYNOPSIS Accused-appellant CHE CHUN TING, a Hongkong national, was caught in flagrante delicto as a result of the entrapment conducted by the NARCOM operatives on the basis of the information provided by Mabel Cheung Mei Po regarding accused-appellant's illegal trade. NARCOM agents P/lnsp. Santiago and SPO3 Campanilla saw him handing over a bag of white crystalline substance to Mabel Cheung Mei Po, which, upon forensic examination, was found positive for methylamphetamine hydrochloride or shabu. AaCEDS On 22 August 1997, the trial court found accused-appellant guilty of delivering, distributing and dispatching in transit 999.43 grams of shabu (Criminal Case No. 96-8932) and, having in his custody, possession and control 5,578.68 grams of the same regulated drug (Criminal Case No. 96-8933). He was meted two (2) death sentences, one for violation of Sec. 15 and the other for violation of Sec. 16, both of Art. III, of RA 6425 (The Dangerous Drugs Act of 1972, as amended). He was likewise ordered to pay a fine. Hence, this automatic review. The inadmissibility of the 5,578.68 grams of shabu in evidence does not totally exonerate accused-appellant. The illegal search in Unit 122 was preceded by a valid arrest. His arrest was lawful and the seized bag of shabu weighing 999.43 grams was admissible in evidence, being the fruit of the crime. The testimony of the police informant in an illegal drug case is not essential for the conviction of the accused since that testimony would merely be corroborative and cumulative. In the instant case, the Court found the narration of events by the police officers positive, credible and entirely in accord with human experience. It has not been shown that they had an improper motive for testifying as they did. There is no law or rule of evidence requiring the forensic chemist to test the entire quantity of seized drugs to determine whether the whole lot is really prohibited or regulated drugs as suspected. A sample taken from a package may be logically presumed to be representative of the whole contents of the package. Hence, the Court is satisfied that the prosecution has established the guilt of the accused-appellant in Criminal Case No. 96-8932. However, it reduced the penalty to reclusion perpetua since there were neither mitigating nor aggravating circumstances attending appellant's violation of the law. On the other hand, the Court acquitted appellant in Criminal Case No. 96-8933 since his constitutional right against unreasonable searches and seizures was violated, rendering the evidence against him inadmissible. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES; ANY EVIDENCE OBTAINED IN VIOLATION THEREOF, INADMISSIBLE IN EVIDENCE; EXCEPTIONS. The 1987 Constitution ordains that no arrest, search or seizure can be made without a valid warrant issued by a competent judicial authority. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose, shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. It further mandates that any evidence obtained in violation thereof shall be inadmissible for any purpose in any proceeding. The right is not absolute and admits of certain well- recognized exceptions. For instance, a person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense, without a search warrant. The search may extend beyond the person of the one arrested to include the permissible area or surroundings within his immediate control. CaTSEA 2. ID.; ID.; ID.; ID.; ID.; WARRANTLESS SEARCH; TO BE VALID, IT MUST BE LIMITED TO AND CIRCUMSCRIBED BY SUBJECT, TIME AND PLACE OF ARREST. The lawful arrest being the sole justification for the validity of the warrantless search under the exception, the same must be limited to and circumscribed by the subject, time and place of the arrest. As to subject, the warrantless search is sanctioned only with respect to the person of the suspect, and things that may be seized from him are limited to "dangerous weapons" or "anything which may be used as proof of the commission of the offense." With respect to the time and place of the warrantless search, it must be contemporaneous with the lawful arrest. Stated otherwise, to be valid, the search must have been conducted at about the time of the arrest or immediately thereafter and only at the place where the suspect was arrested, or the premises or surroundings under his immediate control. It must be stressed that the purposes of the exception are only to protect the arresting officer against physical harm from the person being arrested who might be armed with a concealed weapon, and also to prevent the person arrested from destroying the evidence within his reach. The exception therefore should not be strained beyond what is needed in order to serve its purposes, as what the Solicitor General would want us to do. 3. ID.; ID.; ID.; VIOLATED IN CASE AT BAR. The accused was admittedly outside Unit 122 and in the act of delivering to Mabel Cheung Mei Po a bag of shabu when he was arrested by the NARCOM operatives. Moreover, it is borne by the records that Unit 122 was not even his residence but that of his girlfriend Nimfa Ortiz, and that he was merely a sojourner therein. Hence, it can hardly be said that the inner portion of the house constituted a permissible area within his reach or immediate control, to justify a warrantless search therein. We therefore hold that the search in Unit 122 and the seizure therein of some 5,578.68 grams of shabu do not fall within the exception, hence, were illegal for being violative of one's basic constitutional right and guarantee against unreasonable searches and seizures. 4. ID.; ID.; ID.; THINGS SEIZED ON OCCASION OF ILLEGAL SEARCH ARE INADMISSIBLE IN EVIDENCE; OBJECTS AND PROPERTIES POSSESSION OF WHICH IS PROHIBITED BY LAW CANNOT BE RETURNED TO THEIR OWNERS NOTWITHSTANDING ILLEGALITY OF SEIZURE. As a consequence of the illegal search, the things seized on the occasion thereof are inadmissible in evidence under the exclusionary rule. They are regarded as having been obtained from a polluted source, the "fruit of a poisonous tree." However, objects and properties the possession of which is prohibited by law cannot be returned to their owners notwithstanding the illegality of their seizure. Thus, the shabu seized by the NARCOM operatives which cannot legally be possessed by the accused under the law, can and must be retained by the government to be disposed of in accordance with law. CaEIST 5. REMEDIAL LAW; EVIDENCE; ADMISSIBILITY: INADMISSIBILITY OF 5,578.68 GRAMS OF SHABU DOES NOT TOTALLY EXONERATE ACCUSED; CASE AT BAR. The inadmissibility of the 5,578.68 grams of shabu in evidence does not totally exonerate the accused. The illegal search in Unit 122 was preceded by a valid arrest. The accused was caught in flagrante delicto as a result of an entrapment conducted by NARCOM operatives on the basis of the information provided by Mabel Cheung Mei Po regarding the accused' illegal trade. NARCOM agents P/Insp. Santiago and SPO3 Campanilla saw him handing over a bag of white crystalline substance to Mabel Cheung Mei Po. His arrest was lawful and the seized bag of shabu weighing 999.43 grams was admissible in evidence, being the fruit of the crime. 6. ID.; ID.; CREDIBILITY OF WITNESSES; FINDINGS OF TRIAL COURT WITH RESPECT THERETO GIVEN WEIGHT AND AT TIMES EVEN FINALITY BY APPELLATE COURTS; TESTIMONY OF POLICE INFORMANT IN ILLEGAL DRUG CASE NOT ESSENTIAL FOR CONVICTION OF ACCUSED. As we have consistently stressed in the majority of appeals in criminal cases, appellate courts give weight, and at times even finality, to the findings of the trial judge who is in a better position to determine the credibility of witnesses, as he can observe firsthand their demeanor and deportment while testifying. Appellate courts have none of the judge's advantageous position; they rely merely on the cold records of the case and on the judge's discretion. As mentioned earlier, Mabel Cheung Mei Po turned hostile witness in the course of the trial. The defense capitalized on such fact and hammered the prosecution on this point, arguing that Mabel's testimony during her cross-examination virtually belied the prosecution's factual theory of the case and cast doubt on the testimony of the NARCOM agents. But we are not persuaded. Mabel Cheung Mei Po turned hostile witness understandably because of her adverse interest in the case. She was separately charged for violation of Sec. 15, Art. III, RA 6425, although she was subsequently acquitted by the trial court on reasonable doubt. It is therefore to be expected that she would be extremely cautious in giving her testimony as it might incriminate her. At any rate, the testimony of the police informant in an illegal drug case is not essential for the conviction of the accused since that testimony would merely be corroborative and cumulative. Hence, even if we concede that Mabel Cheung Mei Po's testimony was discredited on account of the dismissal of the criminal case against her, the prosecution could still rely on the testimonies of the arresting officers and secure a conviction on the basis thereof. 7. ID.; ID.; ID.; LACK OF IMPROPER MOTIVE TO TESTIFY FALSELY AGAINST ACCUSED; NO REASON TO DENIGRATE DECLARATION OF LAW ENFORCERS; CASE AT BAR. The attempt of the accused to downgrade the testimonies of the NARCOM agents is bereft of substantial basis since it has not been shown that they had an improper motive for testifying as they did. It would not be amiss to point out that NARCOM agents are not just ordinary witnesses but are law enforcers. As compared to the baseless disclaimers of the witnesses for the defense, the narration of the incident of the police officers is far more worthy of belief coming as it does from law enforcers who are presumed to have regularly performed their duty in the absence of proof to the contrary. From the evidence at hand, we find no reason to denigrate their declarations. 8. ID.; ID.; ID.; TESTIMONY OF POLICE OFFICERS GIVEN CREDENCE. There is no doubt from the records that the accused was caught in flagrante delicto, i.e., in the act of delivering shabu. The evidence for the prosecution is both substantial and convincing. At its core is the testimony of P/Insp. Santiago and SPO3 Campanilla who categorically pointed to the accused as the person who handed to Mabel a plastic bag of white crystalline substance which, upon forensic examination, was found positive for methylamphetamine hydrochloride or shabu. As can be gleaned from the assailed decision of the trial court, the narration of events by the police officers is positive, credible and entirely in accord with human experience. It bears all the earmarks of truth that it is extremely difficult for a rational mind not to give credence to it. They testified in a clear, precise and straightforward manner, and even the rigid cross- examination by the defense could not dent the essence of their testimonies. 9. ID.; ID.; CHEMICAL ANALYSIS NOT INDISPENSABLE PREREQUISITE TO ESTABLISH WHETHER CERTAIN SUBSTANCE OFFERED IN EVIDENCE IS A PROHIBITED DRUG; DEGREE OF FAMILIARITY OF A WITNESS WITH PROHIBITED DRUGS ONLY AFFECTS WEIGHT AND NOT COMPETENCY OF TESTIMONY. Primarily, there is no law or rule of evidence requiring the forensic chemist to test the entire quantity of seized drugs to determine whether the whole lot is really prohibited or regulated drugs as suspected. On the contrary, it has always been the standard procedure in the PNP Crime Laboratory to test only samples of the drugs submitted for laboratory examination. A sample taken from a package may be logically presumed to be representative of the whole contents of the package. Moreover, we held in one case that chemical analysis is not an indispensable prerequisite to establish whether a certain substance offered in evidence is a prohibited drug. The ability to recognize these drugs can be acquired without any knowledge of chemistry to such an extent that the testimony of a witness on the point may be entitled to great weight. Such technical knowledge is not required, and the degree of familiarity of a witness with such drugs only affects the weight and not the competency of his testimony. At any rate, it was up to the defense to prove by clear and convincing evidence that the findings of the forensic chemist were erroneous. In the absence of such evidence, the positive results of the tests conducted by the chemist should be accepted as conclusive. After all, she has in her favor the presumption that she regularly performed her official duty, which was to carry out those tests in accordance with the accepted standard procedure. 10. CRIMINAL LAW; THE DANGEROUS DRUGS ACT OF 1972, AS AMENDED; PENALTY. This Court is satisfied that the prosecution has established the guilt of the accused beyond reasonable doubt in Crim. Case No. 96-8932. Accordingly, he must suffer for his serious crime of poisoning the health and future of this nation. However, we refrain from imposing the capital punishment. As amended by RA 7659, Sec. 20, Art. IV of The Dangerous Drugs Act now provides in part that the penalty in Sec. 15, Art. III, shall be applied if the dangerous drug involved is, in the case of shabu or methamphetamine hydrochloride 200 grams or more and the delivery or distribution of regulated drugs without proper authority is penalized with reclusion perpetua to death and a fine ranging from P500,000.00 to P10,000,000.00. Thus the law prescribes two (2) indivisible penalties, reclusion perpetua and death. Pursuant to Art. 63 of The Revised Penal Code, since there were neither mitigating nor aggravating circumstances attending accused's violation of the law, the lesser penalty of reclusion perpetua is the proper imposable penalty. The legislature never intended that where the quantity of the dangerous drugs involved exceeds those stated in Sec. 20, the maximum penalty of death shall automatically be imposed. Nowhere in the amendatory law is there a provision from which such a conclusion may be drawn. On the contrary, this Court has already concluded in People v. Gatward that RA 7659 did not amend Art. 63 of the Revised Penal Code, and the rules therein were observed although the cocaine subject of that case was also in excess of the quality provided in Sec. 20. DScTaC D E C I S I O N BELLOSILLO, J p: CHE CHUN TING alias "DICK," a Hong Kong national, was found guilty by the trial court on 22 August 1997 of delivering, distributing and dispatching in transit 999.43 grams of shabu; 1 and, having in his custody, possession and control 5,578.68 grams of the same regulated drug. 2 He was meted two (2) death sentences, one for violation of Sec. 15 and the other for violation of Sec. 16, both of Art. III, of RA 6425 (The Dangerous Drugs Act of 1972, as amended). 3 He was likewise ordered to pay a fine of P1,000,000.00 in the first case, and P12,000,000.00 in the second. 4 He is now before us on automatic review. cdll The antecedent facts: Following a series of buy-bust operations, the elements of the Special Operation Unit, Narcotics Command, apprehended a suspected drug courier, Mabel Cheung Mei Po, after she delivered a transparent plastic bag containing a white crystalline substance to an informant, in full view of NARCOM agents. When questioned, Mabel Cheung Mei Po cooperated with the government agents and revealed the name of accused Che Chun Ting as the source of the drugs. On 27 June 1996 the Narcotics Command deployed a team of agents for the entrapment and arrest of Che Chun Ting. The team was composed of Major Marcelo Garbo, a certain Captain Campos, 5 P/Insp. Raymond Santiago, SPO3 Renato Campanilla, and a civilian interpreter. The members of the NARCOM team were in two (2) vehicles: a Nissan Sentra Super Saloon driven by Mabel with P/Insp. Santiago and SPO3 Campanilla as passengers; and the other vehicle, with Major Garbo, Captain Campos and the civilian interpreter on board. At around 7 o'clock in the morning they proceeded to the Roxas Seafront Garden in Pasay City where Che Chun Ting was and had the place under surveillance. Later, they moved to the McDonald's parking lot where the civilian interpreter transferred to the Nissan car. Mabel then called Che Chun Ting through her cellular phone and spoke to him in Chinese. According to the interpreter, who translated to the NARCOM agents the conversation between Mabel and Che Chun Ting, Mabel ordered one (1) kilo of shabu. At around 10:30 o'clock in the morning of the same day, Mabel received a call from the accused that he was ready to deliver the stuff. She immediately relayed the message to the NARCOM agents. After receiving the go-signal from Major Garbo, P/Insp. Santiago, SPO3 Campanilla and Mabel proceeded to the Roxas Seafront Garden. The other vehicle followed but trailed behind within reasonable distance to serve as a blocking force. LexLib Upon arriving at the Roxas Seafront Garden, Mabel honked twice and went to Unit 122. The two (2) NARCOM agents, who waited inside the car parked two (2) meters away, saw the door of the unit open as a man went out to hand Mabel a transparent plastic bag containing a white crystalline substance. The NARCOM agents immediately alighted and arrested the surprised man who was positively identified by Mabel as Che Chun Ting. Then the agents radioed their superiors in the other car and coordinated with the security guard on duty at the Roxas Seafront Garden to make a search of Unit 122. During the search SPO3 Campanilla seized a black bag with several plastic bags containing a white crystalline substance in an open cabinet at the second floor. The bag was examined in the presence of Major Garbo, the accused himself, and his girlfriend Nimfa Ortiz. The accused together with the evidence was then brought to Camp Crame where Forensic Chemist P/Sr. Inspector Julita T. de Villa after conducting laboratory tests found the white crystalline substance to be positive for methylamphetamine hydrochloride or shabu. 6 The defense has a different version. Nimfa Ortiz narrated that she sent her brother Noli Ortiz to meet Mabel Cheung Mei Po in front of the Allied Bank at the EDSA Extension to help the latter find a lawyer and at the same time get the laser disc she lent to Mabel. Noli testified that when he got inside the car of Mabel a policeman sitting at the back of the car suddenly hit him on the head. The car then proceeded to McDonald's at Roxas Boulevard near the Roxas Seafront Garden where he was moved to another car, a green Nissan Sentra, with Major Garbo, Captain Lukban and a certain Palma (perceived to be the civilian interpreter) on board. Mabel stayed behind at McDonald's until she was brought back to Camp Crame. Noli Ortiz, Major Garbo, Captain Lukban and Palma went to the Roxas Seafront Garden where they parked the car five (5) to seven (7) meters away from Unit 122. Noli rang the doorbell of the unit. When Nimfa opened the door, two (2) NARCOM officers suddenly forced their way inside and searched the premises. Noli denied having seen any black bag seized by SPO3 Campanilla; instead, what he saw was his sister's video camera being carted away by the NARCOM agents. He further testified that when his sister was made to sign a certification on the conduct of the search on Unit 122 she was frightened and crying. He claimed that accused Che Chun Ting was then asleep at the second floor of the unit. The defense presented documents showing that the owner of Unit 122 was Nimfa Ortiz and not accused Che Chun Ting who lived at 1001 Domingo Poblete St., BF Homes, Paraaque. 7 This information, according to the defense, was vital for purposes of ascertaining the legality of the search on Unit 122 as well as the seizure therein of a black bag containing several plastic bags of shabu. Finally, the defense assailed the lower court for relying on the testimony of Mabel who turned hostile witness in the course of the trial. 8 Accused Che Chun Ting now contends that the trial court erred: (a) in convicting him on the basis of the shabu seized inside Unit 122, which was constitutionally inadmissible as evidence since it was seized without a search warrant; (b) in failing to recognize that the testimony of Mabel Cheung Mei Po, who turned hostile witness in the course of the trial, has discredited the prosecution case and cast doubt on the testimonies of P/Insp. Santiago and SPO3 Campanilla; and, (c) in assuming that the entire white crystalline substance seized is positive for methylamphetamine hydrochloride. cdtai We resolve. The 1987 Constitution ordains that no arrest, search or seizure can be made without a valid warrant issued by a competent judicial authority. Thus 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. 9 It further mandates that any evidence obtained in violation thereof shall be inadmissible for any purpose in any proceeding. 10 The right is not absolute and admits of certain well-recognized exceptions. For instance, a person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense, without a search warrant. 11 The search may extend beyond the person of the one arrested to include the permissible area or surroundings within his immediate control. 12 The issue is whether this case falls within the exception. The accused was admittedly outside unit 122 and in the act of delivering to Mabel Cheung Mei Po a bag of shabu when he was arrested by the NARCOM operatives. Moreover, it is borne by the records that Unit 122 was not even his residence but that of his girlfriend Nimfa Ortiz, and that he was merely a sojourner therein. Hence, it can hardly be said that the inner portion of the house constituted a permissible area within his reach or immediate control, 13 to justify a warrantless search therein. The lawful arrest being the sole justification for the validity of the warrantless search under the exception, the same must be limited to and circumscribed by the subject, time and place of the arrest. As to subject, the warrantless search is sanctioned only with respect to the person of the suspect, and things that may be seized from him are limited to "dangerous weapons" or "anything which may be used as proof of the commission of the offense." With respect to the time and place of the warrantless search, it must be contemporaneous with the lawful arrest. Stated otherwise, to be valid, the search must have been conducted at about the time of the arrest or immediately thereafter and only at the place where the suspect was arrested, 14 or the premises or surroundings under his immediate control. It must be stressed that the purposes of the exception are only to protect the arresting officer against physical harm from the person being arrested who might be armed with a concealed weapon, and also to prevent the person arrested from destroying the evidence within his reach. 15 The exception therefore should not be strained beyond what is needed in order to serve its purposes, as what the Solicitor General would want us to do. prcd We therefore hold that the search in Unit 122 and the seizure therein of some 5,578.68 grams of shabu do not fall within the exception, hence, were illegal for being violative of one's basic constitutional right and guarantee against unreasonable searches and seizures. As a consequence of the illegal search, the things seized on the occasion thereof are inadmissible in evidence under the exclusionary rule. They are regarded as having been obtained from a polluted source, the "fruit of a poisonous tree." However, objects and properties the possession of which is prohibited by law cannot be returned to their owners notwithstanding the illegality of their seizure. Thus, the shabu seized by the NARCOM operatives which cannot legally be possessed by the accused under the law, can and must be retained by the government to be disposed of in accordance with law. Be that as it may, the inadmissibility of the 5,578.68 grams of shabu in evidence does not totally exonerate the accused. The illegal search in Unit 122 was preceded by a valid arrest. The accused was caught in flagrante delicto as a result of an entrapment conducted by NARCOM operatives on the basis of the information provided by Mabel Cheung Mei Po regarding the accused's illegal trade. NARCOM agents P/Insp. Santiago and SPO3 Campanilla saw him handing over a bag of white crystalline substance to Mabel Cheung Mei Po. His arrest was lawful and the seized bag of shabu weighing 999.43 grams was admissible in evidence, being the fruit of the crime. The second assigned error hinges on the credibility of witnesses. As we have consistently stressed in the majority of appeals in criminal cases, appellate courts give weight, and at times even finality, to the findings of the trial judge who is in a better position to determine the credibility of witnesses, as he can observe firsthand their demeanor and deportment while testifying. Appellate courts have none of the judge's advantageous position; they rely merely on the cold records of the case and on the judge's discretion. As mentioned earlier, Mabel Cheung Mei Po turned hostile witness in the course of the trial. The defense capitalized on such fact and hammered the prosecution on this point, arguing that Mabel's testimony during her cross-examination virtually belied the prosecution's factual theory of the case and cast doubt on the testimony of the NARCOM agents. But we are not persuaded. Mabel Cheung Mei Po turned hostile witness understandably because of her adverse interest in the case. She was separately charged for violation of Sec. 15, Art. III, RA 6425, 16 although she was subsequently acquitted by the trial court on reasonable doubt. 17 It is therefore to be expected that she would be extremely cautious in giving her testimony as it might incriminate her. At any rate, the testimony of the police informant in an illegal drug case is not essential for the conviction of the accused since that testimony would merely be corroborative and cumulative. 18 Hence, even if we concede that Mabel Cheung Mei Po's testimony was discredited on account of the dismissal of the criminal case against her, the prosecution could still rely on the testimonies of the arresting officers and secure a conviction on the basis thereof. Further, the attempt of the accused to downgrade the testimonies of the NARCOM agents is bereft of substantial basis since it has not been shown that they had an improper motive for testifying as they did. It would not be amiss to point out that NARCOM agents are not just ordinary witnesses but are law enforcers. As compared to the baseless disclaimers of the witnesses for the defense, the narration of the incident of the police officers is far more worthy of belief coming as it does from law enforcers who are presumed to have regularly performed their duty in the absence of proof to the contrary. 19 From the evidence at hand, we find no reason to denigrate their declarations. Indeed, there is no doubt from the records that the accused was caught in flagrante delicto, i.e., in the act of delivering shabu. The evidence for the prosecution is both substantial and convincing. At its core is the testimony of P/Insp. Santiago and SPO3 Campanilla who categorically pointed to the accused as the person who handed to Mabel a plastic bag of white crystalline substance which, upon forensic examination, was found positive for methylamphetamine hydrochloride or shabu. As can be gleaned from the assailed decision of the trial court, the narration of events by the police officers is positive, credible and entirely in accord with human experience. It bears all the earmarks of truth that it is extremely difficult for a rational mind not to give credence to it. They testified in a clear, precise and straightforward manner, and even the rigid cross- examination by the defense could not dent the essence of their testimonies. cdrep As regards the third assigned error, the accused questions the accuracy of the laboratory tests conducted by the forensic chemist on the seized articles. He contends that the PNP Crime Laboratory should have subjected the entire 999.43 grams and 5,578.66 grams of white crystalline substance taken from him, to laboratory examination and not merely representative samples thereof in milligrams. The argument is untenable. Primarily, there is no law or rule of evidence requiring the forensic chemist to test the entire quantity of seized drugs to determine whether the whole lot is really prohibited or regulated drugs as suspected. On the contrary, it has always been the standard procedure in the PNP Crime Laboratory to test only samples of the drugs submitted for laboratory examination. A sample taken from a package may be logically presumed to be representative of the whole contents of the package. 20 Moreover, we held in one case that chemical analysis is not an indispensable prerequisite to establish whether a certain substance offered in evidence is a prohibited drug. The ability to recognize these drugs can be acquired without any knowledge of chemistry to such an extent that the testimony of a witness on the point may be entitled to great weight. Such technical knowledge is not required, and the degree of familiarity of a witness with such drugs only affects the weight and not the competency of his testimony. 21 At any rate, it was up to the defense to prove by clear and convincing evidence that the findings of the forensic chemist were erroneous. In the absence of such evidence, the positive results of the tests conducted by the chemist should be accepted as conclusive. After all, she has in her favor the presumption that she regularly performed her official duty, which was to carry out those tests in accordance with the accepted standard procedure. 22 All told, this Court is satisfied that the prosecution has established the guilt of the accused beyond reasonable doubt in Crim. Case No. 96- 8932. Accordingly, he must suffer for his serious crime of poisoning the health and future of this nation. However, we refrain from imposing the capital punishment. As amended by RA 7659, Sec. 20, Art. IV of The Dangerous Drugs Act now provides in part that the penalty in Sec. 15, Art. III, shall be applied if the dangerous drug involved is, in the case of shabu or methylamphetamine hydrochloride 200 grams or more and the delivery or distribution of regulated drugs without proper authority is penalized with reclusion perpetua to death and a fine ranging from P500,000.00 to P10,000,000.00. Thus the law prescribes two (2) indivisible penalties, reclusion perpetua and death. Pursuant to Art. 63 of The Revised Penal Code, since there were neither mitigating nor aggravating circumstances attending accused's violation of the law, the lesser penalty of reclusion perpetua is the proper imposable penalty. llcd The legislature never intended that where the quantity of the dangerous drugs involved exceeds those stated in Sec. 20, the maximum penalty of death shall automatically be imposed. Nowhere in the amendatory law is there a provision from which such a conclusion may be drawn. On the contrary, this Court has already concluded in People v. Gatward 23 that RA 7659 did not amend Art. 63 of The Revised Penal Code, and the rules therein were observed although the cocaine subject of that case was also in excess of the quantity provided in Sec. 20. 24 With respect to Crim. Case No. 96-8933, since the constitutional right of the accused against unreasonable searches and seizures was violated, which rendered the evidence against him inadmissible, he is acquitted of the offense charged. Finally, we take this opportunity to remonstrate the law enforcement agencies regarding respect for the constitutional rights of persons suspected of committing crimes. As the phalanx of our united efforts to stem the surging tide of drug-trafficking in this country, the police force is not only expected to be well-trained and well-equipped in the detection and apprehension of drug pushers, but more importantly, it must also be aware that arrests, searches and seizures should at all times and in all instances be done within the context of the Constitution. While we encourage an active and vigorous law enforcement, we nevertheless defer to and uphold the sacredness of constitutional rights. In the instant case, while the penalty of reclusion perpetua imposed by this Court on the accused may be sufficient to put him away for good, it is nonetheless lamentable that he will walk away unpunished in the other case of possession of more than 5,000 grams of illegal narcotics on account of a blunder which could have easily been avoided had the NARCOM officers faithfully adhered to the requirements of the Constitution. WHEREFORE, the Decision of the trial court in Crim. Case No. 96- 8932 convicting accused CHE CHUN TING alias "DICK" for violation of Sec. 15, Art. III, of RA 6425 (The Dangerous Drugs Act of 1972, as amended) is AFFIRMED, subject to the modification that the penalty imposed by the trial court is reduced to reclusion perpetua. The accused is ordered to pay a fine in the increased amount of P2,000,000.00, and the costs. In Crim. Case No. 96-8933, accused CHE CHUN TING alias "DICK" is ACQUITTED for failure of the prosecution to prove his guilt beyond reasonable doubt the evidence against him being inadmissible. The 999.43 grams and 5,578.68 grams of shabu, subject of Crim. Case Nos. 96-8932 and 96-8933 are FORFEITED in favor of the government to be turned over immediately to the Dangerous Drugs Board and the National Bureau of Investigation for proper disposition. cdasia SO ORDERED. Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares- Santiago and De Leon, Jr., JJ., concur. THIRD DIVISION [G.R. Nos. 138539-40. January 21, 2003.] PEOPLE OF THE PHILIPPINES, appellee, vs. ANTONIO C. ESTELLA, appellant. The Solicitor General for plaintiff-appellee. Sancho A. Abasta, Jr. for accused-appellant. SYNOPSIS Armed with a search warrant, police officers proceeded to appellant's house and saw appellant sitting on a rocking chair outside a hut owned by appellant's brother and rented by appellant's live-in partner. Upon presentation of the warrant, appellant surrendered two cans of dried marijuana fruiting tops inside the hut. Further search, however, led the officers to 20 bricks more of fruiting tops. Thus, appellant was found guilty of illegal possession of marijuana. cDCEHa The pivotal issue is the legality of the police search undertaken in the hut where the subject marijuana was seized. The Court ruled that the only thing proved by the prosecution is that appellant was outside the hut owned by appellant's brother, rented by someone who is allegedly the live-in partner of appellant. To make it appear, therefore, that appellant is occupying the hut or in control of it, is merely conjectural. On the allegation that appellant turned over dried marijuana fruiting tops, the same was belied by another prosecution witness. All considered, the Court acquitted appellant from the crime charged. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; WEIGHT AND SUFFICIENCY; PROOF BEYOND REASONABLE DOUBT; MERE SUSPICION IS NOT SUFFICIENT. The testimony of the prosecution witness shows that the subject hut where bricks of marijuana were found, was bought by appellant's brother and rented by someone named Eva, alleged live-in partner of appellant. The attempt to make it appear that appellant occupied it, or that it was under his full control, is merely conjectural and speculative. We have often ruled that courts do not rely on evidence that arouses mere suspicion or conjecture. To lead to conviction, evidence must do more than raise the mere possibility or even probability of guilt. It must engender moral certainty. In a criminal prosecution, the court is always guided by evidence that is tangible, verifiable, and in harmony with the usual course of human experience not by mere conjecture or speculation. While the guilty should not escape, the innocent should not suffer. 2. ID.; ID.; ID.; ID.; NOT ESTABLISHED IN THE ABSENCE OF SUFFICIENT INADMISSIBLE EVIDENCE. With the failure of the prosecution to establish the propriety of the search undertaken during which the incriminating evidence was allegedly recovered we hold that the search was illegal. Without the badge of legality, any evidence obtained therein becomes ipso facto inadmissible. Without sufficient admissible evidence against appellant, the prosecution failed to establish his guilt with moral certainty. Not only did its evidence fall short of the quantum of proof required for a conviction, it has also failed to present any evidence at all. Under our Bill of Rights, among the fundamental rights of the accused is to be presumed innocent until the contrary is proved. To overcome such presumption, the prosecution must establish guilt beyond reasonable doubt. Our criminal justice system dictates that if the prosecution fails to do so, it becomes not only the right of the accused to be set free, but also the constitutional duty of the court to set them free. This principle leaves this Court no option but to acquit appellant for insufficiency of evidence. 3. ID.; ID.; TESTIMONY OF WITNESSES; PROBATIVE VALUE BASED ON TRANSCRIPTS MAY BE ASSESSED BY THE COURT. It is well-settled that this Court is not precluded from assessing the probative value of witnesses' testimonies on the basis of the transcript of stenographic notes (TSNs). In the case at bar, we believe that the trial court erred in adopting the prosecution's dubious story. It failed to see patent inconsistencies in the prosecution witnesses' testimonies about the search undertaken. 4. ID.; CRIMINAL PROCEDURE; SEARCH INCIDENT TO A LAWFUL ARREST; NOT APPRECIATED IN THE ABSENCE OF EVIDENCE TO THE COMMISSION OF OFFENSE AS REASON FOR LAWFUL ARREST. There is no convincing proof that appellant indeed surrendered the prohibited drug, whether voluntarily or otherwise. In fact, the testimony of Prosecution Witness Barnachea clouds rather than clarifies the prosecution's story. Thus, the police authorities cannot claim that the search was incident to a lawful arrest. Such a search presupposes a lawful or valid arrest and can only be invoked through Section 5, Rule 113 of the Revised Rules on Criminal Procedure. Never was it proven that appellant, who was the person to be arrested, was in possession of the subject prohibited drug during the search. It follows, therefore; that there was no way of knowing if he had committed or was actually committing an offense in the presence of the arresting officers. Without that knowledge, there could have been no search incident to a lawful arrest. EHSCcT 5. ID.; ID.; ID.; ELUCIDATED. Searches and seizures incident to lawful arrests are governed by Section 12, Rule 126 of the Revised Rules of Criminal Procedure, which reads: "Section 12. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant." However, the scope of the search should be limited to the area within which the person to be arrested can reach for a weapon or for evidence that he or she can destroy. The prevailing rule is that the arresting officer may take from the arrested individual any money or property found upon the latter's person that which was used in the commission of the crime or was the fruit of the crime, or which may provide the prisoner with the means of committing violence or escaping, or which may be used in evidence in the trial of the case. The purpose of the exception is to protect the arresting officer from being harmed by the person being arrested, who might be armed with a concealed weapon, and to prevent the latter from destroying evidence within reach. The exception, therefore, should not be strained beyond what is needed to serve its purpose. In the case before us, searched was the entire hut, which cannot be said to have been within appellant's immediate control. Thus, the search exceeded the bounds of that which may be considered to be incident to a lawful arrest. D E C I S I O N PANGANIBAN, J p: The Constitution bars the admission of evidence gathered in violation of the right against unreasonable search and seizure. In the present case, the illegal drug was searched for and found in a hut that has not been proven to be owned, controlled, or used by appellant for residential or any other purpose. Hence, he cannot be held guilty of illegal possession of the illegal drug found therein. EcATDH The Case Antonio C. Estella appeals the August 25, 1998 Decision 1 of the Regional Trial Court (RTC) of Iba, Zambales (Branch 69) in Criminal Case No. RTC 2143-I. The trial court found him guilty of violating Section 8, Article II of RA 6425, as amended by RA 7659, and sentenced him to reclusion perpetua as follows: "WHEREFORE, foregoing considered, in Criminal Case No. RTC 2143-I, accused Antonio C. Estella is found GUILTY beyond reasonable doubt for Violation of Section 8, Article II of R.A. 6425 as amended by R.A. 7659 and is sentenced to suffer the penalty of reclusion perpetua. "The 8.320 kilograms of dried marijuana is ordered confiscated in favor of the government. The Sheriff is directed to deliver the subject marijuana to the Dangerous Drugs Board for its proper disposition. "In Criminal Case No. RTC 2144-I, accused Antonio C. Estella is ACQUITTED and the Information dated 07 January 1997 filed against him for violation of P.D. 1866 is dismissed with costs de officio. "The .38 caliber revolver without serial number and four (4) live ammunitions, subject of the offense, are ordered delivered to any authorized representative of the Philippine National Police, Firearms and Explosives Division, Camp Crame, Quezon City." 2 The Information dated January 7, 1997, charged appellant thus: "That on or about the 20th day of November, 1996 at about 11:15 o'clock in the morning, at Purok Yakal, Barangay Baloganon, in the Municipality of Masinloc, Province of Zambales, Philippines, and within the jurisdiction of this Honorable Court, said accused, did then and there, wil[l]fully, unlawfully and feloniously have in his possession, custody and control, [o]ne (1) tin can labeled 'CLASSIC' containing twenty (20) small bricks of dried marijuana fruiting tops having a total weight of 589.270 grams each wrapped with a piece of reading material; [o]ne (1) tin can labeled 'CLASSIC' containing dried marijuana fruiting tops weighing 41.126 grams; [t]wo (2) white sando plastic bag each containing one (1) [brick] of dried marijuana fruiting tops having a total weight of 1.710 kilograms each wrapped with a piece of newspaper, [o]ne (1) white sando plastic bag containing two (2) bricks of dried marijuana fruiting tops having a total weight of 1.820 kilograms each wrapped with a piece of newspaper, all in the total of 8.320 kilograms of dried marijuana, without any authority to possess the same." 3 After the Information had been read to him in Filipino, a language he fully understood, 4 appellant, assisted by his counsel de parte, 5 pleaded not guilty when arraigned on March 11, 1997. After due trial, the RTC convicted appellant of illegal possession of dangerous drugs (marijuana), but acquitted him of illegal possession of firearms. On November 4, 1998, his counsel filed a Notice of Appeal. 6 The Facts Version of the Prosecution In its Brief, 7 the Office of the Solicitor General (OSG) presents the prosecution's version of the facts as follows: "Prior to November 20, 1996, Executive Judge Romulo Estrada of the Regional Trial Court of Zambales issued a warrant for the conduct of a search and seizure in the residence of appellant at Purok Yakal, Barangay Baloganon, Masinloc, Zambales. "In the morning of November 20, 1996, Senior Police Officer 1 (SPO1) Antonio Bulor[o]n, then Intelligence and Investigation Officer, together with SPO1 Jose Arca and several other members of the Provincial Special Operation Group based in Burgos, San Marcelino, Zambales proceeded to Masinloc. They coordinated with the members of the Philippine National Police (PNP) in Masinloc and sought the assistance of Barangay Captain Rey Barnachea of Baloganon, Masinloc for the enforcement of the search warrant. Barangay Captain Barnachea accompanied the police officers to Purok Yakal, Barangay Baloganon, Masinloc, the place mentioned in the search warrant. "On their way to Purok Yakal, SPO1 Buloron saw appellant sitting on a rocking chair located about two (2) meters away from a hut owned by Narding Estella, brother of appellant, and being rented by appellant's live-in partner, named Eva. They approached appellant and introduced themselves as police officers. They showed appellant the search warrant and explained the contents to him. SPO1 Buloron asked appellant if indeed he had in his possession prohibited drug and if so, to surrender the same so he would deserve a lesser penalty. "While inside the hut, appellant surrendered to the team two cans containing dried marijuana fruiting tops. One can contained twenty (20) bricks of fruiting tops. The team searched the hut in the presence of appellant and his live-in partner. They found a plastic container under the kitchen table, which contained four (4) big bricks of dried marijuana leaves and a .38 caliber revolver with four live ammunitions. The team seized the prohibited drug, the revolver and ammunitions. The team seized and signed a receipt for the seized items. Barangay Captain Barnachea and SPO1 Edgar Bermudez of the Masinloc Police Station also signed the receipt as witnesses. SPO1 Buloron and his companions arrested appellant and brought him to San Marcelino, Zambales. "At their office in San Marcelino, Zambales, SPO1 Buloron and SPO1 Arca placed their markings on the seized items for purposes of identification. SPO1 Arca kept the seized items under his custody. The next day, SPO1 Buloron and SPO1 Arca brought the seized items to San Antonio, Zambales, where Police Senior Inspector Florencio Sahagun examined the suspected marijuana dried leaves. Inspector Sahagun prepared a certification of field test. "On November 29, 1996, the suspected marijuana dried leaves were delivered to the PNP Crime Laboratory at Camp Olivas for further examination. Senior Inspector Daisy Babor, a forensic chemist, examined the suspected marijuana dried leaves and issued Chemistry Report No. D-768-96 stating that the specimens are positive for marijuana, a prohibited drug. Specimen A weighed 1.710 kilograms, while Specimen D weighed 1.820 kilograms." 8 (Citations omitted) Version of the Defense For his version of the facts, appellant merely reproduced the narration in the assailed RTC Decision as follows: "Accused Antonio C. Estella [i]s married to Gloria Atrero Estella. They have three (3) children, namely: Carmen Estella (8 years old), Antonio Estella, Jr. (5 years old) and Roen Estella (3 years old). Since 1982, Antonio Estella has been [a] resident of Barangay Baloganon, Masinloc, Zambales. "On 20 November 1996 between 10:30 o'clock and 11:00 o'clock in the morning, while accused was talking with his friends Rael Tapado and Victor de Leon at a vacant lot just outside the house of Camillo Torres and about 70 meters away from his house, a group of men approached them. The group introduced themselves as policemen and told them that they were looking for Antonio Estella because they have a search warrant issued against him. Accused identified himself to them. The policemen inquired from the accused as to where his house is located and accused told them that his house is located across the road. The police did not believe him and insisted that accused's house (according to their asset) is that house located about 58 meters away from them. Accused told the policemen to inquire from the Barangay Captain Barnachea as to where his house is and heard the latter telling the policemen that his house is located near the Abokabar junk shop. After about half an hour, the policemen went inside the house nearby and when they came out, they had with them a bulk of plastic and had it shown to the accused. They photographed the accused and brought him to their office at San Marcelino, Zambales. Accused Antonio Estella was investigated a[t] San Marcelino, Zambales where he informed the police officers of the fact that the house they searched was occupied by Spouses Vicente and Fely Bakdangan. "Accused denied having surrendered to policeman Buloron tin cans containing marijuana and likewise having any firearm. "Miguel Buccat, who personally knew the accused for about ten (10) years, identified the house depicted on a photograph as that house belonging to the accused." 9 (Citations omitted) Ruling of the Trial Court In finding appellant guilty of violating the Dangerous Drugs Act, the court a quo relied heavily on the testimony of the prosecution's principal witness, Intelligence and Investigation Officer SPO1 Antonio Buloron. He was among the members of the police team that searched appellant's alleged house. Since the defense failed to present proof of any intent on the part of SPO1 Buloron to falsely impute to appellant such a serious crime, the trial court accorded full faith and credence to the police officer's testimony. Moreover, the RTC held that no less than the barangay captain of the place named in the search warrant led the police to the house. Thus, appellant could not deny that he owned it. As to the charge of illegal possession of firearms, the lower court ruled that the search warrant did not cover the seized firearm, making it inadmissible against appellant. He was thus acquitted of the charge. cADSCT Hence, this recourse. 10 The Issues In his appeal, appellant assigns the following alleged errors for our consideration: "A. The trial court erred in convicting the accused based on the conjectural and conflicting testimonies of the prosecution witnesses; "B. The trial court gravely failed to consider the serious contradictions in the facts and evidences adduced by the prosecution; "C. The trial court gravely erred in finding that the guilt of the accused-appellant for the crime charged has been prove[n] beyond reasonable doubt, instead of judgment of acquittal demanded by the constitutional presumption of innocence[.]" 11 Though not clearly articulated by appellant, the pivotal issue here is the legality of the police search undertaken in the hut where the subject marijuana was seized. The Court's Ruling The appeal is meritorious. Main Issue: Legality of the Search Undertaken Once again, this Court is confronted with a situation that involves a well-enshrined dogma in our Constitution: the inviolable right of the people to be secure in their persons and properties against unreasonable searches and seizures. 12 The exclusionary rule prescribed by Section 3(2), Article III of the Constitution, bars the admission of evidence obtained in violation of this right. 13 The conviction or the acquittal of appellant hinges primarily on the validity of the police officers' search and seizure, as well as the admissibility of the evidence obtained by virtue thereof. Without that evidence, the prosecution would not be able to prove his guilt beyond reasonable doubt. Ownership of the Subject House Appellant claims that the hut, 14 which was searched by the police and where the subject marijuana was recovered, does not belong to him. He points to another house 15 as his real residence. To support his claim, he presents a document 16 that shows that the subject hut was sold to his brother Leonardo C. Estella by one Odilon Eclarinal. The OSG, on the other hand, argues that just because "appellant has another house in a place away from the hut that was searched does not necessarily mean that the hut is not occupied by him or under his full control." 17 The prosecution cites the testimony of Rey Barnachea, the barangay captain of that place, to show that the hut in question belongs to appellant. The only link that can be made between appellant and the subject hut is that it was bought by his brother Leonardo a.k.a. "Narding" Estella. 18 We cannot sustain the OSG's supposition that since it was being rented by the alleged live-in partner of appellant, it follows that he was also occupying it or was in full control of it. In the first place, other than SPO1 Buloron's uncorroborated testimony, no other evidence was presented by the prosecution to prove that the person renting the hut was indeed the live-in partner of appellant if he indeed had any. Moreover, the testimony of Barnachea serves to undermine, not advance, the position of the prosecution. We quote from his testimony: "Q Do you know who is the owner of that house? A What I know is that Narding Estella bought that house, sir. Q Who is that Narding Estella? A The brother of Tony Estella, sir. Q And you know that that has been rent[ed] to people? A Yes, sir. Q Now, so far how many people [rented] that place or that house? A I do not have any information about that[,] sir. Q Why did you know that that place was rented? A Because when I asked Eva she replied that they [were] only renting that house, sir. Q How long has Eva been renting that house? A I do not have any information about that[,] sir. Q Do you know who was living with Eva? A No, sir. Q So, what you know is that Eva lives alone in that house? A Yes, sir. Q And you do not know anybody who is renting that house? A I have no information, sir. Q And you do not know if the accused was renting [it] or not? A I don't have any information, sir." 19 At most, the testimony shows that the subject hut was bought by Narding Estella and rented by someone named Eva. The attempt to make it appear that appellant occupied it, or that it was under his full control, is merely conjectural and speculative. We have often ruled that courts do not rely on evidence that arouses mere suspicion or conjecture. 20 To lead to conviction, evidence must do more than raise the mere possibility or even probability of guilt. 21 It must engender moral certainty. Neither do we find merit in the OSG's argument that appellant cannot deny ownership or control of the hut, since he was found in front of it, sitting on a rocking chair and drinking coffee. 22 Indeed, to uphold this proposition would be to stretch our imagination to the extreme. The OSG maintains that when appellant was "shown the search warrant and asked about the existence of prohibited drug in his possession, appellant went inside the hut, took his stock of marijuana and turned it [over] to the police officers." 23 This, according to the prosecution, clearly showed that he was not only occupying the hut, but was in fact using it to store the prohibited drug. 24 It is well-settled that this Court is not precluded from assessing the probative value of witnesses' testimonies on the basis of the transcript of stenographic notes (TSNs). 25 In the case at bar, we believe that the trial court erred in adopting the prosecution's dubious story. It failed to see patent inconsistencies in the prosecution witnesses' testimonies about the search undertaken. SECATH A review of the TSNs shows that SPO1 Buloron, the prosecutions principal witness, testified that appellant had allegedly gone inside the hut; and that the latter had done so to get his stock of illegal drugs, which he turned over to the police. Ironically, Captain Barnachea, who was purposely presented by the prosecution to corroborate SPO1 Buloron's story, belied it when he testified thus: "PROS. QUINTILLAN: Q When the police officer showed that search warrant what did Antonio Estella said, if any, if you hear[d]? A What I saw is that Tony Estella is sitting in the rocking chair outside the house drinking coffee, sir. Q And you saw him and then the search warrant was presented, isn't it? A Yes, sir. Q And when it was presented what did Tony Estella do? A What they did they show to Tony the search warrant and I also read the contents of the search warrant, sir. Q And when Tony was shown that search warrant what did he do immediately after being shown that search warrant? A He just [sat] and then he stood up, sir. Q And when he stood up what else did he do? A Nothing, sir. The NARCOM g[o]t inside the house, sir. Q And where did Antonio Estella go when the police entered the house? A He was just outside the house, sir. Q And how far is that house from Antonio Estella? INTERPRETER: Witness estimating the distance of about five (5) meters. COURT: Do the prosecution and defense agree to 5 meters? BOTH COUNSEL: Yes, Your Honor. PROS. QUINTILLAN: Q And when the police entered the house did not Tony go with them? A I did not notice, sir." 26 It is undisputed that even before arriving at the hut, the police officers were already being assisted by Barangay Captain Barnachea. Thus, it was highly improbable for him not to see personally appellant's alleged voluntary surrender of the prohibited drug to the authorities. And yet, his testimony completely contradicted the policemen's version of the events. He testified that appellant, after being served the search warrant, remained outside the hut and did nothing. In fact, the former categorically stated that when the police officers had gone inside the hut to conduct the search, appellant remained seated on a rocking chair outside. 27 Barnachea's statements sow doubts as to the veracity of SPO1 Buloron's claim that, after being apprised of the contents of the search warrant, appellant voluntarily surrendered the prohibited drug to the police. 28 Apart from the testimony of Barnachea which contradicted rather than validated the story of SPO1 Buloron no other evidence was presented to corroborate the latter's narration of the events. Without any independent or corroborative proof, it has little or no probative value at all. In a criminal prosecution, the court is always guided by evidence that is tangible, verifiable, and in harmony with the usual course of human experience not by mere conjecture or speculation. 29 While the guilty should not escape, the innocent should not suffer. 30 Search Incident to Lawful Arrest The OSG argues that "[e]ven assuming that appellant was not the occupant of the hut, the fact remains that he voluntarily surrendered the marijuana to the police officers. After appellant had surrendered the prohibited stuff, the police had a right to arrest him even without a warrant and to conduct a search of the immediate vicinity of the arrestee for weapons and other unlawful objects as an incident to the lawful arrest." 31 The above argument assumes that the prosecution was able to prove that appellant had voluntarily surrendered the marijuana to the police officers. As earlier adverted to, there is no convincing proof that he indeed surrendered the prohibited drug, whether voluntarily or otherwise. In fact, the testimony of Prosecution Witness Barnachea clouds rather than clarifies the prosecution's story. Given this backdrop, the police authorities cannot claim that the search was incident to a lawful arrest. Such a search presupposes a lawful or valid arrest and can only be invoked through Section 5, Rule 113 of the Revised Rules on Criminal Procedure, which we quote: "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. "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 Rule 112." Never was it proven that appellant, who was the person to be arrested, was in possession of the subject prohibited drug during the search. It follows, therefore, that there was no way of knowing if he had committed or was actually committing an offense in the presence of the arresting officers. Without that knowledge, there could have been no search incident to a lawful arrest. Assuming arguendo that appellant was indeed committing an offense in the presence of the arresting officers, and that the arrest without a warrant was lawful, it still cannot be said that the search conducted was within the confines of the law. Searches and seizures incident to lawful arrests are governed by Section 12, Rule 126 of the Revised Rules of Criminal Procedure, which reads: "Section 12. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant." However, the scope of the search should be limited to the area within which the person to be arrested can reach for a weapon or for evidence that he or she can destroy. 32 The prevailing rule is that the arresting officer may take from the arrested individual any money or property found upon the latter's person that which was used in the commission of the crime or was the fruit of the crime, or which may provide the prisoner with the means of committing violence or escaping, or which may be used in evidence in the trial of the case. 33 In the leading case Chimel v. California, 34 the Supreme Court of the United States of America laid down this rule: "When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area 'within his immediate control' construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. "There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself." 35 The purpose of the exception is to protect the arresting officer from being harmed by the person being arrested, who might be armed with a concealed weapon, and to prevent the latter from destroying evidence within reach. The exception, therefore, should not be strained beyond what is needed to serve its purpose. 36 In the case before us, searched was the entire hut, which cannot be said to have been within appellant's immediate control. Thus, the search exceeded the bounds of that which may be considered to be incident to a lawful arrest. The Presence of the Accused or the Witnesses During the Search Having ruled that the prosecution failed to prove appellant's ownership, control of or residence in the subject hut, we hold that the presence of appellant or of witnesses during the search now becomes moot and academic. Obviously, appellant need not have been present during the search, if he was neither the owner nor the lawful occupant of the premises in question. Besides, as we have noted, the testimonies of the prosecution witnesses regarding these crucial circumstances were contradictory. They erode SPO1 Buloron's credibility as a prosecution witness and raise serious doubts concerning the prosecution's evidence. This Court is thus constrained to view his testimony with caution and care. With the failure of the prosecution to establish the propriety of the search undertaken during which the incriminating evidence was allegedly recovered we hold that the search was illegal. Without the badge of legality, any evidence obtained therein becomes ipso facto inadmissible. HScDIC Objections to the Legality of the Search Finally, the OSG argues that appellant is deemed to have waived his right to object to the legality of the search and the admissibility of the evidence seized through that search because, during the trial, he did not raise these issues. On the contrary, during the trial, appellant constantly questioned the legality of the search. In fact, when SPO1 Buloron was presented as a prosecution witness, the former's counsel objected to the offer of the latter's testimony on items allegedly confiscated during the search. Appellant's counsel argued that these items, which consisted of the marijuana and the firearm, had been seized illegally and were therefore inadmissible. 37 Further, in his Comments and Objections to Formal Offer of Exhibits, 38 appellant once again questioned the legality of the search conducted by the police, a search that had yielded the evidence being used against him. Finally, on October 21, 1997, he filed a Demurrer to Evidence 39 reiterating his objection to the search and to the eventual use against him of the evidence procured therefrom. All told, without sufficient admissible evidence against appellant, the prosecution failed to establish his guilt with moral certainty. 40 Not only did its evidence fall short of the quantum of proof required for a conviction, it has also failed to present any evidence at all. Under our Bill of Rights, among the fundamental rights of the accused is to be presumed innocent until the contrary is proved. 41 To overcome such presumption, the prosecution must establish guilt beyond reasonable doubt. Our criminal justice system dictates that if the prosecution fails to do so, it becomes not only the right of the accused to be set free, but also the constitutional duty of the court to set them free. 42 This principle leaves this Court no option but to acquit Appellant Antonio C. Estella for insufficiency of evidence. WHEREFORE, the appealed Decision is SET ASIDE. Antonio C. Estella is ACQUITTED and ordered immediately RELEASED from custody, unless he is being held for some other lawful cause. The director of the Bureau of Corrections is ORDERED to implement this Decision forthwith and to INFORM this Court, within five (5) days from receipt hereof, of the date appellant was actually released from confinement. Costs de oficio. SHEIDC SO ORDERED. Puno, Sandoval-Gutierrez, Corona and Carpio-Morales, JJ., concur. THIRD DIVISION [G.R. No. 136860. January 20, 2003.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGPANGA LIBNAO y KITTEN and ROSITA NUNGA y VALENCIA, accused. AGPANGA LIBNAO y KITTEN, accused-appellant. The Solicitor General for plaintiff-appellee. Molintas & Molintas Law Office for accused-appellant. SYNOPSIS This is an appeal from the decision of the Regional Trial Court of Tarlac City finding appellant and her co-accused guilty of violating Article II, Section 4 of R.A. No. 6425, otherwise known as the Dangerous Drugs Act of 1972. For their conviction, each was sentenced to suffer an imprisonment of reclusion perpetua. The appellant argued that her arrest was unlawful and capitalized on the absence of a warrant for her arrest. She contended that at the time she was apprehended by the police officers, she was not committing any offense but was merely riding a tricycle. She also impugned the search made on her belongings as illegal as it was not done without a valid warrant or under circumstances when warrantless search is permissible. Consequently, she claimed that the evidence obtained therein were inadmissible against her. HDITCS The Supreme Court affirmed the conviction of the appellant. According to the Court, the general rule is that a search may be conducted by law enforcers only on the strength of a search warrant validly issued by a judge as provided in the Constitution. However, the constitutional guarantee is not a blanket prohibition against all searches and seizures. The warrantless search in this case is not bereft of a probable cause. It was also clear that at the time she was apprehended, she was committing a criminal offense, transporting prohibited drugs. Against the credible positive testimonies of the prosecution witnesses, appellant's defense of denial and alibi could not stand. cHaCAS SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; SEARCHES AND SEIZURES; UNREASONABLE UNLESS AUTHORIZED BY A VALIDLY ISSUED SEARCH WARRANT OR WARRANT OF ARREST, AS A RULE. The general rule is that a search may be conducted by law enforcers only on the strength of a search warrant validly issued by a judge as provided in Article III, Section 2 of the 1987 Constitution, thus: "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 and warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized." The constitutional guarantee is not a blanket prohibition against all searches and seizures as it operates only against "unreasonable" searches and seizures. Searches and seizures are as a rule unreasonable unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental protection accorded by the search and seizure clause is that between persons and police must stand the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants and warrants of arrest. HIACEa 2. ID.; ID.; ID.; ID.; SEARCH AND SEIZURE OF MOVING VEHICLE AS AN EXCEPTION; RATIONALE. Be that as it may, the requirement that a judicial warrant must be obtained prior to the carrying out of a search and seizure is not absolute. There are certain familiar exceptions to the rule, one of which relates to search of moving vehicles. Warrantless search and seizure of moving vehicles are allowed in recognition of the impracticability of securing a warrant under said circumstances as the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant may be sought. Peace officers in such cases, however, are limited to routine checks where the examination of the vehicle is limited to visual inspection. When a vehicle is stopped and subjected to an extensive search, such would be constitutionally permissible only if the officers made it upon probable cause, i.e., upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains as item, article or object which by law is subject to seizure and destruction. 3. ID.; ID.; ID.; ID.; ID.; PRESENT IN CASE AT BAR. The warrantless search in the case at bench is not bereft of a probable cause. The Tarlac Police Intelligence Division had been conducting surveillance operation for three months in the area. The surveillance yielded the information that once a month, appellant and her co- accused Rosita Nunga transport drugs in big bulks. At 10:00 pm of October 19, 1996, the police received a tip that the two will be transporting drugs that night riding a tricycle. Surely, the two were intercepted three hours later, riding a tricycle and carrying a suspicious-looking black bag, which possibly contained the drugs in bulk. When they were asked who owned it and what its content was, both became uneasy. Under these circumstances, the warrantless search and seizure of appellant's bag was not illegal. It is also clear that at the time she was apprehended, she was committing a criminal offense. She was making a delivery or transporting prohibited drugs in violation of Article II, Section 4 of R.A. No. 6425. Under the Rules of Court, one of the instances a police officer is permitted to carry out a warrantless arrest is when the person to be arrested is caught committing a crime in flagrante delicto. aDcTHE 4. REMEDIAL LAW; EVIDENCE; WHEN PRESENTATION THEREOF EVEN WITHOUT FORMAL OFFER MAY ESTABLISH THE PROSECUTION'S CASE; CASE AT BAR. Evidence not formally offered can be considered by the court as long as they have been properly identified by testimony duly recorded and they have themselves, been incorporated in the records of the case. All the documentary and object evidence in this case were properly identified, presented and marked as exhibits in court, including the bricks of marijuana. Even without their formal offer, therefore, the prosecution can still establish the case because witnesses properly identified those exhibits, and their testimonies are recorded. Furthermore, appellant's counsel had cross-examined the prosecution witnesses who testified on the exhibits. 5. ID.; ID.; CREDIBILITY OF WITNESSES; NOT AFFECTED BY INCONSISTENCIES ON MINOR DETAILS; APPLICATION IN CASE AT BAR. The alleged inconsistencies she mentions refer only to minor details and not to material points regarding the basic elements of the crime. They are inconsequential that they do not affect the credibility of the witnesses nor detract from the established fact that appellant and her co-accused were transporting marijuana. Testimonies of witnesses need only corroborate each other on important and relevant details concerning the principal occurrence. The identity of the person who opened the bag is clearly immaterial to the guilt of the appellant. Besides, it is to be expected that the testimony of witnesses regarding the same incident may be inconsistent in some aspects because different persons may have different recollections of the same incident. 6. ID.; ID.; ID.; CREDENCE MAY BE PROPERLY ACCORDED TO TESTIMONIES OF POLICE OFFICERS WHO EXHIBITED NO IMPROPER MOTIVE TO ARREST THE APPELLANT. To be sure, credence was properly accorded to the testimonies of prosecution witnesses, who are law enforcers. When police officers have no motive to testify falsely against the accused, courts are inclined to uphold this presumption. In this case, no evidence has been presented to suggest any improper motive on the part of the police enforcers in attesting the appellant. ATSIED 7. ID.; ID.; DENIAL AND ALIBI, AS DEFENSE; CANNOT STAND AGAINST CREDIBLE POSITIVE TESTIMONIES OF THE PROSECUTION WITNESS. Against the credible positive testimonies of the prosecution witnesses, appellant's defense of denial and alibi cannot stand. The defense of denial and alibi has been invariably viewed by the courts with disfavor for it can just as easily be concocted and is a common and standard defense ploy in most cases involving violation of the Dangerous Drugs Act. It has to be substantiated by clear and convincing evidence. The sole proof presented in the lower court by the appellant to support her claim of denial and alibi was a sworn statement, which was not even affirmed on the witness stand by the affiant. D E C I S I O N PUNO, J p: Before us is an appeal from the Decision dated November 19, 1998 of the Regional Trial Court, Branch 65, Tarlac City, finding appellant Agpanga Libnao and her co-accused Rosita Nunga guilty of violating Article II, Section 4 of R.A. No. 6425, otherwise known as the Dangerous Drugs Act of 1972. 1 For their conviction, each was sentenced to suffer an imprisonment of reclusion perpetua and to pay a fine of two million pesos. ISCHET Appellant and her co-accused were charged under the following Information: "That on or about October 20, 1996 at around 1:00 o'clock dawn, in the Municipality of Tarlac, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and helping with one another, without being lawfully authorized, did then and there willfully, unlawfully and feloniously make delivery/transport with intent to sell marijuana leaves wrapped in a transparent plastic weighing approximately eight (8) kilos, which is in violation of Section 4, Article II of RA 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended. CONTRARY TO LAW." 2 During their arraignment, both entered a plea of Not Guilty. Trial on the merits ensued. It appears from the evidence adduced by the prosecution that in August of 1996, intelligence operatives of the Philippine National Police (PNP) stationed in Tarlac, Tarlac began conducting surveillance operation on suspected drug dealers in the area. They learned from their asset that a certain woman from Tajiri, Tarlac and a companion from Baguio City were transporting illegal drugs once a month in big bulks. On October 19, 1996, at about 10 o'clock in the evening, Chief Inspector Benjamin Arceo, Tarlac Police Chief, held a briefing in connection with a tip which his office received that the two drug pushers, riding in a tricycle, would be making a delivery that night. An hour later, the Police Alert Team installed a checkpoint in Barangay Salapungan to apprehend the suspects. Witness SPO1 Marlon Gamotea, PO3 Florante Ferrer and SPO3 Roberto Aquino were assigned to man the checkpoint. At about 1:00 o'clock in the morning of the following day, SPO1 Gamotea and PO3 Ferrer flagged down a passing tricycle. It had two female passengers seated inside, who were later identified as the appellant Agpanga Libnao and her co-accused Rosita Nunga. 3 In front of them was a black bag. Suspicious of the black bag and the two's uneasy behavior when asked about its ownership and content, the officers invited them to Kabayan Center No. 2 located at the same barangay. They brought with them the black bag. Upon reaching the center, PO3 Ferrer fetched Barangay Captain Roy Pascual to witness the opening of the black bag. In the meantime, the two women and the bag were turned over to the investigator on duty, SPO3 Arthur Antonio. As soon as the barangay captain arrived, the black bag was opened in the presence of the appellant, her co-accused and personnel of the center. Found inside it were eight bricks of leaves sealed in plastic bags and covered with newspaper. The leaves were suspected to be marijuana. To determine who owns the bag and its contents, SPO3 Antonio interrogated the two. Rosita Nunga stated that it was owned by the appellant. The latter, in turn, disputed this allegation. Thereafter, they were made to sign a confiscation receipt without the assistance of any counsel, as they were not informed of their right to have one. During the course of the investigation, not even close relatives of theirs were present. HIDCTA The seized articles were later brought to the PNP Crime Laboratory in San Fernando, Pampanga on October 23, 1996. Forensic Chemist Daisy P. Babu conducted a laboratory examination on them. She concluded that the articles were marijuana leaves weighing eight kilos. 4 For their part, both accused denied the accusation against them. Rosita Nunga testified that in the evening of October 19, 1996, she went to buy medicine for her ailing child at a pharmacy near the Tarlac Provincial Hospital. The child was suffering from diarrhea, occasioned by abdominal pain. To return to their house, she boarded a tricycle bound for Barangay Tariji, where she resides. Along the way, the tricycle she was riding was flagged down by a policeman at a checkpoint in Barangay Salapungan. She was taken aback when the officer invited her to the Kabayan Center. It was there that she was confronted with the black bag allegedly containing eight bricks of marijuana leaves. She disputed owning the bag and knowing its contents. She also denied sitting beside the appellant in the passenger's seat inside the tricycle, although she admitted noticing a male passenger behind the driver. Remarkably, appellant did not appear in court and was only represented by her lawyer. The latter marked and submitted in evidence an affidavit executed by one Efren Gannod, a security guard of Philippine Rabbit Bus Lines in Tarlac, Tarlac. The sworn statement declared that at about 0220H on October 20, 1996, SPO2 Antonio arrived at their terminal and arrested a certain woman who boarded their Bus No. 983. The incident was recorded in the company's logbook. Gannod, however, was not presented in court to attest that the woman referred in his affidavit was the appellant. After trial, the court convicted appellant and her co-accused Rosita Nunga, thus: "WHEREFORE, finding both accused guilty beyond reasonable doubt of the offense of violation of Article II, Section 4 of RA 6425 in relation to RA 7659, they are hereby sentenced to suffer an imprisonment of reclusion perpetua and to pay a fine of two million pesos. SO ORDERED." 5 Aggrieved by the verdict, appellant interposed the present appeal. In her brief, she assigned the following errors: "1. The Honorable Regional Trial Court failed to appreciate the contention of the defense that the right of accused against illegal and unwarranted arrest and search was violated by the police officers who arrested both accused. 2. The Honorable Court failed to appreciate the contention of the defense that the right of the accused to custodial investigation was deliberately violated by the peace officers who apprehended and investigated the accused. 3. The Honorable Court miserably failed to evaluate the material inconsistencies in the testimonies of the prosecution's witnesses which inconsistencies cast doubt and make incredible the contention and version of the prosecution. 4. The Honorable Court gravely abused its discretion when it appreciated and considered the documentary and object evidence of the prosecution not formally offered amounting to ignorance of the law." 6 We are not persuaded by these contentions; hence, the appeal must be dismissed. In arguing that her arrest was unlawful, appellant capitalizes on the absence of a warrant for her arrest. She contends that at the time she was apprehended by the police officers, she was not committing any offense but was merely riding a tricycle. In the same manner, she impugns the search made on her belongings as illegal as it was done without a valid warrant or under circumstances when warrantless search is permissible. Consequently, any evidence obtained therein is inadmissible against her. These arguments fail to impress. The general rule is that a search may be conducted by law enforcers only on the strength of a search warrant validly issued by a judge as provided in Article III, Section 2 of the 1987 Constitution, thus: "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 and 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." 7 The constitutional guarantee is not a blanket prohibition against all searches and seizures as it operates only against "unreasonable" searches and seizures. Searches and seizures are as a rule unreasonable unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental protection accorded by the search and seizure clause is that between persons and police must stand the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants and warrants of arrest. 8 Be that as it may, the requirement that a judicial warrant must be obtained prior to the carrying out of a search and seizure is not absolute. There are certain familiar exceptions to the rule, one of which relates to search of moving vehicles. 9 Warrantless search and seizure of moving vehicles are allowed in recognition of the impracticability of securing a warrant under said circumstances as the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant may be sought. 10 Peace officers in such cases, however, are limited to routine checks where the examination of the vehicle is limited to visual inspection. 11 When a vehicle is stopped and subjected to an extensive search, such would be constitutionally permissible only if the officers made it upon probable cause, i.e., upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains as item, article or object which by law is subject to seizure and destruction. 12 In earlier decisions, we held that there was probable cause in the following instances: (a) where the distinctive odor of marijuana emanated from the plastic bag carried by the accused; 13 (b) where an informer positively identified the accused who was observed to be acting suspiciously; 14 (c) where the accused who were riding a jeepney were stopped and searched by policemen who had earlier received confidential reports that said accused would transport a quantity of marijuana; 15 (d) where Narcom agents had received information that a Caucasian coming from Sagada, Mountain Province had in his possession prohibited drugs and when the Narcom agents confronted the accused Caucasian because of a conspicuous bulge in his waistline, he failed to present his passport and other identification papers when requested to do so; 16 (f) where the moving vehicle was stopped and searched on the basis of intelligence information and clandestine reports by a deep penetration agent or spy one who participated in the drug smuggling activities of the syndicate to which the accused belong that said accused were bringing prohibited drugs into the country; 17 (g) where the arresting officers had received a confidential information that the accused, whose identity as a drug distributor was established in a previous test- buy operation, would be boarding MV Dona Virginia and probably carrying shabu with him; 18 (h) where police officers received an information that the accused, who was carrying a suspicious-looking gray luggage bag, would transport marijuana in a bag to Manila; 19 and (i) where the appearance of the accused and the color of the bag he was carrying fitted the description given by a civilian asset. 20 The warrantless search in the case at bench is not bereft of a probable cause. The Tarlac Police Intelligence Division had been conducting surveillance operation for three months in the area. The surveillance yielded the information that once a month, appellant and her co- accused Rosita Nunga transport drugs in big bulks. At 10:00 pm of October 19, 1996, the police received a tip that the two will be transporting drugs that night riding a tricycle. Surely, the two were intercepted three hours later, riding a tricycle and carrying a suspicious-looking black bag, which possibly contained the drugs in bulk. When they were asked who owned it and what its content was, both became uneasy. Under these circumstances, the warrantless search and seizure of appellant's bag was not illegal. EaSCAH It is also clear that at the time she was apprehended, she was committing a criminal offense. She was making a delivery or transporting prohibited drugs in violation of Article II, Section 4 of R.A. No. 6425. Under the Rules of Court, one of the instances a police officer is permitted to carry out a warrantless arrest is when the person to be arrested is caught committing a crime in flagrante delicto, thus: "Section 5. Arrest without Warrant; when lawful. 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; (b) When an offense has in fact just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. xxx xxx xxx." 21 (italics supplied) Appellant also takes issue of the fact that she was not assisted by a lawyer when police officers interrogated her. She claimed that she was not duly informed of her right to remain silent and to have competent counsel of her choice. Hence, she argues that the confession or admission obtained therein should be considered inadmissible in evidence against her. These contentions deserve scant attention. Appellant did not make any confession during her custodial investigation. In determining the guilt of the appellant and her co-accused, the trial court based its decision on the testimonies of prosecution witnesses and on the existence of the confiscated marijuana. We quote the relevant portion of its decision: "Earlier in the course of the proceedings, the court then presided by Judge Angel Parazo, granted bail to accused Agpanga Libnao, ruling that the confiscation receipt signed by both accused (Exhibit "C") is inadmissible because they were not assisted by a counsel. Confronted with this same issue, this court finds the postulate to rest on good authority and will therefore reiterate its inadmissibility. Since the prosecution had not presented any extrajudicial confession extracted from both accused as evidence of their guilt, the court finds it needless to discuss any answer given by both accused as a result of the police interrogation while in their custody. By force of necessity, therefore, the only issue to be resolved by the court is whether or not, based on the prosecution's evidence, both accused can be convicted." 22 (italics supplied). Appellant then faults the trial court for appreciating and taking into account the object and documentary evidence of the prosecution despite the latter's failure to formally offer them. Absent any formal offer, she argues that they again must be deemed inadmissible. The contention is untenable. Evidence not formally offered can be considered by the court as long as they have been properly identified by testimony duly recorded and they have themselves been incorporated in the records of the case. 23 All the documentary and object evidence in this case were properly identified, presented and marked as exhibits in court, including the bricks of marijuana. 24 Even without their formal offer, therefore, the prosecution can still establish the case because witnesses properly identified those exhibits, and their testimonies are recorded. 25 Furthermore, appellant's counsel had cross-examined the prosecution witnesses who testified on the exhibits. 26 Appellant also assails the credibility of the testimonies of the prosecution witnesses. She first cites the inconsistency between the testimony of SPO1 Marlon Gamotea, who said that it was SPO2 Antonio who opened the black bag containing the marijuana; and that of SPO2 Antonio, who declared that the bag was already open when he arrived at the Kabayan Center. She then focuses on the police officers' failure to remember the family name of the driver of the tricycle where she allegedly rode, claiming that this is improbable and contrary to human experience. Again, appellant's arguments lack merit. The alleged inconsistencies she mentions refer only to minor details and not to material points regarding the basic elements of the crime. They are inconsequential that they do not affect the credibility of the witnesses nor detract from the established fact that appellant and her co-accused were transporting marijuana. Testimonies of witnesses need only corroborate each other on important and relevant details concerning the principal occurrence. 27 The identity of the person who opened the bag is clearly immaterial to the guilt of the appellant. Besides, it is to be expected that the testimony of witnesses regarding the same incident may be inconsistent in some aspects because different persons may have different recollections of the same incident. 28 Likewise, we find nothing improbable in the failure of the police officers to note and remember the name of the tricycle driver for the reason that it was unnecessary for them to do so. It was not shown that the driver was in complicity with the appellant and her co- accused in the commission of the crime. To be sure, credence was properly accorded to the testimonies of prosecution witnesses, who are law enforcers. When police officers have no motive to testify falsely against the accused, courts are inclined to uphold this presumption. 29 In this case, no evidence has been presented to suggest any improper motive on the part of the police enforcers in arresting the appellant. Against the credible positive testimonies of the prosecution witnesses, appellant's defense of denial and alibi cannot stand. The defense of denial and alibi has been invariably viewed by the courts with disfavor for it can just as easily be concocted and is a common and standard defense ploy in most cases involving violation of the Dangerous Drugs Act. 30 It has to be substantiated by clear and convincing evidence. 31 The sole proof presented in the lower court by the appellant to support her claim of denial and alibi was a sworn statement, which was not even affirmed on the witness stand by the affiant. Hence, we reject her defense. IN VIEW WHEREOF, the instant appeal is DENIED. The decision of the trial court finding appellant guilty beyond reasonable doubt of the offense of violation of Article II, Section 4 of R.A. No. 6425 in relation to R.A. No. 7659, and sentencing her to an imprisonment of reclusion perpetua and to pay a fine of two million pesos is hereby AFFIRMED. EcATDH SO ORDERED. Panganiban, Sandoval-Gutierrez, Corona and Carpio-Morales, JJ., concur. THIRD DIVISION [G.R. No. 96177. January 27, 1993.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARI MUSA y HANTATALU, accused-appellant. The Solicitor General for plaintiff-appellee. Pablo L. Murillo for accused-appellant. SYLLABUS 1. CRIMINAL LAW; DANGEROUS DRUGS ACT (R.A. 6425); ILLEGAL SALE OF MARIJUANA DRUGS; FAMILIARITY BETWEEN BUYER AND SELLER, NOT MATERIAL. The contention that the appellant could not have transacted with Sgt. Ani because they do not know each other is without merit. The day before the buy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought a wrapper of marijuana from the appellant. Through this previous transaction, Sgt. Ani was able to gain the appellant's confidence for the latter to sell more marijuana to Sgt. Ani the following day, during the buy-bust operation. Moreover, the Court has held that what matters is not an existing familiarity between the buyer and the seller, for quite often, the parties to the transaction may be strangers, but their agreement and the acts constituting the sale and delivery of the marijuana. 2. ID.; ID.; ID.; PRESENCE OF OTHER PEOPLE, NOT CRUCIAL. The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was impossible for the appellant to sell marijuana while his wife, cousin and manicurist were present. But the place of the commission of the crime of selling prohibited drugs has been held to be not crucial and the presence of other people apart from the buyer and seller will not necessarily prevent the consummation of the illegal sale. As the Court observed in People v. Paco, these factors may sometimes camouflage the commission of the crime. In the instant case, the fact that the other people inside the appellant's house are known to the appellant may have given him some assurance that these people will not report him to the authorities. 3. ID.; ID.; ID.; CASE OF PEOPLE VS. ALE, NOT APPLICABLE IN CASE AT BAR. The case of People v. Ale does not apply here because the policeman in that case testified that he and his companion were certain that the appellant therein handed marijuana cigarettes to the poseur-buyer based on the appearance of the cigarette sticks. The Court rejected this claim. In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw the appellant hand over marijuana to Sgt. Ani. What he said was that there was an exchange of certain articles between the two. Contrary to the contention of the appellant, it was not impossible for T/Sgt. Belarga to have seen, from a distance of 90-100 meters, Sgt. Ani hand to the appellant "something" and for the latter to give to the former "something." 4. REMEDIAL LAW; EVIDENCE; CORROBORATIVE EVIDENCE SUPPORTING DIRECT EVIDENCE; SUFFICIENT TO PROVE THE CRIME COMMITTED. Notwithstanding the fact that T/Sgt. Belarga could not have been certain that what Sgt. Ani received from the appellant was marijuana because of the distance, his testimony, nevertheless, corroborated the direct evidence, which the Court earlier ruled to be convincing. The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence given by Sgt. Ani. Additionally, the Court has ruled that the fact that the police officers who accompanied the poseur-buyer were unable to see exactly what the appellant gave the poseur-buyer because of their distance or position will not be fatal to the prosecution's case provided there exists other evidence, direct or circumstantial, e.g., the testimony of the poseur-buyer, which is sufficient to prove the consummation of the sale of the prohibited drug. 5. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM AGAINST UNREASONABLE SEARCH AND SEIZURE; EVIDENCE OBTAINED IN VIOLATION THEREOF. Built into the Constitution are guarantees on the freedom of every individual against unreasonable searches and seizures. Furthermore, the Constitution, in conformity with the doctrine laid down in Stonehill v. Diokno, (G.R. No. L-19550, June 19, 1967, 20 SCRA 383) declares inadmissible, any evidence obtained in violation of the freedom from unreasonable searches and seizures. 6. REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH & SEIZURE; SEARCH INCIDENTAL TO LAWFUL ARREST. While a valid search warrant is generally necessary before a search and seizure may be effected, exceptions to this rule are recognized. Thus, in Alvero v. Dizon, the Court stated that "[t]he most important exception to the necessity for a search warrant is the right of search and seizure as an incident to a lawful arrest." Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless search and seizure incident to a lawful arrest. There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting officer to make a search upon the person of the person arrested. As early as 1909, the Court has ruled that "[a]n officer making an arrest may take from the person arrested and money or property found upon his person which was used in the commission of the crime or was the fruit of the crime or which might furnish the prisoner with the means of committing violence or of escaping, or which may be used as evidence in the trial of the cause . . ." Hence, in a buy-bust operation conducted to entrap a drug-pusher, the law enforcement agents may seize the marked money found on the person of the pusher immediately after the arrest even without arrest and search warrants. 7. ID.; ID.; ID.; ID.; DOCTRINE OF "PLAIN VIEW". The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend beyond the person of the one arrested to include the premises or surroundings under his immediate control. Objects in the "plain view" of an officer who has the right to be in the position to have that view are subject to seizure and may be presented as evidence. 8. ID.; ID.; ID.; ID.; ID.; LIMITATION. The "plain view" doctrine may not, however, be used to launch unbridled searches and indiscriminate seizures nor to extend a general exploratory search made solely to find evidence of defendant's guilt. The "plain view" doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. It has also been suggested that even if an object is observed in "plain view," the "plain view" doctrine will not justify the seizure of the object where the incriminating nature of the object is not apparent from the "plain view" of the object. Stated differently, it must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband, or otherwise subject to seizure. 9. ID.; ID.; ID.; ID.; ID.; NOT APPLICABLE IN CASE AT BAR. In the instant case, the appellant was arrested and his person searched in the living room. Failing to retrieve the marked money which they hoped to find, the NARCOM agents searched the whole house and found the plastic bag in the kitchen. The plastic bag was, therefore, not within their "plain view" when they arrested the appellant as to justify its seizure. The NARCOM agents had to move from one portion of the house to another before they sighted the plastic bag. Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen, they had no clue as to its contents. They had to ask the appellant what the bag contained. When the appellant refused to respond, they opened it and found the marijuana. Unlike Ker v. California, where the marijuana was visible to the police officer's eyes, the NARCOM agents in this case could not have discovered the inculpatory nature of the contents of the bag had they not forcibly opened it. Even assuming then, that the NARCOM agents inadvertently came across the plastic bag because it was within their "plain view," what may be said to be the object in their "plain view" was just the plastic bag and not the marijuana. The incriminating nature of the contents of the plastic bag was not immediately apparent from the "plain view" of said object. It cannot be claimed that the plastic bag clearly betrayed its contents, whether by its distinctive configuration, its transparency, or otherwise, that its contents are obvious to an observer. We, therefore, hold that under the circumstances of the case, the "plain view" doctrine does not apply and the marijuana contained in the plastic bag was seized illegally and cannot be presented in evidence pursuant to Article III, Section 3(2) of the Constitution. 10. REMEDIAL LAW; EVIDENCE; QUANTUM OF PROOF REQUIRED IN CRIMINAL; SATISFIED IN CASE AT BAR. By virtue of the testimonies of Sgt. Ani and T/Sgt. Belarga and the two wrappings of marijuana sold by the appellant to Sgt. Ani, among other pieces of evidence, the guilt of the appellant of the crime charged has been proved beyond reasonable doubt. D E C I S I O N ROMERO, J p: The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision, dated August 31, 1990, 1 of the Regional Trial Court (RTC) of Zamboanga City, Branch XII, finding him guilty of selling marijuana in violation of Article II, Section 4 of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972. The information filed on December 15, 1989 against the appellant reads: "That on or about December 14, 1989, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and there, wilfully, unlawfully and feloniously sell to one SGT. AMADO ANI, two (2) wrappers containing dried marijuana leaves, knowing the same to be a prohibited drug. CONTRARY TO LAW." 2 Upon his arraignment on January 11, 1990, the appellant pleaded not guilty. 3 At the trial, the prosecution presented three (3) witnesses, namely: (1) Sgt. Amado Ani, Jr. of the 9th Narcotics Command (NARCOM) of Zamboanga City, who acted as poseur-buyer in the buy-bust operation made against the appellant; (2) T/Sgt. Jesus Belarga, also of the 9th Narcotics Command of Zamboanga City, who was the NARCOM team leader of the buy-bust operation; and (3) Athena Elisa P. Anderson, the Document Examiner and Forensic Chemist of PC-INP Crime Laboratory of Regional Command (RECOM) 9. The evidence of the prosecution was summarized by the trial court as follows: LLjur "Prosecution evidence shows that in the morning of December 13, 1989, T/Sgt. Jesus Belarga, leader of a NARCOTICS COMMAND (NARCOM) team based at Calarian, Zamboanga City, instructed Sgt. Amado Ani to conduct surveillance and test buy on a certain Mari Musa of Suterville, Zamboanga City. Information received from civilian informer was that this Mari Musa was engaged in selling marijuana in said place. So Sgt. Amado Ani, another NARCOM agent, proceeded to Suterville, in company with a NARCOM civilian informer, to the house of Mari Musa to which house the civilian informer had guided him. The same civilian informer had also described to him the appearance of Mari Musa. Amado Ani was able to buy one newspaper-wrapped dried marijuana (Exh. 'E') for P10.00. Sgt. Ani returned to the NARCOM office and turned over the newspaper-wrapped marijuana to T/Sgt. Jesus Belarga. Sgt. Belarga inspected the stuff turned over to him and found it to be marijuana. The next day, December 14, 1989, about 1:30 P.M., a buy-bust was planned. Sgt. Amado Ani was assigned as the poseur buyer for which purpose he was given P20.00 (with SN GA955883) by Belarga. The buy-bust money had been taken by T/Sgt. Jesus Belarga from M/Sgt. Noh Sali Mihasun, Chief of Investigation Section, and for which Belarga signed a receipt (Exh. 'L' & 'L-1'). The team under Sgt. Foncargas was assigned as back-up security. A pre-arranged signal was arranged consisting of Sgt. Ani's raising his right hand, after he had succeeded to buy the marijuana. The two NARCOM teams proceeded to the target site in two civilian vehicles. Belarga's team was composed of Sgt. Belarga, team leader, Sgt. Amado Ani, poseur buyer, Sgt. Lego and Sgt. Biong. Arriving at the target site, Sgt. Ani proceeded to the house of Mari Musa, while the rest of the NARCOM group positioned themselves at strategic places about 90 to 100 meters from Mari Musa's house. T/Sgt. Belarga could see what went on between Ani and suspect Mari Musa from where he was. Ani approached Mari Musa, who came out of his house, and asked Ani what he wanted. Ani said he wanted some more stuff. Ani gave Mari Musa the P20.00 marked money. After receiving the money, Mari Musa went back to his house and came back and gave Amado Ani two newspaper wrappers containing dried marijuana. Ani opened the two wrappers and inspected the contents. Convinced that the contents were marijuana, Ani walked back towards his companions and raised his right hand. The two NARCOM teams, riding the two civilian vehicles, sped towards Sgt. Ani. Ani joined Belarga's team and returned to the house. At the time Sgt. Ani first approached Mari Musa, there were four persons inside his house: Mari Musa, another boy, and two women, one of whom Ani and Belarga later came to know to be Mari Musa's wife. The second time, Ani with the NARCOM team returned to Mari Musa's house, the woman, who was later known as Mari Musa's wife, slipped away from the house. Sgt. Belarga frisked Mari Musa but could not find the P20.00 marked money with him. Mari Musa was then asked where the P20.00 was and he told the NARCOM team he has given the money to his wife (who had slipped away). Sgt. Belarga also found a plastic bag containing dried marijuana inside it somewhere in the kitchen. Mari Musa was then placed under arrest and brought to the NARCOM office. At Suterville, Sgt. Ani turned over to Sgt. Belarga the two newspaper-wrapped marijuana he had earlier bought from Mari Musa (Exhs. 'C' & 'D'). LexLib In the NARCOM office, Mari Musa first gave his name as Hussin Musa. Later on, Mari Musa gave his true name - Mari Musa. T/Sgt. Jesus Belarga turned over the two newspaper-wrapped marijuana (bought at the buy-bust), the one newspaper-wrapped marijuana (bought at the test-buy) and the plastic bag containing more marijuana (which had been taken by Sgt. Lego inside the kitchen of Mari Musa) to the PC Crime Laboratory, Zamboanga City, for laboratory examination. The turnover of the marijuana specimen to the PC Crime Laboratory was by way of a letter-request, dated December 14, 1989 (Exh. 'B'), which was stamped 'RECEIVED' by the PC Crime Laboratory (Exh. 'E-1') on the same day. Mrs. Athena Elisa P. Anderson, the Forensic Chemist of the PC Crime Laboratory, examined the marijuana specimens subjecting the same to her three tests. All submitted specimens she examined gave positive results for the presence of marijuana. Mrs. Anderson reported the results of her examination in her Chemistry Report D-100-89, dated December 14, 1989, (Exh. 'J', 'J-1', 'J-2', 'J-3', 'J-4' and 'J-5'). Mrs. Anderson identified in court the two newspaper wrapped marijuana bought at the buy-bust on December 14, 1989, through her initial and the weight of each specimen written with red ink on each wrapper (Exhs. 'C-1' and 'D-1'). She also identified the one newspaper-wrapped marijuana bought at the test-buy on December 13, 1989, through her markings (Exh. 'E-1'). Mrs. Anderson also identified her Chemistry Report (Exh. 'J' & sub-markings.) T. Sgt. Belarga identified the two buy-bust newspaper wrapped marijuana through his initial, the words 'buy-bust' and the words 'December 14, 1989, 2:45 P.M.' (written on Exhs. 'C' and 'D'). Belarga also identified the receipt of the P20 marked money (with SN GA955883) (Exh. 'L'), dated December 14, 1989, and his signature thereon (Exh. 'L-1'). He also identified the letter-request, dated December 14, 1989, addressed to the PC Crime Laboratory (Exh. 'B') and his signature thereon (Exh. 'B-2') and the stamp of the PC Crime Laboratory marked 'RECEIVED' (Exh. 'B-1')." 4 For the defense, the following testified as witnesses: (1) the accused- appellant Mari H. Musa; and (2) Ahara R. Musa, his wife. The trial court summarized the version of the defense, thus: "[O]n December 14, 1989, at about 1:30 in the afternoon, Mari Musa was in his house at Suterville, Zamboanga City. With him were his wife, Ahara Musa, known as Ara, his one-year old child, a woman manicurist, and a male cousin named Abdul Musa. About 1:30 that afternoon, while he was being manicured at one hand, his wife was inside the one room of their house, putting their child to sleep. Three NARCOM agents, who introduced themselves as NARCOM agents, dressed in civilian clothes, got inside Mari Musa's house whose door was open. The NARCOM agents did not ask permission to enter the house but simply announced that they were NARCOM agents. The NARCOM agents searched Mari Musa's house and Mari Musa asked them if they had a search warrant. The NARCOM agents were just silent. The NARCOM agents found a red plastic bag whose contents, Mari Musa said, he did not know. He also did not know if the plastic bag belonged to his brother, Faisal, who was living with him, or his father, who was living in another house about ten arms-length away. Mari Musa, then, was handcuffed and when Mari Musa asked why, the NARCOM agents told him for clarification. Mari Musa was brought in a pick-up, his wife joining him to the NARCOM Office at Calarian, Zamboanga City. Inside the NARCOM Office, Mari Musa was investigated by one NARCOM agent which investigation was reduced into writing. The writing or document was interpreted to Mari Musa in Tagalog. The document stated that the marijuana belonged to Mari Musa and Mari Musa was asked to sign it. But Mari Musa refused to sign because the marijuana did not belong to him. Mari Musa said he was not told that he was entitled to the assistance of counsel, although he himself told the NARCOM agents he wanted to be assisted by counsel. Mari Musa said four bullets were then placed between the fingers of his right hand and his fingers were pressed which felt very painful. The NARCOM agents boxed him and Mari Musa lost consciousness. While Mari Musa was maltreated, he said his wife was outside the NARCOM building. The very day he was arrested (on cross- examination Mari Musa said it was on the next day), Mari Musa was brought to the Fiscal's Office by three NARCOM agents. The fiscal asked him if the marijuana was owned by him and he said "not." After that single question, Mari Musa was brought to the City Jail. Mari Musa said he did not tell the fiscal that he had been maltreated by the NARCOM agents because he was afraid he might be maltreated in the fiscal's office. cdll Mari Musa denied the NARCOM agents' charge that he had sold two wrappers of marijuana to them; that he had received from them a P20.00 bill which he had given to his wife. He did not sell marijuana because he was afraid that was against the law and that the person selling marijuana was caught by the authorities; and he had a wife and a very small child to support. Mari Musa said he had not been arrested for selling marijuana before. 5 After trial, the trial court rendered the assailed decision with the following disposition: "WHEREFORE, finding accused Mari Musa y Hantatalu guilty beyond reasonable doubt of selling marijuana and pursuant to Sec. 4, Art II of Rep. Act No. 6425, he is sentenced to life imprisonment and to pay the fine of P20,000.00, the latter imposed without subsidiary imprisonment." 6 In this appeal, the appellant contends that his guilt was not proved beyond reasonable doubt and impugns the credibility of the prosecution witnesses. The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not credible because: (1) prior to the buy-bust operation, neither Sgt. Ani nor the other NARCOM agents were personally known by the appellant or vice-versa; and (2) there was no witness to the alleged giving of the two wrappers of marijuana by the appellant to Sgt. Ani. Sgt. Ani testified that on December 13, 1989, upon instruction by T/Sgt. Jesus Belarga, he conducted a test-buy operation on the appellant whereby he bought one wrapper of marijuana for P15.00 from the latter. 7 He reported the successful operation to T/Sgt. Belarga on the same day. 8 Whereupon, T/Sgt. Belarga conducted a conference to organize a buy-bust operation for the following day. 9 On December 14, 1989, at 1:30 p.m., two NARCOM teams in separate vehicles headed by T/Sgt. Belarga and a certain Sgt. Foncardas went to the place of operation, which was the appellant's house located in Laquian Compound, Suterville, Zamboanga City. Sgt. Ani was with the team of T/Sgt. Belarga, whose other members were Sgts. Lego and Biong. 10 Sgt. Ani was given a marked P20.00 bill by T/Sgt. Belarga, which was to be used in the operation. Upon reaching the place, the NARCOM agents positioned themselves at strategic places. 11 Sgt. Ani approached the house. Outside the house, the appellant asked Sgt. Ani what he wanted. Sgt. Ani asked him for some more marijuana. 12 Sgt. Ani gave him the marked P20.00 bill and the appellant went inside the house and brought back two paper wrappers containing marijuana which he handed to Sgt. Ani. 13 From his position, Sgt. Ani could see that there were other people in the house. 14 After the exchange, Sgt. Ani approached the other NARCOM agents and made the pre-arranged signal of raising his right hand. 15 The NARCOM agents, accompanied by Sgt. Ani, went inside the house and made the arrest. The agents searched the appellant and unable to find the marked money, they asked him where it was. The appellant said that he gave it to his wife. 16 The Court, after a careful reading of the record, finds the testimony of Sgt. Ani regarding the buy-bust operation, which resulted in the apprehension, prosecution and subsequent conviction of the appellant, to be direct, lucid and forthright. Being totally untainted by contradictions in any of the material points, it deserves credence. The contention that the appellant could not have transacted with Sgt. Ani because they do not know each other is without merit. The day before the buy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought a wrapper of marijuana from the appellant. Through this previous transaction, Sgt. Ani was able to gain the appellant's confidence for the latter to sell more marijuana to Sgt. Ani the following day, during the buy-bust operation. Moreover, the Court has held that what matters is not an existing familiarity between the buyer and the seller, for quite often, the parties to the transaction may be strangers, but their agreement and the acts constituting the sale and delivery of the marijuana. 17 The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was impossible for the appellant to sell marijuana while his wife, cousin and manicurist were present. But the place of the commission of the crime of selling prohibited drugs has been held to be not crucial 18 and the presence of other people apart from the buyer and seller will not necessarily prevent the consummation of the illegal sale. As the Court observed in People v. Paco, 19 these factors may sometimes camouflage the commission of the crime. In the instant case, the fact that the other people inside the appellant's house are known to the appellant may have given him some assurance that these people will not report him to the authorities. cdll The appellant, besides assailing Sgt. Ani's credibility, also questions the credibility of T/Sgt. Belarga. The appellant submits that since T/Sgt. Belarga admitted that he was about 90 meters away from Sgt. Ani and the appellant, he could not have possibly witnessed the sale. The appellant invokes People v. Ale 20 where the Court observed that from a distance of 10-15 meters, a policeman cannot distinguish between marijuana cigarette from ordinary ones by the type of rolling done on the cigarette sticks. And since T/Sgt. Belarga allegedly did not see the sale, the appellant contends that the uncorroborated testimony of Sgt. Ani can not stand as basis for his conviction. People v. Ale does not apply here because the policeman in that case testified that he and his companion were certain that the appellant therein handed marijuana cigarettes to the poseur-buyer based on the appearance of the cigarette sticks. The Court rejected this claim, stating that: "This Court cannot give full credit to the testimonies of the prosecution witnesses marked as they are with contradictions and tainted with inaccuracies. Bian testified that they were able to tell that the four cigarettes were marijuana cigarettes because according to him, the rolling of ordinary cigarettes are different from those of marijuana cigarettes. (tsn, November 13, 1984, p. 10). It is however, incredible to believe that they could discern the type of rolling done on those cigarettes from the distance where they were observing the alleged sale of more or less 10 to 15 meters." 21 In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw the appellant hand over marijuana to Sgt. Ani. What he said was that there was an exchange of certain articles between the two. The relevant portion of T/Sgt. Belarga's testimony reads: 22 Q Now, do you remember whether Sgt. Ani was able to reach the house of Mari Musa? A Yes, ma'am. Q After reaching Mari Musa, did you see what happened (sic)? A Yes, ma'am. Q Could you please tell us? A From our vehicle the stainless owner type jeep where Sgt. Lego, Sgt. Biong were boarded, I saw that Sgt. Ani proceeded to the house near the road and he was met by one person and later known as Mari Musa who was at the time wearing short pants and later on I saw that Sgt. Ani handed something to him, thereafter received by Mari Musa and went inside the house and came back later and handed something to Sgt. Ani. Contrary to the contention of the appellant, it was not impossible for T/Sgt. Belarga to have seen, from a distance of 90-100 meters, Sgt. Ani hand to the appellant "something" and for the latter to give to the former "something." Notwithstanding the fact that T/Sgt. Belarga could not have been certain that what Sgt. Ani received from the appellant was marijuana because of the distance, his testimony, nevertheless, corroborated the direct evidence, which the Court earlier ruled to be convincing, presented by Sgt. Ani on the following material points: (1) T/Sgt. Belarga instructed Sgt. Ani to conduct a surveillance and test-buy operation on the appellant at Suterville, Zamboanga City on December 13, 1939; 23 (2) later that same day, Sgt. Ani went back to their office and reported a successful operation and turned over to T/Sgt. Belarga one wrapper of marijuana; 24 (3) T/Sgt. Belarga then organized a team to conduct a buy-bust operation the following day; 25 (4) on December 14, 1989, T/Sgt. Belarga led a team of NARCOM agents who went to Suterville, Zamboanga City; 26 (5) T/Sgt. Belarga gave a P20.00 marked bill to Sgt. Ani which was to be used in the buy-bust operation; 27 (6) upon the arrival of the NARCOM agents in Suterville, Zamboanga City, Sgt. Ani proceeded to the house of the appellant while some agents stayed in the vehicles and others positioned themselves in strategic places; 28 the appellant met Sgt. Ani and an exchange of articles took place. 29 The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence given by Sgt. Ani. Additionally, the Court has ruled that the fact that the police officers who accompanied the poseur-buyer were unable to see exactly what the appellant gave the poseur-buyer because of their distance or position will not be fatal to the prosecution's case 30 provided there exists other evidence, direct or circumstantial, e.g., the testimony of the poseur-buyer, which is sufficient to prove the consummation of the sale of the prohibited drug. cdll The appellant next assails the seizure and admission as evidence of a plastic bag containing marijuana which the NARCOM agents found in the appellant's kitchen. It appears that after Sgt. Ani gave the pre- arranged signal to the other NARCOM agents, the latter moved in and arrested the appellant inside the house. They searched him to retrieve the marked money but didn't find it. Upon being questioned, the appellant said that he gave the marked money to his wife. 31 Thereafter, T/Sgt. Belarga and Sgt. Lego went to the kitchen and noticed what T/Sgt. Belarga described as a "cellophane colored white and stripe hanging at the corner of the kitchen." 32 They asked the appellant about its contents but failing to get a response, they opened it and found dried marijuana leaves. At the trial, the appellant questioned the admissibility of the plastic bag and the marijuana it contains but the trial court issued an Order ruling that these are admissible in evidence. 33 Built into the Constitution are guarantees on the freedom of every individual against unreasonable searches and seizures by providing in Article III, Section 2, the following: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the persons or things to be seized." Furthermore, the Constitution, in conformity with the doctrine laid down in Stonehill v. Diokno, 34 declares inadmissible, any evidence obtained in violation of the freedom from unreasonable searches and seizures. 35 While a valid search warrant is generally necessary before a search and seizure may be effected, exceptions to this rule are recognized. Thus, in Alvero v. Dizon, 36 the Court stated that "[t]he most important exception to the necessity for a search warrant is the right of search and seizure as an incident to a lawful arrest." 37 Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless search and seizure incident to a lawful arrest, thus: SECTION 12. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant. There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting officer to make a search upon the person of the person arrested. As early as 1909, the Court has ruled that "[a]n officer making an arrest may take from the person arrested and money or property found upon his person which was used in the commission of the crime or was the fruit of the crime or which might furnish the prisoner with the means of committing violence or of escaping, or which may be used as evidence in the trial of the cause." 38 Hence, in a buy-bust operation conducted to entrap a drug-pusher, the law enforcement agents may seize the marked money found on the person of the pusher immediately after the arrest even without arrest and search warrants. 39 In the case at bar, the NARCOM agents searched the person of the appellant after arresting him in his house but found nothing. They then searched the entire house and, in the kitchen, found and seized a plastic bag hanging in a corner. LLjur The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend beyond the person of the one arrested to include the premises or surroundings under his immediate control. 40 Objects in the "plain view" of an officer who has the right to be in the position to have that view are subject to seizure and may be presented as evidence. 41 In Ker v. California, 42 police officers, without securing a search warrant but having information that the defendant husband was selling marijuana from his apartment, obtained from the building manager a passkey to defendants' apartment, and entered it. There they found the defendant husband in the living room. The defendant wife emerged from the kitchen, and one of the officers, after identifying himself, observed through the open doorway of the kitchen, a small scale atop the kitchen sink, upon which lay a brick- shaped package containing green leafy substance which he recognized as marijuana. The package of marijuana was used as evidence in prosecuting defendants for violation of the Narcotic Law. The admissibility of the package was challenged before the U.S. Supreme Court, which held, after observing that it was not unreasonable for the officer to walk to the doorway of the adjacent kitchen on seeing the defendant wife emerge therefrom, that "the discovery of the brick of marijuana did not constitute a search, since the officer merely saw what was placed before him in full view." 43 The U.S. Supreme Court ruled that the warrantless seizure of the marijuana was legal on the basis of the "plain view" doctrine and upheld the admissibility of the seized drugs as part of the prosecution's evidence. 44 The "plain view" doctrine may not, however, be used to launch unbridled searches and indiscriminate seizures nor to extend a general exploratory search made solely to find evidence of defendant's guilt. The "plain view" doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. 45 Furthermore, the U.S. Supreme Court stated the following limitations on the application of the doctrine: "What the 'plain view' cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the 'plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges." 46 It has also been suggested that even if an object is observed in "plain view," the "plain view" doctrine will not justify the seizure of the object where the incriminating nature of the object is not apparent from the "plain view" of the object. 47 Stated differently, it must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband, or otherwise subject to seizure. In the instant case, the appellant was arrested and his person searched in the living room. Failing to retrieve the marked money which they hoped to find, the NARCOM agents searched the whole house and found the plastic bag in the kitchen. The plastic bag was, therefore, not within their "plain view" when they arrested the appellant as to justify its seizure. The NARCOM agents had to move from one portion of the house to another before they sighted the plastic bag. Unlike Ker v. California, where the police officer had reason to walk to the doorway of the adjacent kitchen and from which position he saw the marijuana, the NARCOM agents in this case went from room to room with the obvious intention of fishing for more evidence. Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen, they had no clue as to its contents. They had to ask the appellant what the bag contained. When the appellant refused to respond, they opened it and found the marijuana. Unlike Ker v. California, where the marijuana was visible to the police officer's eyes, the NARCOM agents in this case could not have discovered the inculpatory nature of the contents of the bag had they not forcibly opened it. Even assuming then, that the NARCOM agents inadvertently came across the plastic bag because it was within their "plain view," what may be said to be the object in their "plain view" was just the plastic bag and not the marijuana. The incriminating nature of the contents of the plastic bag was not immediately apparent from the "plain view" of said object. It cannot be claimed that the plastic bag clearly betrayed its contents, whether by its distinctive configuration, its transparency, or otherwise, that its contents are obvious to an observer. 48 We, therefore, hold that under the circumstances of the case, the "plain view" doctrine does not apply and the marijuana contained in the plastic bag was seized illegally and cannot be presented in evidence pursuant to Article III, Section 3(2) of the Constitution. cdrep The exclusion of this particular evidence does not, however, diminish, in any way, the damaging effect of the other pieces of evidence presented by the prosecution to prove that the appellant sold marijuana, in violation of Article II, Section 4 of the Dangerous Drugs Act of 1972. We hold that by virtue of the testimonies of Sgt. Ani and T/Sgt. Belarga and the two wrappings of marijuana sold by the appellant to Sgt. Ani, among other pieces of evidence, the guilt of the appellant of the crime charged has been proved beyond reasonable doubt. WHEREFORE, the appeal is DISMISSED and the judgment of the Regional Trial Court AFFIRMED. SO ORDERED. Gutierrez, Jr., Bidin, Davide, Jr. and Melo, JJ ., concur. THIRD DIVISION [G.R. No. 121917. March 12, 1997.] ROBIN CARIO PADILLA @ ROBINHOOD PADILLA, petitioner, vs. COURT OF APPEALS and PEOPLE of the PHILIPPINES, respondents. Raval and Lokin, Robert A. Padilla and Philip Jurado and R.A.V. Saguisag and Gina C. Garcia for petitioner. The Solicitor General for respondents. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST; WARRANTLESS ARREST; GROUNDS. Warrantless arrests are sanctioned in the following instances: "Sec. 5. Arrest without warrant ; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense., (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. 2. ID.; ID.; ID.; ID.; "PRESENCE OF ARRESTING OFFICER OR PRIVATE PERSON"; PRESENCE DOES NOT ONLY REQUIRE THE PERSON TO SEE THE OFFENSE BUT ALSO WHEN HE "HEARS THE DISTURBANCE CREATED AND PROCEEDS AT ONCE TO THE SCENE"; CASE AT BAR. Paragraph (a) requires that the person be arrested (i) after he has committed or while he is actually committing or is at least attempting to commit an offense, (ii) in the presence of the arresting officer or private person. Both elements concurred here, as it has been established that petitioner's vehicle figured in a hit and run an offense committed in the "presence" of Manarang, a private person, who then sought to arrest petitioner. It must be stressed at this point that "presence" does not only require that the arresting person sees the offense, but also when he "hears the disturbance created thereby AND proceeds at once to the scene." As testified to by Manarang, he heard the screeching of tires followed by a thud, saw the sideswiped victim (balut vendor), reported the incident to the police and thereafter gave chase to the erring Pajero vehicle using his motorcycle in order to apprehend its driver. After having sent a radio report to the PNP for assistance, Manarang proceeded to the Abacan bridge where he found responding policemen SPO2 Borja and SPO2 Miranda already positioned near the bridge who effected the actual arrest of petitioner. 3. ID.; ID.; ID.; ID.; RATIONALE. It is appropriate to state at this juncture that a suspect, like petitioner herein, cannot defeat the arrest which has been set in motion in a public place for want of a warrant as the police was confronted by an urgent need to render aid or take action. The exigent circumstances of hot pursuit, a fleeing suspect, a moving vehicle, the public place and the raining nighttime all created a situation in which speed is essential and delay improvident. The court acknowledges police authority to make the forcible stop since they had more than mere "reasonable and articulable" suspicion that the occupant of the vehicle has been engaged in criminal activity. 4. ID.; ID.; ID.; ID.; WHEN CAUGHT IN FLAGRANTE DELICTO. When caught in flagrante delicto with possession of an unlicensed arm (Smith & Wesson) and ammunition (M-16 magazine), petitioner's warrantless arrest was proper as he was again actually committing another offense (illegal possession of firearm and ammunitions) and this time in the presence of a peace officer. Besides, the policemen's warrantless arrest of petitioner could likewise be justified under paragraph (b) as he had in fact just committed an offense. There was no supervening event or a considerable lapse of time between the hit and run and the actual apprehension. Moreover, after having stationed themselves at the Abacan bridge in response to Manarang's report, the policemen saw for themselves the fast approaching Pajero of petitioner, its dangling plate number (PMA 777 as reported by Manarang), and the dented hood and railings thereof. These formed part of the arresting police officer's personal knowledge of the facts indicating that, petitioner's Pajero was indeed the vehicle involved in the hit and run accident. Verily their, the arresting police officers acted upon verified personal knowledge and not on unreliable hearsay information. 5. ID; ID.; ID.; OBJECTION, DEFECT OR IRREGULARITY MUST BE MADE BEFORE PLEA. Any objection, defect or irregularity attending an arrest must be made before the accused enters his plea. Petitioner's belated challenge thereto aside from his failure to quash the information, his participation in the trial and by presenting his evidence, placed him in estoppel to assail the legality of his arrest. Likewise, by applying for bail, petitioner patently waived such irregularities and defects. 6. ID.; ID.; WARRANTLESS SEARCH AND SEIZURE OF PROPERTY; WHEN VALID. The five (5) well-settled instances when a warrantless search and seizure of property is valid, are as follows: 1. warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence. 2. Seizure of evidence in "plain view," the elements of which are: (a). a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b). the evidence was inadvertently discovered by the police who had the right to be where they are; (c). the evidence must be immediately apparent, and (d). "plain view" justified mere seizure of evidence without further search. 3. search of a moving vehicle. Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity. 4. consented warrantless search, and 5. customs search. 7. ID.; ID.; ID.; "PLAINVIEW" DOCTRINE; APPLIED IN CASE AT BAR. The seizure of the Smith & Wesson revolver and an M-16 rifle magazine was justified for they came within "plain view" of the policemen who inadvertently discovered the revolver and magazine tucked in petitioner's waist and back pocket respectively, when he raised his hands after alighting from his Pajero. The same justification applies to the confiscation of the M-16 armalite rifle which was immediately apparent to the policemen as they took a casual glance at the Pajero and saw said rifle lying horizontally near the driver's seat. Thus, it has been held that: "(W)hen in pursuing an illegal action or in the commission of a criminal offense, the . . . police officers should happen to discover a criminal offense being committed by any person, they are not precluded from performing their duties as police officers for the apprehension of the guilty person and the taking of the corpus delicti." 8. ID.; ID.; ID.; VOLUNTARY SURRENDER OF FIREARM AND ASSORTED MAGAZINE, WAIVER OF RIGHT AGAINST ILLEGAL SEARCH AND SEIZURE. With respect to the Berreta pistol and a black bag containing assorted magazines, petitioner voluntarily surrendered them to the police. This latter gesture of petitioner indicated a waiver of his right against the alleged search and seizure, and that his failure to quash the information estopped him from assailing any purported defect. 9. ID.; ID.; SEARCH INCIDENTAL TO AN ARREST. Even assuming that the firearms and ammunitions were products of an active search done by the authorities on the person and vehicle of petitioner, their seizure without a search warrant nonetheless can still be justified under a search incidental to a lawful arrest (first instance). Once the lawful arrest was effected, the police may undertake a protective search of the passenger compartment and containers in the vehicle which are within petitioner's grabbing distance regardless of the nature of the offense. This satisfied the two-tiered test of an incidental search: (i) the item to be searched (vehicle) was within the arrestee's custody or area of immediate control and (ii) the search was contemporaneous with the arrest. The products of that search are admissible evidence not excluded by the exclusionary rule. Another justification is a search of a moving vehicle (third instance). In connection therewith, a warrantless search is constitutionally permissible when, as in this case, the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender (like herein petitioner with respect to the hit and run) or the contents or cargo of the vehicle are or have been instruments or the subject matter or the proceeds of some criminal offense. 10. CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARM; REQUISITES. In crimes involving illegal possession of firearm, two requisites must be established, viz.: (1) the existence of the subject firearm and, (2) the fact that the accused who owned or possessed the firearm does not have the corresponding license permit to possess. 11. ID.; ID.; ID.; CASE AT BAR. The first element is beyond dispute as the subject firearms and ammunitions were seized from petitioner's possession via a valid warrantless search, identified and offered in evidence during trial. As to the second element, the same was convincingly proven by the prosecution. Indeed, petitioner's purported Mission Order and Memorandum Receipt are inferior in the face of the more formidable evidence for the prosecution as our meticulous review of the records reveals that the Mission Order and Memorandum Receipt were mere afterthoughts contrived and issued under suspicious circumstances. 12. ID.; ID.; TESTIMONY OF REPRESENTATIVE OR CERTIFICATION FROM PNP-FEO THAT A PERSON IS NOT A LICENSEE OF ANY FIREARM, SUFFICIENT TO PROVE SECOND ELEMENT. In several occasions, the Court has ruled that either the testimony of a representative of, or a certification from, the PNP Firearms and Explosives Office (FEO) attesting that a person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the second element of illegal possession of firearm. In People vs. Tobias, we reiterated that such certification is sufficient to show that a person has in fact no license. 13. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT OF THE TRIAL COURT, GENERALLY ACCORDED RESPECT AND FINALITY ON APPEAL. The fact that petitioner does not have the license or permit to possess was overwhelmingly proven by the prosecution. The certification may even be dispensed with in the light of the evidence that an M-16 rifle and any short firearm higher than a .38 caliber pistol, akin to the confiscated firearms cannot be licensed to a civilian, as in the case of petitioner. The Court entertains no doubt in affirming petitioner's conviction especially as we find no plausible reason, and none was presented, to depart from the factual findings of both the trial court and respondent court which, as a rule, are accorded by the Court with respect and finality. 14. CRIMINAL LAW, OFFENSES, COURTS ARE BOUND TO APPLY GOVERNING LAW AT THE TIME OF COMMISSION OF OFFENSE. The trial court and the respondent court are bound to apply the governing law at the time of appellant's commission of the offense for it is a rule that laws are repealed only by subsequent ones. Indeed, it is the duty of judicial officers to respect and apply the law as it stands. And until its repeal, respondent court can not be faulted for applying P.D. 1866 which abrogated the previous statutes adverted to by petitioner. 15. POLITICAL LAW; CONSTITUTION; BILL OF RIGHTS; CRUEL AND UNUSUAL PUNISHMENT; PENALTY FOR ILLEGAL POSSESSION OF FIREARMS, NOT EMBRACED THEREIN. Equally lacking in merit is appellant's allegation that the penalty for simple illegal possession is unconstitutional. The penalty for simple possession of firearm, it should be stressed, ranges from reclusion temporal maximum to reclusion perpetua contrary to appellant's erroneous averment. The severity of a penalty does not ipso facto make the same cruel and excessive. "It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution. 'The fact that the punishment authorized by the statute is severe does not make it cruel and unusual.' (24 C.J.S., 1187-1188). Expressed in other terms, it has been held that to come under the ban, the punishment must be 'flagrantly and plainly oppressive,' wholly disproportionate to the nature of the offense as to shock the moral sense of the community.'" It is well-settled that as far as the constitutional prohibition goes, it is not so much the extent as the nature of the punishment that determines whether it is, or is not, cruel and unusual and that sentences of imprisonment, though perceived to be harsh, are not cruel or unusual if within statutory limits. 16. ID.; ID.; LAWS ON ILLEGAL POSSESSION OF FIREARMS, CONSTITUTIONAL. Every law has in its favor the presumption of constitutionality. The burden of proving the invalidity of the statute in question lies with the appellant which burden, we note, was not convincingly discharged. To justify nullification of the law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative implication, as in this case. In fact, the constitutionality of P.D. 1866 has been upheld twice by this Court. Just recently, the Court declared that "the pertinent laws on illegal possession of firearms [are not] contrary to any provision of the Constitution. . ." 17. REMEDIAL LAW; COURT; NOT CONCERNED WITH THE WISDOM OR MORALITY OF LAWS. Appellant's grievance on the wisdom of the prescribed penalty should not be addressed to us. Courts are not concerned with the wisdom, efficacy or morality of laws. That question falls exclusively within the province of Congress which enacts them and the Chief Executive who approves or vetoes them. The only function of the courts, we reiterate, is to interpret and apply the laws. 18. CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARMS; MINIMUM PENALTY. With respect to the penalty imposed by the trial court as affirmed by respondent court (17 years 4 months and 1 day of reclusion temporal as minimum, to 21 years of reclusion perpetua, as maximum), we reduce the same in line with the fairly recent case of People v. Lian where the Court en banc provided that the indeterminate penalty imposable for simple illegal possession of firearm, without any mitigating or aggravating circumstance, should be within the range of ten (10) years and one (1) day to twelve (12) years of prision mayor, as minimum, to eighteen (18) years, eight (8) months and one (1) day to twenty (20) years of reclusion temporal, as maximum. D E C I S I O N FRANCISCO, J p: On October 26, 1992, high-powered firearms with live ammunitions were found in the possession of petitioner Robin @ Robinhood Padilla, i.e.: "(1) One .357 Caliber revolver, Smith and Wesson, SN-32919 with six (6) live ammunitions; "(2) One M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one (1) short magazine with ammunitions; "(3) One .380 Pietro Beretta, SN-A 35723 Y with clip and eight (8) ammunitions; and "(4) Six additional live double action ammunitions of .38 caliber revolver." 1 Petitioner was correspondingly charged on December 3, 1992, before the Regional Trial Court (RTC) of Angeles City with illegal possession of firearms and ammunitions under P.D. 1866 2 thru the following Information: 3 "That on or about the 26th day of October, 1992, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession and under his custody and control one (1) M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one (1) short magazines with ammunitions, one (1) .357 caliber revolver Smith and Wesson, SN- 32919 with six (6) live ammunitions and one (1) 380 Pietro Beretta, SN-A35723Y with clip and eight (8) ammunitions, without having the necessary authority and permit to carry and possess the same. ALL CONTRARY TO LAW." 4 The lower court then ordered the arrest of petitioner, 5 but granted his application for bail. 6 During the arraignment on January 20, 1993, a plea of not guilty was entered for petitioner after he refused, 7 upon advice of counsel, 8 to make any plea. 9 Petitioner waived in writing his right to be present in any and all stages of the case. 10 After trial, Angeles City RTC Judge David Rosete rendered judgment dated April 25, 1994 convicting petitioner of the crime charged and sentenced him to an "indeterminate penalty from 17 years, 4 months and 1 day of reclusion temporal as minimum, to 21 years of reclusion perpetua, as maximum". 11 Petitioner filed his notice of appeal on April 28, 1994. 12 Pending the appeal in the respondent Court of Appeals, 13 the Solicitor-General, convinced that the conviction shows strong evidence of guilt, filed on December 2, 1994 a motion to cancel petitioner's bail bond. The resolution of this motion was incorporated in the now assailed respondent court's decision sustaining petitioner's conviction, 14 the dispositive portion of which reads: "WHEREFORE, the foregoing circumstances considered, the appealed decision is hereby AFFIRMED, and furthermore, the P200,000.00 bailbond posted by accused-appellant for his provisional liberty, FGU Insurance Corporation Bond No. JCR (2) 6523, is hereby cancelled. The Regional Trial Court, Branch 61, Angeles City, is directed to issue the Order of Arrest of accused-appellant and thereafter his transmittal to the National Bureau of Prisons thru the Philippine National Police where the said accused-appellant shall remain under confinement pending resolution of his appeal, should he appeal to the Supreme Court. This shall be immediately executory. The Regional Trial Court is further directed to submit a report of compliance herewith. SO ORDERED. 15 Petitioner received a copy of this decision on July 26, 1995. 16 On August 9, 1995 he filed a "motion for reconsideration (and to recall the warrant of arrest)" 17 but the same was denied by respondent court in its September 20, 1995 Resolution, 18 copy of which was received by, petitioner on September 27, 1995. The next day, September 28, petitioner filed the instant petition for review on certiorari with application for bail 19 followed by two "supplemental petitions" filed by different counsels, 20 a "second supplemental petition" 21 and an urgent motion for the separate resolution of his application for bail. Again, the Solicitor-General 22 sought the denial of the application for bail, to which the Court agreed in a Resolution promulgated on July 31, 1996. 23 The Court also granted the Solicitor-General's motion to file a consolidated comment on the petitions and thereafter required the petitioner to file his reply. 24 However, after his vigorous resistance and success on the intramural of bail (both in the respondent court and this Court) and thorough exposition of petitioner's guilt in his 55-page Brief in the respondent court, the Solicitor-General now makes a complete turnabout by filing a "Manifestation In Lieu Of Comment" praying for petitioner's acquittal. 25 The People's detailed narration of facts, well-supported by evidence on record and given credence by respondent court, is as follows: 26 "At about 8:00 o'clock in the evening of October 26, 1992, Enrique Manarang and his compadre Danny Perez were inside the Manukan sa Highway Restaurant in Sto. Kristo, Angeles City where they took shelter from the heavy downpour (pp. 5-6, TSN, February 15, 1993) that had interrupted their ride on motorcycles (pp. 5-6, ibid.) along Mac Arthur Highway (ibid). While inside the restaurant, Manarang noticed a vehicle, a Mitsubishi Pajero, running fast down the highway prompting him to remark that the vehicle might get into an accident considering the inclement weather. (p. 7, Ibid.) In the local vernacular, he said thus: 'Ka bilis na, mumuran pa naman pota makaaksidente ya.' (p. 7, ibid.). True enough, immediately after the vehicle had passed the restaurant, Manarang and Perez heard a screeching sound produced by the sudden and hard braking of a vehicle running very fast (pp. 7-8, ibid.) followed by a sickening sound of the vehicle hitting something (p. 8, ibid.). Danny Cruz, quite sure of what had happened, remarked 'oy ta na' signifying that Manarang had been right in his observation (pp. 8-9, ibid). "Manarang and Cruz went out to investigate and immediately saw the vehicle occupying the edge or shoulder of the highway giving it a slight tilt to its side (pp. 9-10, ibid). Manarang, being a member of both the Spectrum, a civic group and the Barangay Disaster Coordinating Council, decided to report the incident to the Philippine National Police of Angeles City (p. 10, ibid.). He took out his radio and called the Viper, the radio controller of the Philippine National Police of Angeles City (p. 10, ibid.). By the time Manarang completed the call, the vehicle had started to leave the place of the accident taking the general direction to the north (p. 11, ibid). "Manarang went to the location of the accident and found out that the vehicle had hit somebody (p. 11, ibid). "He asked Cruz to look after the victim while he went back to the restaurant, rode on his motorcycle and chased the vehicle (p. 11, ibid.). During the chase he was able to make out the plate number of the vehicle as PMA 777 (p. 33, TSN, February 15, 1993). He called the Viper through the radio once again (p. 34, ibid.) reporting that a vehicle heading north with plate number PMA 777 was involved in a hit and run accident (p. 20, TSN, June 8, 1993). The Viper, in the person of SPO2 Ruby Buan, upon receipt of the second radio call flashed the message to all units of PNP Angeles City with the order to apprehend the vehicle (p. 20, ibid.). One of the units of the PNP Angeles City reached by the alarm was its Patrol Division at Jake Gonzales Street near the Traffic Division (pp. 5-7, TSN, February 23, 1993). SPO2 Juan C. Borja III and SPO2 Emerlito Miranda immediately boarded a mobile patrol vehicle (Mobile No. 3) and positioned themselves near the south approach of Abacan bridge since it was the only passable way going to the north (pp. 8-9, ibid.). It took them about ten (10) seconds to cover the distance between their office and the Abacan bridge (p. 9, ibid). "Another PNP mobile patrol vehicle that responded to the flash message from SPO2 Buan was Mobile No. 7 of the Pulongmaragal Detachment which was then conducting patrol along Don Juico Avenue (pp. 8-9, TSN, March 8, 1993). On board were SPO Ruben Mercado and SPO3 Tan and SPO2 Odejar (p. 8, ibid.). SPO Ruben Mercado immediately told SPO3 Tan to proceed to the MacArthur Highway to intercept the vehicle with plate number PMA 777 (p. 10, ibid). "In the meantime, Manarang continued to chase the vehicle which figured in the hit and run incident, even passing through a flooded portion of the MacArthur Highway two (2) feet deep in front of the Iglesia ni Kristo church but he could not catch up with the same vehicle (pp. 11-12, February 15, 1993). When he saw that the car he was chasing went towards Magalang, he proceeded to Abacan bridge because he knew Pulongmaragal was not passable (pp. 12-14, ibid.). When he reached the Abacan bridge, he found Mobile No. 3 and SPO2 Borja and SPO2 Miranda watching all vehicles coming their way (p. 10, TSN, February 23, 1993). He approached them and informed them that there was a hit and run incident (p. 10, ibid.). Upon learning that the two police officers already knew about the incident, Manarang went back to where he came from (pp. 10-11; ibid.). When Manarang was in front of Tina's Restaurant, he saw the vehicle that had figured in the hit and run incident emerging from the corner adjoining Tina's Restaurant (p. 15, TSN, February 15, 1993). He saw that the license plate hanging in front of the vehicle bore the identifying number PMA 777 and he followed it (p. 15, ibid.) towards the Abacan bridge. "Soon the vehicle was within sight of SPO2 Borja and SPO2 Miranda of Mobile No. 3 (p. 10, TSN, February 23, 1993). When the vehicle was about twelve (12) meters away from their position, the two police officers boarded their Mobile car, switched on the engine, operated the siren and strobe light and drove out to intercept the vehicle (p. 11, ibid.). They cut into the path of the vehicle forcing it to stop (p. 11, ibid). "SPO2 Borja and SPO2 Miranda alighted from Mobile No. 3 (p. 12, TSN, February 23, 1993). SPO2 Miranda went to the vehicle with plate number PMA 777 and instructed its driver to alight (p. 12, ibid.). The driver rolled down the window and put his head out while raising both his hands. They recognized the driver as Robin C. Padilla, appellant in this case (p. 13, ibid.). There was no one else with him inside the vehicle (p. 24). At that moment, Borja noticed that Manarang arrived and stopped his motorcycle behind the vehicle of appellant (p. 14, ibid). SPO2 Miranda told appellant to alight to which appellant complied. Appellant was wearing a short leather jacket (p. 16, TSN, March 8, 1993) such that when he alighted with both his hands raised, a gun (Exhibit 'C') tucked on the left side of his waist was revealed (p. 15; TSN, February 23, 1993), its butt protruding (p. 15, ibid.). SPO2 Borja made the move to confiscate the gun but appellant held the former' s hand alleging that the gun was covered by legal papers (p. 16, ibid.). SPO2 Borja, however, insisted that if the gun really was covered by legal papers, it would have to be shown in the office (p. 16, ibid.). After disarming appellant, SPO2 Borja told him about the hit and run incident which was angrily denied by appellant (p. 17, ibid.). By that time, a crowd had formed at the place (p. 19, ibid.). SPO2 Borja checked the cylinder of the gun and find six (6) live bullets inside (p. 20, ibid). "While SPO2 Borja and appellant were arguing, Mobile No. 7 with SPO Ruben Mercado, SPO3 Tan and SPO2 Odejar on board arrived (pp. 11-12, TSN, March 8, 1993). As the most senior police officer in the group, SPO Mercado took over the matter and informed appellant that he was being arrested for the hit and run incident (p. 13, ibid.). He pointed out to appellant the fact that the plate number of his vehicle was dangling and the railing and the hood were dented (p. 12, ibid.). Appellant, however, arrogantly denied his misdeed and, instead, played with the crowd by holding their hands with one hand and pointing to SPO2 Borja with his right hand saying 'iyan, kinuha ang baril ko' (pp. 13-15, ibid.). Because appellant's jacket was short, his gesture exposed a long magazine of an armalite rifle tucked in appellant's back right pocket (p. 16, ibid.). SPO Mercado saw this and so when appellant turned around as he was talking and proceeding to his vehicle, Mercado confiscated the magazine from appellant (pp. 16-17, ibid.). Suspecting that appellant could also be carrying a rifle inside the vehicle since he had a magazine, SPO2 Mercado prevented appellant from going back to his vehicle by opening himself the door of appellant's vehicle (16-17, ibid.). He saw a baby armalite rifle (Exhibit D) lying horizontally at the front by the driver's seat. It had a long magazine filled with live bullets in a semi-automatic mode (pp. 17-21, ibid.). He asked appellant for the papers covering the rifle and appellant answered angrily that they were at his home (pp. 26-27, ibid.). SPO Mercado modified the arrest of appellant by including as its ground illegal possession of firearms (p. 28, ibid.). SPO Mercado then read to appellant his constitutional rights (pp. 28-29, ibid). "The police officers brought appellant to the Traffic Division at Jake Gonzales Boulevard (pp. 31-32, ibid.) where appellant voluntarily surrendered a third firearm, a pietro berreta pistol (Exhibit 'L') with a single round in its chamber and a magazine (pp. 33-35, ibid.) loaded with seven (7) other live bullets. Appellant also voluntarily surrendered a black bag containing two additional long magazines and one short magazine (Exhibits M, N, and O, pp. 36-37, ibid.) After appellant had been interrogated by the Chief of the Traffic Division, he was transferred to the Police Investigation Division at Sto. Rosario Street beside the City Hall Building where he and the firearms and ammunitions were turned over to SPO2 Rene Jesus Gregorio (pp. 5- 10, TSN, July 13, 1993) During the investigation, appellant admitted possession of the firearms stating that he used them for shooting (p. 14, ibid.). He was not able to produce any permit to carry or memorandum receipt to cover the three firearms (pp. 16-18, TSN, January 25, 1994). "On November 28, 1992, a certification (Exhibit 'F') was issued by Captain, Senior Inspector Mario Espino, PNP, Chief, Record Branch of the Firearms and Explosives Office (pp. 7-8, TSN, March 4, 1993). The Certification stated that the three firearms confiscated from appellant, an M-16 Baby armalite rifle SN-RP 1312 80, a .357 caliber revolver Smith and Wesson SN 32919 and a .380 Pietro Beretta SN- A35720, were not registered in the name of Robin C. Padilla (p. 6, ibid.). A second Certification dated December 11, 1992 issued by Captain Espino stated that the three firearms were not also registered in the name of Robinhood C. Padilla (p. 10, ibid)." Petitioner's defenses are as follows: (1) that his arrest was illegal and consequently, the firearms and ammunitions taken in the course thereof are inadmissible in evidence under the exclusionary rule; (2) that he is a confidential agent authorized, under a Mission Order and Memorandum Receipt, to carry the subject firearms; and (3) that the penalty for simple illegal possession constitutes excessive and cruel punishment proscribed by the 1987 Constitution. cdtai After a careful review of the records 27 of this case, the Court is convinced that petitioner's guilt of the crime charged stands on terra firma, notwithstanding the Solicitor-General's change of heart. Anent the first defense, petitioner questions the legality of his arrest. There is no dispute that no warrant was issued for the arrest of petitioner, but that per se did not make his apprehension at the Abacan bridge illegal. Warrantless arrests are sanctioned in the following instances: 28 "Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. Paragraph (a) requires that the person be arrested (i) after he has committed or while he is actually committing or is at least attempting to commit an offense, (ii) in the presence of the arresting officer or private person. 29 Both elements concurred here, as it has been established that petitioner's vehicle figured in a hit and run an offense committed in the "presence" of Manarang, a private person, who then sought to arrest petitioner. It must be stressed at this point that "presence" does not only require that the arresting person sees the offense, but also when he "hears the disturbance created thereby AND proceeds at once to the scene." 30 As testified to by Manarang, he heard the screeching of tires followed by a thud, saw the sideswiped victim (balut vendor), reported the incident to the police and thereafter gave chase to the erring Pajero vehicle using his motorcycle in order to apprehend its driver After having sent a radio report to the PNP for assistance, Manarang proceeded to the Abacan bridge where he found responding policemen SPO2 Borja and SPO2 Miranda already positioned near the bridge who effected the actual arrest of petitioner. 31 Petitioner would nonetheless insist on the illegality of his arrest by arguing that the policemen who actually arrested him were not at, the scene of the hit and run. 32 We beg to disagree. That Manarang decided to seek the aid of the policemen (who admittedly were nowhere in the vicinity of the hit and run) in effecting petitioner's arrest, did not in any way affect the propriety of the apprehension. It was in fact the most prudent action Manarang could have taken rather than collaring petitioner by himself, inasmuch as policemen are unquestionably better trained and well-equipped in effecting an arrest of a suspect (like herein petitioner) who, in all probability, could have put up a degree of resistance which an untrained civilian may not be able to contain without endangering his own life. Moreover, it is a reality that curbing lawlessness gains more success when law enforcers function in collaboration with private citizens. It is precisely through this cooperation that the offense herein involved fortunately did not become an additional entry to the long list of unreported and unsolved crimes. It is appropriate to state at this juncture that a suspect, like petitioner herein, cannot defeat the arrest which has been set in motion in a public place for want of a warrant as the police was confronted by an urgent need to render aid or take action. 33 The exigent circumstances of hot pursuit, 34 a fleeing suspect, a moving vehicle, the public place and the raining nighttime all created a situation in which speed is essential and delay improvident. 35 The Court acknowledges police authority to make the forcible stop since they had more than mere "reasonable and articulable" suspicion that the occupant of the vehicle has been engaged in criminal activity. 36 Moreover, when caught in flagrante delicto with possession of an unlicensed firearm (Smith & Wesson) and ammunition (M-16 magazine), petitioner's warrantless arrest was proper as he was again actually committing another offense (illegal possession of firearm and ammunitions) and this time in the presence of a peace officer. 37 Besides, the policemen's warrantless arrest of petitioner could likewise be justified under paragraph (b) as he had in fact just committed an offense. There was no supervening event or a considerable lapse of time between the hit and run and the actual apprehension. Moreover, after having stationed themselves at the Abacan bridge in response to Manarang's report, the policemen saw for themselves the fast approaching Pajero of petitioner, 38 its dangling plate number (PMA 777 as reported by Manarang), and the dented hood and railings thereof. 39 These formed part of the arresting police officer's personal knowledge of the facts indicating that petitioner's Pajero was indeed the vehicle involved in the hit and run incident. Verily then, the arresting police officers acted upon verified personal knowledge and not on unreliable hearsay information. 40 Furthermore, in accordance with settled jurisprudence, any objection, defect or irregularity attending an arrest must be made before the accused enters his plea. 41 Petitioner's belated challenge thereto aside from his failure to quash the information, his participation in the trial and by presenting his evidence, placed him in estoppel to assail the legality of his arrest. 42 Likewise, by applying for bail, petitioner patently waived such irregularities and defects. 43 We now go to the firearms and ammunitions seized from petitioner without a search warrant, the admissibility in evidence of which, we uphold. The five (5) well-settled instances when a warrantless search and seizure of property is valid, 44 are as follows: 1. warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court 45 and by prevailing jurisprudence; 46 2. Seizure of evidence in "plain view", the elements of which are: 47 (a). a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b). the evidence was inadvertently discovered by the police who had the right to be where they are; (c). the evidence must be immediately apparent, and (d). "plain view" justified mere seizure of evidence without further search. 48 3. Search of a moving vehicle. 49 Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity. 50 4. consented warrantless search, and 5. customs search. In conformity with respondent court's observation, it indeed appears that the authorities stumbled upon petitioner s firearms and ammunitions without even undertaking any active search which, as it is commonly understood, is a prying into hidden places for that which is concealed. 51 The seizure of the Smith & Wesson revolver and an M-16 rifle magazine was justified for they came within "plain view" of the policemen who inadvertently discovered the revolver and magazine tucked in petitioner's waist and back pocket respectively, when he raised his hands after alighting from his Pajero. The same justification applies to the confiscation of the M-16 armalite rifle which was immediately apparent to the policemen as they took a casual glance at the Pajero and saw said rifle lying horizontally near the driver's seat. 52 Thus it has been held that: "(W)hen in pursuing an illegal action or in the commission of a criminal offense, the . . . police officers should happen to discover a criminal offense being committed by any person, they are not precluded from performing their duties as police officers for the apprehension of the guilty person and the taking of the corpus delicti. 53 "Objects whose possession are prohibited by law inadvertently found in plain view are subject to seizure even without a warrant." 54 With respect to the Berreta pistol and a black bag containing assorted magazines, petitioner voluntarily surrendered them to the police. 55 This latter gesture of petitioner indicated a waiver of his right against the alleged search and seizure, 56 and that his failure to quash the information estopped him from assailing any purported defect. 57 Even assuming. that the firearms and ammunitions were products of an active search done by the authorities on the person and vehicle of petitioner, their seizure without a search warrant nonetheless can still be justified under a search incidental to a lawful arrest (first instance). Once the lawful arrest was effected, the police may undertake a protective search 58 of the passenger compartment and containers in the vehicle 59 which are within petitioner's grabbing distance regardless of the nature of the offense. 60 This satisfied the two-tiered test of an incidental search: (i) the item to be searched (vehicle) was within the arrestee's custody or area of immediate control 61 and (ii) the search was contemporaneous with the arrest. 62 The products of that search are admissible evidence not excluded by the exclusionary rule. Another justification is a search of a moving vehicle (third instance). In connection therewith, a warrantless search is constitutionally permissible when, as in this case, the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender (like herein petitioner with respect to the hit and run) or the contents or cargo of the vehicle are or have been instruments or the subject matter or the proceeds of some criminal offense. 63 Anent his second defense, petitioner contends that he could not be convicted of violating P.D. 1866 because he is an appointed civilian agent authorized to possess and carry the subject firearms and ammunition as evidenced by a Mission Order 64 and Memorandum Receipt duly issued by PNP Supt. Rodialo Gumtang, the deputy commander of Task Force Aguila, Lianga, Surigao del Sur. The contention lacks merit. In crimes involving illegal possession of firearm, two requisites must be established, viz.: (1) the existence of the subject firearm and, (2) the fact that the accused who owned or possessed the firearm does not have the corresponding license or permit to possess. 65 The first element is beyond dispute as the subject firearms and ammunitions 66 were seized from petitioner's possession via a valid warrantless search, identified and offered in evidence during trial. As to the second element, the same was convincingly proven by the prosecution. Indeed, petitioner's purported Mission Order and Memorandum Receipt are inferior in the face of the more formidable evidence for the prosecution as our meticulous review of the records reveals that the Mission Order and Memorandum Receipt were mere afterthoughts contrived and issued under suspicious circumstances. On this score, we lift from respondent court's incisive observation. Thus: "Appellant's contention is predicated on the assumption that the Memorandum Receipts and Mission Order were issued before the subject firearms were seized and confiscated from him by the police officers in Angeles City. That is not so. The evidence adduced indicate that the Memorandum Receipts and Mission Order were prepared and executed long after appellant had been apprehended on October 26, 1992. "Appellant, when apprehended, could not show any document as proof of his authority to possess and carry the subject firearms. During the preliminary investigation of the charge against him for illegal possession of firearms and ammunitions he could not, despite the ample time given him, present any proper document showing his authority. If he had, in actuality, the Memorandum Receipts and Missions Order, he could have produced those documents easily, if not at the time of apprehension, at least during the preliminary investigation. But neither appellant nor his counsel inform the prosecutor that appellant is authorized to possess and carry the subject firearms under Memorandum Receipt and Mission Order. At the initial presentation of his evidence in court, appellant could have produced these documents to belie the charged against him. Appellant did not. He did not even take the witness stand to explain his possession of the subject firearms. "Even in appellant's Demurrer to Evidence filed after the prosecution rested contain no allegation of a Memorandum Receipts and Mission Order authorizing appellant to possess and carry the subject firearms. "At the initial presentation of appellant's evidence, the witness cited was one James Neneng to whom a subpoena was issued. Superintendent Gumtang was not even mentioned. James Neneng appeared in court but was not presented by the defense. Subsequent hearings were reset until the defense found Superintendent Gumtang who appeared in court without subpoena on January 13, 1994" 67 The Court is baffled why petitioner failed to produce and present the Mission Order and Memorandum Receipt if they were really issued and existing before his apprehension. Petitioner's alternative excuses that the subject firearms were intended for theatrical purposes, or that they were owned by the Presidential Security Group, or that his Mission Order and Memorandum Receipt were left at home, further compound their irregularity. As to be reasonably expected, an accused claiming innocence, like herein petitioner, would grab the earliest opportunity to present the Mission Order and Memorandum Receipt in question and save himself from the long and agonizing public trial and spare him from proffering inconsistent excuses. In fact, the Mission Order itself, as well as the Letter-Directive of the AFP Chief of Staff, is explicit in providing that: cdtai "VIII. c. When a Mission Order is requested for verification by enforcement units/personnel such as PNP, Military Brigade and other Military Police Units of AFP, the Mission Order should be shown without resentment to avoid embarrassment and/or misunderstanding. "IX. d. Implicit to this Mission Order is the injunction that the confidential instruction will be carried out through all legal means and do not cover an actuation in violation of laws. In the latter event, this Mission Order is rendered inoperative in respect to such violation." 68 which directive petitioner failed to heed without cogent explanation. The authenticity and validity of the Mission Order and Memorandum Receipt, moreover, were ably controverted. Witness for the prosecution Police Supt. Durendes denied under oath his signature on the dorsal side of the Mission Order and declared further that he did not authorize anyone to sign in his behalf. 69 His surname thereon, we note, was glaringly misspelled as "Durembes." 70 In addition, only Unit Commanders and Chief of Offices have the authority to issue Mission Orders and Memorandum Receipts under the Guidelines on the Issuance of Mos, MRs, & PCFORs. 71 PNP Supt. Rodialo Gumtang who issued petitioner's Mission Order and Memorandum Receipt is neither a Unit Commander nor the Chief of Office, but a mere deputy commander. Having emanated from an unauthorized source, petitioner's Mission Order and Memorandum Receipt are infirm and lacking in force and effect. Besides, the Mission Order covers "Recom 1-12-Baguio City." 72 areas outside Supt. Gumtang's area of responsibility thereby needing prior approval "by next higher Headquarters" 73 which is absent in this case. The Memorandum Receipt is also unsupported by a certification as required by the March 5, 1988 Memorandum of the Secretary of Defense which pertinently provides that: "No memorandum receipt shall be issued for a CCS firearms without corresponding certification from the corresponding Responsible Supply Officer of the appropriate AFP unit that such firearm has been officially taken up in that unit's property book, and that report of such action has been reported to higher AFP authority." Had petitioner's Memorandum Receipt been authentic, we see no reason why he cannot present the corresponding certification as well. What is even more peculiar is that petitioner's name, as certified to by the Director for Personnel of the PNP, does not even appear in the Plantilla of Non-Uniform Personnel or in the list of Civilian Agents or Employees of the PNP which could justify the issuance of a Mission Order, a fact admitted by petitioner's counsel. 74 The implementing rules of P.D. 1866 issued by the then PC-INP Chief and Director-General Lt. Gen. Fidel V. Ramos are clear and unambiguous, thus: "No Mission Order shall be issued to any civilian agent authorizing the same to carry firearms outside residence unless he/she is included in the regular plantilla of the government agency involved in law enforcement and is receiving regular compensation for the services he/she is rendering in the agency. Further, the civilian agent must be included in a special law enforcement/police/intelligence project proposal or special project which specifically required the use of firearms(s) to insure its accomplishment and that the project is duly approved at the PC Regional Command level or its equivalent level in other major services of the AFP, INP and-NBI, or at higher levels of command." 75 Circular No. 1, dated January 6, 1986, of the then Ministry of Justice likewise provides as follows: "If mission orders are issued to civilians (not members of the uniformed service), they must be civilian agents included in the regular plantilla of the government agency involved in law enforcement and are receiving regular compensation for the service they are rendering." That petitioner's Mission Order and Memorandum Receipt were fabricated pieces of evidence is accentuated all the more by the testimony and certification of the Chief of the Records Branch of the firearms and Explosives Office of the PNP declaring that petitioner's confiscated firearms are not licensed or registered in the name of the petitioner. 76 Thus: "Q. In all these files that you have just mentioned Mr. Witness, what did you find, if any? "A. I found that a certain Robin C Padilla is a licensed registered owner of one 9 mm pistol, Smith and Wesson with Serial No. TCT 8214 and the following firearms being asked whether it is registered or not, I did not find any records, the M-16 and the caliber .357 and the caliber .380 but there is a firearm with the same serial number which is the same as that licensed and/or registered in the name of one Albert Villanueva Fallorina. "Q. So in short, the only licensed firearms in the name of accused Robin C. Padilla is a pistol, Smith and Wesson, caliber 9 mm with Serial No. TCT 8214? "A. Yes, sir. "Q. And the firearms that were the subject of this case are not listed in the names of the accused in this case? "A. Yes, sir. 77 xxx xxx xxx And the certification which provides as follows: Republic of the Philippines Department of the Interior and Local Government GENERAL HEADQUARTERS PHILIPPINE NATIONAL POLICE FIREARMS AND EXPLOSIVES OFFICE Camp Crame, Quezon City "PNPFEO5 November 28, 1992 "C E R T I F I C A T I O N "TO WHOM IT MAY CONCERN: "THIS IS TO CERTIFY that Robin C. Padilla of 59 Labo St., Quezon City is a licensed/registered holder of Pistol Smith and Wesson Cal 9mm with serial number TCT8214 covered by License No. RL M76C4476687. "Further certify that the following firearms are not registered with this Office per verification from available records on file this Office as of this date: M16 Baby Armalite SN-RP131120 Revolver Cal 357 SN-3219 Pistol Cal 380 Pietro Beretta SN-35723 "However, we have on file one Pistol Cal 380, Beretta with serial number 35723Y, licensed/registered to one Albert Villanueva Fallorina of 29 San Juan St., Capitol Pasig, MM under Re-Registered License. "This certification is issued pursuant to Subpoena from City of Angeles. "FOR THE CHIEF, FEO: (Sgd.) JOSE MARIO M. ESPINO Sr. Inspector, PNP Chief, Records Branch" 78 In several occasions, the Court has ruled that either the testimony of a representative of, or a certification from, the. PNP Firearms and Explosives Office (FEO) attesting that a person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the second element of illegal possession of firearm. 79 In People vs. Tobias, 80 we reiterated that such certification is sufficient to show that a person has in fact no license. From the foregoing discussion, the fact that petitioner does not have the license or permit to possess was overwhelmingly proven by the prosecution. The certification may even be dispensed with in the light of the evidence 81 that an M- 16 rifle and any short firearm higher than a .38 caliber pistol, akin to the confiscated firearms, cannot be licensed to a civilian, 82 as in the case of petitioner The Court, therefore, entertains no doubt in affirming petitioner's conviction especially as we find no plausible reason and none was presented, to depart from the factual findings of both the trial court and respondent court which, as a rule, are accorded by the Court with respect and finality. 83 Anent his third defense, petitioner faults respondent court "in applying P.D. 1866 in a democratic ambience (sic) and a non subversive context" and adds that respondent court should have applied instead the previous laws on illegal possession of firearms since the reason for the penalty imposed under P.D. 1866 no longer exists. 84 He stresses that the penalty of 17 years and 4 months to 21 years for simple illegal possession of firearm is cruel and excessive in contravention of the Constitution. 85 The contentions do not merit serious consideration. The trial court and the respondent court are bound to apply the governing law at the time of appellant's commission of the offense for it is a rule that laws are repealed only by subsequent ones. 86 Indeed, it is the duty of judicial officers to respect and apply the law as it stands. 87 And until its repeal, respondent court can not be faulted for applying P.D. 1866 which abrogated the previous statutes adverted to by petitioner. Equally lacking in merit is appellant's allegation that the penalty for simple illegal possession is unconstitutional. The penalty for simple possession of firearm, it should be stressed, ranges from reclusion temporal maximum to reclusion perpetua contrary to appellant's erroneous averment. The severity of a penalty does not ipso facto make the same cruel and excessive. "It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution. 'The fact that the punishment authorized by the statute is severe does not make it cruel and unusual' (24 C.J.S., 1187-1188). Expressed in other terms, it has been held that to come under the ban, the punishment must be 'flagrantly and plainly oppressive', 'wholly disproportionate to the nature of the offense as to shock the moral sense of the community." 88 It is well-settled that as far as the constitutional prohibition goes, it is not so much the extent as the nature of the punishment that determines whether it is, or is not, cruel and unusual and that sentences of imprisonment, though perceived to be harsh, are not cruel or unusual if within statutory limits. 89 Moreover, every law has in its favor the presumption of constitutionality. The burden of proving the invalidity of the statute in question lies with the appellant which burden, we note, was not convincingly discharged. To justify nullification of the law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative implication, 90 as in this case. In fact, the constitutionality of P.D. 1866 has been upheld twice by this Court. 91 Just recently, the Court declared that "the pertinent laws on illegal possession of firearms [are not] contrary to any provision of the Constitution. . . " 92 Appellant's grievance on the wisdom of the prescribed penalty should not be addressed to us. Courts are not concerned with the wisdom, efficacy or morality of laws. That question falls exclusively within the province of Congress which enacts them and the Chief Executive who approves or vetoes them. The only function of the courts, we reiterate, is to interpret and apply the laws. With respect to the penalty imposed by the trial court as affirmed by respondent court (17 years 4 months and 1 day of reclusion temporal, as minimum, to 21 years of reclusion perpetua, as maximum), we reduce the same in line with the fairly recent case of People v. Lian 93 where the Court en banc provided that the indeterminate penalty imposable for simple illegal possession of firearm, without any mitigating or aggravating circumstance, should be within the range of ten (10) years and one (1) day to twelve years (12) of prision mayor, as minimum, to eighteen (18) years, eight (8) months and one (1 ) day to twenty (20) of reclusion temporal, as maximum. This is discernible from the following explanation by the Court: "In the case at bar, no mitigating or aggravating circumstances have been alleged or proved, In accordance with the doctrine regarding special laws explained in People v. Simon, 94 although Presidential Decree No. 1866 is a special law, the penalties therein were taken from the Revised Penal Code, hence the rules in said Code for graduating by degrees or determining the proper period should be applied Consequently, the penalty for the offense of simple illegal possession of firearm is the medium period of the complex penalty in said Section 1, that is, 18 years, 8 months and 1 day to 20 years. "This penalty, being that which is to be actually imposed in accordance with the rules therefor and not merely imposable as a general prescription under the law, shall be the maximum of the range of the indeterminate sentence. The minimum thereof shall be taken, as aforesaid, from any period of the penalty next lower in degree, which is, prision mayor in its maximum period to reclusion temporal in its medium period. 95 WHEREFORE, premises considered, the decision of the Court of Appeals sustaining petitioner's conviction by the lower court of the crime of simple illegal possession of firearms and ammunitions is AFFIRMED EXCEPT that petitioner's indeterminate penalty MODIFIED to "ten (10) years and one (1) day, as minimum, to eighteen (18) years, eight (8) months and one (1) day, as maximum. cdtai SO ORDERED. Narvasa, C .J ., Davide, Jr., Melo and Panganiban, JJ ., concur. EN BANC [G.R. No. 129296. September 25, 2000.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ABE VALDEZ y DELA CRUZ, accused-appellant. The Solicitor General for plaintiff-appellee. Chavez Laureta & Associates for accused-appellant. SYNOPSIS In an information filed before the Regional Trial Court of Bayombong, Nueva Vizcaya herein appellant was charged with violation of the Dangerous Drug Act of 1972 for being caught in flagranti delicto in planting and cultivating seven full grown marijuana plants weighing 2.194 kilos in sitio Bulan, Bulan Ibung, Villaverde, Nueva Vizcaya. On November 15, 1996, appellant was arraigned and pleaded not guilty to the charge. Trial on the merits ensued. Finding appellant's defense insipid, the trial court held appellant liable as charged for cultivation and ownership of marijuana plants and sentenced him to suffer the penalty of death. In view of the penalty imposed by the trial court, the case was forwarded to the Supreme Court for automatic review. The Supreme Court found the appeal meritorious. The Court ruled that the confiscated plants were evidently obtained during an illegal search and seizure. Particularly, the seized marijuana plants were not immediately apparent and a further search was needed. In sum, the marijuana plants in question were not in "plain view" or "open to eye and hand." The plain view doctrine thus, cannot be made to apply. As to the second issue, which involves the admissibility of the marijuana plants as evidence for the prosecution, the Court found that said plants cannot, as products of an unlawful search and seizure, be used as evidence against appellant. They are fruits of the proverbial poisoned tree. It was, therefore, a reversible error on the part of the court a quo to have admitted and relied upon the seized marijuana plants as evidence to convict appellant. Additionally, the Court found the appellant's extrajudicial confession flawed with respect to its admissibility. The records showed that the admission by appellant was verbal. It was also uncounselled. A verbal admission allegedly made by an accused during the investigation, without the assistance of counsel at the time of his arrest and even before his formal investigation, is not only inadmissible for being violative of the right to counsel during criminal investigations, it is also hearsay. Even if the confession or admission were gospel truth, if it was made without assistance of counsel and without a valid waiver of such assistance, the confession is inadmissible in evidence, regardless of the absence of coercion or even if it had been voluntarily given. Accordingly, the appealed decision was reversed and set aside for insufficiency of evidence. Appellant was acquitted and ordered released immediately from confinement unless held for another lawful cause. SYLLABUS 1. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURE; THE MANTLE OF PROTECTION EXTENDED BY THE BILL OF RIGHTS COVERS BOTH INNOCENT AND GUILTY ALIKE AGAINST ANY FORM OF HIGH- HANDEDNESS OF LAW ENFORCEMENT, REGARDLESS OF THE PRAISEWORTHINESS OF THEIR INTENTION. The Constitution lays down the general rule that a search and seizure must be carried on the strength of a judicial warrant. Otherwise, the search and seizure is deemed "unreasonable." 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. Such evidence shall be inadmissible in evidence for any purpose in any proceeding. In the instant case, there was no search warrant issued by a judge after personal determination of the existence of probable cause. From the declarations of the police officers themselves, it is clear that they had at least one (1) day to obtain a warrant to search appellant's farm. Their informant had revealed his name to them. The place where the cannabis plants were planted was pinpointed. From the information in their possession, they could have convinced a judge that there was probable cause to justify the issuance of a warrant. But they did not. Instead, they uprooted the plants and apprehended the accused on the excuse that the trip was a good six hours and inconvenient to them. We need not underscore that the protection against illegal search and seizure is constitutionally mandated and only under specific instances are searches allowed without warrants. The mantle of protection extended by the Bill of Rights covers both innocent and guilty alike against any form of high- handedness of law enforcers, regardless of the praiseworthiness of their intentions. 2. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS SEARCH; PLAIN VIEW DOCTRINE; ELEMENTS; NOT APPLICABLE IN CASE AT BAR. We find no reason to subscribe to Solicitor General's contention that we apply the "plain view" doctrine. For the doctrine to apply, the following elements must be present: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who have the right to be where they are; and (c) the evidence must be immediately apparent; and d) plain view justified mere seizure of evidence without further search. In the instant case, recall that PO2 Balut testified that they first located the marijuana plants before appellant was arrested without a warrant. Hence, there was no valid warrantless arrest which preceded the search of appellant's premises. Note further that the police team was dispatched to appellant's kaingin precisely to search for and uproot the prohibited flora. The seizure of evidence in "plain view" applies only where the police officer is not searching for evidence against the accused, but inadvertently comes across an incriminating object. Clearly, their discovery of the cannabis plants was not inadvertent. We also note the testimony of SPO2 Tipay that upon arriving at the area, they first had to "look around the area" before they could spot the illegal plants. Patently, the seized marijuana plants were not "immediately apparent" and a "further search" was needed. In sum, the marijuana plants in question were not in "plain view" or "open to eye and hand." The "plain view" doctrine, thus, cannot be made to apply. 3. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES; REFERS TO THE RIGHT OF PERSONAL SECURITY. Nor can we sustain the trial court's conclusion that just because the marijuana plants were found in an unfenced lot, appellant could not invoke the protection afforded by the Charter against unreasonable searches by agents of the State. The right against unreasonable searches and seizures is the immunity of one's person, which includes his residence, his papers, and other possessions. The guarantee refers to "the right of personal security" of the individual. As appellant correctly points out, what is sought to be protected against the State's unlawful intrusion are persons, not places. To conclude otherwise would not only mean swimming against the stream, it would also lead to the absurd logic that for a person to be immune against unreasonable searches and seizures, he must be in his home or office, within a fenced yard or a private place. The Bill of Rights belongs as much to the person in the street as to the individual in the sanctuary of his bedroom. HEDSCc 4. ID.; ID.; ID.; RIGHTS OF PERSON UNDER INVESTIGATION; CANNOT BE WAIVED EXCEPT IN WRITING AND IN THE PRESENCE OF COUNSEL. The Constitution plainly declares that any person under investigation for the commission of an offense shall have the right: (1) to remain silent; (2) to have competent and independent counsel preferably of his own choice; and (3) to be informed of such rights. These rights cannot be waived except in writing and in the presence of counsel. An investigation begins when it is no longer a general inquiry but starts to focus on a particular person as a suspect, i.e., when the police investigator starts interrogating or exacting a confession from the suspect in connection with an alleged offense. The moment the police try to elicit admissions or confessions or even plain information from a person suspected of having committed an offense, he should at that juncture be assisted by counsel, unless he waives the right in writing and in the presence of counsel. 5. REMEDIAL LAW; EVIDENCE; EXTRAJUDICIAL CONFESSION; REQUIREMENTS; A VERBAL ADMISSION ALLEGEDLY MADE BY AN ACCUSED DURING THE INVESTIGATION, WITHOUT THE ASSISTANCE OF COUNSEL AT THE TIME OF HIS ARREST AND EVEN BEFORE HIS FORMAL INVESTIGATION IS NOT ONLY INADMISSIBLE FOR BEING VIOLATIVE OF THE RIGHT TO COUNSEL DURING CRIMINAL INVESTIGATIONS, IT IS ALSO HEARSAY. We find appellant's extrajudicial confession flawed with respect to its admissibility. For a confession to be admissible, it must satisfy the following requirements: (1) it must be voluntary; (2) it must be made with the assistance of competent and independent counsel; (3) it must be express; and (4) it must be in writing. The records show that the admission by appellant was verbal. It was also uncounselled. A verbal admission allegedly made by an accused during the investigation, without the assistance of counsel at the time of his arrest and even before his formal investigation is not only inadmissible for being violative of the right to counsel during criminal investigations, it is also hearsay. Even if the confession or admission were "gospel truth," if it was made without assistance of counsel and without a valid waiver of such assistance, the confession is inadmissible in evidence, regardless of the absence of coercion or even if it had been voluntarily given. D E C I S I O N QUISUMBING, J p: For automatic review is the decision 1 promulgated on February 18, 1997, by the Regional Trial Court of Bayombong, Nueva Vizcaya, Branch 27, in Criminal Case No. 3105. It found appellant Abe Valdez y Dela Cruz guilty beyond reasonable doubt for violating Section 9 of the Dangerous Drugs Act of 1972 (R.A. No. 6425), as amended by R.A. No. 7659. He was sentenced to suffer the penalty of death by lethal injection. In an Information dated September 26, 1996, appellant was charged as follows: "That on or about September 25, 1996, at Sitio Bulan, Barangay Sawmill, Municipality of Villaverde, Province of Nueva Vizcaya, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, who was caught in flagrante delicto and without authority of law, did then and there wilfully (sic), unlawfully and feloniously plant, cultivate and culture seven (7) fully grown marijuana plants known as Indian Hemp weighing 2.194 kilos, from which dangerous drugs maybe (sic) manufactured or derived, to the damage and prejudice of the government of the Republic of the Philippines. "That the property where the said seven (7) fully grown marijuana plants were planted, cultivated and cultured shall be confiscated and escheated in favor of the government. "CONTRARY TO LAW." 2 On November 15, 1996, appellant was arraigned and, with assistance of counsel, pleaded not guilty to the charge. Trial on the merits then ensued. The first witness for the prosecution was SPO3 Marcelo Tipay, a member of the police force of Villaverde, Nueva Vizcaya. He testified that at around 10:15 a.m. of September 24, 1996, he received a tip from an unnamed informer about the presence of a marijuana plantation, allegedly owned by appellant at Sitio Bulan, Ibung, Villaverde, Nueva Vizcaya. 3 The prohibited plants were allegedly planted close to appellant's hut. Police Inspector Alejandro R. Parungao, Chief of Police of Villaverde, Nueva Vizcaya then formed a reaction team from his operatives to verify the report. The team was composed of SPO3 Marcelo M. Tipay, SPO2 Noel V. Libunao, SPO2 Pedro S. Morales, SPO1 Romulo G. Tobias and PO2 Alfelmer I. Balut. Inspector Parungao gave them specific instructions to "uproot said marijuana plants and arrest the cultivator of same." 4 At approximately 5:00 o'clock A.M. the following day, said police team, accompanied by their informer, left for the site where the marijuana plants were allegedly being grown. After a three-hour, uphill trek from the nearest barangay road, the police operatives arrived at the place pinpointed by their informant. The police found appellant alone in his nipa hut. They, then, proceeded to look around the area where appellant had his kaingin and saw seven (7) five-foot high, flowering marijuana plants in two rows, approximately 25 meters from appellant's hut. 5 PO2 Balut asked appellant who owned the prohibited plants and, according to Balut, the latter admitted that they were his. 6 The police uprooted the seven marijuana plants, which weighed 2.194 kilograms. 7 The police took photos of appellant standing beside the cannabis plants. 8 Appellant was then arrested. One of the plants, weighing 1.090 kilograms, was sent to the Philippine National Police Crime Laboratory in Bayombong, Nueva Vizcaya for analysis. 9 Inspector Prevy Fabros Luwis, the Crime Laboratory forensic analyst, testified that upon microscopic examination of said plant, she found cystolitic hairs containing calcium carbonate, a positive indication for marijuana. 10 She next conducted a chemical examination, the results of which confirmed her initial impressions. She found as follows: "SPECIMEN SUBMITTED: Exh "A" 1.090 grams of uprooted suspected marijuana plant placed inside a white sack with markings. xxx xxx xxx "FINDINGS: Qualitative examination conducted on the above stated specimen gave POSITIVE result to the test for Marijuana, a prohibited drug." 11 The prosecution also presented a certification from the Department of Environment and Natural Resources that the land cultivated by appellant, on which the growing marijuana plants were found, was Lot 3224 of Timberland Block B, which formed part of the Integrated Social Forestry Area in Villaverde, Nueva Vizcaya. 12 This lot was part of the public domain. Appellant was acknowledged in the certification as the occupant of the lot, but no Certificate of Stewardship had yet been issued in his favor. 13 As its sole witness, the defense presented appellant. He testified that at around 10:00 o'clock A.M., September 25, 1996, he was weeding his vegetable farm in Sitio Bulan when he was called by a person whose identity he does not know. He was asked to go with the latter to "see something." 14 This unknown person then brought appellant to the place where the marijuana plants were found, approximately 100 meters away from his nipa hut. 15 Five armed policemen were present and they made him stand in front of the hemp plants. He was then asked if he knew anything about the marijuana growing there. When he denied any knowledge thereof, SPO2 Libunao poked a fist at him and told him to admit ownership of the plants. 16 Appellant was so nervous and afraid that he admitted owning the marijuana. 17 IaHSCc The police then took a photo of him standing in front of one of the marijuana plants. He was then made to uproot five of the cannabis plants, and bring them to his hut, where another photo was taken of him standing next to a bundle of uprooted marijuana plants. 18 The police team then brought him to the police station at Villaverde. On the way, a certain Kiko Pascua, a barangay peace officer of Barangay Sawmill, accompanied the police officers. Pascua, who bore a grudge against him, because of his refusal to participate in the former's illegal logging activities, threatened him to admit owning the marijuana, otherwise he would "be put in a bad situation." 19 At the police headquarters, appellant reiterated that he knew nothing about the marijuana plants seized by the police. 20 On cross-examination, appellant declared that there were ten other houses around the vicinity of his kaingin, the nearest house being 100 meters away. 21 The latter house belonged to one Carlito (Lito) Pascua, an uncle of the barangay peace officer who had a grudge against him. The spot where the marijuana plants were found was located between his house and Carlito Pascua's. 22 The prosecution presented SPO3 Tipay as its rebuttal witness. His testimony was offered to rebut appellant's claim that the marijuana plants were not planted in the lot he was cultivating. 23 Tipay presented a sketch he made, 24 which showed the location of marijuana plants in relation to the old and new nipa huts of appellant, as well as the closest neighbor. According to Tipay, the marijuana plot was located 40 meters away from the old hut of Valdez and 250 meters distant from the hut of Carlito Pascua. 25 Tipay admitted on cross-examination that no surveyor accompanied him when he made the measurements. 26 He further stated that his basis for claiming that appellant was the owner or planter of the seized plants was the information given him by the police informer and the proximity of appellant's hut to the location of said plants. 27 TSIDaH Finding appellant's defense insipid, the trial court held appellant liable as charged for cultivation and ownership of marijuana plants as follows: "WHEREFORE, finding the accused GUILTY beyond reasonable doubt of cultivating marijuana plants punishable under Section 9 of the Dangerous Drugs Act of 1972, as amended, accused is hereby sentenced to death by lethal injection. Costs against the accused. "SO ORDERED." 28 Appellant assigns the following errors for our consideration: I THE TRIAL COURT GRAVELY ERRED IN ADMITTING AS EVIDENCE THE SEVEN (7) MARIJUANA PLANTS DESPITE THEIR INADMISSIBILITY BEING PRODUCTS OF AN ILLEGAL SEARCH. II THE TRIAL COURT GRAVELY ERRED IN CONVICTING APPELLANT OF VIOLATION OF SECTION 9, REPUBLIC ACT NO. 6425 DESPITE THE INADMISSIBILITY OF THE CORPUS DELICTI AND THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. III THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE SUPREME PENALTY OF DEATH UPON APPELLANT DESPITE FAILURE OF THE PROSECUTION TO PROVE THAT THE LAND WHERE THE MARIJUANA PLANTS WERE PLANTED IS A PUBLIC LAND ON THE ASSUMPTION THAT INDEED APPELLANT PLANTED THE SUBJECT MARIJUANA. 29 Simply stated, the issues are: (1) Was the search and seizure of the marijuana plants in the present case lawful? (2) Were the seized plants admissible in evidence against the accused? (3) Has the prosecution proved appellant's guilt beyond reasonable doubt? (4) Is the sentence of death by lethal injection correct? The first and second issues will be jointly discussed because they are interrelated. Appellant contends that there was unlawful search. First, the records show that the law enforcers had more than ample time to secure a search warrant. Second, that the marijuana plants were found in an unfenced lot does not remove appellant from the mantle of protection against unreasonable searches and seizures. He relies on the ruling of the US Supreme Court in Terry v. Ohio, 392 US 1, 20 L. Ed 2d 898, 88 S. Ct. 1868 (1968), to the effect that the protection against unreasonable government intrusion protects people, not places. For the appellee, the Office of the Solicitor General argues that the records clearly show that there was no search made by the police team, in the first place. The OSG points out that the marijuana plants in question were grown in an unfenced lot and as each grew about five (5) feet tall, they were visible from afar, and were, in fact, immediately spotted by the police officers when they reached the site. The seized marijuana plants were, thus, in plain view of the police officers. The instant case must, therefore, be treated as a warrantless lawful search under the "plain view" doctrine. CTEaDc The court a quo upheld the validity of the search and confiscation made by the police team on the finding that: ". . . It seems there was no need for any search warrant. The policemen went to the plantation site merely to make a verification. When they found the said plants, it was too much to expect them to apply for a search warrant. In view of the remoteness of the plantation site (they had to walk for six hours back and forth) and the dangers lurking in the area if they stayed overnight, they had a valid reason to confiscate the said plants upon discovery without any search warrant. Moreover, the evidence shows that the lot was not legally occupied by the accused and there was no fence which evinced the occupant's desire to keep trespassers out. There was, therefore, no privacy to protect, hence, no search warrant was required." 30 The Constitution 31 lays down the general rule that a search and seizure must be carried on the strength of a judicial warrant. Otherwise, the search and seizure is deemed "unreasonable." 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. 32 Such evidence shall be inadmissible in evidence for any purpose in any proceeding. 33 In the instant case, there was no search warrant issued by a judge after personal determination of the existence of probable cause. From the declarations of the police officers themselves, it is clear that they had at least one (1) day to obtain a warrant to search appellant's farm. Their informant had revealed his name to them. The place where the cannabis plants were planted was pinpointed. From the information in their possession, they could have convinced a judge that there was probable cause to justify the issuance of a warrant. But they did not. Instead, they uprooted the plants and apprehended the accused on the excuse that the trip was a good six hours and inconvenient to them. We need not underscore that the protection against illegal search and seizure is constitutionally mandated and only under specific instances are searches allowed without warrants. 34 The mantle of protection extended by the Bill of Rights covers both innocent and guilty alike against any form of high-handedness of law enforcers, regardless of the praiseworthiness of their intentions. EICSDT We find no reason to subscribe to Solicitor General's contention that we apply the "plain view" doctrine. For the doctrine to apply, the following elements must be present: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who have the right to be where they are; and (c) the evidence must be immediately apparent; and (d) plain view justified mere seizure of evidence without further search. 35 In the instant case, recall that PO2 Balut testified that they first located the marijuana plants before appellant was arrested without a warrant. 36 Hence, there was no valid warrantless arrest which preceded the search of appellant's premises. Note further that the police team was dispatched to appellant's kaingin precisely to search for and uproot the prohibited flora. The seizure of evidence in "plain view" applies only where the police officer is not searching for evidence against the accused, but inadvertently comes across an incriminating object. 37 Clearly, their discovery of the cannabis plants was not inadvertent. We also note the testimony of SPO2 Tipay that upon arriving at the area, they first had to "look around the area" before they could spot the illegal plants. 38 Patently, the seized marijuana plants were not "immediately apparent" and a "further search" was needed. In sum, the marijuana plants in question were not in "plain view" or "open to eye and hand." The "plain view" doctrine, thus, cannot be made to apply. Nor can we sustain the trial court's conclusion that just because the marijuana plants were found in an unfenced lot, appellant could not invoke the protection afforded by the Charter against unreasonable searches by agents of the State. The right against unreasonable searches and seizures is the immunity of one's person, which includes his residence, his papers, and other possessions. 39 The guarantee refers to "the right of personal security" 40 of the individual. As appellant correctly points out, what is sought to be protected against the State's unlawful intrusion are persons, not places. 41 To conclude otherwise would not only mean swimming against the stream, it would also lead to the absurd logic that for a person to be immune against unreasonable searches and seizures, he must be in his home or office, within a fenced yard or a private place. The Bill of Rights belongs as much to the person in the street as to the individual in the sanctuary of his bedroom. ICTacD We therefore hold, with respect to the first issue, that the confiscated plants were evidently obtained during an illegal search and seizure. As to the second issue, which involves the admissibility of the marijuana plants as evidence for the prosecution, we find that said plants cannot, as products of an unlawful search and seizure, be used as evidence against appellant. They are fruits of the proverbial poisoned tree. It was, therefore, a reversible error on the part of the court a quo to have admitted and relied upon the seized marijuana plants as evidence to convict appellant. We now proceed to the third issue, which revolves around the sufficiency of the prosecution's evidence to prove appellant's guilt. Having declared the seized marijuana plants inadmissible in evidence against appellant, we must now address the question of whether the remaining evidence for the prosecution suffices to convict appellant? In convicting appellant, the trial court likewise relied on the testimony of the police officers to the effect that appellant admitted ownership of the marijuana when he was asked who planted them. It made the following observation: "It may be true that the admission to the police by the accused that he planted the marijuana plants was made in the absence of any independent and competent counsel. But the accused was not, at the time of police verification; under custodial investigation. His admission is, therefore, admissible in evidence and not violative of the constitutional fiat that admission given during custodial investigation is not admissible if given without any counsel." 42 Appellant now argues that his admission of ownership of the marijuana plants in question cannot be used against him for being violative of his right to counsel during the police investigation. Hence it was error for the trial court to have relied upon said admission of ownership. He submits that the investigation conducted by the police officers was not a general inquiry, but was meant to elicit information on the ownership of the marijuana plants. Appellant theorizes that since the investigation had narrowed down to him, competent and independent counsel should have assisted him, when the police sought information from him regarding the ownership of the prohibited plants. Appellant claims the presumption of regularity of duty of officers cannot be made to apply to his purported voluntarily confession of ownership of the marijuana plants. Nor can it override his constitutional right to counsel during investigation. The Office of the Solicitor General believes otherwise. The OSG avers that appellant was not yet under custodial investigation when he admitted to the police that he owned the marijuana plants. His right to competent and independent counsel, accordingly, had not yet attached. Moreover, appellant's failure to impute any false motive for the police officers to falsely accuse him indicates that the presumption of regularity in the performance of official duties by police officers was not sufficiently rebutted. HIACac The Constitution plainly declares that any person under investigation for the commission of an offense shall have the right: (1) to remain silent; (2) to have competent and independent counsel preferably of his own choice; and (3) to be informed of such rights. These rights cannot be waived except in writing and in the presence of counsel. 43 An investigation begins when it is no longer a general inquiry but starts to focus on a particular person as a suspect, i.e., when the police investigator starts interrogating or exacting a confession from the suspect in connection with an alleged offense. 44 The moment the police try to elicit admissions or confessions or even plain information from a person suspected of having committed an offense, he should at that juncture be assisted by counsel, unless he waives the right in writing and in the presence of counsel. 45 In the instant case we find that, from the start, a tipster had furnished the police appellant's name as well as the location of appellant's farm, where the marijuana plants were allegedly being grown. While the police operation was supposedly meant to merely "verify" said information, the police chief had likewise issued instructions to arrest appellant as a suspected marijuana cultivator. Thus, at the time the police talked to appellant in his farm, the latter was already under investigation as a suspect. The questioning by the police was no longer a general inquiry. 46 Under cross-examination, PO2 Balut stated, he "did not yet admit that he is the cultivator of that marijuana so we just asked him and I think there is no need to inform (him of) his constitutional rights because we are just asking him . . ." 47 In trying to elicit information from appellant, the police was already investigating appellant as a suspect. At this point, he was already under custodial investigation and had a right to counsel even if he had not yet been arrested. Custodial investigation is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 48 As a suspect, two armed policemen interrogated appellant. Behind his inquisitors were a barangay peace officer and three other armed policemen. 49 All had been dispatched to arrest him. 50 From these circumstances, we may infer that appellant had already been deprived of his freedom of action in a significant way, even before the actual arrest. Note that even before he was arrested, the police made him incriminatingly pose for photos in front of the marijuana plants. cATDIH Moreover, we find appellant's extrajudicial confession flawed with respect to its admissibility. For a confession to be admissible, it must satisfy the following requirements: (1) it must be voluntary; (2) it must be made with the assistance of competent and independent counsel; (3) it must be express; and (4) it must be in writing. 51 The records show that the admission by appellant was verbal. It was also uncounselled. A verbal admission allegedly made by an accused during the investigation, without the assistance of counsel at the time of his arrest and even before his formal investigation is not only inadmissible for being violative of the right to counsel during criminal investigations, it is also hearsay. 52 Even if the confession or admission were "gospel truth," if it was made without assistance of counsel and without a valid waiver of such assistance, the confession is inadmissible in evidence, regardless of the absence of coercion or even if it had been voluntarily given. 53 It is fundamental in criminal prosecutions that before an accused may be convicted of a crime, the prosecution must establish by proof beyond reasonable doubt that a crime was committed and that the accused is the author thereof. 54 The evidence arrayed against the accused, however, must not only stand the test of reason, 55 it must likewise be credible and competent. 56 Competent evidence is "generally admissible" evidence. 57 Admissible evidence, in turn, is evidence "of such a character that the court or judge is bound to receive it, that is, allow it to be introduced at trial." 58 In the instant case, the trial court relied on two pieces of probative matter to convict appellant of the offense charged. These were the seized marijuana plants, and appellant's purportedly voluntary confession of ownership of said marijuana plants to the police. Other than these proofs, there was no other evidence presented to link appellant with the offense charged. As earlier discussed, it was error on the trial court's part to have admitted both of these proofs against the accused and to have relied upon said proofs to convict him. For said evidence is doubly tainted. TEcAHI First, as earlier pointed out, the seized marijuana plants were obtained in violation of appellant's constitutional rights against unreasonable searches and seizures. The search and seizure were void ab initio for having been conducted without the requisite judicial warrant. The prosecution's very own evidence clearly establishes that the police had sufficient time to obtain a warrant. There was no showing of such urgency or necessity for the warrantless search or the immediate seizure of the marijuana plants subject of this case. To reiterate, said marijuana plants cannot be utilized to prove appellant's guilt without running afoul of the constitutional guarantees against illegal searches and the inadmissibility of evidence procured pursuant to an unlawful search and seizure. Second, the confession of ownership of the marijuana plants, which appellant allegedly made to the police during investigation, is not only hearsay but also violative of the Bill of Rights. The purported confession was made without the assistance of competent and independent counsel, as mandated by the Charter. Thus, said confession cannot be used to convict appellant without running afoul of the Constitution's requirement that a suspect in a criminal investigation must have the services of competent and independent counsel during such investigation. In sum, both the object evidence and the testimonial evidence as to appellant's voluntary confession of ownership of the prohibited plants relied upon to prove appellant's guilt failed to meet the test of Constitutional competence. The Constitution decrees that, "In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved . . ." 59 To justify the conviction of the accused, the prosecution must adduce that quantum of evidence sufficient to overcome the constitutional presumption of innocence. The prosecution must stand or fall on its evidence and cannot draw strength from the weakness of the evidence for the accused. 60 Absent the required degree of proof of an accused's guilt, he is entitled to an acquittal. 61 In this case, the seized marijuana plants linking appellant to the crime charged are miserably tainted with constitutional infirmities, which render these inadmissible "for any purpose in any proceeding." 62 Nor can the confession obtained during the uncounselled investigation be used against appellant, "it being inadmissible in evidence against him." 63 Without these proffered but proscribed materials, we find that the prosecution's remaining evidence did not even approximate the quantum of evidence necessary to warrant appellant's conviction. Hence, the presumption of innocence in his favor stands. Perforce, his acquittal is in order. EIAScH In acquitting an appellant, we are not saying that he is lily-white, or pure as driven snow. Rather, we are declaring his innocence because the prosecution's evidence failed to show his guilt beyond reasonable doubt. For that is what the basic law requires. Where the evidence is insufficient to overcome the presumption of innocence in favor of the accused, then his "acquittal must follow in faithful obeisance to the fundamental law." 64 WHEREFORE, the decision promulgate on February 18, 1997, by the Regional Trial Court of Bayombong, Nueva Vizcaya, Branch 27, in Criminal Case No. 3105, finding Abe Valdez y Dela Cruz, guilty beyond reasonable doubt of violating Section 9 of the Dangerous Drugs Act of 1972, and imposing upon him the death penalty, is hereby REVERSED and SET ASIDE for insufficiency of evidence. Appellant is ACQUITTED and ordered RELEASED immediately from confinement unless held for another lawful cause. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Kapunan, Panganiban, Pardo, Gonzaga-Reyes, Melo, Vitug, Mendoza, Purisima, Buena and De Leon, Jr., JJ., concur. Ynares-Santiago, J., is on leave. U.S. Supreme Court ARIZONA v. HICKS, 480 U.S. 321 (1987) 480 U.S. 321 ARIZONA v. HICKS CERTIORARI TO THE COURT OF APPEALS OF ARIZONA
No. 85-1027.
Argued December 8, 1986 Decided March 3, 1987 A bullet fired through the floor of respondent's apartment injured a man on the floor below. Police entered the apartment to search for the shooter, for other victims, and for weapons, and there seized three weapons and discovered a stocking-cap mask. While there, one of the policemen noticed two sets of expensive stereo components and, suspecting that they were stolen, read and recorded their serial numbers - moving some of them, including a turntable, to do so - and phoned in the numbers to headquarters. Upon learning that the turntable had been taken in an armed robbery, he seized it immediately. Respondent was subsequently indicted for the robbery, but the state trial court granted his motion to suppress the evidence that had been seized, and the Arizona Court of Appeals affirmed. Relying upon a statement in Mincey v. Arizona, 437 U.S. 385 , that a warrantless search must be "strictly circumscribed by the exigencies which justify its initiation," the Court of Appeals held that the policeman's obtaining the serial numbers violated the Fourth Amendment because it was unrelated to the shooting, the exigent circumstance that justified the initial entry and search. Both state courts rejected the contention that the policeman's actions were justified under the "plain view" doctrine. Held: 1. The policeman's actions come within the purview of the Fourth Amendment. The mere recording of the serial numbers did not constitute a "seizure" since it did not meaningfully interfere with respondent's possessory interest in either the numbers or the stereo equipment. However, the moving of the equipment was a "search" separate and apart from the search that was the lawful objective of entering the apartment. The fact that the search uncovered nothing of great personal value to respondent is irrelevant. Pp. 324-325. 2. The "plain view" doctrine does not render the search "reasonable" under the Fourth Amendment. Pp. 325-329. (a) The policeman's action directed to the stereo equipment was not ipso facto unreasonable simply because it was unrelated to the justification for entering the apartment. That lack of relationship always exists when the "plain view" doctrine applies. In saying that a warrantless search must be "strictly circumscribed by the exigencies which justify its initiation," Mincey was simply addressing the scope[480 U.S. 321, 322] of the primary search itself, and was not overruling the "plain view" doctrine by implication. Pp. 325-326. (b) However, the search was invalid because, as the State concedes, the policeman had only a "reasonable suspicion" - i. e., less than probable cause to believe - that the stereo equipment was stolen. Probable cause is required to invoke the "plain view" doctrine as it applies to seizures. It would be illogical to hold that an object is seizable on lesser grounds, during an unrelated search and seizure, than would have been needed to obtain a warrant for it if it had been known to be on the premises. Probable cause to believe the equipment was stolen was also necessary to support the search here, whether legal authority to move the equipment could be found only as the inevitable concomitant of the authority to seize it, or also as a consequence of some independent power to search objects in plain view. Pp. 326-328. 3. The policeman's action cannot be upheld on the ground that it was not a "full-blown search" but was only a "cursory inspection" that could be justified by reasonable suspicion instead of probable cause. A truly cursory inspection - one that involves merely looking at what is already exposed to view, without disturbing it - is not a "search" for Fourth Amendment purposes, and therefore does not even require reasonable suspicion. This Court is unwilling to create a subcategory of "cursory" searches under the Fourth Amendment. Pp. 328-329. 146 Ariz. 533, 707 P.2d 331, affirmed. SCALIA, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. WHITE, J., filed a concurring opinion, post, p. 329. POWELL, J., filed a dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR, J., joined, post, p. 330. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C. J., and POWELL, J., joined, post, p. 333. Linda A. Akers, Assistant Attorney General of Arizona, argued the cause for petitioner. With her on the briefs were Robert K. Corbin, Attorney General, Steven A. LaMar, Assistant Attorney General, and Steven J. Twist, Chief Assistant Attorney General. John W. Rood III, by appointment of the Court, 476 U.S. 1113 , argued the cause for respondent. With him on the brief was James H. Kemper. * [ Footnote * ] David Crump, Daniel B. Hales, William C. Summers, Jack E. Yelverton, Fred E. Inbau, Wayne W. Schmidt, and James P. Manak filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae urging reversal. William J. Taylor, George Kannar, and Burt Neuborne filed a brief for the American Civil Liberties Union Foundation as amicus curiae urging affirmance. [480 U.S. 321, 323] JUSTICE SCALIA delivered the opinion of the Court. In Coolidge v. New Hampshire, 403 U.S. 443 (1971), we said that in certain circumstances a warrantless seizure by police of an item that comes within plain view during their lawful search of a private area may be reasonable under the Fourth Amendment. See id., at 465-471 (plurality opinion); id., at 505-506 (Black, J., concurring and dissenting); id., at 521-522 (WHITE, J., concurring and dissenting). We granted certiorari, 475 U.S. 1107 (1986), in the present case to decide whether this "plain view" doctrine may be invoked when the police have less than probable cause to believe that the item in question is evidence of a crime or is contraband. I On April 18, 1984, a bullet was fired through the floor of respondent's apartment, striking and injuring a man in the apartment below. Police officers arrived and entered respondent's apartment to search for the shooter, for other victims, and for weapons. They found and seized three weapons, including a sawed-off rifle, and in the course of their search also discovered a stocking-cap mask. One of the policemen, Officer Nelson, noticed two sets of expensive stereo components, which seemed out of place in the squalid and otherwise ill-appointed four-room apartment. Suspecting that they were stolen, he read and recorded their serial numbers - moving some of the components, including a Bang and Olufsen turntable, in order to do so - which he then reported by phone to his headquarters. On being advised that the turntable had been taken in an armed robbery, he seized it immediately. It was later determined that some of the other serial numbers matched those on other stereo equipment taken in the same armed robbery, and a warrant [480 U.S. 321, 324] was obtained and executed to seize that equipment as well. Respondent was subsequently indicted for the robbery. The state trial court granted respondent's motion to suppress the evidence that had been seized. The Court of Appeals of Arizona affirmed. It was conceded that the initial entry and search, although warrantless, were justified by the exigent circumstance of the shooting. The Court of Appeals viewed the obtaining of the serial numbers, however, as an additional search, unrelated to that exigency. Relying upon a statement in Mincey v. Arizona, 437 U.S. 385 (1978), that a "warrantless search must be `strictly circumscribed by the exigencies which justify its initiation,'" id., at 393 (citation omitted), the Court of Appeals held that the police conduct violated the Fourth Amendment, requiring the evidence derived from that conduct to be excluded. 146 Ariz. 533, 534-535, 707 P.2d 331, 332-333 (1985). Both courts - the trial court explicitly and the Court of Appeals by necessary implication - rejected the State's contention that Officer Nelson's actions were justified under the "plain view" doctrine of Coolidge v. New Hampshire, supra. The Arizona Supreme Court denied review, and the State filed this petition. II As an initial matter, the State argues that Officer Nelson's actions constituted neither a "search" nor a "seizure" within the meaning of the Fourth Amendment. We agree that the mere recording of the serial numbers did not constitute a seizure. To be sure, that was the first step in a process by which respondent was eventually deprived of the stereo equipment. In and of itself, however, it did not "meaningfully interfere" with respondent's possessory interest in either the serial numbers or the equipment, and therefore did not amount to a seizure. See Maryland v. Macon, 472 U.S. 463, 469(1985). Officer Nelson's moving of the equipment, however, did constitute a "search" separate and apart from the search for [480 U.S. 321, 325] the shooter, victims, and weapons that was the lawful objective of his entry into the apartment. Merely inspecting those parts of the turntable that came into view during the latter search would not have constituted an independent search, because it would have produced no additional invasion of respondent's privacy interest. See Illinois v. Andreas, 463 U.S. 765, 771(1983). But taking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of respondent's privacy unjustified by the exigent circumstance that validated the entry. This is why, contrary to JUSTICE POWELL'S suggestion, post, at 333, the "distinction between `looking' at a suspicious object in plain view and `moving' it even a few inches" is much more than trivial for purposes of the Fourth Amendment. It matters not that the search uncovered nothing of any great personal value to respondent - serial numbers rather than (what might conceivably have been hidden behind or under the equipment) letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turntable. III The remaining question is whether the search was "reasonable" under the Fourth Amendment. On this aspect of the case we reject, at the outset, the apparent position of the Arizona Court of Appeals that because the officers' action directed to the stereo equipment was unrelated to the justification for their entry into respondent's apartment, it was ipso facto unreasonable. That lack of relationship always exists with regard to action validated under the "plain view" doctrine; where action is taken for the purpose justifying the entry, invocation of the doctrine is superfluous. Mincey v. Arizona, supra, in saying that a warrantless search must be "strictly circumscribed by the exigencies which justify its initiation," 437 U.S., at 393 (citation omitted), was addressing only the scope of the primary [480 U.S. 321, 326] search itself, and was not overruling by implication the many cases acknowledging that the "plain view" doctrine can legitimate action beyond that scope. We turn, then, to application of the doctrine to the facts of this case. "It is well established that under certain circumstances the police may seize evidence in plain view without a warrant," Coolidge v. New Hampshire, 403 U.S., at 465 (plurality opinion) (emphasis added). Those circumstances include situations "[w]here the initial intrusion that brings the police within plain view of such [evidence] is supported . . . by one of the recognized exceptions to the warrant requirement," ibid., such as the exigent-circumstances intrusion here. It would be absurd to say that an object could lawfully be seized and taken from the premises, but could not be moved for closer examination. It is clear, therefore, that the search here was valid if the "plain view" doctrine would have sustained a seizure of the equipment. There is no doubt it would have done so if Officer Nelson had probable cause to believe that the equipment was stolen. The State has conceded, however, that he had only a "reasonable suspicion," by which it means something less than probable cause. See Brief for Petitioner 18-19. * We have not ruled on the question whether probable cause is required in order to invoke the "plain view" doctrine. Dicta in Payton v. New York, 445 U.S. 573, 587 (1980), suggested that the standard of probable cause must be met, but our later opinions in Texas v. Brown, 460 U.S. 730 (1983), explicitly regarded the issue as unresolved, see id., at 742, n. 7 (plurality opinion); id., at 746 (STEVENS, J., concurring in judgment). We now hold that probable cause is required. To say otherwise would be to cut the "plain view" doctrine loose from its theoretical and practical moorings. The theory of that doctrine consists of extending to nonpublic places such as the [480 U.S. 321, 327] home, where searches and seizures without a warrant are presumptively unreasonable, the police's longstanding authority to make warrantless seizures in public places of such objects as weapons and contraband. See Payton v. New York, supra, at 586-587. And the practical justification for that extension is the desirability of sparing police, whose viewing of the object in the course of a lawful search is as legitimate as it would have been in a public place, the inconvenience and the risk - to themselves or to preservation of the evidence - of going to obtain a warrant. See Coolidge v. New Hampshire, supra, at 468 (plurality opinion). Dispensing with the need for a warrant is worlds apart from permitting a lesser standard of cause for the seizure than a warrant would require, i. e., the standard of probable cause. No reason is apparent why an object should routinely be seizable on lesser grounds, during an unrelated search and seizure, than would have been needed to obtain a warrant for that same object if it had been known to be on the premises. We do not say, of course, that a seizure can never be justified on less than probable cause. We have held that it can - where, for example, the seizure is minimally intrusive and operational necessities render it the only practicable means of detecting certain types of crime. See, e. g., United States v. Cortez, 449 U.S. 411 (1981) (investigative detention of vehicle suspected to be transporting illegal aliens); United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (same); United States v. Place, 462 U.S. 696, 709 , and n. 9 (1983) (dictum) (seizure of suspected drug dealer's luggage at airport to permit exposure to specially trained dog). No special operational necessities are relied on here, however - but rather the mere fact that the items in question came lawfully within the officer's plain view. That alone cannot supplant the requirement of probable cause. The same considerations preclude us from holding that, even though probable cause would have been necessary for a seizure, the search of objects in plain view that occurred here [480 U.S. 321, 328] could be sustained on lesser grounds. A dwelling-place search, no less than a dwelling-place seizure, requires probable cause, and there is no reason in theory or practicality why application of the "plain view" doctrine would supplant that requirement. Although the interest protected by the Fourth Amendment injunction against unreasonable searches is quite different from that protected by its injunction against unreasonable seizures, see Texas v. Brown, supra, at 747-748 (STEVENS, J., concurring in judgment), neither the one nor the other is of inferior worth or necessarily requires only lesser protection. We have not elsewhere drawn a categorical distinction between the two insofar as concerns the degree of justification needed to establish the reasonableness of police action, and we see no reason for a distinction in the particular circumstances before us here. Indeed, to treat searches more liberally would especially erode the plurality's warning in Coolidge that "the `plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incrimination at last emerges." 403 U.S., at 466 . In short, whether legal authority to move the equipment could be found only as an inevitable concomitant of the authority to seize it, or also as a consequence of some independent power to search certain objects in plain view, probable cause to believe the equipment was stolen was required. JUSTICE O'CONNOR'S dissent suggests that we uphold the action here on the ground that it was a "cursory inspection" rather than a "full-blown search," and could therefore be justified by reasonable suspicion instead of probable cause. As already noted, a truly cursory inspection - one that involves merely looking at what is already exposed to view, without disturbing it - is not a "search" for Fourth Amendment purposes, and therefore does not even require reasonable suspicion. We are unwilling to send police and judges into a new thicket of Fourth Amendment law, to seek a creature of uncertain description that is neither a "plain view" inspection nor [480 U.S. 321, 329] yet a "full-blown search." Nothing in the prior opinions of this Court supports such a distinction, not even the dictum from Justice Stewart's concurrence in Stanley v. Georgia, 394 U.S. 557, 571 (1969), whose reference to a "mere inspection" describes, in our view, close observation of what lies in plain sight. JUSTICE POWELL'S dissent reasonably asks what it is we would have had Officer Nelson do in these circumstances. Post, at 332. The answer depends, of course, upon whether he had probable cause to conduct a search, a question that was not preserved in this case. If he had, then he should have done precisely what he did. If not, then he should have followed up his suspicions, if possible, by means other than a search - just as he would have had to do if, while walking along the street, he had noticed the same suspicious stereo equipment sitting inside a house a few feet away from him, beneath an open window. It may well be that, in such circumstances, no effective means short of a search exist. But there is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all. Our disagreement with the dissenters pertains to where the proper balance should be struck; we choose to adhere to the textual and traditional standard of probable cause. The State contends that, even if Officer Nelson's search violated the Fourth Amendment, the court below should have admitted the evidence thus obtained under the "good faith" exception to the exclusionary rule. That was not the question on which certiorari was granted, and we decline to consider it. For the reasons stated, the judgment of the Court of Appeals of Arizona is Affirmed. FIRST DIVISION [G.R. No. 124442. July 20, 2001.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARMANDO COMPACION y SURPOSA, accused-appellant. The Solicitor General for plaintiff-appellee. Vic J. Agravante & Emiliano A. Mariano for accused-appellant. SYNOPSIS Acting on a confidential tip supplied by a police informant that Armando S. Compacion (herein accused-appellant) was growing and cultivating marijuana plants, members of the Narcotic Regional Field Unit of the Narcotics Command (NARCOM) of the Bacolod City Detachment conducted a surveillance of the residence of accused- appellant, who was then the barangay captain of barangay Bagonbon, San Carlos City, Negros Occidental. During the said surveillance, they saw two (2) tall plants in the backyard of the accused-appellant, which they suspected to be marijuana plants. They immediately formed a team who applied for a search warrant but were not able to do so. Nonetheless, the team proceeded to the residence of the accused-appellant and were allegedly permitted entry to come in. Finding the suspected marijuana plants, they uprooted them and conducted an initial test on the plant using the Narcotics Drug Identification Kit. The test yielded a positive result. Thereafter, accused-appellant was charged with violating Section 9 of R.A. No. 6425 (known as the Dangerous Drugs Act of 1972). Upon arraignment, the accused pleaded not guilty to the crime charged. Thereafter, trial ensued. The trial court convicted the accused and sentenced him to reclusion perpetua and to pay a fine of half a million (P500,000.00) pesos. The accused appealed his conviction to the Supreme Court and asked the Court to reverse the same. HAaECD Turning to the legal defenses of accused-appellant, the Supreme Court considered his allegation that his constitutional right against unreasonable searches and seizures had been violated by the police authorities. In the instant case, the search and seizure conducted by the composite team in the house of accused-appellant was not authorized by a search warrant. It did not appear either that the situation fell under any of the recognized exceptions thereto. Consequently, accused-appellant's right against unreasonable search and seizure was clearly violated. Since the evidence was secured on the occasion of an unreasonable search and seizure, the same was tainted and illegal and should, therefore, be excluded for being the proverbial fruit of a poisonous tree. Accused-appellant Armando S. Compacion was acquitted of the crime charged on grounds of reasonable doubt. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; SEARCH AND SEIZURE; WHEN UNREASONABLE; EFFECT THEREOF. The relevant constitutional provisions are found in Sections 2 and 3 [2], Article III of the 1987 Constitution which read as follows: 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. . . . (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. Said constitutional provisions are safeguards against reckless, malicious and unreasonable invasion of privacy and liberty. The Court, in Villanueva v. Querubin, underscored their importance: It is deference to one's personality that lies at the core of this right, but it could be also looked upon as a recognition of a constitutionally protected area, primarily one's home, but not necessarily thereto confined. What is sought to be guarded is a man's prerogative to choose who is allowed entry to his residence. In that haven of refuge, his individuality can assert itself not only in the choice of who shall be welcome but likewise in the kind of objects he wants around him. There the state, however powerful, does not as such have access except under the circumstances above noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life. In the same vein, Landynski in his authoritative work could fitly characterize this constitutional right as the embodiment of "a spiritual concept: the belief that to value the privacy of home and person and to afford its constitutional protection against the long reach of government is no less than to value human dignity, and that his privacy must not be disturbed except in case of overriding social need, and then only under stringent procedural safeguards." A search and seizure, therefore, must be carried out through or with a judicial warrant; otherwise, such search and seizure becomes "unreasonable" within the meaning of the constitutional provision. Evidence secured thereby, i.e., "fruits" of the search and seizure, will be inadmissible in evidence for any purpose in any proceeding." SaTAED 2. ID.; ID.; ID.; JUDICIAL WARRANT REQUIRED; EXCEPTIONS. The requirement that a warrant must be obtained from the proper judicial authority prior to the conduct of a search and seizure is, however, not absolute. There are several instances when the law recognizes exceptions, such as when the owner of the premises consents or voluntarily submits to a search; when the owner of the premises waives his rights against such incursion; when the search is incidental to a lawful arrest; when it is made on vessels and aircraft for violation of customs laws; when it is made on automobiles for the purpose of preventing violations of smuggling or immigration laws; when it involves prohibited articles in plain view; when it involves a "stop and frisk" situation; when the search is under exigent and emergency circumstances; or in cases of inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations. In these instances, a search may be validly made even without a warrant. 3. ID.; ID.; ID.; ID.; VALID WAIVER THEREOF MUST BE MADE VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY; ABSENT IN CASE AT BAR. While the right to be secure from unreasonable search and seizure may, like every right, be waived either expressly or impliedly, such waiver must constitute a valid waiver made voluntarily, knowingly and intelligently. The act of the accused-appellant in allowing the members of the military to enter his premises and his consequent silence during the unreasonable search and seizure could not be construed as voluntary submission or an implied acquiescence to warrantless search and seizure especially so when members of the raiding team were intimidatingly numerous and heavily armed. His implied acquiescence, if any, could not have been more than mere passive conformity given under coercive or intimidating circumstances and is, thus, considered no consent at all within the purview of the constitutional guarantee. Consequently, herein accused appellant's lack of objection to the search and seizure is not tantamount to a waiver of his constitutional right or a voluntary submission to the warrantless search and seizure. 4. ID.; ID.; ID.; AS A GENERAL RULE, OBJECTS IN THE "PLAIN VIEW" OF AN OFFICER WHO HAS THE RIGHT TO BE IN THE POSITION TO HAVE THAT VIEW ARE SUBJECT TO SEIZURE WITHOUT A WARRANT; WHEN APPLICABLE. As a general rule, objects in the "plain view" of an officer who has the right to be in the position to have that view are subject to seizure without a warrant. It is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. Thus, the following elements must be present before the doctrine may be applied: (a) a prior valid intention based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who have the right to be where they are; (c) the evidence must be immediately apparent; and (d) "plain view" justified were seizure of evidence without further search. 5. ID.; ID.; ID.; WARRANTLESS ARREST; NOT VALID IN CASE AT BAR. Here, there was no valid warrantless arrest. They forced their way into accused-appellant's premises without the latter's consent. It is undisputed that the NARCOM agents conducted a surveillance of the residence of accused-appellant on July 9, 1995 on the suspicion that he was growing and cultivating marijuana when they allegedly came in "plain view" of the marijuana plants. When the agents entered his premises on July 13, 1995, their intention was to seize the evidence against him. In fact, they initially wanted to secure a search warrant but could not simply wait for one to be issued. The NARCOM agents, therefore, did not come across the marijuana plants inadvertently when they conducted a surveillance and barged into accused-appellant's residence. It was not even apparent to the members of the composite team whether the plants involved herein were indeed marijuana plants. After said plants were uprooted, SPO1 Linda had to conduct a field test on said plants by using a Narcotics Drug Identification Kit to determine if the same were indeed marijuana plants. Later, Senior Inspector Villavicencio, a forensic chemist, had to conduct three (3) qualitative examinations to determine if the plants were indeed marijuana. Since the evidence was secured on the occasion of an unreasonable search and seizure, the same is tainted and illegal and should therefore be excluded for being the proverbial fruit of a poisonous tree. TaCIDS D E C I S I O N KAPUNAN, J p: Armando S. Compacion was charged with violating Section 9 of R.A. No. 6425 (known as the Dangerous Drugs Act of 1972), as amended by R.A. No. 7659, in an information which reads as follows: The undersigned accuses ARMANDO COMPACION y Surposa, Barangay Captain of Barangay Bagonbon, San Carlos City, Negros Occidental, of the crime of "VIOLATION OF SECTION 9, REPUBLIC ACT NO. 6425, OTHERWISE KNOWN AS THE DANGEROUS DRUGS ACT OF 1972 AS AMENDED BY REPUBLIC ACT NO. 7659" committed as follows: "That on or about 1:30 o'clock A.M., July 13, 1995, at Barangay Bagonbon, San Carlos City, Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without any authority of law, did, then and there, willfully, unlawfully and criminally plant, cultivate or culture two (2) full grown Indian Hemp Plants, otherwise known as "Marijuana plants", more or less eleven (11) feet tall, in gross violation of Section 9, Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972 as amended by Republic Act No. 7659." AHTICD CONTRARY TO LAW. 1 Upon arraignment on August 16, 1995, the accused pleaded not guilty to the crime charged. Thereafter, trial ensued. On January 2, 1996, the trial court convicted the accused of the crime charged. The decretal portion of the decision reads as follows: WHEREAS, the Court finds the accused ARMANDO COMPACION Y SURPOSA GUILTY BEYOND REASONABLE DOUBT of the crime of "Violation of Section 9, R.A. No. 6425, otherwise known as The Dangerous Drugs Act of 1972, as amended by R.A. No. 7659" whereof he is charged in the information in the instant case and sentences him to reclusion perpetua and to pay a fine of half a million (P500,000.00) Pesos, Philippine Currency. The portion of the backyard of his residence in the poblacion proper of Brgy. Bagonbon this City and Province, in which the two (2) marijuana plants, Exh. "F", subject-matter of this case, were planted, cultivated and cultured, is hereby ordered confiscated and escheated in favor of the State, pursuant to the aforequoted Sec. 13 R.A. 7659. SEHDIC It would seem that the penalty imposed upon the accused in the instant case for having planted, cultivated and cultured just two (2) marijuana plants is extremely harsh. But there is nothing in the law which allows the Court to impose a lesser penalty in view of the peculiar facts and circumstances in this particular case. Hence, dura lex, sed lex. The law is, indeed, harsh but it is the law. The obvious message of the law is that people should not have a nonchalant or cavalier attitude towards dangerous prohibited drugs. They should not dabble in it as if they were a flippant thing. These dangerous and prohibited drugs are a terrible menace to the minds and morality of our people for their distortive and pervertive effects on them resulting in rampant criminality. That is why the government wants this evil exterminated from our country. It is too bad that the accused instead of helping the government in this drive, in his capacity as barangay captain of his barangay, made a mockery of it by planting, cultivating and culturing said two (2) marijuana plants himself. A word of counsel and hope for the accused. This is a time of reflection forced upon him by the result of his own act in violating the law. It is time for him to humbly submit to the compassion of God and of his only begotten Son, whose birth on earth to become the Saviour of all sinners, we have just celebrated, to change and transform his own life by his coming to Him for the purpose, so that with a changed life, God might be gracious enough to move the heart of His Excellency, the President, of this Country, to pardon and let him walk out of prison a freeman. It would be good for him to read God's Word daily while in prison for his guidance, comfort and hope. cTCEIS Accused convicted of the crime whereof he is charged in the information in the instant case. SO ORDERED. 2 The accused now appeals from the above judgment of conviction and asks the Court to reverse the same on the following grounds, viz: The lower court erred: 1. In holding that Exhibit "F" of the prosecution, consisting of two marijuana plants wrapped in plastic, is admissible in evidence against the accused as the corpus delicti in the instant case, inspite of the fact that the prosecution failed to prove that the specimens of marijuana (Exhibit "F") examined by the forensic chemist were the ones purportedly planted and cultivated by the accused, and of the fact that the prosecution failed to establish the evidence's chain of custody; and cDEICH 2. In holding that the warrantless search of the residence of the accused at 1:30 o'clock in the morning of July 13, 1995 at Barangay Bagonbon, San Carlos City, Negros Occidental, and seizure of two eleven feet tall, more or less, full grown suspected Indian Hemp, otherwise known as Marijuana plants, leading to the subsequent arrest of the accused, were valid on the ground that the accused has committed the crime of cultivating the said marijuana plants in violation of Sec. 9, RA 6425 (Dangerous Drugs Act of 1972), as amended by RA 7659 in open view, inspite of the fact that they had to enter the dwelling of the accused to get to the place where the suspected marijuana plants were planted, and in admitting in evidence the said plants, later marked as Exhibit "F", against the accused, inspite of the fact that the said plants were the fruits of the poisonous tree. 3 The relevant facts are as follows: Acting on a confidential tip supplied by a police informant that accused-appellant was growing and cultivating marijuana plants, SPO1 Gilbert L. Linda and SPO2 Basilio Sarong of the 6th Narcotic Regional Field Unit of the Narcotics Command (NARCOM) of the Bacolod City Detachment conducted a surveillance of the residence of accused-appellant who was then the barangay captain of barangay Bagonbon, San Carlos City, Negros Occidental on July 9, 1995. During the said surveillance, they saw two (2) tall plants in the backyard of the accused-appellant which they suspected to be marijuana plants. 4 SPO1 Linda and SPO2 Sarong reported the result of their surveillance to SPO4 Ranulfo T. Villamor, Jr., Chief of NARCOM, Bacolod City, who immediately formed a team composed of the members of the Intelligence Division Provincial Command, the Criminal Investigation Command and the Special Action Force. Two members of the media, one from DYWF Radio and another from DYRL Radio, were also included in the composite team. On July 12, 1995, the team applied for a search warrant with the office of Executive Judge Bernardo Ponferrada in Bacolod City. However, Judge Ponferrada informed them that he did not have territorial jurisdiction over the matter. 5 The team then left Bacolod City for San Carlos City. They arrived there around six-thirty in the evening, then went to the house of Executive Judge Roberto S. Javellana to secure a search warrant. They were not able to do so because it was nighttime and office hours were obviously over. They were told by the judge to go back in the morning. 6 Nonetheless, the team proceeded to barangay Bagonbon and arrived at the residence of accused-appellant in the early morning of July 13, 1995. SPO4 Villamor knocked at the gate and called out for the accused-appellant. What happened thereafter is subject to conflicting accounts. The prosecution contends that the accused-appellant opened the gate and permitted them to come in. He was immediately asked by SPO4 Villamor about the suspected marijuana plants and he admitted that he planted and cultivated the same for the use of his wife who was suffering from migraine. SPO4 Villamor then told him that he would be charged for violation of Section 9 of R.A. No. 6425 and informed him of his constitutional rights. The operatives then uprooted the suspected marijuana plants. SPO1 Linda conducted an initial field test of the plants by using the Narcotics Drug Identification Kit. The test yielded a positive result. 7 On July 15, 1995, the plants were turned over to the Philippine National Police (PNP) Crime Laboratory, Bacolod City Police Command, particularly to Senior Inspector Reah Abastillas Villavicencio. Senior Inspector Villavicencio weighed and measured the plants, one was 125 inches and weighed 700 grams while the other was 130 inches and weighed 900 grams. Three (3) qualitative examinations were conducted, namely: the microscopic test, the chemical test, and the thin layer chromatographic test. All yielded positive results. 8 On his part, accused-appellant maintains that around one-thirty in the early morning of July 13, 1995 while he and his family were sleeping, he heard somebody knocking outside his house. He went down bringing with him a flashlight. After he opened the gate, four (4) persons who he thought were members of the military, entered the premises then went inside the house. It was dark so he could not count the others who entered the house as the same was lit only by a kerosene lamp. One of the four men told him to sit in the living room. Some of the men went upstairs while the others went around the house. None of them asked for his permission to search his house and the premises. 9 After about twenty (20) minutes of searching, the men called him outside and brought him to the backyard. One of the military men said: "Captain, you have a (sic) marijuana here at your backyard" to which accused-appellant replied: "I do not know that they were (sic) marijuana plants but what I know is that they are medicinal plants for my wife" who was suffering from migraine. 10 After he was informed that the plants in his backyard were marijuana, the men took pictures of him and themselves. Thereafter, he was brought inside the house where he and the military men spent the night. 11 At around ten o'clock that same morning, they brought him with them to the city hall. Accused-appellant saw that one of the two (2) service vehicles they brought was fully loaded with plants. He was later told by the military men that said plants were marijuana. 12 Upon arrival at the city hall, the men met with the mayor and then unloaded the alleged marijuana plants. A picture of him together with the arresting team was taken with the alleged marijuana as back drop. Soon thereafter, he was taken to Hda. Socorro at the SAF Headquarters. 13 A criminal complaint for violation of Section 9 of R.A. No. 6425, as amended by R.A. No. 7659 was filed against accused-appellant. TCSEcI Turning to the legal defenses of accused-appellant, we now consider his allegation that his constitutional right against unreasonable searches and seizures had been violated by the police authorities. The relevant constitutional provisions are found in Sections 2 and 3 [2], Article III of the 1987 Constitution which read as follows: 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. . . . (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. cADEHI Said constitutional provisions are safeguards against reckless, malicious and unreasonable invasion of privacy and liberty. The Court, in Villanueva v. Querubin, 14 underscored their importance: It is deference to one's personality that lies at the core of this right, but it could be also looked upon as a recognition of a constitutionally protected area, primarily one's home, but not necessarily thereto confined. What is sought to be guarded is a man's prerogative to choose who is allowed entry to his residence. In that haven of refuge, his individuality can assert itself not only in the choice of who shall be welcome but likewise in the kind of objects he wants around him. There the state, however powerful, does not as such have access except under the circumstances above noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life. In the same vein, Landynski in his authoritative work could fitly characterize this constitutional right as the embodiment of "a spiritual concept: the belief that to value the privacy of home and person and to afford its constitutional protection against the long reach of government is no less than to value human dignity, and that his privacy must not be disturbed except in case of overriding social need, and then only under stringent procedural safeguards." 15 A search and seizure, therefore, must be carried out through or with a judicial warrant; otherwise, such search and seizure becomes "unreasonable" within the meaning of the constitutional provision. 16 Evidence secured thereby, i.e., the "fruits" of the search and seizure, will be inadmissible in evidence for any purpose in any proceeding." 17 The requirement that a warrant must be obtained from the proper judicial authority prior to the conduct of a search and seizure is, however, not absolute. There are several instances when the law recognizes exceptions, such as when the owner of the premises consents or voluntarily submits to a search; 18 when the owner of the premises waives his right against such incursion; 19 when the search is incidental to a lawful arrest; 20 when it is made on vessels and aircraft for violation of customs laws; 21 when it is made on automobiles for the purpose of preventing violations of smuggling or immigration laws; 22 when it involves prohibited articles in plain view; 23 when it involves a "stop and frisk" situation; 24 when the search is under exigent and emergency circumstances; 25 or in cases of inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations. 26 In these instances, a search may be validly made even without a warrant. In the instant case, the search and seizure conducted by the composite team in the house of accused-appellant was not authorized by a search warrant. It does not appear either that the situation falls under any of the above mentioned cases. Consequently, accused-appellant's right against unreasonable search and seizure was clearly violated. IaAHCE It is extant from the records that accused-appellant did not consent to the warrantless search and seizure conducted. While the right to be secure from unreasonable search and seizure may, like every right, be waived either expressly or impliedly, 27 such waiver must constitute a valid waiver made voluntarily, knowingly and intelligently. The act of the accused-appellant in allowing the members of the military to enter his premises and his consequent silence during the unreasonable search and seizure could not be construed as voluntary submission or an implied acquiescence to warrantless search and seizure especially so when members of the raiding team were intimidatingly numerous and heavily armed. His implied acquiescence, if any, could not have been more than mere passive conformity given under coercive or intimidating circumstances and is, thus, considered no consent at all within the purview of the constitutional guarantee. Consequently, herein accused-appellant's lack of objection to the search and seizure is not tantamount to a waiver of his constitutional right or a voluntary submission to the warrantless search and seizure. 28 The case of People v. Burgos, 29 is instructive. In Burgos, the Court ruled that the accused is not to be presumed to have waived the unlawful search "simply because he failed to object." There, we held: . . . To constitute a waiver, it must appear first that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such a right; and lastly, that said person had an actual intention to relinquish the right (Pasion Vda. De Garcia v. Locsin, 65 Phil. 689). The fact that the accused failed to object to the entry into his house does not amount to a permission to make a search therein (Magoncia v. Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. De Garcia v. Locsin (supra); xxx xxx xxx . . . As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. IADCES We apply the rule that: "courts indulge every reasonable presumption against waiver of fundamental constitutional rights and that we do not presume acquiescence in the loss of fundamental rights." 30 Neither could the members of the composite team have justified their search of accused-appellant's premises by invoking the necessity and urgency of the situation. It was admitted by the members of the arresting team that the residence of accused-appellant had already been put under surveillance following a tip from a confidential informant. The surveillance was conducted on July 9, 1995 while the alleged marijuana plants were seized four (4) days later or on July 13, 1995. Surely, the raiding team had all the opportunity to have first secured a search warrant before forcing their way into accused- appellant's premises. In fact, they earlier had approached then Executive Judge Ponferrada of Bacolod City who declined to issue one on the ground that the matter was outside his territorial jurisdiction. Then, they went to Executive Judge Javellana of San Carlos City in the evening of July 12, 1995 who asked them to come back in the morning as it was already nighttime and outside of office hours. However, in their haste to apprehend the accused-appellant on the pretext that information of his impending arrest may be leaked to him, the team proceeded to go to his residence to arrest him and seize the alleged marijuana plants. The team's apprehension of a tip-off was unfounded. It is far-fetched that one could have gone to accused- appellant's place before the following morning to warn him of his impending arrest as barangay Bagonbon is an isolated and difficult to reach mountain barangay. The road leading to it was rough, hilly and eroded by rain and flood. 31 A few hours delay to await the issuance of a warrant in the morning would not have compromised the team's operation. AcDHCS In justifying the validity of the warrantless arrest, search and seizure on July 13, 1995, the trial court ruled that the accused-appellant was caught "in flagrante delicto of having planted, grown and cultivated the marijuana plants" which was "easily visible from outside of the residence of the accused." 32 Thus, the trial court concluded that: . . . (T)he said two (2) marijuana plants, Exh. "F", were the very corpus delicti of the crime the accused has been committing since the time he planted them in the backyard of his residence for whatever reason a corpus delicti which the NARCOM agents saw with their very own eyes as the same were in plain view when they made a surveillance in the accused's place on July 9, 1995. Said corpus delicti has remained on the spots in accused's backyard where they had been growing since the time they were planted there and, therefore, any peace officer or even private citizen, for that matter, who has seen said plants and recognized them as marijuana, was by law empowered and authorized to arrest the accused even without any warrant of arrest. EICScD The accused was caught in flagrante delicto for he was carrying marijuana, hence, committing a crime, at the time of his arrest. The warrantless search which was conducted following a lawful arrest, was valid. People vs. Bandin (Dec. 10, 1993) 226 SCRA 299, at p. 300 The accused was caught in flagrante delicto growing, cultivating and culturing said two (2) marijuana plants, Exh. "F", in the backyard of his residence, which the NARCOM agents uprooted from there at the time they arrested and apprehended him. Under said circumstances, a search warrant and/or warrant of arrest were not legally needed before the NARCOM agents could effect the arrest of the accused. 33 As a general rule, objects in the "plain view" of an officer who has the right to be in the position to have that view are subject to seizure without a warrant. 34 It is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. 35 Thus, the following elements must be present before the doctrine may be applied: (a) a prior valid intention based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who have the right to be where they are; (c) the evidence must be immediately apparent; and (d) "plain view" justified were seizure of evidence without further search. 36 Here, there was no valid warrantless arrest. They forced their way into accused-appellant's premises without the latter's consent. It is undisputed that the NARCOM agents conducted a surveillance of the residence of accused-appellant on July 9, 1995 on the suspicion that he was growing and cultivating marijuana when they allegedly came in "plain view" of the marijuana plants. When the agents entered his premises on July 13, 1995, their intention was to seize the evidence against him. In fact, they initially wanted to secure a search warrant but could not simply wait for one to be issued. The NARCOM agents, therefore, did not come across the marijuana plants inadvertently when they conducted a surveillance and barged into accused- appellant's residence. In People v. Musa, 37 the Court held: The "plain view" doctrine may not, however, be used to launch unbridled searches and indiscriminate seizures nor to extend a general exploratory search made solely to find evidence of defendant's guilt. The "plain view" doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. [Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564 (1971)] Furthermore, the U.S. Supreme Court stated the following limitations on the application of the doctrine: What the "plain view" cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the "plain view" doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. [Id., 29 L. Ed. 2d 583. See also Texas v. Brown, 460 U.G. 730, 75 L. Ed. 2d 502 (1983)] STaIHc It was not even apparent to the members of the composite team whether the plants involved herein were indeed marijuana plants. After said plants were uprooted, SPO1 Linda had to conduct a field test on said plants by using a Narcotics Drug Identification Kit to determine if the same were indeed marijuana plants. 38 Later, Senior Inspector Villavicencio, a forensic chemist, had to conduct three (3) qualitative examinations to determine if the plants were indeed marijuana. 39 Since the evidence was secured on the occasion of an unreasonable search and seizure, the same is tainted and illegal and should therefore be excluded for being the proverbial fruit of a poisonous tree. 40 In People v. Aruta, 41 we held that: The exclusion of such evidence is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizure. The non-exclusionary rule is contrary to the letter and spirit of the prohibition against unreasonable searches and seizures. cAHITS While conceding that the officer making the unlawful search and seizure may be held criminally and civilly liable, the Stonehill case observed that most jurisdictions have realized that the exclusionary rule is "the only practical means of enforcing the constitutional injunction" against abuse. This approach is based on the justification made 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." Unreasonable searches and seizures are the menace against which the constitutional guarantees afford full protection. While the power to search and seize may at times be necessary to the public welfare, still it may be exercised and the law enforced without transgressing the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government. Those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of order. Order is too high a price to pay for the loss of liberty. As Justice Holmes declared: "I think it is less evil that some criminals escape than that the government should play an ignoble part." It is simply not allowed in free society to violate a law to enforce another, especially if the law violated is the Constitution itself. 42 WHEREFORE, the decision of the Regional Trial Court of San Carlos City, Branch 58 is hereby REVERSED and SET ASIDE. Accused-appellant Armando S. Compacion is hereby ACQUITTED of the crime charged on ground of reasonable doubt. He is ordered released from confinement unless he is being held for some other legal grounds. The subject marijuana is ordered disposed of in accordance with law. TSAHIa SO ORDERED. Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur. SECOND DIVISION [G.R. No. 139301. September 29, 2004.] PEOPLE OF THE PHILIPPINES, appellee, vs. HUANG ZHEN HUA and JOGY LEE, appellants. The Solicitor General for plaintiff-appellee. Yolando F. Busmente and Benedicto M. Gonzales, Jr. for Huang Zhen Hua. Jojo Soriano Vijiga for Jogy Lee. SYNOPSIS The Regional Trial Court of Paraaque City convicted appellants Huang Zhen Hua and Jogy Lee of violation of Section 16, Article III of Republic Act No. 6425, as amended and sentenced them to reclusion perpetua and to pay a fine. Found and confiscated by the policemen in their condominium unit were shabu and assorted pieces of shabu paraphernalia. Both appellants questioned the decision of the trial court before the Supreme Court. DScTaC The Court acquitted appellant Zhen Hua of the crime charged for failure of the prosecution to prove his guilt beyond reasonable doubt. The Court found that the prosecution failed to prove that appellant Zhen Hua, at any time, had actual or constructive possession of the regulated drug found in the master's bedroom where appellant Lee was sleeping; or that the appellant had access in the said room at any given time; or that he had knowledge of the existence of shabu in appellant Lee's bedroom. The policemen likewise did not find any regulated drug in the room where appellant Zhen Hua was sleeping when they made their search. There was also no evidence that appellant Zhen Hua was aware of the alleged illegal drug activities and/or transactions of Henry Lao, Peter Chan and appellant Lee. On the other hand, the Court found that the prosecution had adduced proof beyond reasonable doubt of appellant Lee's guilt of the crime charged. The police officers received reliable information and verified, after surveillance, that appellant Lee and Lao were living together as husband and wife in the condominium unit and that appellant Lee handled the accounting of the payments and proceeds of the illegal drug trafficking activities of Lao. The policemen found that appellant Lee occupied the bedroom and slept in the same bed used by Lao. Appellant Lee took her clothes from the same cabinet where the subject shabu and paraphernalia were found by the policemen. Such facts and circumstances were sufficient on which to base a reasonable belief that appellant Lee had joint control and possession of the bedroom, as well as of the articles, paraphernalia, and the shabu found therein. For prosecution for violation of the Dangerous Drugs Law, possession can be constructive and need not be exclusive, but may be joint. Moreover, appellant Lee failed to prove, with clear and convincing evidence, her contention that she was a victim of a frame-up by the policemen. While such defense cannot and should not always be considered as contrived, nonetheless, it is generally rejected for it can easily be concocted but is difficult to prove. Police officers are, after all, presumed to have acted regularly in the performance of their official functions, in the absence of clear and convincing proof to the contrary, or that they are motivated by ill-will. The Court affirmed the Decision of the trial court convicting appellant Lee of violation of Section 16 of Republic Act No. 6425, as amended. SYLLABUS 1. CRIMINAL LAW; REPUBLIC ACT NO. 6425, AS AMENDED; SECTION 16, ARTICLE III THEREOF; POSSESSION OF REGULATED DRUGS AS A JURIDICAL CONCEPT. In a case of recent vintage, this Court, in People vs. Tira, ruminated and expostulated on the juridical concept of "possession" under Section 16, Article III of Rep. Act No. 6425, as amended, and the evidence necessary to prove the said crime, thus: The essential elements of the crime of possession of regulated drugs are the following: (a) the accused is found in possession of a regulated drug; (b) the person is not authorized by law or by duly constituted authorities; and, (c) the accused has knowledge that the said drug is a regulated drug. This crime is mala prohibita, and, as such, criminal intent is not an essential element. However, the prosecution must prove that the accused had the intent to possess (animus posidende) the drugs. Possession, under the law, includes not only actual possession, but also constructive possession. Actual possession exists when the drug is in the immediate physical possession or control of the accused. On the other hand, constructive possession exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found. Exclusive possession or control is not necessary. The accused cannot avoid conviction if his right to exercise control and dominion over the place where the contraband is located, is shared with another. Thus, conviction need not be predicated upon exclusive possession, and a showing of non- exclusive possession would not exonerate the accused. Such fact of possession may be proved by direct or circumstantial evidence and any reasonable inference drawn therefrom. However, the prosecution must prove that the accused had knowledge of the existence and presence of the drug in the place under his control and dominion and the character of the drug. Since knowledge by the accused of the existence and character of the drugs in the place where he exercises dominion and control is an internal act, the same may be presumed from the fact that the dangerous drug is in the house or place over which the accused has control or dominion, or within such premises in the absence of any satisfactory explanation. aEHADT 2. ID.; CONSPIRACY; MERE ASSOCIATION WITH THE PRINCIPALS BY DIRECT PARTICIPATION OR MERE KNOWLEDGE OF CONSPIRACY, WITHOUT MORE, IS NOT SUFFICIENT AS THE ELEMENT OF CONSPIRACY MUST ALSO BE PROVED BEYOND REASONABLE DOUBT. The evidence of the prosecution against appellant Zhen Hua falls short of the requisite quantum of evidence to prove conspiracy between him, appellant. Lee and Chan or Lao. There is conspiracy when two or more persons agree to commit a crime and decide to commit it. Conspiracy cannot be presumed. Conspiracy must be proved beyond reasonable doubt like the crime subject of the conspiracy. Conspiracy may be proved by direct evidence or by proof of the overt acts of the accused, before, during and after the commission of the crime charged indicative of a common design. 3. CONSTITUTIONAL LAW; BILL OF RIGHTS; SECURITY AGAINST UNREASONABLE SEARCH AND SEIZURE; APPLIES TO FILIPINO CITIZENS AS WELL AS ALIENS TEMPORARILY RESIDING IN THE COUNTRY. We agree with the contention of the appellant that the constitutional proscription against unreasonable search and seizure applies to Filipino citizens, as well as to aliens temporarily residing in the country. The rule against unreasonable search and seizure forbids every search that is unreasonable; it protects all those suspected or known to be offenders, as well as the innocent. The guarantee is as important and imperative as the guarantee of the other fundamental rights of the citizens. All owes the duty for its effective enforcement lest there shall be an impairment of the right for the purpose for which it was adopted. 4. REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH AND SEIZURE; RIGHT TO BREAK DOOR OR WINDOW TO EFFECT SEARCH; KNOCK AND ANNOUNCE PRINCIPLE. Section 7, Rule 126 of the Revised Rules of Criminal Procedure provides: Sec. 7. Right to break door or window to effect search. . . . . The police officers were obliged to give the appellant notice, show to her their authority, and demand that they be allowed entry. They may only break open any outer or inner door or window of a house to execute the search warrant if, after such notice and demand, such officers are refused entry to the place of directed search. This is known as the "knock and announce" principle which is embodied in Anglo-American Law. The method of entry of an officer into a dwelling and the presence or absence of such notice are as important considerations in assessing whether subsequent entry to search and/or arrest is constitutionally reasonable. In Gouled v. The United States, it was held that a lawful entry is the indispensable predicate of a reasonable search. A search would violate the Constitution if the entry were illegal, whether accomplished by force, by illegal threat or mere show of force. SHTcDE 5. ID.; ID.; ID.; ID.; ID.; REQUISITES; A LAWFUL ENTRY IS THE INDISPENSABLE PREDICATE OF A REASONABLE SEARCH. Generally, officers implementing a search warrant must announce their presence, identify themselves to the accused and to the persons who rightfully have possession of the premises to be searched, and show to them the search warrant to be implemented by them and explain to them said warrant in a language or dialect known to and understood by them. The requirement is not a mere procedural formality but is of the essence of the substantial provision which safeguards individual liberty. No precise form of words is required. It is sufficient that the accused has notice of the officers, their authority and the purpose of the search and the object to be seized. It must be emphasized that the notice requirement is designed not only for the protection of the liberty of the person to be searched or of his property but also the safety and well-being of the officers serving and implementing the search warrant. Unless the person to whom the warrant is addressed and whose property is to be searched is notified of the search warrant and apprised of the authority of the person serving the warrant, he may consider the unannounced intrusion into the premises as an unlawful aggression on his property which he will be justified in resisting, and in the process, may cause injury even to the life of the officer implementing the warrant for which he would not be criminally liable. Also, there is a very real possibility that the police serving and implementing the search warrant may be misinformed as to the name or address of the suspect, or to other material affirmations. Innocent citizens should not suffer the shock, fright, shame or embarrassment attendant upon an unannounced intrusion. Indeed, a lawful entry is the indispensable predicate of a reasonable search. A search would violate the constitutional guarantee against unreasonable search and seizure if the entry were illegal, whether accomplished by force, or by threat or show of force or obtained by stealth, or coercion. 6. ID.; ID.; ID.; ID.; ID.; UNANNOUNCED INTRUSION INTO THE PREMISES WHEN PERMISSIBLE. Unannounced intrusion into the premises is permissible when (a) a party whose premises or is entitled to the possession thereof refuses, upon demand, to open it; (b) when such person in the premises already knew of the identity of the officers and of their authority and persons; (c) when the officers are justified in the honest belief that there is an imminent peril to life or limb; and (d) when those in the premises, aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers to believe that an escape or the destruction of evidence is being attempted. Suspects have no constitutional right to destroy evidence or dispose of evidence. However, the exceptions above are not exclusive or conclusive. At times, without the benefit of hindsight and ordinarily on the spur of the moment, the officer must decide whether or not to make an unannounced intrusion into the premises. Although a search and seizure of a dwelling might be constitutionally defective, if the police officers' entry was without prior announcement, law enforcement interest may also establish the reasonableness of an unannounced entry. Indeed, there is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances. In determining the lawfulness of an unallowed entry and the existence of probable cause, the courts are concerned only with what the officers had reason to believe and the time of the entry. CDaSAE 7. ID.; ID.; ID.; ID.; ID.; ENTRY OBTAINED THROUGH THE USE OF DECEPTION, ACCOMPLISHED WITHOUT FORCE IS NOT A "BREAKING" REQUIRING PRIOR ANNOUNCEMENT. As articulated in Benefield v. State of Florida, what constitutes breaking includes the lifting of a latch, turning a door knob, unlocking a chain or hasp, removing a prop to or pushing open a closed door of entrance to the house, even a closed screen door. However, entry obtained through the use of deception, accomplished without force is not a "breaking" requiring officers to first announce their authority and purpose because the reasons behind the rule are satisfied there was no real likelihood of violence, no unwarranted intrusion or privacy and no damage to the residence of the accused. 8. ID.; ID.; ID.; ID.; ID.; THE PROPER TRIGGER POINT IN DETERMINING WHETHER THE POLICE WAITED LONG ENOUGH BEFORE ENTERING THE RESIDENCE TO EXECUTE A WARRANT IS WHEN THOSE INSIDE SHOULD HAVE BEEN ALERTED THAT THE POLICE WANTED ENTRY TO EXECUTE A WARRANT. As to how long an officer implementing a search warrant must wait before breaking open any door cannot be distilled into a constitutional stopwatch. Each case has to be decided on a case-to-case basis requiring an examination of all the circumstances. The proper trigger point in determining, under the "knock and announce" rule, whether the police waited long enough before entering the residence to execute a warrant, is when those inside should have been alerted that the police wanted entry to execute a warrant. aIcHSC 9. ID.; ID.; ID.; PLAIN VIEW DOCTRINE; APPLICABILITY; SEIZURE OF ARTICLES NOT LISTED IN A SEARCH WARRANT DOES NOT RENDER THE SEIZURE OF THE ARTICLES DESCRIBED AND LISTED THEREIN ILLEGAL. Admittedly, Anciro, Jr. seized and took custody of certain articles belonging to the appellant and Lao which were not described in the search warrants. However, the seizure of articles not listed in a search warrant does not render the seizure of the articles described and listed therein illegal; nor does it render inadmissible in evidence such articles which were described in the warrant and seized pursuant thereto. Moreover, it bears stressing that Anciro, Jr. saw the unlisted articles when he and the other policemen implemented the search warrants. Such articles were in plain view of Anciro, Jr. as he implemented the search warrants and was authorized to seize the said articles because of their close connection to the crime charged. As held in Coolidge, Jr. v. New Hampshire: An example of the applicability of the 'plain view' doctrine is the situation in which the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character . . . Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate. Thus, the police may inadvertently come across evidence while in 'hot pursuit' of a fleeing suspect . . . And an object that comes into view during a search incident to arrest that is appropriately limited in scope under existing law may be seized without a warrant . . . Finally, the 'plain view' doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object . . . 10. ID.; ID.; ARREST; WHEN PROBABLE CAUSE EXISTS TO JUSTIFY WARRANTLESS. In Draper v. United States, it was held that informations from a reliable informant, corroborated by the police officer's observations as to the accuracy of the description of the accused, and of his presence at a particular place, is sufficient to establish probable cause. In this case, the police officers received reliable information and verified, after surveillance, that appellant Lee and Lao were living together as husband and wife in the condominium unit and that appellant Lee handled the accounting of the payments and proceeds of the illegal drug trafficking activities of Lao. Indeed, the policemen found that the appellant occupied the bedroom and slept in the same bed used by Lao. The appellant took her clothes from the same cabinet where the subject shabu and paraphernalia were found by Anciro, Jr. The appellant had been living in the same condominium unit with Lao since October 1, 1996 until her arrest on October 25, 1996. Along with Lao, the appellant thus had joint control and possession of the bedroom, as well as of the articles, paraphernalia, and the shabu found therein. Such facts and circumstances are sufficient on which to base a reasonable belief that the appellant had joint possession of the regulated drugs found in the bedroom along with Lao, her live-in partner, in line with our ruling in People v. Tira. For the purpose of prosecution for violation of the Dangerous Drugs Law, possession can be constructive and need not be exclusive, but may be joint. 11. ID.; EVIDENCE; DEFENSE OF FRAME-UP; GENERALLY REJECTED FOR IT CAN EASILY BE CONCOCTED AND IS DIFFICULT TO PROVE. The appellant failed to prove, with clear and convincing evidence, her contention that Anciro, Jr. placed the shabu on her bed before he continued his search in the bedroom, and that she was a victim of frame-up by the policemen. She relied on her testimony and those of Pangan and Ferias that they did not see Anciro, Jr. discover and take custody of the shabu in the cabinet. The appellant's defense of frame-up is nothing new. It is a common and standard line of defense in most prosecutions for violation of the Dangerous Drugs Law. While such defense cannot and should not always be considered as contrived, nonetheless, it is generally rejected for it can easily be concocted but is difficult to prove. Police officers are, after all, presumed to have acted regularly in the performance of their official functions, in the absence of clear and convincing proof to the contrary, or that they are motivated by ill- will. CIDTcH D E C I S I O N CALLEJO, SR., J p: This is an appeal from the Decision 1 of the Regional Trial Court (RTC) of Paraaque City, Metro Manila, Branch 259, convicting the appellants of violation of Section 16, Article III of Republic Act No. 6425, as amended. DISHEA The Case for the Prosecution Police operatives of the Public Assistance and Reaction Against Crime (PARAC) under the Department of Interior and Local Government received word from their confidential informant that Peter Chan and Henry Lao, 2 and appellants Jogy Lee and Huang Zhen Hua were engaged in illegal drug trafficking. The policemen also learned that appellant Lee was handling the payments and accounting of the proceeds of the illegal drug trafficking activities of Lao and Chan. 3 PO3 Belliardo Anciro, Jr. and other police operatives conducted surveillance operations and were able to verify that Lao and appellant Lee were living together as husband and wife. They once spotted Chan, Lao, the appellants and two others, in a seafood restaurant in Bocobo Street, Ermita, Manila, late in the evening. On another occasion, the policemen saw Chan, Lao, and the appellants, at the Celicious Restaurant along R. Sanchez Street, Ermita, Manila, at about 8:30 p.m. They were spotted the third time at the Midtown Hotel at about 7:00 p.m. to 8:00 p.m. 4 The police operatives also verified that Chan and Lao resided at Room Nos. 1245 and 1247, Cityland Condominium, De la Rosa Street, Makati City, and in a two-storey condominium unit at No. 19 Atlantic Drive, Pacific Grand Villa, Sto. Nio, Paraaque, Metro Manila. 5 On October 25, 1996, SPO2 Cesar N. Teneros of the PARAC secured Search Warrant No. 96-801 for violation of Presidential Decree (P.D.) No. 1866 (illegal possession of firearms and explosives) and Search Warrant No. 96-802, for violation of Sections 12, 14 and 16 of Rep. Act No. 6425, as amended, from Judge William M. Bayhon, Executive Judge of the RTC of Manila. 6 Senior Police Inspector Lucio Margallo supervised the enforcement of Search Warrant No. 96-801 at the Cityland Condominium at about 11:00 p.m. on October 29, 1996. With him were PO3 Anciro, Jr., PO3 Wilhelm Castillo, SPO3 Roger Ferias and seven other policemen of the PARAC, who were all in uniform, as well as a Cantonese interpreter by the name of Chuang. While no persons were found inside, the policemen found two kilos of methamphetamine hydrochloride, popularly known as shabu, paraphernalia for its production, and machines and tools apparently used for the production of fake credit cards. 7 Thereafter, the police operatives received information that Lao and Chan would be delivering shabu at the Furama Laser Karaoke Restaurant at the corner of Dasmarias and Mancha Streets, Manila. The policemen rushed to the area on board their vehicles. It was 2:00 a.m. of October 26, 1996. The policemen saw Chan and Lao on board the latter's Honda Civic car. As the two men alighted, one of the men approached them and introduced himself, but Chan and Lao fired shots. Thus, a shoot-out ensued between the members of the raiding team and the two suspects. Chan and Lao were shot to death during the encounter. The policemen found two plastic bags, each containing one kilo of shabu, in Lao's car. THcaDA The policemen then proceeded to No. 19 Atlantic Drive, Pacific Grand Villa, to enforce Search Warrant No. 96-802. When the policemen arrived at the place, they coordinated with Antonio Pangan, the officer in charge of security in the building. 8 The men found that the Condominium Unit No. 19 was leased to Lao under the name Henry Kao Tsung. The policemen, Pangan and two security guards of the Pacific Grand Villa proceeded to the condominium unit. Anciro, Jr. knocked repeatedly on the front door, but no one responded. Pangan, likewise, knocked on the door. 9 Appellant Lee peeped through the window beside the front door. 10 The men introduced themselves as policemen, 11 but the appellant could not understand them as she could not speak English. 12 The policemen allowed Pangan to communicate with appellant Lee by sign language and pointed their uniforms to her to show that they were policemen. The appellant then opened the door and allowed the policemen, Pangan and the security guards into the condominium unit. 13 The policemen brought appellant Lee to the second floor where there were three bedrooms a master's bedroom and two other rooms. When asked where she and Lao slept, appellant Lee pointed to the master's bedroom. 14 Anciro, Jr., Margallo and PO3 Wilhelm Castillo then searched the master's bedroom, while Ferias and Pangan went to the other bedroom where appellant Zhen Hua was sleeping. 15 Ferias awakened appellant Zhen Hua and identified himself as a policeman. Appellant Zhen Hua was surprised. 16 Anciro, Jr. saw a small cabinet inside the master's bedroom about six feet high. He stood on a chair, opened the cabinet and found two transparent plastic bags each containing one kilo of shabu, 17 a feeding bottle, a plastic canister 18 and assorted paraphernalia. 19 Inside the drawer of the bed's headboard, Anciro, Jr. also found assorted documents, pictures, bank passbooks issued by the Allied Banking Corporation, credit cards, passports and identification cards of Lao and Lee. 20 Anciro, Jr. asked appellant Lee who was the owner of the crystalline substance, but the latter did not respond because she did not know English. 21 Anciro, Jr. asked Margallo for instructions on what to do with the things he had found, and the latter told him to keep the same for future reference, 22 and as evidence against any other suspect for illegal drug transactions. 23 Anciro, Jr., Pangan and Margallo later showed the seized articles to the other members of the team. 24 Anciro, Jr. told appellant Lee to bring some of her clothes because they were bringing her to the PARAC headquarters. Appellant Lee did as she was told and took some clothes from the cabinet in the master's bedroom where Anciro, Jr. had earlier found the shabu. 25 The policemen brought the appellants to the PARAC headquarters. The following articles were found and confiscated by the policemen in the condominium unit: ESTCHa a. TWO (2) Big Transparent Plastic Bags containing about one (1) Kilo each of white crystalline granules later tested to be Methamphetamine Hydrochloride or Shabu, a regulated drug; b. ONE (1) Transparent Plastic Baby Feeding Bottle containing an undetermined quantity of suspected Shabu; c. ONE (1) Small Plastic Cannister also containing undetermined amount of suspected Shabu . . . d. Assorted Pieces of Shabu Paraphernalia consisting of Improvised Tooters used for sniffing shabu, Improvised Burners used for burning Shabu, aluminum foils, etc.; 26 Anciro, Jr. placed the articles he found in the cabinet inside a box. 27 The appellants were then brought to the PARAC headquarters where they were detained. Pangan signed a Certification 28 that the search conducted by the policemen had been orderly and peaceful. Anciro, Jr. affixed his initials on the transparent plastic bags and their contents, the transparent baby feeding bottle and the plastic cannister and their contents. On October 26, 1996, he and Ferias 29 brought the seized items to the PNP Crime Laboratory for laboratory examination 30 along with the letter-request 31 thereon. IAETSC On the same day, Forensic Chemist Officer Isidro L. Cario signed Chemistry Report No. D-1243-96 which contained his findings on the laboratory examination of the items which were marked as Exhibits "A" to "A-4," viz: SPECIMEN SUBMITTED: Exh. "A" One (1) "must de Cartier Paris" carton containing the following: Exh. "A-1" One (1) heat-sealed transparent plastic bag containing 1,000.40 grams of white crystalline substance. Exh. "A-2" One (1) heat-sealed transparent plastic bag containing 998.10 grams of white crystalline substance. Exh. "A-3" One (1) transparent plastic "Babyflo Nurser" feeding bottle with pink cover containing 18.52 grams of white crystalline substance. ACIEaH Exh. "A-4" One (1) transparent plastic container with white cover containing 3.28 grams of white crystalline substance. NOTE: The above-stated specimen were allegedly taken from the residence of the above-named subjects . . . PURPOSE OF LABORATORY EXAMINATION: To determine the presence of prohibited and/or regulated drug. FINDINGS: Qualitative examination conducted on the above-stated specimens, Exhs. "A-1" through "A-4" gave POSITIVE result to the test for Methamphetamine hydrochloride, a regulated drug. . . 32 The police officers executed an affidavit of arrest. 33 Pangan and the two security guards signed a certification stating that nothing was destroyed in the condominium unit and that the search was orderly and peaceful. 34 The policemen also accomplished an inventory of the articles seized during the search. 35 The appellants were charged of violation of Section 16, Rep. Act No. 6425, as amended, in an Information filed in the RTC of Paraaque, Metro Manila, the accusatory portion of which reads: DETACa That on or about the 26th day of October 1996, in the Municipality of Paraaque, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and both of them mutually helping and aiding one another, not being lawfully authorized to possess or otherwise use any regulated drug and without the corresponding license or prescription, did then and there willfully, unlawfully and feloniously have, in their possession and under their control and custody, the following to wit: A. One (1) heat-sealed transparent plastic bag containing 1,000.40 grams of white crystalline substance; B. One (1) heat-sealed transparent plastic bag containing 998.1 grams of white crystalline substance; TAEcSC C. One (1) transparent plastic "Babyflo Nurser" feeding bottle with pink cover containing 18.52 grams of white crystalline substance; D. One (1) transparent plastic container with white cover containing 3.28 grams of white crystalline substance which when examined were found to be positive for Methamphetamine Hydrochloride (Shabu), a regulated drug. CONTRARY TO LAW. 36 Both appellants, assisted by counsel, were duly arraigned on November 29, 1992, and pleaded not guilty to the charge. The Case for the Appellants Appellant Jogy Lee denied the charge. She testified that she was a resident of Kwantong, China, a college graduate who could not speak nor understand English. She was once employed in a real estate firm. One of her co-employees was Huang Zhen Hua. 37 She met Henry Lao in China sometime in 1995, 38 and he brought her to Belgium that same year. Lao also helped her procure a Belguim passport, for he explained that if she only had a Chinese passport, it would be difficult to secure visas from countries she wanted to go to and visit; whereas many countries did not require a Belgian passport holder to secure visas before allowing entry therein. In the process, he and Lao fell in love and became lovers. aEHADT Upon Lao's invitation, appellant Lee visited the Philippines as a tourist for the first time in April 1996. Lao met her at the airport, and she was, thereafter, brought to a hotel in Manila where she stayed for less than a month. 39 She returned to the Philippines a second time and was again billeted in a hotel in Manila. All her expenses were shouldered by Lao, who was engaged in the garlic business. 40 As far as she knew, Lao was not engaged in any other business. 41 In June 1996, she invited her friend, appellant Huang Zhen Hua to visit the Philippines to enjoy the tourist spots. 42 They were then in China. In the evening of October 1, 1996, appellant Lee returned to the Philippines on a tourist visa. She was fetched by Lao, and she was brought to his condominium unit at No. 19, Atlantic Drive, Pacific Grand Villa, Sto. Nio, Paraaque. She had been residing there since then. She and Lao used to go to the shopping malls 43 and she even saw Chan once when he cleaned his Nissan car in Lao's garage. CaTcSA On October 22, 1996, appellant Zhen Hua arrived from China at the NAIA and was met by Lao at the airport. He tried to check in at the Diamond Hotel but Lee told him that he could stay in the condominium unit. Zhen Hua was brought to the Villa where he had been staying since then. The appellants had made plans to visit Cebu. At about 6:00 a.m. on October 26, 1996, appellant Lee was sleeping in the master's bedroom at the condominium unit. She had closed all the windows because she had turned the air conditioning unit on. Zhen Hua was sleeping in the other bedroom in the second floor beside the master's bedroom. Lao's Honda Civic car and Chan's Nissan car were in the garage beside the condominium unit. Momentarily, Lee heard someone knocking on the bedroom door. When she opened it, three (3) policemen barged into the bedroom and at the room where appellant Zhen Hua was sleeping. Anciro, Jr. was not among the men. Lee did not hear the policemen knock at the main door before they entered. 44 The policemen were accompanied by Chuang, a Cantonese interpreter, who told her that the policemen were going to search the house. 45 Appellant Lee saw a policeman holding two papers, but no search warrant was shown to her. 46 She was so frightened. DEHaAS The policemen placed two plastic bags on the bed before they searched the master's bedroom. Appellant Lee went to the room of appellant Zhen Hua and when she returned to the master's bedroom, she saw shabu on the bed. 47 The policemen took her ring, watch and the P600,000 owned by Lao which had earlier been placed in the cabinet, her papers and documents, and those of Lao's as well. She had never seen any shabu in the room before the incident. Thereafter, she and appellant Zhen Hua were brought to the PARAC headquarters where they were detained. Chuang, the cantonese interpreter, informed her that shabu had been found in the condominium unit and that the policemen were demanding P5,000,000 for her release. She was also told that if she did not pay the amount, she would be charged with drug trafficking, and that the leader of the group who arrested her would be promoted. However, she told Chuang that she had no money. Since she could not pay the amount, she was boarded on a PARAC owner-type jeep and returned to the condominium unit where the policemen took all the household appliances, such as the television, compact discs, washing machine, including laundry detergent. Only the sofa and the bed were not taken. About ten (10) days later, the appellants secured the services of counsel. THaDAE Antonio Pangan testified that he and the policemen knocked on the door to the condominium unit but that no one responded. He shouted, "Sir Henry," referring to Lao, but there was no response from inside the condominium. After about three (3) to five (5) minutes, a policeman kicked the door open and they entered the house. They went to the second floor and saw the appellants sleeping. Pangan testified that he did not see any shabu that was seized by the policemen. He learned that shabu had been found and taken from the condominium unit only when he saw someone holding up the substance on television during the daily news program TV Patrol. 48 Appellant Zhen Hua also denied the charge. He corroborated the testimony of appellant Lee that upon her invitation, he arrived in the Philippines on a tourist visa on October 22, 1996. He claimed that he did not see Anciro, Jr. in the condominium unit when policemen arrived and searched the house. He testified that aside from the PARAC policemen, he was also investigated by policemen from Taiwan. EIcSDC After trial, the court rendered judgment on January 10, 1999, convicting both appellants of the crime charged. The decretal portion of the decision reads: WHEREFORE, PREMISES CONSIDERED, finding accused Jogy Lee and Huang Zhen Hua GUILTY beyond reasonable doubt for violation of Sec. 16, Art. III, RA 6425, as amended by RA 7659, and considering the absence of any aggravating circumstances, this Court hereby sentences both accused to suffer the penalty of Reclusion Perpetua and to pay a fine of P500,000.00 each. The properties seized in accordance with the search warrants issued relative to this case are hereby ordered confiscated in favor of the government and the Clerk of Court of this Court is directed to turn over to the Dangerous Drugs Board, the drugs and paraphernalia subject hereof for proper disposition. The Clerk of Court is also directed to prepare the Mittimus for the immediate transfer of both accused Jogy Lee and Huang Zhen Hua from the Paraaque City Jail to the Bureau of Correccions (sic) in Muntinlupa City. SO ORDERED. 49 The Present Appeal On appeal to this Court, appellant Zhen Hua, asserts that: EHSADc First. The evidence for the prosecution, as a whole, is so far as self- contradictory, inherently improbable and palpably false to be accepted as a faithful reflection of the true facts of the case; Second. Appellant Huang Zhen Hua's conviction was based merely on the trial court's conclusion that he "is not an epitome of first class tourist and that he appeared nonchalant throughout the proceedings;" Third. In convicting said appellant, the court below completely disregarded the glaring facts and admissions of the prosecution's principal witnesses that no regulated drug was ever found in his possession; Fourth. The trial court, likewise, ignored the fact that the appellant's arrest was illegal and in violation of his constitutional and basic rights against arrest without probable cause as determined by a Judge and that his arraignment did not constitute a waiver of such right; SIEHcA Fifth. The trial court failed to consider the fact that the presumption of regularity of performance of the police officers who took part in the search had been overcome by prosecution's own evidence, thereby wrongly giving such presumption substance over and above the constitutional presumption of innocence of the appellant. 50 For her part, appellant Lee contends that: 1.01 THE ALLEGED TWO KILOS OF SHABU FOUND INSIDE ONE OF THE ROOMS IN THE TOWNHOUSE RENTED BY HENRY LAU WERE MERELY PLANTED BY PARAC OPERATIVES; 1.02 THE IMPLEMENTATION OF THE SEARCH WARRANT WAS HIGHLY IRREGULAR, DUBIOUS AND UNREASONABLE AS THE SEARCH WARRANT DID NOT CONTAIN ANY PARTICULAR DESCRIPTION OF THE ROOM TO BE SEARCHED, NOR WAS THERE ANY INTERPRETER TO ASSIST AND GUIDE JOGY LEE, WHO NEITHER KNEW NOR UNDERSTAND THE ENGLISH LANGUAGE, DURING THE SEARCH AND EVEN DURING THE TRIAL; cACTaI 2. THE LOWER COURT ERRED IN NOT ACQUITTING ACCUSED JOGY LEE UPON THE GROUND THAT HER GUILT WAS NOT ESTABLISHED BY PROOF BEYOND REASONABLE DOUBT. 51 For its part, the Office of the Solicitor General (OSG) posits that appellant Zhen Hua should be acquitted on the ground of reasonable doubt, but that the conviction of appellant Lee should be affirmed. The Court's Ruling We shall delve into and resolve the assigned errors of the appellants Huang Zhen Hua and Jogy Lee sequentially. On Appellant Zhen Hua The OSG contends that the prosecution failed to muster the requisite quantum of evidence to prove appellant Zhen Hua's guilt beyond reasonable doubt for the crime charged, thus: aTcHIC Huang Zhen Hua denies having anything to do with the bags of "shabu" found in the townhouse unit of Henry Lau. He claims that he arrived in the Philippines as a tourist on October 22, 1996, upon the invitation of Jogy Lee. Allegedly, at the time of his arrest, he had been in the Philippines for barely four days. He claims that he was just temporarily billeted as a guest at the townhouse where Jogy Lee was staying. And that he had no control whatsoever over said townhouse. He puts emphasis on the fact that the search of his room turned out to be "negative" and that the raiding team failed to seize or confiscate any prohibited or regulated drug in his person or possession. He, therefore, prays for his acquittal. The People submits that Huang Zhen Hua is entitled to acquittal. The prosecution's evidence fails to meet the quantum of evidence required to overcome the constitutional presumption of innocence; thus, regardless of the supposed weakness of his defense, and his innocence may be doubted, he is nonetheless entitled to an acquittal (Natividad v. Court of Appeals, 98 SCRA 335 (1980), cited in People v. Fronda, G.R. No. 130602, March 15, 2000). The constitutional presumption of innocence guaranteed to every individual is of primary importance, and the conviction of the accused must rest not on the weakness of the defense but on the strength of the evidence for the prosecution. aHESCT In the instant case, as pointed out by appellant Huang Zhen Hua, the trial court erred when it did not give much weight to the admission made by the prosecution witnesses that no regulated drug was found in his person. No regulated drug was also found inside his room or in his other belongings such as suitcases, etc. Thus, he had no actual or constructive possession of the confiscated "shabu." Moreover, it is not disputed that Huang Zhen Hua had only been in the country for barely four (4) days at the time when he was arrested. The prosecution was unable to show that in these four (4) days Huang Zhen Hua committed acts which showed that he was in cahoots with the drug syndicate Henry Lau and Peter Chan. It was not even shown that he was together with Henry Lau and Peter Chan on any occasion. As for Huang Zhen Hua, therefore, there is no direct evidence of any culpability. Nor is there any circumstantial evidence from which any culpability may be inferred. 52 We agree with the OSG. In a case of recent vintage, this Court, in People vs. Tira, 53 ruminated and expostulated on the juridical concept of "possession" under Section 16, Article III of Rep. Act No. 6425, as amended, and the evidence necessary to prove the said crime, thus: EHSADc The essential elements of the crime of possession of regulated drugs are the following: (a) the accused is found in possession of a regulated drug; (b) the person is not authorized by law or by duly constituted authorities; and, (c) the accused has knowledge that the said drug is a regulated drug. This crime is mala prohibita, and, as such, criminal intent is not an essential element. However, the prosecution must prove that the accused had the intent to possess (animus possidendi) the drugs. Possession, under the law, includes not only actual possession, but also constructive possession. Actual possession exists when the drug is in the immediate physical possession or control of the accused. On the other hand, constructive possession exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found. Exclusive possession or control is not necessary. The accused cannot avoid conviction if his right to exercise control and dominion over the place where the contraband is located, is shared with another. ScTCIE Thus, conviction need not be predicated upon exclusive possession, and a showing of non-exclusive possession would not exonerate the accused. Such fact of possession may be proved by direct or circumstantial evidence and any reasonable inference drawn therefrom. However, the prosecution must prove that the accused had knowledge of the existence and presence of the drug in the place under his control and dominion and the character of the drug. Since knowledge by the accused of the existence and character of the drugs in the place where he exercises dominion and control is an internal act, the same may be presumed from the fact that the dangerous drug is in the house or place over which the accused has control or dominion, or within such premises in the absence of any satisfactory explanation. 54 In this case, the prosecution failed to prove that the appellant, at any time, had actual or constructive possession of the regulated drug found in the master's bedroom where appellant Lee was sleeping; or that the appellant had accessed the said room at any given time; or that he had knowledge of the existence of shabu in appellant Lee's bedroom. Appellant Zhen Hua had arrived in the Philippines upon the invitation of appellant Lee only on October 22, 1996 or barely four (4) days before the arrival of the policemen and the search conducted in the condominium unit leased by Henry Lao. He was a mere visitor of appellant Lee. There is no evidence that appellant Zhen Hua was aware of the alleged illegal drug activities and/or transactions of Henry Lao, Peter Chan and appellant Lee. The policemen did not find any regulated drug in the room where appellant Zhen Hua was sleeping when they made their search. The evidence of the prosecution against appellant Zhen Hua falls short of the requisite quantum of evidence to prove conspiracy between him, appellant Lee and Chan or Lao. SDHITE There is conspiracy when two or more persons agree to commit a crime and decide to commit it. 55 Conspiracy cannot be presumed. 56 Conspiracy must be proved beyond reasonable doubt like the crime subject of the conspiracy. 57 Conspiracy may be proved by direct evidence or by proof of the overt acts of the accused, before, during and after the commission of the crime charged indicative of a common design. 58 The bare fact that on two or three occasions after the arrival of appellant Zhen Hua from China, and before the search conducted in Lao's condominium unit, appellant Zhen Hua had been seen with Lao, Chan and appellant Lee. Having dinner or lunch at a restaurant does not constitute sufficient proof that he had conspired with them or with any of them to possess the subject-regulated drug. Mere association with the principals by direct participation or mere knowledge of conspiracy, without more, does not suffice. 59 Anciro, Jr. even admitted that during his surveillance, he could have mistaken appellant Zhen Hua for another group of Chinese persons who were also being watched. 60 Appellant Zhen Hua should, thus, be acquitted. On Appellant Lee Appellant Lee avers that certain irregularities were attendant in the issuance and implementation of Search Warrant No. 96-802, as follows: (a) the policemen who implemented the search warrant failed in their duty to show to her the said warrant, inform her of their authority and explain their presence in the condominium unit; (b) the policemen gained entry into the condominium unit by force while she was sleeping; and (c) articles and personal effects owned by her and Lao were taken and confiscated by the policemen, although not specified in the search warrant. The appellant concludes that the articles procured by the policemen on the occasion of the search of the condominium unit are inadmissible in evidence. Appellant Lee, likewise, contends that she was a victim of a frame-up because the policemen planted the regulated drug on her bed even before they searched the bedroom. She went to the room of appellant Zhen Hua to find out if he was already awake, and when she returned to the bedroom, she noticed shabu on her bed. She avers that the sole testimony of Anciro, Jr., that he found the regulated drug in the master's bedroom, is incredible because he was not with the policemen who barged into the bedroom. She notes that even Pangan, the caretaker of the Villa, testified that he did not see any illegal drug confiscated by the policemen. aSHAIC According to appellant Lee, the trial court erred in convicting her of the crime charged, considering that Lao and Chan were the suspects identified in the search warrants, not her. She avers that she had no knowledge of the alleged illegal drug transactions of her lover Lao. She contends that there was no probable cause for her arrest as her mere presence in the condominium unit does not render her liable for the shabu found in the master's bedroom of the condominium unit leased by Lao. She further avers that the testimonies of the witnesses for the prosecution are inconsistent; hence, barren of probative weight. The appellant also asserts that she was deprived of her right to due process when the trial court conducted a trial without a Chinese interpreter to assist her. The OSG, for its part, avers that the police officers are presumed to have performed their duties. Based on the testimony of Anciro, Jr., appellant Lee was shown the search warrant, through the window, and the policemen identified themselves through their uniforms. The security guards of the condominium also explained the search warrant to the appellant. Although she was, at first, reluctant to open the door, appellant Lee later voluntarily opened the door and allowed them entry into the unit. There was no evidence of forcible entry into the unit and no breakage of any door. The OSG further avers that the appellant had been in the country for quite sometime already and could not have gotten around without understanding English. In fact, the OSG argues that when Anciro, Jr. told the appellant to get some of her clothes since she would be brought to the police headquarters in Quezon City, she did as she was told and took her clothes from the cabinet where the shabu were found by the policemen. The OSG further points out that Pangan, the chief of security of the subdivision who was a witness for appellant Lee, even testified that the search was orderly. The OSG contends that there was probable cause for the appellant's arrest because an informant had tipped off the arresting officers that the appellant was a member of a syndicate dealing with illegal drugs, and that she handled the accounts of Lao and Chan. The appellant was not a victim of frame-up because she was present when the policemen searched the master's bedroom where she was sleeping and where she kept her clothes, and witnessed the discovery of the regulated drugs and paraphernalia. We agree with the contention of the appellant that the constitutional proscription against unreasonable search and seizure applies to Filipino citizens, as well as to aliens temporarily residing in the country. The rule against unreasonable search and seizure forbids every search that is unreasonable; it protects all those suspected or known to be offenders, as well as the innocent. The guarantee is as important and imperative as the guarantee of the other fundamental rights of the citizens. 61 All owes the duty for its effective enforcement lest there shall be an impairment of the right for the purpose for which it was adopted. 62 Section 7, Rule 126 of the Revised Rules of Criminal Procedure provides: cDIaAS SEC. 7. Right to break door or window to effect search. The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein. The police officers were obliged to give the appellant notice, show to her their authority, and demand that they be allowed entry. They may only break open any outer or inner door or window of a house to execute the search warrant if, after such notice and demand, such officers are refused entry to the place of directed search. This is known as the "knock and announce" principle which is embodied in Anglo-American Law. The method of entry of an officer into a dwelling and the presence or absence of such notice are as important considerations in assessing whether subsequent entry to search and/or arrest is constitutionally reasonable. 63 In Gouled v. The United States, 64 it was held that a lawful entry is the indispensable predicate of a reasonable search. A search would violate the Constitution if the entry were illegal, whether accomplished by force, by illegal threat or mere show of force. The principle may be traced to a statute in England way back in 1275 providing that "if a person takes the beasts of another and causes them to be driven into a castle or fortress, if the sheriff makes a solemn demand for the deliverance of the beasts, and if the person did not cause the beasts to be delivered incontinent, the king shall cause the said castle or fortress to be beaten down without recovery." Common law courts appended an important qualification: DIEACH But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors . . ., for the law without a default in the owner abhors the destruction or breaking of any house (which is for the habitation and safety of man) by which great damage and inconvenience might ensue to the party, when no default is in him; for perhaps he did not know of the process, of which, if he had noticed, it is to be presumed that he would obey it . . . 65 Blackstone simply stated the principle that the sheriff may justify breaking open doors if the possession be not quietly delivered. 66 The principle was woven quickly into the fabric of early American law and in the Fourth Amendment in the United States Federal Constitution. It is an element of the reasonableness inquiry under the Fourth Amendment as held in Wilson v. Arkansas. 67 Generally, officers implementing a search warrant must announce their presence, identify themselves to the accused and to the persons who rightfully have possession of the premises to be searched, and show to them the search warrant to be implemented by them and explain to them said warrant in a language or dialect known to and understood by them. The requirement is not a mere procedural formality but is of the essence of the substantial provision which safeguards individual liberty. 68 No precise form of words is required. It is sufficient that the accused has notice of the officers, their authority and the purpose of the search and the object to be seized. It must be emphasized that the notice requirement is designed not only for the protection of the liberty of the person to be searched or of his property but also the safety and well-being of the officers serving and implementing the search warrant. Unless the person to whom the warrant is addressed and whose property is to be searched is notified of the search warrant and apprised of the authority of the person serving the warrant, he may consider the unannounced intrusion into the premises as an unlawful aggression on his property which he will be justified in resisting, and in the process, may cause injury even to the life of the officer implementing the warrant for which he would not be criminally liable. Also, there is a very real possibility that the police serving and implementing the search warrant may be misinformed as to the name or address of the suspect, or to other material affirmations. Innocent citizens should not suffer the shock, fright, shame or embarrassment attendant upon an unannounced intrusion. 69 Indeed, a lawful entry is the indispensable predicate of a reasonable search. A search would violate the constitutional guarantee against unreasonable search and seizure if the entry were illegal, whether accomplished by force, or by threat or show of force or obtained by stealth, or coercion. 70 Unannounced intrusion into the premises is permissible when (a) a party whose premises or is entitled to the possession thereof refuses, upon demand, to open it; (b) when such person in the premises already knew of the identity of the officers and of their authority and persons; (c) when the officers are justified in the honest belief that there is an imminent peril to life or limb; and (d) when those in the premises, aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers to believe that an escape or the destruction of evidence is being attempted. Suspects have no constitutional right to destroy evidence or dispose of evidence. 71 However, the exceptions above are not exclusive or conclusive. At times, without the benefit of hindsight and ordinarily on the spur of the moment, the officer must decide whether or not to make an unannounced intrusion into the premises. Although a search and seizure of a dwelling might be constitutionally defective, if the police officers' entry was without prior announcement, law enforcement interest may also establish the reasonableness of an unannounced entry. 72 Indeed, there is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances. 73 In determining the lawfulness of an unallowed entry and the existence of probable cause, the courts are concerned only with what the officers had reason to believe and the time of the entry. 74 In Richards v. Wisconsin, 75 it was held that: IDEHCa [1] In order to justify a "no-knock" entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. This standard as opposed to a probable-cause requirement strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interest affected by no-knock entries. 76 As articulated in Benefield v. State of Florida, 77 what constitutes breaking includes the lifting of a latch, turning a door knob, unlocking a chain or hasp, removing a prop to or pushing open a closed door of entrance to the house, even a closed screen door. 78 However, entry obtained through the use of deception, accomplished without force is not a "breaking" requiring officers to first announce their authority and purpose because the reasons behind the rule are satisfied there was no real likelihood of violence, no unwarranted intrusion or privacy and no damage to the residence of the accused. 79 As to how long an officer implementing a search warrant must wait before breaking open any door cannot be distilled into a constitutional stopwatch. Each case has to be decided on a case-to-case basis requiring an examination of all the circumstances. 80 The proper trigger point in determining, under the "knock and announce" rule, whether the police waited long enough before entering the residence to execute a warrant, is when those inside should have been alerted that the police wanted entry to execute a warrant. 81 In this case, we rule that the policemen complied with Section 7, Rule 126 of the Revised Rules of Criminal Procedure before entering the condominium unit. Appellant Lee admitted, when she testified, that the police officers were accompanied by Chuang, a Cantonese interpreter, who informed her that his companions were police officers and had a search warrant for the premises, and also explained to her that the officers were going to search the condominium unit. 82 The appellant was sufficiently aware of the authority of the policemen, who wore PARAC uniforms, to conduct the search and their purpose. Moreover, Anciro, Jr. told the appellant, in English, to bring some clothes with her as she was to be brought to the police headquarters. Without such request being interpreted to the appellant, the latter did as she was directed and took some clothes from the cabinet atop the headboard. 83 The evidence on record shows that the police officers knocked on the outer door before entering the condominium unit, and after a while, the appellant opened the door and allowed the policemen and Pangan to enter. Anciro, Jr. testified, thus: TaDCEc Q Do you still recall Mr. Witness the identities of the security guards who helped you or assisted you in implementing said search warrants at Grand Villa Subdivision? A The OIC of the Home Owners' Association, Antonio Pangan, and the OIC of the Security Agency and two (2) other security guards. Q Do you recall the names of those persons you mentioned Mr. Witness? A I can hardly recall their names. Q After having been assisted or coordinated with said security officers and the OIC of the Home Owners' Association, what did you do next? A We told them that if we could ask them if they have a duplicate key and also knock and introduce ourselves, knock on the said condominium. Q Did they do that, the request? A Yes, Sir. Q Meaning to say, you arrived at #19 Atlantic Drive, Pacific Grand Villa? A Yes, Sir. Q While you were already at the door of that targeted house to implement said search warrants, what happened next, if any? What did you do after that? A We knocked on the door and tried to find out if there was somebody there because the Home Owners' Association doesn't have any key for the door. We asked them to knock also because they are the ones who have access with the tenants. Q And after knocking, what happened next? A There were around 5 minutes, no one was trying to open the door. By that time, we thought they were still asleep. Q And then after that what did you do, if any? A We asked Mr. Pangan to knock and introduce himself and another security guard to try to knock on the kitchen which is on the back door. IASCTD Q And then after that? A And then after that, it was a female person who showed up to (sic) the window of the kitchen and asked who we are in a sign language. Q And this female person who showed up to (sic) the window . . . I withdraw. Were you able to have a good look on that female person who showed herself thru the window? A Yes, Sir. Q And who is this person Mr. Witness? A She was identified as Jogy Lee, Sir. 84 The appellant failed to prove that the policemen broke open the door to gain entry into the condominium unit. She could have asked the court for an ocular inspection to show the door which was allegedly broken into by the policemen, or at least adduce in evidence pictures showing the said breakage. The appellant failed to do so. The testimony of the appellant is even belied by Pangan, who was a witness for the appellant, who certified, along with three other security guards, that nothing was destroyed and that the search was conducted in a peaceful and orderly manner. 85 We are not impervious of the testimony of Pangan that the policemen kicked the outer door to gain entry into the condominium unit, which testimony is seemingly in derogation of his certification. However, Pangan admitted that the policemen did so only after knocking on the door for three (3) to five (5) minutes and after he had called Lao in a loud voice and received no response from the appellants: Q Did you come to know the persons wherein your presence was being required according to your security guards? A According to my security guards, they introduced themselves as police operatives. aDSTIC Q Did you comply with the invitation of these police authorities? A Yes, they called me and according to them, they will search Unit 19, that is what they told me. Q Can you please tell us what time did the police operatives conduct the search? A I cannot recall anymore because the incident happened in 1996. I don't know what time was that. Q When they conducted the search, were you there? A I was there because that unit cannot be opened if the caretaker is not present. Q Are you trying to say that you were the one who opened the door of that unit occupied by Henry Kau Chung? A They kicked the door and when nobody opened the door, they pushed the door and the door was opened. Q They forcibly opened the door when nobody opened it? A Kaya naman po ginawa 'yon dahil nandoon naman po ang caretaker, wala naman pong masamang mangyayari dahil nandoon naman po ang namamahala. Q From the time you knocked at the door of this unit up to the time that the police operatives forcibly break open the door, how many minutes had elapsed? A Matagal din po silang kumakatok sa pintuan. I said, "Mr. Henry, pakibuksan n'yo ang pinto, would you mind to open the door, kasi merong mga police officers na gustong ma-search itong unit mo. Then, when nobody was answering, they forcibly opened the door. Q Was there any other occupant other than Henry Kau Chung in that unit at that time? A At the second floor, they saw this Jogy Lee and her male companion whom I do not know. aSADIC Q But during the time that you were trying to seek entry to the door, there was no one who responded, is that correct? A Pardon, Sir? Q At the time that you were trying to knock at the door, there was no one who responded to your knocking at the door? A Nobody was answering, Sir. Q And that compelled the police operatives to open the door forcibly? A Yes, Sir. 86 xxx xxx xxx COURT: From the first time you knocked at the door, how long a time lapsed before the police officer broke open the door? A Matagal din po. Q For how long? A Maybe for about three to five minutes. Q When nobody was answering, they forced open the door? A Yes, Your Honor. COURT: Continue. 87 The appellant failed to prove, with clear and convincing evidence, her contention that Anciro, Jr. placed the shabu on her bed before he continued his search in the bedroom, and that she was a victim of frame-up by the policemen. She relied on her testimony and those of Pangan and Ferias that they did not see Anciro, Jr. discover and take custody of the shabu in the cabinet. SHcDAI The appellant's defense of frame-up is nothing new. It is a common and standard line of defense in most prosecutions for violation of the Dangerous Drugs Law. While such defense cannot and should not always be considered as contrived, nonetheless, it is generally rejected for it can easily be concocted but is difficult to prove. Police officers are, after all, presumed to have acted regularly in the performance of their official functions, in the absence of clear and convincing proof to the contrary, or that they are motivated by ill- will. 88 It is true, as testified by Pangan and Ferias that, they did not see Anciro, Jr. discover and take custody of the shabu subject of this case. However, as explained by Pangan, he remained in the ground floor of the condominium unit while Anciro, Jr., Castillo and Margallo searched the bedroom of appellant Lee and her lover Lao, and Ferias proceeded to the room occupied by appellant Zhen Hua where he conducted his search. Thus, Pangan testified: Q When the master's bedroom was searched where Jogy Lee was then, according to you, sleeping, did you accompany the PARAC members? A No, Sir, because I was talking to a member of the PARAC downstairs. Q What about the members of the security force? A They were outside, Sir. Q During the search made on the master's bedroom? A Yes, Sir. Q How about when the search was made in the room occupied by Huang Zhen Hua, were you present then? A No, Sir, I was still downstairs. Q How about the other guards? A They were also outside. 89 For his part, Ferias declared: Q In other words, you did not go inside the biggest room? A No, Sir. Q You proceeded to another room where co-accused Huang Zhen Hua was then sleeping? A Yes, Sir. ETaHCD Q What happened next? A We woke up Huang Zhen Hua and we introduced ourselves to him as police officers. Q What was the reaction of Huang Zhenhua? A He was surprised. 90 xxx xxx xxx Q In other words, you did not go inside the biggest room? A No, Sir. Q You proceeded to another room where co-accused Huang Zhen Hua was then sleeping? A Yes, Sir. Q What happened next? A We woke up Huang Zhen Hua and we introduced ourselves to him as police officers. Q What was the reaction of Huang Zhen Hua? A He was surprised. 91 Pangan testified that before the police officers conducted their search in the second floor of the condominium unit, he did not see them bring in anything: TCHEDA Q But you are very sure that before the police officers searched the unit, you did not see them bringing anything with them, they were all empty-handed? A I did not see, Sir. 92 No less than Pangan himself, a witness for the appellants, and three of the security guards of the subdivision, who accompanied the policemen in implementing the search warrants, certified that, what was found inside the condominium unit and confiscated by the policemen were two plastic bags which contained white crystalline powder substances suspected to be shabu. 93 The appellant admitted that she saw shabu in her bedroom while the policemen were there. She claimed that the policemen placed the plastic bag on the bed before they started the search and that she noticed the shabu only after he returned from the room of appellant Zhen Hua to see if he was already awake is hard to believe. First. We find it incredible that the policemen placed the shabu on the appellant's bed, in her full view, for which the latter could be prosecuted for planting evidence and, if convicted, sentenced to death under Section 19 of Rep. Act 7659: SECTION 19. Section 24 of Republic Act No. 6425, as amended, known as the Dangerous Act of 1972, is hereby amended to read as follows: Sec. 24. Penalties for Government Officials and Employees and Officers and Members of Police Agencies and the Armed Forces, 'Planting' of Evidence. The maximum penalties provided for [in] Section 3, 4(1), 5(1), 6, 7, 8, 9, 11, 12 and 13 of Article II and Sections 14, 14-A, 15(1), 16 and 19 of Article III shall be imposed, if those found guilty of any of the said offenses are government officials, employees or officers, including members of police agencies and the armed forces. Any such above government official, employee or officer who is found guilty of "planting" any dangerous drugs punished in Sections 3, 4, 7, 8, 9 and 13 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act in the person or in the immediate vicinity of another as evidence to implicate the latter, shall suffer the same penalty as therein provided. Second. The appellant failed to inform her counsel of the alleged planting of evidence by the policemen; if she had done so, for sure, the said counsel would have prepared her affidavit and filed the appropriate motion in court for the suppression of the things/articles seized by the policemen. Third. The appellant failed to charge the policemen with planting of evidence before or after she was charged of violation of Rep. Act No. 6425, as amended. SHADEC Fourth. The appellant cannot even identify and describe the policeman or policemen who allegedly planted the evidence. The fact is that, as gleaned from the affidavit of arrest signed by Anciro, Jr. and Ferias, the articles and substances found and confiscated from the condominium unit of Lao and appellant Lee at Atlantic Drive and at the Cityland condominium unit of Lao and Chan were itemized as follows: a. TWO (2) Big Transparent Plastic Bags containing about one (1) kilo each of white crystalline granules later tested to be Methamphetamine Hydrochloride or Shabu, a regulated drug; b. ONE (1) Transparent Plastic Baby Feeding Bottle containing undetermined quantity of suspected Shabu; c. ONE (1) Small Plastic Canister also containing undetermined amount of suspected Shabu . . . d. Assorted Pieces of Shabu Paraphernalia consisting of Improvised Tooters used for sniffing shabu, Improvised Burners used for burning Shabu, aluminum foils, etc.; xxx xxx xxx a. TWO (2) Kettles/Pots containing more or less 1 1/2 kilos of Raw Shabu or Methamphetamine Hydrochloride; b. Two (2) Big Transparent Plastic Bags containing more or less Two (2) Kilos of Shabu; c. Three (3) Plastic Basins, small, medium, large, used for containers of finished/cooked Shabu; d. Several pieces of Plastic Strainers used for draining out liquids from finished Shabu; e. One (1) Plastic Container with liquid chemical of undetermined element; HDAaIS f. Several pieces of Spoons and ladles with traces of raw Shabu used in stirring mixtures; g. One (1) Electric Cooking Stove w/one coil burner; h. One (1) Unit Card Making Machine; i. One (1) Unit Card Stamping Machine; j. Several pieces of Credit Cards and Telephone Cards; 94 Anciro, Jr. placed his initials on the plastic bags containing white crystalline powder which were found and confiscated at Atlantic Drive and, in the company of Ferias, delivered the same to the PNP Crime Laboratory for examination, per the request of Police Superintendent Janice P. de Guzman, the chief of the PARAC. We agree with the appellant that she was not one of the accused named in the search warrants. However, such fact did not proscribe the policemen from arresting her and charging her of violation of Rep. Act No. 6425, as amended. There was, in fine, probable cause for her warrantless arrest independent of that found by Judge William Bayhon when he issued the search warrants against Lao and Chan for search of the condominium units at Atlantic Drive and Cityland. Probable cause exists for the warrantless detention and arrest of one at the premises being searched when the facts and circumstances within their knowledge and of which they had reliable and trustworthy information are sufficient to themselves warrant a reasonable belief of a cautious person that an offense has been or is being committed. 95 It has been held that: cEAaIS Probable cause for the arrest of petitioner Diane Ker, while not present at the time the officers entered the apartment to arrest her husband, was nevertheless present at the time of her arrest. Upon their entry and announcement of their identity, the officers were met not only by George Ker but also by Diane Ker, who was emerging from the kitchen. Officer Berman immediately walked to the doorway from which she emerged and, without entering, observed the brick-shaped package of marijuana in plain view. Even assuming that her presence in a small room with the contraband in a prominent position on the kitchen sink would not alone establish a reasonable ground for the officers' belief that she was in joint possession with her husband, that fact was accompanied by the officers' information that Ker had been using his apartment as a base of operations for his narcotics activities. Therefore, we cannot say that at the time of her arrest there were no sufficient grounds for a reasonable belief that Diane Ker, as well as her husband, were committing the offense of possession of marijuana in the presence of the officers. 96 In Draper v. United States, 97 it was held that informations from a reliable informant, corroborated by the police officer's observations as to the accuracy of the description of the accused, and of his presence at a particular place, is sufficient to establish probable cause. In this case, the police officers received reliable information and verified, after surveillance, that appellant Lee and Lao were living together as husband and wife in the condominium unit and that appellant Lee handled the accounting of the payments and proceeds of the illegal drug trafficking activities of Lao. Indeed, the policemen found that the appellant occupied the bedroom and slept in the same bed used by Lao. The appellant took her clothes from the same cabinet where the subject shabu and paraphernalia were found by Anciro, Jr. The appellant had been living in the same condominium unit with Lao since October 1, 1996 until her arrest on October 25, 1996. Along with Lao, the appellant thus had joint control and possession of the bedroom, as well as of the articles, paraphernalia, and the shabu found therein. Such facts and circumstances are sufficient on which to base a reasonable belief that the appellant had joint possession of the regulated drugs found in the bedroom along with Lao, her live-in partner, in line with our ruling in People v. Tira. 98 For the purpose of prosecution for violation of the Dangerous Drugs Law, possession can be constructive and need not be exclusive, but may be joint. 99 Admittedly, Anciro, Jr. seized and took custody of certain articles belonging to the appellant and Lao which were not described in the search warrants. However, the seizure of articles not listed in a search warrant does not render the seizure of the articles described and listed therein illegal; nor does it render inadmissible in evidence such articles which were described in the warrant and seized pursuant thereto. Moreover, it bears stressing that Anciro, Jr. saw the unlisted articles when he and the other policemen implemented the search warrants. Such articles were in plain view of Anciro, Jr. as he implemented the search warrants and was authorized to seize the said articles because of their close connection to the crime charged. As held in Coolidge, Jr. v. New Hampshire: 100 An example of the applicability of the 'plain view' doctrine is the situation in which the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character . . . aTDcAH Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate. Thus, the police may inadvertently come across evidence while in 'hot pursuit' of a fleeing suspect . . . And an object that comes into view during a search incident to arrest that is appropriately limited in scope under existing law may be seized without a warrant . . . Finally, the 'plain view' doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object . . . 101 It cannot be denied that the cards, passbook, passport and other documents and papers seen by the policemen have an intimate nexus with the crime charged or, at the very least, incriminating. The passport of the appellant would show when and how often she had been in and out of the country. Her credit cards and bank book would indicate how much money she had amassed while in the country and how she acquired or earned the same. The pictures and those of the other persons shown therein are relevant to show her relationship to Lao and Chan. 102 Contrary to the claim of the appellant, it is not true that the trial court failed to provide an interpreter when she testified. The records show that a Cantonese interpreter attended the trial and interpreted her testimony. The Rules of Court does not require the trial court to provide the appellant with an interpreter throughout the trial. An interpreter is required only if the witness on the stand testifies in a language other than in English or is a deaf-mute. The appellant may procure the services of an interpreter at her own expense. Contrary to the claim of appellant Lee, the prosecution adduced proof beyond reasonable doubt of her guilt of the crime charged. She and Lao, her lover, had joint possession of the shabu which the policemen found and confiscated from her bedroom. CDHaET IN LIGHT OF ALL THE FOREGOING, the appeal of appellant Huang Zhen Hua is GRANTED. The Decision of the Regional Trial Court of Paraaque City, convicting him of the crime charged, is REVERSED AND SET ASIDE. The said appellant is ACQUITTED of said charge. The Director of the Bureau of Corrections is hereby directed to release the said appellant from detention unless he is detained for another cause or charge, and to submit to the Court, within five (5) days from notice hereof, a report of his compliance with the directive of the Court. The appeal of appellant Jogy Lee is DENIED. The Decision dated January 10, 1999, of the Regional Trial Court of Paraaque City, convicting her of violation of Section 16, Rep. Act No. 6425 is AFFIRMED. No costs. SO ORDERED. HDCTAc Puno, Austria-Martinez and Tinga, JJ ., concur. Chico-Nazario, J ., is on leave. FIRST DIVISION [G.R. No. L-25434. July 25, 1975.] HONORABLE ARSENIO N. ROLDAN, JR., in his capacity as Acting Commissioner, Philippine Fisheries Commission, and THE PHILIPPINE NAVY, petitioners, vs. HONORABLE FRANCISCO ARCA, as Presiding Judge of the Court of First Instance of Manila (Branch I) and MORABE, DE GUZMAN & COMPANY, respondents. Solicitor General Arturo A. Alafriz and Solicitor Augusto M . Amores for petitioners. J . C . Yuseco and A. R. Narvasa for private respondent. SYNOPSIS The Court of First Instance of Palawan ordered the seizure of two vessels of respondent company in connection with illegal fishing with dynamite committed within the territorial waters of Palawan. Respondent company filed a complaint with application for a writ of preliminary mandatory injunction with the Court of First Instance of Manila. Respondent Judge issued the writ of preliminary mandatory injunction after a bond was filed for the release of the vessels. Petitioner's motion to reconsider the order was denied. Hence, this petition for certiorari and prohibition with preliminary injunction to restrain respondent judge from enforcing the questioned order. The Supreme Court granted the petition ruling that respondent judge committed a grave abuse of discretion in issuing the preliminary mandatory injunction and further in denying the motion to reconsider the same. It is basic that a court cannot interfere with the judgments, orders and decrees of another court of concurrent or coordinate jurisdiction having equal power to grant the relief sought by injunction. Since the two vessels were already in custodia legis under the sole control of the Palawan Court of First Instance, the Manila Court of First Instance cannot interfere with and change that possession. cdasia Writ of preliminary mandatory injunction set aside as null and void. SYLLABUS 1. ACTIONS; JURISDICTION; PLACE WHERE CRIMINAL OFFENSE WAS COMMITTED DETERMINES JURISDICTION. The Court of First Instance of Palawan has jurisdiction to order the seizure of boats caught in connection with illegal fishing with dynamite within the territorial waters of Palawan. The rule is that "the place where a criminal offense was committed not only determines the venue of the action but is an essential element of jurisdiction." 2. ID.; ID.; ID.; COURT MAY NOT INTERFERE WITH JUDGMENTS, ORDERS OR DECREES OF COURT OF CONCURRENT/ COORDINATE JURISDICTION; REASON. One court cannot interfere with the judgments, order or decrees of another court of concurrent or coordinate jurisdiction having equal power to grant the relief sought by injunction; because if coordinate courts were allowed to interfere with each other's judgments, decrees or injunctions, the same would obviously lead to confusion and might seriously hinder the administration of justice. 3. ID.; ID.; ID.; ID.; CASE AT BAR. Where the vessels which were subject to forfeiture as instruments of the crime to be utilized as evidence in the criminal cases for illegal fishing committed within the territorial waters of Palawan were already in custodia legis under the sole control of the Palawan Court of First Instance, the Manila Court of First Instance cannot interfere with and change that possession. 4. ID.; DISMISSAL; PRELIMINARY WRIT CANNOT SURVIVE THE MAIN CASE. A preliminary writ, like any other interlocutory order, cannot survive the main case of which it was but an incident; because "an ancillary writ of preliminary injunction loses its force and effect after the dismissal of the main petition." 5. FISHERIES ACT (ACT NO. 4003); FISHING WITH DYNAMITE; PENALTY THEREOF. Section 12 of the Fisheries Act otherwise known as Act No. 4003, as amended, prohibits fishing with dynamite or other explosives which is penalized by Section 76 thereof "by a fine of not less than P1,500.00 nor more than P5,000.00, and by imprisonment for not less than one (1) year and six (6) months nor more than five (5) years, aside from the confiscation and forfeiture of all explosives, boats, tackles, apparel, furniture, and other apparatus used in fishing in violation of Section 12 of this Act." Section 78 of the same Fisheries Law provides that "in case of second offense, the vessel, together with its tackles, apparel, furniture and stores shall be forfeited to the Government." 6. ID.; ID.; PRESUMPTION THAT EXPLOSIVES ARE USED IN FISHING. Under the second paragraph of Section 12 of the Fisheries Act "the possession and or finding of dynamite, blasting caps and other explosives in any fishing boat shall constitute a presumption that the said dynamite and/or blasting caps and explosives are being used for fishing purposes in violation of this Section, and that the possession or discovery in any fishing boat of fish caught or killed by the use of dynamite or other explosives, under expert testimony shall constitute a presumption that the owner, if present in the fishing boat, or the fishing crew have been fishing with dynamite or other explosives." 7. ID.; FISHING WITHOUT LICENSE; PENALTY THEREFOR. Under Section 78 of the Fisheries Act, as amended, any person, association or corporation fishing in deep sea fishery without the corresponding license prescribed in Section 17 and 22 of Article V of the Fisheries Act or any other order or regulation deriving force from its provisions shall be punished for each offense by a fine of not more than P5,000.00 or imprisonment for not more than one year, or both, in the discretion of the Court: . . . provided, . . ., That in case of second offense, the vessel together with its tackle, apparel, furniture and stores shall be forfeited to the Government." 8. ID.; PHILIPPINE NAVY MAY ENFORCE FISHERIES ACT. Under Section 13 of Executive Order no. 389 of December 23, 1950, reorganizing the Armed Forces of the Philippines, the Navy has the function, among others, "to assist the proper governmental agencies in the enforcement of laws and regulations pertaining to . . . fishing. . ." 9. TARIFF AND CUSTOMS CODE; AUTHORITY OF PERSON EXERCISING POLICE AUTHORITY TO SEARCH/SEIZE ANY VESSEL. Section 2210 of the Tariff and Customs Code, as amended by DP No. 34 of October 27, 1972, authorizes any official or person exercising police authority under the provisions of the Code, to search and seize any vessel or air craft as well as any trunk, package, bar or envelope on board for any breach or violation of the customs and tariff laws. 10. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCH/SEIZURE; EXCEPTION, REASON. Search and seizure without search warrant of vessels and aircraft for violations of the custom laws have been the traditional exception to the constitutional requirement of a search warrant, because the vessel can be quickly moved out of the locality in which the search warrant must be sought before such warrant could be secured; hence, it is not practicable to require a search warrant before such search or seizure can be constitutionally effected. 11. ID.; ID.; ID.; SEARCH/SEIZURE AS AN INCIDENT OF LAWFUL ARREST. Another exception to the constitutional requirements of a search warrant for a valid search and seizure is a search or seizure as an incident of a lawful arrest. Under our Rules of Court a police officer or a private individual may, without a warrant, arrest a person (a) who has committed, is actually committing or is about to commit an offense in his presence; (b) who is reasonably believed to have committed an offense which has been actually committed; or (c) who is a prisoner who has escaped from confinement while serving a final judgment or from temporary detention during the pendency of his case or while being transferred from one confinement to another (Sec. 6, Rule 113, Revised Rules of Court). 12. ID.; ID.; ID.; ID.; CASE AT BAR. Where the members of the crew of fishing vessels were caught in flagrante illegally fishing with dynamite and without the requisite license, their apprehension without a warrant of arrest while committing a crime was lawful. Consequently, the seizure of the vessel, its equipment and dynamites therein was equally valid as an incident to a lawful arrest. 13. COMPROMISE AGREEMENT; COMPROMISE DOES NOT COVER INSTANT CASE. The alleged compromise approved by the Secretary of Agriculture and Natural Resources cannot be invoked by the respondents because the same referred to about thirty (30) violations of the Fisheries Law committed by the private respondent from March 28, 1963 to March 11, 1964. The violation by the two vessels of private respondent, by reason of which these were apprehended and detained by the Philippine Navy upon request of the Commissioner of Fisheries, were committed on August 5 or 6, 1965. 14. ID.; WHEN THE SAME MAY BE AVAILED OF. The power to compromise would exist only before a criminal prosecution is instituted; otherwise the Department Secretary or any of his sub- alterns can render criminal prosecutions for violation of the fisheries law a mere mockery. Section 80 (j) of Act No. 4003, as amended, precludes such a compromise the moment the Fisheries Commissioner decides to prosecute the criminal action in accordance with Section 76 and 78 of the other penal provisions of the fisheries law. 15. WORDS AND PHRASES; "VESSEL", CONSTRUED. The two vessels in the case at bar fall under the term "vessel" used in Secs. 17, 76 and 78, as well as the term utilized in the second paragraph of Section 76 of the Fisheries Act. They can also fall under the term "fishing equipment" employed in Section 4 of Republic Act 3512; because a fishing equipment is never complete and cannot be effectively used in offshore or deep sea fishing without the fishing boat or fishing vessel itself. And these two vessels of private respondent certainly come under the term "fishing vessels" employed in paragraph 5 of Section 4 of the same Republic Act 3512 creating the fisheries Commission. The word "boat" in its ordinary sense, means any water craft. The fishing boats in the instant case are likewise vessels within the meaning of the term "vessel" used in Section 903 and 2210 of the Tariff and Customs Code. D E C I S I O N MAKASIAR, J p: A petition for certiorari and prohibition with preliminary injunction to restrain respondent Judge from enforcing his order dated October 18, 1965, and the writ of preliminary mandatory injunction thereunder issued. On April 3, 1964, respondent company filed with the Court of First Instance of Manila a civil case docketed as No. 56701 against petitioner Fisheries Commissioner Arsenio N. Roldan, Jr., for the recovery of fishing vessel Tony Lex VI (one of two fishing boats in question) which had been seized and impounded by petitioner Fisheries Commissioner through the Philippine Navy. On April 10, 1964, respondent company prayed for a writ of preliminary mandatory injunction with respondent court, but said prayer was, however, denied. On April 28, 1964, the Court of First Instance of Manila set aside its order of April 10, 1964 and granted respondent company's motion for reconsideration praying for preliminary mandatory injunction. Thus, respondent company took possession of the vessel Tony Lex VI from herein petitioners by virtue of the above said writ. On December 10, 1964, the Court of First Instance of Manila dismissed Civil Case No. 56701 for failure of therein petitioner (respondent company herein) to prosecute as well as for failure of therein defendants (petitioners herein) to appear on the scheduled date of hearing. The vessel, Tony Lex VI or Srta. Winnie however, remained in the possession of respondent company. On July 20, 1965, petitioner Fisheries Commissioner requested the Philippine Navy to apprehend vessels Tony Lex VI and Tony Lex III, also respectively called Srta. Winnie and Srta. Agnes, for alleged violations of some provisions of the Fisheries Act and the rules and regulations promulgated thereunder. On August 5 or 6, 1965, the two fishing boats were actually seized for illegal fishing with dynamite. Fish caught with dynamite and sticks of dynamite were then found aboard the two vessels. On August 18, 1965, the Fisheries Commissioner requested the Palawan Provincial Fiscal to file criminal charges against the crew members of the fishing vessels. On September 30, 1965, there were filed in the Court of First Instance of Palawan a couple of informations, one against the crew members of Tony Lex III, and another against the crew members of Tony Lex VI both for violations of Act No. 4003, as amended by Commonwealth Acts Nos. 462, 659 and 1088, i.e., for illegal fishing with the use of dynamite. On the same day, the Fiscal filed an ex parte motion to hold the boats in custody as instruments and therefore evidence of the crime (p. 54, rec.), and cabled the Fisheries Commissioner to detain the vessels (p. 56, rec.) On October 2 and 4, likewise, the Court of First Instance of Palawan ordered the Philippine Navy to take the boats in custody. On October 2, 1965, respondent company filed a complaint with application for preliminary mandatory injunction, docketed as Civil Case No. 62799 with the Court of First Instance of Manila against herein petitioners. Among others, it was alleged that at the time of the seizure of the fishing boats in issue, the same were engaged in legitimate fishing operations off the coast of Palawan; that by virtue of the offer of compromise dated September 13, 1965 by respondent company to the Secretary of Agriculture and Natural Resources, the numerous violations of the Fishery Laws, if any, by the crew members of the vessels were settled. On October 9, 1965, petitioners, represented by the Solicitor General, opposed the above-mentioned complaint, alleging among others, that: (1) the issuance of the writ would disrupt the status quo of the parties and would render nugatory any decision of the respondent court favorable to the defendant; (2) that the vessels, being instruments of a crime in criminal cases Nos. 3416 and 3417 filed with the Court of First Instance of Palawan, the release of the vessels sans the corresponding order from the above-mentioned court would deprive the same of its authority to dispose of the vessels in the criminal cases and the Provincial Fiscal would not be able to utilize said vessels as evidence in the prosecution of said cases; (3) that as petitioners herein were in possession of one of the vessels in point, they cannot now be deprived of the legal custody thereof by reason of the dismissal of Civil Case No. 56701; (4) that petitioner Fisheries Commissioner has the power to seize and detain the vessels pursuant to Section 5 of Republic Act No 3215 in relation to Sections 903 and 2210 of the Revised Tariff and Customs Code: (5) that respondents herein have not exhausted administrative remedies before coming to court; (6) that the compromise agreement approved by the Secretary of Agriculture and Natural Resources and indorsed to the Fisheries Commissioner is never a bar to the prosecution of the crime perpetrated by the crew members of the vessels belonging to respondent company. And again, on October 15, 1965, herein petitioners filed their memorandum praying for the denial of the application for preliminary mandatory injunction. On the same day, October 15, 1965, herein petitioners filed an urgent motion to submit additional documentary evidence. On October 18, 1965, herein petitioners, as defendants in said Civil Case No. 62799, filed their answer to the complaint with affirmative defenses, reiterating the grounds in their opposition to the issuance of a writ of preliminary mandatory injunction and adding that herein private respondent admitted committing the last violation when it offered in its letter dated September 21, 1965 to the Acting Commissioner of Fisheries, to compromise said last violation (Exh. 12, pp. 60-61, rec.) On said day, October 18, 1965, the respondent Judge issued the challenged order granting the issuance of the writ of preliminary mandatory injunction and issued the preliminary writ upon the filing by private respondent of a bond of P5,000.00 for the release of the two vessels (pp. 95-102, rec.) On October 19, 1965, herein petitioners filed a motion for reconsideration of the order issuing the preliminary writ on October 18, 1965 on the ground, among others, that on October 18, 1965 the Philippine Navy received from the Palawan Court of First Instance two orders dated October 2 and 4, 1965 requiring the Philippine Navy to hold the fishing boats in custody and directing that the said vessels should not be released until further orders from the Court, and that the bond of P5,000.00 is grossly insufficient to cover the Government's losses in case the two vessels, which are worth P495,000.00, are placed beyond the reach of the Government, thus frustrating their forfeiture as instruments of the crime (pp. 103-109, rec.) On November 23, 1965, respondent Judge denied the said motion for reconsideration (p. 110, rec.) WE rule that the respondent Judge of the Manila Court of First Instance acted without jurisdiction and with grave abuse of discretion when he issued on October 18, 1965 the order directing the issuance of a writ of preliminary mandatory injunction and when he refused to reconsider the same. I When the respondent Judge issued the challenged order on October 18, 1965 and the writ of preliminary mandatory injunction pursuant thereto, the fishing vessels were already under the jurisdiction of the Court of First Instance of Palawan by virtue of its orders of October 2 and 4, 1965, upon motion of the Provincial Fiscal (pp. 54, 55, rec.), directing the Philippine Navy to detain (pp. 108, 109, rec.) said vessels, which are subject to forfeiture as instruments of the crime, to be utilized as evidence in Criminal Cases Nos. 3416 and 3417 for illegal fishing pending in said court (pp. 54-55, rec.). The said vessels were seized while engaging in prohibited fishing within the territorial waters of Palawan (pp. 45, 48,-53, rec.) and hence within the jurisdiction of the Court of First Instance of Palawan, in obedience to the rule that "the place where a criminal offense was committed not only determines the venue of the action but is an essential element of jurisdiction" (Lopez vs. Paras, L-25795, Oct. 29, 1966, 18 SCRA 616, 619). The jurisdiction over the vessels acquired by the Palawan Court of First Instance cannot be interfered with by another Court of First Instance. The orders of October 2 and 4, 1965 by the Palawan Court of First Instance expressly direct the Philippine Navy "to hold in custody" the two vessels and that "same should not be released without prior order or authority from this Court" (pp. 108, 109, rec.). Only the Palawan court can order the release of the two vessels. Not even the Secretary of Agriculture and Natural Resources nor the Fisheries Commissioner can direct that the fishing boats be turned over to private respondent without risking contempt of court. The grave abuse of discretion committed by the respondent Judge was heightened by the fact that he did not reconsider his order of October 18, 1965 after he was informed by petitioners in their motion for reconsideration filed on October 19, 1965 that the Palawan Court of First Instance had already issued the two orders dated October 2 and 4, 1965 directing the Philippine Navy to hold in custody the fishing boats until further orders. It is basic that one court cannot interfere with the judgments, orders or decrees of another court of concurrent or coordinate jurisdiction having equal power to grant the relief sought by injunction; because if coordinate courts were allowed to interfere with each other's judgments, decrees or injunctions, the same would obviously lead to confusion and might seriously hinder the administration of justice (Ongsinco, etc. vs. Tan, et al., 97 Phil. 330; PNB vs. Javellana, 92 Phil. 525; Montesa vs. Manila Cordage Company, 92 Phil. 25; Hubahib vs. Insular Drug Company, 64 Phil. 119; Hacbang, et al. vs. The Leyte Auto Bus Company, et al., G.R. No. L-17907, May 30, 1963, 8 SCRA, 103, 107-109; NPC vs. Hon. Jesus de Vera, G.R. No. L-15763, Dec. 22, 1961, 3 SCRA, 646, 648; Cabigao vs. del Rosario, 44 Phil. 182; Araneta & Uy vs. Commonwealth Insurance Company, 55 OG 431; Moran, Comments on the Rules of Court, Vol. III, 1970 ed., p. 64). As early as October 2 and 4, 1965, the two boats were already in custodia legis under the sole control of the Palawan Court of First Instance. The Manila Court of First Instance cannot interfere with and change that possession (Hacbang vs. Leyte Bus Co., Inc., supra; NPC vs. Hon. Jesus de Vera, supra). It is immaterial that the vessels were then in the Philippine Navy basin in Manila; for the same in no way impugns the jurisdiction already vested in the Palawan court, which has custody thereof through the Philippine Navy. This is analogous to the situation in Colmenares versus Villar (L-27124, May 29, 1970, 33 SCRA 186, 188-9), wherein We ruled "where the illegal possession of firearms was committed in the town where the Court sits, the fact that the firearms were confiscated from the accused in another town does not affect the jurisdiction of the Court" (pp. 186, 189). It is likewise of no moment that the herein respondents were not notified by the herein petitioners of the seizure of the questioned vessels by the Philippine Navy, because such previous notice is not required by law. II The dismissal on December 10, 1964 of the first Civil Case No. 56701 by the Court of First Instance of Manila had the necessary effect of automatically dissolving the writ of preliminary mandatory injunction issued therein on April 28, 1964, directing the return of fishing vessel Tony Lex VI (pp. 156-157, rec.). Such a preliminary writ, like any other interlocutory order, cannot survive the main case of which it was but an incident; because "an ancillary writ of preliminary injunction loses its force and effect after the dismissal of the main petition" (National Sugar Workers' Union, etc., vs. La Carlota Sugar Central, et al., L-23569, May 25, 1972, 45 SCRA 104, 109; Lazaro vs. Mariano, 59 Phil. 627, 631; Saavedra vs. Ibaez, 56 Phil. 33, 37; Hi Caiji vs. Phil. Sugar Estate and Development Company, 50 Phil. 592, 594). Moreover, the writ of preliminary injunction issued on April 28, 1964 in Civil Case No. 56701 was directed against the detention of the vessel Tony Lex VI for violations committed prior to August 5, 1965, and therefore cannot and does not extend to the seizure and detention of said vessel for violations on August 5 or 6, 1965, which violations were not and could not possibly be the subject-matter of said Civil Case No. 56701 which was filed on April 3, 1964 (p. 12, rec.) III Herein petitioners can validly direct and/or effect the seizure of the vessels of private respondent for illegal fishing by the use of dynamite and without the requisite licenses. Section 4 of Republic Act No. 3512 approved on March 20, 1963 empowers the Fisheries Commissioner to carry out the provisions of the Fisheries Act, as amended, and all rules and regulations promulgated thereunder, to make searches and seizures personally or through his duly authorized representatives in accordance with the Rules of Court, of "explosives such as . . . dynamites and the like . . .; including fishery products, fishing equipment, tackle and other things that are subject to seizure under existing fishery laws"; and "to effectively implement the enforcement of existing fishery laws on illegal fishing." Paragraph 5 of Section 4 of the same Republic Act 3512 likewise transferred to and vested in the Philippine Fisheries Commission "all the powers, functions and duties heretofore exercised by the Bureau of Customs, Philippine Navy and Philippine Constabulary over fishing vessels and fishery matters . . . " Section 12 of the Fisheries Act, otherwise known as Republic Act No. 4003, as amended, prohibits fishing with dynamites or other explosives which is penalized by Section 76 thereof "by a fine of not less than P1,500.00 nor more than P5,000.00, and by imprisonment for not less than one (1) year and six (6) months nor more than five (5) years, aside from the confiscation and forfeiture of all explosives, boats, tackles, apparel, furniture, and other apparatus used in fishing in violation of said Section 12 of this Act." Section 78 of the same Fisheries Law provides that "in case of a second offense, the vessel, together with its tackle, apparel, furniture and stores shall be forfeited to the Government." The second paragraph of Section 12 also provides that "the possession and/or finding, of dynamite, blasting caps and other explosives in any fishing boat shall constitute a presumption that the said dynamite and/or blasting caps and explosives are being used for fishing purposes in violation of this Section, and that the possession or discover in any fishing boat or fish caught or killed by the use of dynamite or other explosives, under expert testimony, shall constitute a presumption that the owner, if present in the fishing boat, or the fishing crew have been fishing with dynamite or other explosives." (Italics supplied). Under Section 78 of the Fisheries Act, as amended, any person, association or corporation fishing in deep sea fishery without the corresponding license prescribed in Sections 17 to 22 Article V of the Fisheries Act or any other order or regulation deriving force from its provisions, "shall be punished for each offense by a fine of not more than P5,000.00, or imprisonment, for not more than one year, or both, in the discretion of the Court; Provided, That in case of an association or corporation, the President or manager shall be directly responsible for the acts of his employees or laborers if it is proven that the latter acted with his knowledge; otherwise the responsibility shall extend only as far as fine is concerned: Provided, further, That in the absence of a known owner of the vessel, the master, patron or person in charge of such vessel shall be responsible for any violation of this Act: and Provided, further, That in case of a second offense, the vessel together with its tackle, apparel, furniture and stores shall be forfeited to the Government" (Emphasis supplied). Under Section 13 of Executive Order No. 389 of December 23, 1950, reorganizing the Armed Forces of the Philippines, the Philippine Navy has the function, among others, "to assist the proper governmental agencies in the enforcement of laws and regulations pertaining to . . . Fishing . . . (46 OG 5905, 5911). Section 2210 of the Tariff and Customs Code, as amended by PD No. 34 of October 27, 1972, authorized any official or person exercising police authority under the provisions of the Code, to search and seize any vessel or air craft as well as any trunk, package, bag or envelope on board and to search any person on board for any breach or violation of the customs and tariff laws. When the Philippine Navy, upon request of the Fisheries Commissioner, apprehended on August 5 or 6, 1965 the fishing boats Tony Lex III and Tony Lex VI, otherwise known respectively as Srta. Agnes and Srta. Winnie, these vessels were found to be without the necessary license in violation of Section 903 of the Tariff and Customs Code and therefore subject to seizure under Section 2210 of the same Code, and illegally fishing with explosives and without fishing license required by Sections 17 and 18 of the Fisheries Law (pp. 46-47, rec.) The operation of the fishing boat Tony Lex III was suspended pursuant to the order dated January 28, 1964 issued by the Commissioner of Fisheries pending the final determination of the case against it for illegal fishing with explosives on January 21, 1964 (p. 34, rec.) and remained suspended until its apprehension on August 5 or 6, 1965 (p. 46, rec.) For illegal fishing with explosives on March 23, 1963, the renewal of the fishing boat license of Tony Lex VI was suspended for one year from the time said boat was moored at Pier 14 at North Harbor, Manila, without prejudice to the institution of a criminal case against its owner and/or operator, pursuant to the order dated May 19, 1964 issued by the Commissioner of Fisheries (pp. 35-36, rec.), the motion for reconsideration of which order was denied by the Commissioner of Fisheries in an order dated August 17, 1964 (pp. 41-42, rec.) For illegal fishing with dynamite on March 28, 1963, the operation of Tony Lex VI was suspended by the Commissioner of Fisheries in an order dated April 1, 1963 (p. 62, rec.) For illegal fishing again with explosives on April 25, 1963, the fishing boat Tony Lex VI together with its tackle, apparel, furniture and all other apparatus used in fishing was ordered confiscated and forfeited in favor of the Government and a fine in the amount of P5,000.00 was imposed on its owners-operators, without prejudice to the filing of the necessary criminal action, pursuant to the order of June 2, 1964 of the Commissioner of Fisheries (pp. 37-38, rec.) Again, for committing the same violation on June 19, 1963, a fine in the amount of P5,000.00 was imposed on the owners-operators of fishing boat Tony Lex VI pursuant to the order of June 4, 1964 issued by the Commissioner of Fisheries (pp. 39-40, rec.) It appears, therefore, that since January 28,1964, the fishing boat Tony Lex III was suspended from operating and was ordered moored at Pier 14, North Harbor, Manila (pp. 34, 46-47, rec.); and that the fishing vessel Tony Lex VI was suspended for one year from May 24,1964 and was actually ordered forfeited to the Government pursuant to the order of June 2, 1964 for repeated violations of Section 12 of the Fisheries Act (pp. 37-38, rec.). As a matter of fact, when apprehended on August 5 or 6, 1965, both vessels were found to be without any license or permit for coastwise trade or for fishing and unlawfully fishing with explosives, for which reason their owners and crew were accordingly indicted by the Provincial Fiscal of Palawan for illegal fishing with dynamite and without the requisite license (pp. 48-53, rec.) As heretofore intimated, the two fishing boats were apprehended on numerous occasions for fishing with dynamite from March 28, 1963 to March 11, 1964, which violations private respondent, as owner- operator, sought to compromise by offering to pay a fine of P21,000.00 for all said prior violations. Such previous violations of Sections 12, 17 and 18 of the Fisheries Act committed by the two fishing boats, Tony Lex III and Tony Lex VI, from March 28, 1963 until August 5 or 6, 1965, rendered the said vessels subject to forfeiture under Sections 76 and 78 of the Fisheries Act, as amended. Search and seizure without search warrant of vessels and air crafts for violations of the customs laws have been the traditional exception to the constitutional requirement of a search warrant, because the vessel can be quickly moved out of the locality or jurisdiction in which the search warrant must be sought before such warrant could be secured; hence it is not practicable to require a search warrant before such search or seizure can be constitutionally effected (Papa vs. Mago, L- 27360, Feb. 28, 1968, 22 SCRA 857, 871-74; Magoncia vs. Palacio, 80 Phil. 770, 774; Carroll vs. U.S. 267, pp. 132, 149, 158; Justice Fernando, The Bill of Rights, 1972 ed., p. 225; Gonzales, Philippine Constitutional Law, 1966 ed., p. 300). The same exception should apply to seizures of fishing vessels breaching our fishery laws: They are usually equipped with powerful motors that enable them to elude pursuing ships of the Philippine Navy or Coast Guard. Another exception to the constitutional requirement of a search warrant for a valid search and seizure, is a search or seizure as an incident to a lawful arrest (Alvero vs. Dizon, 76 Phil. 637; Justice Fernando, The Bill of Rights, 1972 ed., p. 224). Under our Rules of Court, a police officer or a private individual may, without a warrant, arrest a person (a) who has committed, is actually committing or is about to commit an offense in his presence; (b) who is reasonably believed to have committed an offense which has been actually committed; or (c) who is a prisoner who has escaped from confinement while serving a final judgment or from temporary detention during the pendency of his ease or while being transferred from one confinement to another (Sec. 6, Rule 113, Revised Rules of Court). In the case at bar, the members of the crew of the two vessels were caught in flagrante illegally fishing with dynamite and without the requisite license. Thus their apprehension without a warrant of arrest while committing a crime is lawful. Consequently, the seizure of the vessel, its equipment and dynamites therein was equally valid as an incident to a lawful arrest. The alleged compromise approved by the Secretary of Agriculture and Natural Resources on September 13, 1965 (pp. 63-64, 158-159, rec.) cannot be invoked by the respondents because the said compromise referred to about thirty violations of the fisheries law committed by the private respondent from March 28, 1963 to March 11, 1964. The violations by the two vessels of private respondent by reason of which these vessels were apprehended and detained by the Philippine Navy upon request of the Commissioner of Fisheries, were committed on August 5 or 6, 1965. Moreover, the power to compromise would exist only before a criminal prosecution is instituted; otherwise the Department Secretary or any of his sub-alterns can render criminal prosecutions for violations of the fisheries law a mere mockery. It is not in the public interest nor is it good policy to sustain the viewpoint that the Department Secretary can compromise criminal cases involving public, not private, offenses after the indictment had been instituted in court. The fishing vessels together with all their equipment and the dynamites found therein are not only evidence of the crime of illegal fishing but also subject to forfeiture in favor of the Government as instruments of the crime (Art. 45, Revised Penal Code, Sec. 78, Act No. 4003, as amended). Section 80(j) of Act No. 4003, as amended, precludes such a compromise the moment the Fisheries Commissioner decides to prosecute the criminal action in accordance with Sections 76 and 78 of the other penal provisions of the fisheries law. Furthermore, any compromise shall be upon the recommendation of the Fisheries Commission (Section 80[i], Act No. 4003), which did not recommend such a compromise for the violation on August 5 or 6, 1965 of Section 12 in relation to Sections 76 and 78 of Act No. 4003, as amended. On the contrary, the Fisheries Commissioner requested the Provincial Fiscal to institute the criminal cases (pp. 43- 45, rec.) and the Provincial Fiscal filed the corresponding informations docketed as Criminal Cases Nos. 3416 and 3417 on September '30,1965 against the owners and the members of the crew of the vessels (pp. 48-53, rec.) It should be noted that in the first indorsement dated September 13, 1965 of the Secretary of Agriculture and Natural Resources approving the compromise fine of P21,000.00 for the various violations committed previous to August 5 or 6, 1965 (pp. 34-42, 47, 58-64, 149-155, 158-159, rec.), the Department Secretary "believes that the offer made by the company was an implied admission of violations of said provisions of the Fisheries Law and regulations, . . ." (pp. 63, 158, rec.). The said approval was granted after the private respondent filed a motion for reconsideration of the indorsement dated March 5, 1965 of the Secretary of Agriculture and Natural Resources disapproving the offer by private respondent to pay the fine by way of compromise. There can be no dispute that the term fishing boat employed in the second paragraph of Section 12 of the Fisheries Act applies to the vessels Tony Lex III and Tony Lex VI. Even private respondent refers to said fishing boats as fishing vessels "engaged in fishing operations" or "in commercial fishing" in paragraph IV of its complaint in Civil Case No. 62799 (p. 13, rec.), as well as in its various communications to the Fisheries Commissioner (pp. 60-61, 65, 82, rec.). The two fishing vessels Tony Lex III and Tony Lex VI likewise fall under the term vessel used in Sections 17, 76 and 78, as well as the term boats utilized in the second paragraph of Section 76 of the Fisheries Act. They can also fall under the term fishing equipment employed in Section 4 of Republic Act No. 3512: because a fishing equipment is never complete and cannot be effectively used in off-shore or deep-sea fishing without the fishing boat or fishing vessel itself. And these two vessels of private respondent certainly come under the term fishing vessels employed in paragraph 5 of Section 4 of the same Republic Act 3512 creating the Fisheries Commission. Hence, no useful purpose can be served in trying to distinguish between boat and vessel with reference to Tony Lex III and Tony Lex VI. As a matter of fact, the accepted definition of vessel includes "every description of water craft, large or small, used or capable of being used as a means of transportation on water" (Cope versus Vallete, etc., 199 U.S. 625; U.S. vs. Holmes, 164 Fed. 884; Charles Barnes Co. vs. One Dredge Boat, 169 Fed. 895, and Yu Con vs. Ipil, 11 Phil. 780). The word boat it its ordinary sense, means any water craft (Monongahela River Construction, etc. vs. Hardsaw, 77 NE 363, 365). The fishing boats Tony Lex III and Tony Lex VI are likewise vessels within the meaning of the term vessel used in Sections 903 and 2210 of the Tariff and Customs Code. WHEREFORE, THE PETITION IS HEREBY GRANTED AND THE ORDER OF RESPONDENT JUDGE DATED OCTOBER 18, 1965, THE WRIT OF PRELIMINARY MANDATORY INJUNCTION ISSUED THEREUNDER AND THE ORDER DATED NOVEMBER 23, 1965, ARE HEREBY SET ASIDE AS NULL AND VOID, WITH COSTS AGAINST PRIVATE RESPONDENT. Castro (Chairman), Esguerra, Muoz Palma and Martin, JJ ., concur. Teehankee, J ., took no part. SECOND DIVISION [G.R. Nos. 119772-73. February 7, 1997.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NIGEL RICHARD GATWARD, and U AUNG WIN, accused, NIGEL RICHARD GATWARD, accused-appellant. The Solicitor General for plaintiff-appellee. Fernando P. Perito & Associates for accused-appellant. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; WARRANTLESS SEARCH ADMISSIBLE WHEN THE ACCUSED AGREED TO THE INSPECTION OF HIS PERSONAL LUGGAGE IN ACCORDANCE WITH CUSTOMS RULES AND REGULATIONS. The trial court was also correct in rejecting the challenge to the admissibility in evidence of the heroin retrieved from the bag of appellant. While no search warrant had been obtained for that purpose, when appellant checked in his bag as his personal luggage as a passenger of KLM Flight No. 806 he thereby agreed to the inspection thereof in accordance with customs rules and regulations, an international practice of strict observance, and waived any objection to a warrantless search. His subsequent arrest, although likewise without a warrant, was justified since it was effected upon the discovery and recovery of the heroin in his bag, or in flagrante delicto. 2. ID.; CRIMINAL PROCEDURE; APPEAL; WITHDRAWAL THEREOF; WHEN ALLOWED. The basic rule is that, in appeals taken from the Regional Trial Court to either the Court of Appeals or the Supreme Court, the same may be withdrawn and allowed to be retracted by the trial court before the records of the case are forwarded to the appellate court (Section 12, in relation to Section 8, Rule 122, Rules of Court). Once the records are brought to the appellate court, only the latter may act on the motion for withdrawal of appeal. In the Supreme Court, the discontinuance of appeals before the filing of the appellee's brief is generally permitted. Where the death penalty is imposed, the review shall proceed notwithstanding withdrawal of the appeal as the review is automatic and this the Court can do without the benefit of briefs or arguments filed by the appellant. 3. ID.; ID.; ID.; ID.; WHEN DENIAL OF THE MOTION DEEMED JUSTIFIED; CASE AT BAR. In the case at bar, however, the denial of the motion to withdraw his appeal by herein appellant. is not only justified but is necessary since the trial court had imposed a penalty based on an erroneous interpretation of the governing law thereon. Thus, in People vs. Roque, G.R. No. 53470, June 26, 1981, 105 SCRA 117, the Court denied the motion of the accused to withdraw his appeal, to enable it to correct the wrongful imposition by the trial court of the penalty of "reclusion temporal to reclusion perpetua" for the crime of simple rape, in clear derogation of the provisions of Article 335 of the Revised Penal Code and the Indeterminate Sentence Law. Similarly, in another case, the motion to withdraw his appeal by the accused, whose guilt for the crime of murder was undeniable and for which he should suffer the medium period of the imposable penalty which is reclusion perpetua, was not allowed: otherwise, to permit him to recall the appeal would enable him to suffer a lesser indeterminate sentence erroneously decreed by the trial court which imposed the minimum of the penalty for murder, that is, reclusion temporal in its maximum period. In the case at bar, the same legal obstacle constrained the Court to deny appellant's motion to withdraw his appeal. The trial court had, by considering reclusion perpetua as a divisible penalty, imposed an unauthorized penalty on both accused which would remain uncorrected if the appeal had been allowed to be withdrawn. In fact, it would stamp a nihil obstantium on a penalty that in law does not exist and which error, initially committed by this Court in another case on which the trial court relied, had already been set aright by this Court. 4. CRIMINAL LAW; DANGEROUS DRUGS ACT, AS AMENDED BY REPUBLIC ACT NO. 7569; IMPOSABLE PENALTY FOR VIOLATION THEREOF. As amended by Republic Act No. 7659, the respective penalties imposable under Sections 3 and 4 of the Dangerous Drugs Act, in relation to Section 20 thereof, would range from reclusion perpetua to death and a fine of P500,000.00 to P10,000,000.00 if the quantity of the illegal drug involved, which is heroin in this case, should be 40 grams or more. In the same amendatory law, the penalty of reclusion perpetua is now accorded a "defined duration" ranging from twenty (20) years and one (1) day to forty (40) years, through the amendment introduced by it to Article 27 of the Revised Penal Code. 5. ID.; PENALTY; RECLUSION PERPETUA; REMAINS TO BE AN INDIVISIBLE PENALTY. The Court en banc realized the misconception, reversed its earlier pronouncement, and has since reiterated its amended ruling in three succeeding appellate litigations. The Court, this time, held that in spite of the amendment putting the duration of reclusion perpetua at 20 years and 1 day to 40 years, it should remain as an indivisible penalty since there was never any intent on the part of Congress to reclassify it into a divisible penalty. This is evident from the undisputed fact that neither Article 63 nor Article 76 of the Code had been correspondingly altered, to wit: Verily, if reclusion perpetua was reclassified as a divisible penalty, then Article 63 of the Revised Penal Code would lose its reason and basis for existence. To illustrate, the first paragraph of Section 20 of the amended R.A. No. 6425 provides for the penalty of reclusion perpetua to death whenever the dangerous drugs involved are of any of the quantities stated therein. If Article 63 of the Code were no longer applicable because reclusion perpetua is supposed to be a divisible penalty then there would be no statutory rules for determining when either reclusion perpetua or death should be the imposable penalty. In fine, there would be no occasion for imposing reclusion perpetua as the penalty in drug cases, regardless of the attendant modifying circumstances. This problem revolving around the non-applicability of the rules in Article 63 assumes serious propositions since it does not involve only drug cases, as aforesaid. Under the amendatory sections of R.A. No. 7659, the penalty of reclusion perpetua to death is also imposed on treason by a Filipino (Section 2), qualified piracy (Section 3), parricide (Section 5), murder (Section 6), kidnapping and serious illegal detention (Section 8), robbery with homicide (Section 9), destructive arson (Section 10), rape committed under certain circumstances (Section 11), and plunder (Section 12). 6. ID.; ID.; ID.; MINIMUM AND MAXIMUM RANGES THEREOF CONSTRUED. The Court adverted to its holding in People v. Reyes, G.R. Nos. 101127-31, August 7, 1992, 212 SCRA 402, that while the original Article 27 of the Revised Penal Code provided for the minimum and the maximum ranges of all the penalties therein, from arresto menor to reclusion temporal but with the exceptions of bond to keep the peace, there was no parallel specification of either the minimum or the maximum range of reclusion perpetua. Said article had only provided that a person sentenced to suffer any of the perpetual penalties shall, as a general rule, be extended pardon after service thereof for 30 years. Likewise, in laying down the procedure on successive service of sentence and the application of the three-fold rule, the duration of perpetual penalties is computed at 30 years under Article 70 of the Code. Furthermore, since in the scales of penalties provided in the Code, specifically those in Articles 25, 70 and 71, reclusion perpetua is the penalty immediately higher than reclusion perpetua, then its minimum range should by necessary implication start at 20 years and 1 day while the maximum thereunder could be co-extensive with the rest of the natural life of the offender. However, Article 70 provides that the maximum period in regard to service of the sentence shall not exceed 40 years. 7. REMEDIAL LAW; CRIMINAL PROCEDURE; APPEAL; WHEN MADE BY ONE ACCUSED SHALL NOT AFFECT THOSE WHO DID NOT APPEAL; EXCEPTION. Section 11(a) of Rule 122 of the Rules of Court provides that an appeal taken by one accused shall not affect those who did not appeal except insofar as the judgment of the appellate court is favorable and applicable to the latter. 8. CRIMINAL LAW; PENALTY; CORRECTION THEREOF; WHEN PERMISSIBLE; CASE AT BAR. The penalties which consisted of aliquot one-third portions of an indivisible penalty are self-contradictory in terms and unknown in penal law. Without intending to sound sardonic or facetious, it was akin to imposing the indivisible penalties of public censure, or perpetual absolute or special disqualification, or death in their minimum or maximum periods. This was not a case of a court rendering an erroneous judgment by inflicting a penalty higher or lower than the one imposable under the law but with both penalties being legally recognized and authorized as valid punishments. An erroneous judgment, as thus understood, is a valid judgment. But a judgment which ordains a penalty which does not exist in the catalogue of penalties is necessarily void, since the error goes into the very essence of the penalty and does not merely arise from the misapplication thereof. Corollarily, such a judgment can never become final and executory. Nor can it be said that, despite the failure of the accused to appeal, his case was reopened in order that a higher penalty may be imposed on him. There is here no reopening of the case, as in fact the judgment is being affirmed but with a correction of the very substance of the penalty to make it conformable to law, pursuant to a duty and power inherent in this Court. The penalty has not been changed since what was decreed by the trial court and is now being likewise affirmed by this Court is the same penalty of reclusion perpetua which unfortunately, was imposed by the lower court in an elemental form which is non-existent in and not authorized by law. Just as the penalty has not been reduced in order to be favorable to the accused, neither has it been increased so as to be prejudicial to him. D E C I S I O N REGALADO, J p: The accession into our statute books on December 31, 1993 of Republic Act No. 7659, 1 which authorized the re-imposition of the death penalty and amended certain provisions of the Revised Penal Code and the Dangerous Drugs Act of 1972, raised the level of expectations in the drive against criminality. As was to be expected, however, some innovations therein needed the intervention of this Court for a judicial interpretation of amendments introduced to the dangerous drugs law. 2 The same spin-off of novelty, this time by the new provision fixing the duration of reclusion perpetua which theretofore had not been spelled out with specificity in the Revised Penal Code, produced some conflicting constructions, more specifically on whether such penalty is divisible or indivisible in nature. That is actually the major issue in these cases, the factual scenario and the culpability of both accused having been relegated to secondary importance for lack of any controversial features. The antecedents being undisputed, and with a careful review and assessment of the records of this case having, sustained the same, we reproduce hereunder the pertinent parts of the decision of the trial court jointly deciding the criminal cases separately filed against each of the accused. Although only one of them, Nigel Richard Gatward, has appealed his conviction to us, for reasons hereinafter explained we shall likewise include the disposition by the court a quo of the case against U Aung Win. 1. The lower court stated the cases against the accused, the proceedings therein and its findings thereon, as follows: In Criminal Case No. 94-6268, the accused is charged with violating Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of 1972, allegedly in this manner: "That on or about the 31st (sic) day of August 1994, in the vicinity of the Ninoy Aquino International Airport, Pasay City, . . ., the above- named accused not being authorized by law, did then and there wilfully, unlawfully and feloniously transport heroin (2605.70 grams and 2632.0 grams) contained in separate carton envelopes with a total weight of 5237.70 grams which is legally considered as a prohibited drug." (Information dated Sept. 14, 1994) In Criminal Case No. 94-6269, the accused is indicted for transgressing Section 3 of the Dangerous Drugs Act of 1972, purportedly in this way: "That on or about the 30th day of August 1994, at the arrival area of Ninoy Aquino International Airport, Pasay City, . . ., the above- named accused not being authorized by law, did, then and there wilfully, unlawfully and feloniously import and bring into the Philippines 5579.80 grams of heroin which is legally considered as a prohibited drug." (Information also dated Sept. 14, 1994) Accused Nigel Richard Gatward in Criminal Case No. 94-6268 pleaded not guilty of the charge when arraigned. On the other hand, accused U Aung Win in Criminal Case No. 94- 6269, assisted by Atty. Willy Chan of the Public Attorney's Office of the Department of Justice, entered a plea of guilty of the crime charged upon his arraignment. Since it is a capital offense, the Court asked searching questions to determine the voluntariness and the full comprehension by the accused of the consequences of his plea. The accused manifested that he was entering a plea of guilty voluntarily without having been forced or intimidated into doing it. The nature of the charge was explained to him, with emphasis that the offense carries with it the penalty of reclusion perpetua to death and his pleading guilty of it might subject him to the penalty of death. The accused answered that he understood fully the charge against him and the consequences of his entering a plea of guilty. The defense counsel likewise made an assurance in open court that he had explained to U Aung Win the nature of the charge and the consequences of his pleading guilty of it. Having been thus apprised, the accused still maintained his plea of guilty of the offense charged against him. Since the offense admitted by him is punishable by death, the case was still set for trial for the reception of the evidence of the prosecution to prove the guilt and the degree of culpability of the accused and that of the defense to establish mitigating circumstances. Upon motion of the prosecution without any objection from the defense, these two cases were consolidated and tried jointly, since the offenses charged arose from a series of related incidents and the prosecution would be presenting common evidence in both. At about 3:30 in the afternoon of August 30, 1994, accused U Aung Win, a Passenger of TG Flight No. 620 of the Thai Airways which had just arrived from Bangkok, Thailand, presented his luggage, a travelling bag about 20 inches in length, 14 inches in width and 10 inches in thickness, for examination to Customs Examiner Busran Tawano, who was assigned at the Arrival Area of the Ninoy Aquino International Airport (NAIA) in Pasay City. The accused also handed to Tawano his Customs Declaration No. 128417 stating that he had no articles to declare. When Tawano was about to inspect his luggage, the accused suddenly left, proceeding towards the direction of Carousel No. 1,. the conveyor for the pieces of luggage of the passengers of Flight No. 620, as if to retrieve another baggage from it. After having inspected the luggages of the other incoming passengers, Tawano became alarmed by the failure of U Aung Win to return and suspected that the bag of the accused contained illegal articles. The Customs Examiner reported the matter to his superiors. Upon their instructions, the bag was turned over to the office of the Customs Police in the NAIA for x-ray examination where it was detected that it contained some powdery substance. When opened, the bag revealed two packages containing the substance neatly hidden in between its partitions. Representative samples of the substance were examined by Elizabeth Ayonon, a chemist of the Crime Laboratory Service of the Philippine National Police (PNP) assigned at the Arrival Area of the NAIA, and by Tita Advincula, another chemist of the PNP Crime Laboratory Service at Camp Crame, and found to be positive for heroin. The two chemists concluded that the entire substance, with a total weight of 5,579.80 grams, contained in the two packages found in the bag of U Aung Win, is heroin. A manhunt was conducted to locate U Aung Win. The personnel of the Bureau of Immigration and Deportation in the NAIA were asked to place the accused in the hold order list. The offices of the different airlines in the airport were also alerted to inform the Enforcement and Security Service and the Customs Police Division of the NAIA of any departing passenger by the name of U Aung Win who would check in at their departure counters. A team was likewise sent to the Park Hotel in Belen St., Paco, Manila which accused U Aung Win had indicated in his Customs Declaration as his address in the Philippines. But the accused was not found in that hotel. cdasia At about 7:45 p.m. of the same date of August 30, 1994, Rey Espinosa, an employee of the Lufthansa Airlines, notified the commander of the NAIA Customs Police District Command that a certain Burmese national by the name of U Aung Win appeared at the check-in counter of the airline as a departing passenger. Immediately, a team of law enforcers proceeded to the Departure Area and apprehended the accused after he had been identified through his signatures in his Customs Declaration and in his Bureau of Immigration and Deportation Arrival Card. Customs Examiner Tawano also positively identified the accused as the person who left his bag with him at the Arrival Area of the NAIA. During the investigation of U Aung Win, the agents of the Customs Police and the Narcotics Command (NARCOM) gathered the information that the accused had a contact in Bangkok and that there were other drug couriers in the Philippines. Following the lead, a team of lawmen, together with U Aung Win, was dispatched to the City Garden Hotel in Mabini St., Ermita, Manila, to enable U Aung Win to communicate with his contact in Bangkok for further instructions. While the police officers were standing by, they noticed two persons, a Caucasian and an oriental, alight from a car and enter the hotel. U Aung Win whispered to Customs Police Special Agent Edgar Quiones that he recognized the two as drug couriers whom he saw talking with his contact in Bangkok named Mau Mau. The members of the team were able to establish the identity of the two persons as accused Nigel Richard Gatward and one Zaw Win Naing, a Thailander, from the driver of the hotel service car used by the two when they arrived in the hotel. It was gathered by the law enforcers that Gatward and Zaw Win Naing were scheduled to leave for Bangkok on board a KLM flight. On August 31, 1994, operatives of the NAIA Customs Police mounted a surveillance operation at the Departure Area for Gatward and Zaw Win Naing who might be leaving the country. At about 7:45 p.m. of the same date, Special Agent Gino Minguillan of the Customs Police made a verification on the passenger manifest of KLM Royal Dutch Airlines Flight No. 806, bound for Amsterdam via Bangkok, which was scheduled to depart at about 7:55 that evening. He found the name "GATWARD/NRMR" listed therein as a passenger for Amsterdam and accordingly informed his teammates who responded immediately Customs Police Captain Juanito Algenio requested Victorio Erece, manager of the KLM airline at the NAIA, to let passenger Gatward disembark from the aircraft and to have his checked-in luggage, if any, unloaded. The manager acceded to the request to off-load Gatward but not to the unloading of his check-in bag as the plane was about to depart and to do so would unduly delay the flight. However, Erece made an assurance that the bag would be returned immediately to the Philippines on the first available flight from Bangkok. Upon his disembarkment. Gatward was invited by the police officers for investigation. At about 3:00 o'clock in the afternoon of September 1, 1994, Gatward's luggage, a travelling bag almost of the same size as that of U Aung Win, was brought back to the NAIA from Bangkok through the Thai airways, pursuant to the request of Erece which was telexed in the evening of August 31, 1994, to the KLM airline manager in Bangkok. Upon its. retrieval, the law enforcers subjected the bag to x- ray examinations in the presence of accused Gatward and some Customs officials. It was observed to contain some powdery substance. Inside the bag were two improvised envelopes made of cardboard each containing the powdery substance, together with many clothes. The envelopes were hidden inside the bag, one at the side in between a double-wall, the other inside a partition in the middle. Upon its examination by Chemists Ayonon and Advincula pursuant to the request of Police Senior Inspector John Campos of the NARCOM, the powdery substance contained in the two cardboard envelopes, with a net weight of 5,237.70 grams, was found to be heroin. 3 The court below made short shrift of the defense raised by herein appellant. Apart from the well-known rule on the respect accorded to the factual findings of trial courts because of the vantage position they occupy in that regard, we accept its discussion thereon by reason of its clear concordance with the tenets of law and logic. Again we quote: Accused Gatward denied that the bag containing the heroin was his luggage. However, that the said bag belongs to him is convincingly shown by the fact that the Serial number of the luggage tag, which is KL 206835, corresponds to the serial number of the luggage claim tag attached to the plane ticket of the accused. Moreover, as testified to by Manager Erece of the KLM airline, the luggage of Gatward located in Container No. 1020 of KLM Flight No. 806 was the same luggage which was returned to the NAIA on September 1, 1994, on board Thai Airways TG Flight No. 620, pursuant to the request made by him to the KLM manager in Bangkok. The testimony of Erece should be given weight in accordance with the presumption that the ordinary course of business has been followed. (Sec. 3(q), Rule 131, Revised Rules on Evidence). No circumstance was shown by the defense which would create a doubt as to the identity of the bag as the luggage of Gatward which he checked in for KLM Flight No. 806 for Amsterdam with stopover in Bangkok. Accused Gatward was present during the opening of his bag and the examination of its contents. He was also interviewed by some press reporters in connection with the prohibited drug found in the bag. Gatward did not then disclaim ownership of the bag and its heroin contents. His protestations now that the bag does not belong to him should be deemed as an afterthought which deserves no credence. Gatward posited that he checked in a different bag when he boarded KLM Flight No. 806, explaining that upon his apprehension by the agents of the NAIA Customs Police, he threw away the claim tag for the said luggage. He alleged that the said bag contained, among other things, not only important documents and papers pertaining to his cellular phone business in the pursuit of which he came to the Philippines, but also money amounting to 1,500.00. Gatward stressed that the bag did not have any illegal articles in it. If this were so, it was unusual for him, and certainly not in accordance with the common habit of man, to have thrown away the claim tag, thereby in effect abandoning the bag with its valuable contents. Not having been corroborated by any other evidence, and being rendered unbelievable by the circumstances accompanying it as advanced by him, the stand of accused Gatward that his luggage was different from that which contained the 5,237.70 grams of heroin in question commands outright rejection. 4 The trial court was also correct in rejecting the challenge to the admissibility in evidence of the heroin retrieved from the bag of appellant. While no search warrant had been obtained for that purpose, when appellant checked in his bag as his personal luggage as a passenger of KLM Flight No. 806 he thereby agreed to the inspection thereof in accordance with customs rules and regulations, an international practice of strict observance, and waived any objection to a warrantless search. His subsequent arrest, although likewise without a warrant, was justified since it was effected upon the discovery and recovery of the heroin in his bag, or in flagrante delicto. The conviction of accused U Aung Win in Criminal Case No. 94- 6269 is likewise unassailable. His culpability was not based only upon his plea of guilty but also upon the evidence of the prosecution, the presentation of which was required by the lower court despite said plea. The evidence thus presented convincingly proved his having imported into this country the heroin found in his luggage which he presented for customs examination upon his arrival at the international airport. There was, of course, no showing that he was authorized by law to import such dangerous drug, nor did he claim or present any authority to do so. 2. It is, however, the penalties imposed by the trial court on the two accused which this Court cannot fully accept. This is the presentation made, and the rationalization thereof, by the court below: According to Section 20 of the Dangerous Drugs Act of 1972, as amended by Republic Act No. 7659, the penalties for the offenses under Sections 3 and 4 of the said Act shall be applied if the dangerous drugs involved, with reference to heroin, is 40 grams or more. Since the heroin subject of each of these two cases exceeds 40 grams, it follows that the penalty which may be imposed on each accused shall range from reclusion perpetua to death. To fix the proper penalty, it becomes necessary to determine whether any mitigating or aggravating circumstance had attended the commission of the offenses charged against the accused. With respect to Gatward, no aggravating or mitigating circumstance was shown which might affect his criminal liability. Relative to U Aung Win, no aggravating circumstance was likewise established by the prosecution. However, the voluntary plea of guilty of the said accused, which was made upon his arraignment and therefore before the presentation of the evidence of the prosecution, should be appreciated as a mitigating circumstance. Under Article 63 of the Revised Penal Code, which prescribes the rules for the application of indivisible penalties, in all cases in which the law prescribes a penalty composed of two indivisible penalties, the lesser penalty shall be applied if neither mitigating nor aggravating circumstances are present in the commission of the crime, or if the act is attended by a mitigating circumstance and there is no aggravating circumstance. However, this rule may no longer be followed in these cases, although the penalty prescribed by law is reclusion perpetua to death, since reclusion perpetua, which was an indivisible penalty before, is now a divisible penalty with a duration from 20 years and one (1) day to 40 years, in accordance with Article 27 of the Revised Penal Code, as amended by Republic Act No. 7659. Consequently, the penalty of "reclusion perpetua to death" should at present be deemed to fall within the purview of the "penalty prescribed" which "does not have one of the forms specially provided for" in the Revised Penal Code, the periods of which "shall be distributed," applying by analogy the prescribed rules, in line with Article 77 of the Revised Penal Code. Pursuant to this principle, the penalty of "reclusion perpetua to death" shall have the following periods: Death, as the maximum; thirty (30) years and one (1) day to forty (40) years, as the medium; and twenty (20) years and one (1) day to thirty (30) years, as the minimum. As there is no mitigating or aggravating circumstance shown to have attended the commission of the offense charged against Gatward, the penalty to be imposed on him shall be within the range of the medium period. On the other hand, since U Aung Win is favored by one mitigating circumstance without any aggravating circumstance to be taken against him, the penalty which may be imposed on him shall be within the range of the minimum period. (Art. 64[1] & [2], Revised Penal Code) The accused in these cases may not enjoy the benefit of Act No. 4103, the Indeterminate Sentence Law, for under Section 2 of the said Act, its provisions shall not apply to those convicted of offenses punished with life imprisonment, which has been interpreted by the Supreme Court as similar to the penalty of reclusion perpetua as far as the non-application of the Indeterminate Sentence Law is concerned. (People vs. Simon, G.R. No. 93028, July 29, 1994) 5 On those considerations, the trial court handed down its verdict on March 3, 1995 finding both accused guilty as charged, thus: WHEREFORE, in Criminal Case No. 94-6268, accused Nigel Richard Gatward is found guilty beyond reasonable doubt of transporting, without legal authority therefor, 5,237.70 grams of heroin, a prohibited drug, in violation of Section 4 of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended by Republic Act No. 7659; and there being no aggravating or mitigating circumstance shown to have attended the commission of the crime, he is sentenced to suffer the penalty of imprisonment for thirty-five (35) years of reclusion perpetua and to pay a fine of Five Million Pesos (P5,000,000.00). In Criminal Case No. 94-6269, accused U Aung Win is found guilty beyond reasonable doubt of importing or bringing into the Philippines 5,579.80 grams of heroin, a prohibited drug, without being authorized by law to do so, contrary to Section 3 of Republic Act No. 6425, the Dangerous Drugs Act of 1972, as amended by Republic Act No. 7659; and in view of the presence of one (1) mitigating circumstance of voluntary plea of guilty, without any aggravating circumstance to offset it, he is sentenced to suffer the penalty of imprisonment for twenty-five (25) years of reclusion perpetua and to pay a fine of One Million Pesos (P1,000,000.00). The heroin involved in these cases is declared forfeited in favor of the government and ordered turned over to the Dangerous Drugs Board for proper disposal. With costs de oficio. 6 It is apropos to mention at this juncture that during the pendency of this appeal, and while awaiting the filing of appellant's brief on an extended period granted to his counsel de parte, the Court received on September 5, 1995 a mimeographed form of a so-called "Urgent Motion to Withdraw Appeal." It bears the signature of appellant but without the assistance or signature of his counsel indicated thereon. No reason whatsoever was given for the desired withdrawal and considering the ambient circumstances, the Court resolved on September 27, 1995 to deny the same for lack of merit. 7 On June 10, 1996, a letter was received from one H.M. Consul M.B. Evans of the British Embassy, Consular Section, Manila, seeking an explanation for the, aforesaid resolution and with the representation that "a convicted person who did not, on reflection, wish to continue with an appeal would not need to prove merit but could simply notify the courts of his wish to withdraw and that would be the end of the matter." To be sure, this is not the first time that members of foreign embassies and consulates feel that they have a right to intrude into our judicial affairs and processes, to the extent of imposing their views on our judiciary, seemingly oblivious or arrogantly disdainful of the fact that our courts are entitled to as much respect as those in their own countries. Such faux pas notwithstanding, a reply was sent to Mr. Evans informing him that, while there is no arrangement whereby a foreign consular officer may intervene in a judicial proceeding in this Court but out of courtesy as enjoined in Republic Act No. 6713, the unauthorized pleading of appellant was made under unacceptable circumstances as explained in said reply; that it is not mandatory on this Court to dismiss an appeal on mere motion of an appellant; that the Court does not discuss or transmit notices of judicial action except to counsel of the parties; and that, should he so desire, he could coordinate with appellant's counsel whose address was furnished therein. 8 In a resolution dated June 19, 1996, appellant's counsel was ordered to show cause why he should not be disciplinarily dealt with or held for contempt for his failure to file appellant's brief. On July 24, 1996, said counsel and the Solicitor General were required to comment on the aforestated motion of appellant, to withdraw his appeal, no brief for him having yet been filed. Under date of September 6, 1996, the Solicitor General filed his comment surprisingly to the effect that the People interposed no objection to the motion to withdraw appeal. Appellant's counsel, on the other hand, manifested on November 4, 1996 that he was willing to file the brief but he could not do so since appellant asked for time to consult his pastor who would later inform said counsel, but neither that pastor nor appellant has done so up to the present. It would then be worthwhile to restate for future referential purposes the rules in criminal cases on the withdrawal of an appeal pending in the appellate courts. The basic rule is that, in appeals taken from the Regional Trial Court to either the Court of Appeals or the Supreme Court, the same may be withdrawn and allowed to be retracted by the trial court before the records of the case are forwarded to the appellate court. 9 Once the records are brought to the appellate court, only the latter may act on the motion for withdrawal of appeal. 10 In the Supreme Court, the discontinuance of appeals before the filing of the appellee's brief is generally permitted. 11 Where the death penalty is imposed, the review shall proceed notwithstanding withdrawal of the appeal as the review, is automatic and this the Court can do without the benefit of briefs or arguments filed by the appellant. 12 In the case at bar, however, the denial of the motion to withdraw his appeal by herein appellant is not only justified but is necessary since the trial court had imposed a penalty based on an erroneous interpretation of the governing law thereon. Thus, in People vs. Roque, 13 the Court denied the motion of the accused to withdraw his appeal, to enable it to correct the wrongful imposition by the trial court of the penalty of "reclusion temporal to reclusion perpetua" for the crime of simple rape, in clear derogation of the provisions of Article 335 of the Revised Penal Code and the Indeterminate Sentence Law. Similarly, in another case, 14 the motion to withdraw his appeal by the accused, whose guilt for the crime of murder was undeniable and for which he should suffer the medium period of the imposable penalty which is reclusion perpetua, was not allowed; otherwise, to permit him to recall the appeal would enable him to suffer a lesser indeterminate sentence erroneously decreed by the trial court which imposed the minimum of the penalty for murder, that is, reclusion temporal in its maximum period. In the cases at bar, the same legal obstacle constrained the Court to deny appellant's motion to withdraw his appeal. The trial court had, by considering reclusion perpetua as a divisible penalty, imposed an unauthorized penalty on both accused which would remain uncorrected if the appeal had been allowed to be withdrawn. In fact, it would stamp a nihil obstantium on a penalty that in law does not exist and which error, initially committed by this Court in another case on which the trial court relied, had already been set aright by this Court. 3. As amended by Republic Act No. 7569, the respective penalties imposable under Sections 3 and 4 of the Dangerous Drugs Act, in relation to Section 20 thereof, would range from reclusion perpetua to death and a fine of P500,000.00 to P10,000,000.00 if the quantity of the illegal drug involved, which is heroin in this case, should be 40 grams or more. In the same amendatory law, the penalty of reclusion perpetua is now accorded a "defined duration" ranging from twenty (20) years and one (1) day to forty (40) years, through the amendment introduced by it to Article 27 of the Revised Penal Code. This led the trial court to conclude that said penalty is now divisible in nature, and that "(c)onsequently, the penalty of "reclusion perpetua to death" should at present be deemed to fall within the purview of the "penalty prescribed" which "does not have one of the forms specially provided for" in the Revised Penal Code, and the periods of which "shall be distributed" by an analogous application of the rules in Article 77 of the Code. Pursuant to its hypothesis, the penalty of "reclusion perpetua to death shall have the following periods: death, as the maximum; thirty (30) years and one (1) day to forty (40) years, as the medium; and twenty (20) years and one (1) day to thirty (30) years, as the minimum." 15 We cannot altogether blame the lower court for this impasse since this Court itself inceptively made an identical misinterpretation concerning the question on the indivisibility of reclusion perpetua as a penalty. In People vs. Lucas, 16 the Court was originally of the view that by reason of the amendment of Article 27 of the Code by Section 21 of Republic Act No. 7569, there was conferred upon said penalty a defined duration of 20 years and 1 day to 40 years; but that since there was no express intent to convert said penalty into a divisible one, there having been no corresponding amendment to Article 76, the provisions of Article 65 could be applied by analogy. The Court then declared that reclusion perpetua could be divided into three equal portions, each portion composing a period. In effect, reclusion perpetua was then to be considered as a divisible penalty. In a subsequent re-examination of and a resolution in said case on January 9, 1995, occasioned by a motion for clarification thereof, 17 the Court en banc realized the misconception, reversed its earlier pronouncement, and has since reiterated its amended ruling in three succeeding appellate litigations. 18 The Court, this time, held that in spite of the amendment putting the duration of reclusion perpetua at 20 years and 1 day to 40 years, it should remain as an indivisible penalty since there was never any intent on the part of Congress to reclassify it into a divisible penalty. This is evident from the undisputed fact that neither Article 63 nor Article 76 of the Code had been correspondingly altered, to wit: Verily, if reclusion perpetua was reclassified as a divisible penalty, then Article 63 of the Revised Penal Code would lose its reason and basis for existence. To illustrate, the first paragraph of Section 20 of the amended R.A. No. 6425 provides for the penalty of reclusion perpetua to death whenever the dangerous drugs involved are of any of the quantities stated therein. If Article 63 of the Code were no longer applicable because reclusion perpetua is supposed to be a divisible penalty, then there would be no statutory rules for determining when either reclusion perpetua or death should be the imposable penalty. In fine, there would be no occasion for imposing reclusion perpetua as the penalty in drug cases, regardless of the attendant modifying circumstances. This problem revolving around the non-applicability of the rules in Article 63 assumes serious proportions since it does not involve only drug cases, as aforesaid. Under the amendatory sections of R.A. No. 7659, the penalty of reclusion perpetua to death is also imposed on treason by a Filipino (Section 2), qualified piracy (Section 3), parricide (Section 5), murder (Section 6), kidnapping and serious illegal detention (Section 8), robbery with homicide (Section 9), destructive arson (Section 10), rape committed under certain circumstances (Section 11), and plunder ( Section 12). In the same resolution, the Court adverted to its holding in People vs. Reyes, 19 that while the original Article 27 of the Revised Penal Code provided for the minimum and the maximum ranges of all the penalties therein, from arresto menor to reclusion temporal but with the exceptions of bond to keep the peace, there was no parallel specification of either the minimum or the maximum range of reclusion perpetua. Said article had only provided that a person sentenced to suffer any of the perpetual penalties shall, as a general rule, be extended pardon after service thereof for 30 years. Likewise, in laying down the procedure on successive service of sentence and the application of the three-fold rule, the duration of perpetual penalties is computed at 30 years under Article 70 of the Code. Furthermore, since in the scales of penalties provided in the Code, specifically those in Articles 25, 70 and 71, reclusion perpetua is the penalty immediately higher than reclusion temporal, then its minimum range should by necessary implication start at 20 years and 1 day while the maximum thereunder could be co-extensive with the rest of the natural life of the offender. However, Article 70 provides that the maximum period in regard to service of the sentence shall not exceed 40 years. Thus, the maximum duration of reclusion perpetua is not and has never been 30 years which is merely the number of years which the convict must serve in order to be eligible for pardon or for the application of the three-fold rule. Under these accepted propositions, the Court ruled in the motion for clarification in the Lucas case that Republic Act No. 7659 had simply restated existing jurisprudence when it specified the duration of reclusion perpetua at 20 years and 1 day to 40 years. The error of the trial court was in imposing the penalties in these cases based on the original doctrine in Lucas which was not yet final and executory, hence open to reconsideration and reversal. The same having been timeously rectified, appellant should necessarily suffer, the entire extent of 40 years of reclusion perpetua, in line with that reconsidered dictum subsequently handed down by this Court. In passing, it may be worth asking whether or not appellant subsequently learned of the amendatory resolution of the Court under which he stood to serve up to 40 years, and that was what prompted him to move posthaste for the withdrawal of his appeal from a sentence of 35 years. cdasia 4. The case of U Aung Win ostensibly presents a more ticklish legal poser, but that is not actually so. It will be recalled that this accused was found guilty and sentenced to suffer the penalty of reclusion perpetua supposedly in its minimum period, consisting of imprisonment for 25 years, and to pay a fine of P1,000,000.00. He did not appeal, and it may be contended that what has been said about the corrected duration of the penalty of reclusion perpetua which we hold should be imposed on appellant Gatward, since reclusion perpetua is after all an indivisible penalty, should not apply to this accused. Along that theory, it may be asserted that the judgment against accused U Aung Win has already become final. It may also be argued that since Section 11(a) of Rule 122 provides that an appeal taken by one accused shall not affect those who did not appeal except insofar as the judgment of the appellate court is favorable and applicable to the latter, our present disposition of the correct duration of the penalty imposable on appellant Gatward should not affect accused U Aung Win since it would not be favorable to the latter. To use a trite and tired legal phrase, those objections are more apparent than real. At bottom, all those postulations assume that the penalties decreed in the judgment of the trial court are valid, specifically in the sense that the same actually exist in law and are authorized to be meted out as punishments. In the case of U Aung Win, and the same holds true with respect to Gatward, the penalty inflicted by the court a quo was a nullity because it was never authorized by law as a valid punishment. The penalties which consisted of aliquot one-third portions of an indivisible penalty are self-contradictory in terms and unknown in penal law. Without intending to sound sardonic or facetious, it was akin to imposing the indivisible penalties of public censure, or perpetual absolute or special disqualification, or death in their minimum or maximum periods. This was not a case of a court rendering an erroneous judgment by inflicting a penalty higher or lower than the one imposable under the law but with both penalties being legally recognized and authorized as valid punishments. An erroneous judgment, as thus understood, is a valid judgment. 20 But a judgment which ordains a penalty which does not exist in the catalogue of penalties or which is an impossible version of that in the roster of lawful penalties is necessarily void, since the error goes into the very essence of the penalty and does not merely arise from the misapplication thereof. Corollarily, such a judgment can never become final and executory. Nor can it be said that, despite the failure of the accused to appeal, his case was reopened in order that a higher penalty may be imposed on him. There is here no reopening of the case, as in fact the judgment is being affirmed but with a correction of the very substance of the penalty to make it conformable to law, pursuant to a duty and power inherent in this Court. The penalty has not been changed since what was decreed by the trial court and is now being likewise affirmed by this Court is the same penalty of reclusion perpetua which, unfortunately, was imposed by the lower court in an elemental form which is non-existent in and not authorized by law. Just as the penalty has not been reduced in order to be favorable to the accused, neither has it been increased so as to be prejudicial to him. Finally, no constitutional or legal right of this accused is violated by the imposition upon him of the corrected duration, inherent in the essence and concept, of the penalty. Otherwise, he would be serving a void sentence with an illegitimate penalty born out of a figurative liaison between judicial legislation and unequal protection of the law. He would thus be the victim of an inadvertence which could result in the nullification, not only of the judgment and the penalty meted therein, but also of the sentence he may actually have served. Far from violating any right of U Aung Win, therefore, the remedial and corrective measures interposed by this opinion protect him against the risk of another trial and review aimed at determining the correct period of imprisonment. WHEREFORE, the judgment of the court a quo, specifically with regard to the penalty imposed on accused-appellant Nigel Richard Gatward in Criminal Case No. 94-6268 and that of accused U Aung Win in Criminal Case No. 94-6269, is hereby MODIFIED In the sense that both accused are sentenced to serve the penalty of reclusion perpetua in its entire duration and full extent. In all other respects, said judgment is hereby AFFIRMED, but with costs to be assessed against both accused in all instances of these cases. SO ORDERED. Romero, Puno, Mendoza and Torres, Jr., JJ., concur. SECOND DIVISION [G.R. No. 138881. December 18, 2000.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEILA JOHNSON Y REYES, accused-appellant. The Solicitor General for plaintiff-appellee. Agoot Buensuceso & Associates for accused-appellant. SYNOPSIS Appellant, a naturalized American citizen, was charged and convicted with violation of Section 16 of Republic Act No. 6425 (Dangerous Drugs Act, as amended) for possession of five hundred eighty point two (580.2) grams of methamphetamine hydrochloride (shabu) contained in 3 plastic packs discovered by airport authorities hidden in her abdominal area. The trial court imposed the penalty of reclusion perpetua and a fine of P500,000.00. She now appealed the conviction, and assailed her search and arrest without warrant and the alleged failure of the prosecution to prove that she has no license to possess shabu. Notices, signs and public address system in public transportation facilities informing travellers that they are subject to search are reasonable and searches made pursuant thereto do not violate the constitutional proscription against unreasonable searches and seizures; that seizure of "shabu" obtained thru a valid warrantless search is admissible in evidence; and that the subsequent arrest of a person caught in flagrante delicto is likewise justified. The prosecution is not required to secure a certification that accused is not licensed to possess regulated drugs, like "shabu" in violations of R.A. 6425 (Dangerous Drugs Act, as amended) and that a fine of P50,000.00 is proper where the amount of shabu seized was 580.2 grams. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCHES AND SEIZURE; SEIZURE OF "SHABU" THROUGH A WARRANTLESS SEARCH DURING ROUTINE AIRPORT SECURITY PROCEDURE, LEGAL. The methamphetamine hydrochloride seized from her during the routine frisk at the airport was acquired legitimately pursuant to airport security procedures. The packs of methamphetamine hydrochloride having thus been obtained through a valid warrantless search, they are admissible in evidence against the accused-appellant herein. Corollarily, her subsequent arrest, although likewise without warrant, was justified since it was effected upon the discovery and recovery of "shabu" in her person in flagrante delicto. SHTaID 2. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURE; NOT VIOLATED IN ROUTINE AIRPORT PROCEDURE. Persons may lose the protection of the search and seizure clause by exposure of their persons or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to recognize as reasonable. Such recognition is implicit in airport security procedures. With increased concern over airplane hijacking and terrorism has come increased security at the nation's airports. Passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence of suspicious objects, physical searches are conducted to determine what the objects are. There is little question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacy expectations associated with airline travel. Indeed, travelers are often notified through airport public address systems, signs, and notices in their airline tickets that they are subject to search and, if any prohibited materials or substances are found, such would be subject to seizure. These announcements place passengers on notice that ordinary constitutional protections against warrantless searches and seizures do not apply to routine airport procedures. 3. REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCHES AND SEIZURE; OBJECTS. There is, however, no justification for the confiscation of accused-appellant's passport, airline ticket, luggage, and other personal effects. The pictures taken during that time are also inadmissible, as are the girdle taken from her, and her signature thereon. Rule 126, 2 of the Revised Rules of Criminal Procedure authorizes the search and seizure only of the following: "Personal property to be seized. A search warrant may be issued for the search and seizure of personal property: (a) Subject of the offense; (b) Stolen or embezzled and other proceeds or fruits of the offense; and (c) Used or intended to be used as the means of committing an offense." Accordingly, the above items seized from accused-appellant should be returned to her. 4. CRIMINAL LAW; R.A. 6425 (DANGEROUS DRUGS ACT, AS AMENDED); PROSECUTION NOT REQUIRED TO PRESENT CERTIFICATION THAT ACCUSED HAS NO LICENSE OR PERMIT TO POSSESS SHABU. As correctly pointed out by the Solicitor General, there is nothing in R.A. No. 6425 or the Dangerous Drugs Act, as amended, which requires the prosecution to present a certification that accused-appellant has no license or permit to possess shabu. Mere possession of the prohibited substance is a crime per se and the burden of proof is upon accused-appellant to show that she has a license or permit under the law to possess the prohibited drug. 5. REMEDIAL LAW; EVIDENCE; CREDIBILITY; TESTIMONIES OF LAW ENFORCERS, ABSENT ANY IMPROPER MOTIVE, ACCORDED CREDIBILITY. Credence was properly accorded to the testimonies of the prosecution witnesses, who are law enforcers. When police officers have no motive to testify falsely against the accused, courts are inclined to uphold this presumption. In this case, no evidence has been presented to suggest any improper motive on the part of the police enforcers in arresting accused-appellant. This Court accords great respect to the findings of the trial court on the matter of credibility of the witnesses in the absence of any palpable error or arbitrariness in its findings. 6. ID.; ID.; ID.; DENIAL CANNOT PREVAIL OVER POSITIVE IDENTIFICATION. It is noteworthy that, aside from the denial of accused-appellant, no other witness was presented in her behalf. Her denial cannot prevail over the positive testimonies of the prosecution witnesses. As has been held, denial as a rule is a weak form of defense, particularly when it is not substantiated by clear and convincing evidence. The defense of denial or frame-up, like alibi, has been invariably viewed by the courts with disfavor for it can just as easily be concocted and is a common and standard defense ploy in most prosecutions for violation of the Dangerous Drugs Act. AECIaD 7. CRIMINAL LAW; R.A. 6425 (DANGEROUS DRUGS ACT, AS AMENDED); P50,000.00 FINE FOR POSSESSION OF 580.2 GRAMS OF "SHABU." As regards the fine imposed by the trial court, it has been held that courts may fix any amount within the limits established by law. Considering that five hundred eighty point two (580.2) grams of shabu were confiscated from accused-appellant, the fine imposed by the trial court may properly be reduced to P50,000.00. D E C I S I O N MENDOZA, J p: This is an appeal from the decision, 1 dated May 14, 1999, of the Regional Trial Court, Branch 110, Pasay City, finding accused- appellant Leila Johnson y Reyes guilty of violation of 16 of R.A. No. 6425 (Dangerous Drugs Act), as amended by R.A. No. 7659, and sentencing her to suffer the penalty of reclusion perpetua and to pay a fine of P500,000.00 and the costs of the suit. TEcAHI The information against accused-appellant alleged: That on June 26, 1998 inside the Ninoy Aquino International Airport, and within the jurisdiction of this Honorable Court, the above-named Accused did then and there willfully, unlawfully and feloniously possess three plastic bags of methamphetamine hydrochloride, a regulated drug, each bag weighing: #1 ONE HUNDRED EIGHTY SEVEN POINT FIVE (187.5) grams; #2 ONE HUNDRED NINETY EIGHT POINT ZERO (198.0) grams; and #3 ONE HUNDRED NINETY FOUR POINT SEVEN (194.7) grams, respectively, or a total of FIVE HUNDRED EIGHTY POINT TWO (580.2) grams of methamphetamine hydrochloride. That the above-named accused does not have the corresponding license or prescription to possess or use said regulated drug. CONTRARY TO LAW. 2 Upon being arraigned, accused-appellant pleaded not guilty, 3 whereupon trial was held. The prosecution presented four witnesses, namely, NBI Forensic Chemist George de Lara, SPO4 Reynaldo Embile, duty frisker Olivia Ramirez, and SPO1 Rizalina Bernal. The defense presented accused appellant who testified in her own behalf. The facts are as follows: Accused-appellant Leila Reyes Johnson was, at the time of the incident, 58 years old, a widow, and a resident of Ocean Side, California, U.S.A. She is a former Filipino citizen who was naturalized as an American on June 16, 1968 and had since been working as a registered nurse, taking care of geriatric patients and those with Alzheimer's disease, in convalescent homes in the United States. 4 On June 16, 1998, she arrived in the Philippines to visit her son's family in Calamba, Laguna. She was due to fly back to the United States on July 26. On July 25, she checked in at the Philippine Village Hotel to avoid the traffic on the way to the Ninoy Aquino International Airport (NAIA) and checked out at 5:30 p.m. the next day, June 26, 1998. 5 At around 7:30 p.m. of that day, Olivia Ramirez was on duty as a lady frisker at Gate 16 of the NAIA departure area. Her duty was to frisk departing passengers, employees, and crew and check for weapons, bombs, prohibited drugs, contraband goods, and explosives. 6 When she frisked accused-appellant Leila Johnson, a departing passenger bound for the United Sates via Continental Airlines CS- 912, she felt something hard on the latter's abdominal area. Upon inquiry, Mrs. Johnson explained she needed to wear two panty girdles as she had just undergone an operation as a result of an ectopic pregnancy. 7 Not satisfied with the explanation, Ramirez reported the matter to her superior, SPO4 Reynaldo Embile, saying "Sir, hindi po ako naniniwalang panty lang po iyon." ("Sir, I do not believe that it is just a panty.") She was directed to take accused-appellant to the nearest women's room for inspection. Ramirez took accused-appellant to the rest room, accompanied by SPO1 Rizalina Bernal. Embile stayed outside. 8 Inside the women's room, accused-appellant was asked again by Ramirez what the hard object on her stomach was and accused- appellant gave the same answer she had previously given. Ramirez then asked her "to bring out the thing under her girdle." Accused- appellant brought out three plastic packs, which Ramirez then turned over to Embile, outside the women's room. 9 The confiscated packs, marked as Exhibits C-1, C-2 and C-3, contained a total of 580.2 grams of a substance which was fount by NBI Chemist George de Lara to be methamphetamine hydrochloride or "shabu." 10 Embile took accused-appellant and the plastic packs to the 1st Regional Aviation and Security Office (1st RASO) at the arrival area of the NAIA, where accused-appellant's passport and ticket were taken and her luggage opened. Pictures were taken and her personal belongings were itemized. 11 In her defense, accused-appellant alleged that she was standing in line at the last boarding gate when she was approached by Embile and two female officers. She claimed she was handcuffed and taken to the women's room. There, she was asked to undress and was then subjected to a body search. She insisted that nothing was found on her person. She was later taken to a room filled with boxes, garbage, and a chair. Her passport and her purse containing $850.00 and some change were taken from her, for which no receipt was issued to her. After two hours, she said, she was transferred to the office of a certain Col. Castillo. 12 After another two hours, Col. Castillo and about eight security guards carne in and threw two white packages on the table. They told her to admit that the packages were hers. But she denied knowledge and ownership of the packages. She was detained at the 1st RASO office until noon of June 28, 1999 when she was taken before a fiscal for inquest. 13 She claimed that throughout the period of her detention, from the night of June 26 until June 28, she was never allowed to talk to counsel nor was she allowed to call the U.S. Embassy or any of her relatives in the Philippines. 14 On May 14, 1999, the trial court rendered a decision, the dispositive portion of which reads: 15 WHEREFORE, judgment is hereby rendered finding the accused LEILA JOHNSON Y REYES, GUILTY beyond reasonable doubt of the offense of Violation of Section 16 of Republic Act 6425 as amended and hereby imposes on her the penalty of RECLUSION PERPETUA and condemns said accused to pay a fine of FIVE HUNDRED THOUSAND PESOS (P500,000.00) without subsidiary imprisonment in case of insolvency and to pay the costs of suit. DHECac The Methamphetamine Hydrochloride (shabu) having a total net weight of 580.2 grams (Exhibits "G", "C-2" and "C-3") are hereby confiscated in favor of the government and the Branch Clerk of Court is hereby ordered to cause the transportation thereof to the Dangerous Drugs Board for disposition in accordance with law. The accused shall be credited in full for the period of her detention at the City Jail of Pasay City during the pendency of this case provided that she agreed in writing to abide by and comply strictly with the rules and regulations of the City Jail. SO ORDERED. Accused-appellant contends that the trial court convicted her: (1) "despite failure of the prosecution in proving the negative allegation in the information"; (2) "despite failure of the prosecution in proving the quantity of methamphetamine hydrochloride"; (3) "despite violation of her constitutional rights"; and (4) "when guilt was not proven beyond reasonable doubt." 16 First. Accused-appellant claims that she was arrested and detained in gross violation of her constitutional rights. She argues that the "shabu" confiscated from her is inadmissible against her because she was forced to affix her signature on the plastic bags while she was detained at the 1st RASO office, without the assistance of counsel and without having been informed of her constitutional rights. Hence, she argues, the methamphetamine hydrochloride, or "shabu," should have been excluded from the evidence. 17 The contention has no merit. No statement, if any, was taken from accused-appellant during her detention and used in evidence against her. There is, therefore, no basis for accused-appellant's invocation of Art. III, 12(1) and (3). On the other hand, what is involved in this case is an arrest in flagrante delicto pursuant to a valid search made on her person. The trial court held: The constitutional right of the accused was not violated as she was never placed under custodial investigation but was validly arrested without warrant pursuant to the provisions of Section 5, Rule 113 of the 1985 Rules of Criminal Procedure which provides: Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) when in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) when an offense has in fact just been committed and person to be arrested has committed it; and (Italics supplied) xxx xxx xxx A custodial investigation has been defined in People. v. Ayson, 175 SCRA 230 as "the questioning initiated by law enforcement officers after a person has been taken [in] custody or otherwise deprived of his freedom in any significant way. This presupposes that he is suspected of having committed an offense and that the investigator is trying to elicit information or [a] confession from him." The circumstances surrounding the arrest of the accused above falls in either paragraph (a) or (b) of the Rule above cited, hence the allegation that she has been subjected to custodial investigation is far from being accurate. 18 The methamphetamine hydrochloride seized from her during the routine frisk at the airport was acquired legitimately pursuant to airport security procedures. STcHDC Persons may lose the protection of the search and seizure clause by exposure of their persons or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to recognize as reasonable. 19 Such recognition is implicit in airport security procedures. With increased concern over airplane hijacking and terrorism has come increased security at the nation's airports. Passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence of suspicious objects, physical searches are conducted to determine what the objects are. There is little question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacy expectations associated with airline travel. 20 Indeed, travelers are often notified through airport public address systems, signs, and notices in their airline tickets that they are subject to search and, if any prohibited materials or substances are found, such would be subject to seizure. These announcements place passengers on notice that ordinary constitutional protections against warrantless searches and seizures do not apply to routine airport procedures. The packs of methamphetamine hydrochloride having thus been obtained through a valid warrantless search, they are admissible in evidence against the accused-appellant herein. Corollarily, her subsequent arrest, although likewise without warrant, was justified since it was effected upon the discovery and recovery of "shabu" in her person in flagrante delicto. Anent her allegation that her signature on the said packs (Exhibits C- 1, C-2 and C-3 herein) had been obtained while she was in the custody of the airport authorities without the assistance of counsel, the Solicitor General correctly points out that nowhere in the records is it indicated that accused-appellant was required to affix her signature to the packs. In fact, only the signatures of Embile and Ramirez thereon, along with their testimony to that effect, were presented by the prosecution in proving its case. There is, however, no justification for the confiscation of accused- appellant's passport, airline ticket, luggage, and other personal effects. The pictures taken during that time are also inadmissible, as are the girdle taken from her, and her signature thereon. Rule 126, 2 of the Revised Rules of Criminal Procedure authorizes the search and seizure only of the following: Personal property to be seized. A search warrant may be issued for the search and seizure of personal property: (a) Subject of the offense; (b) Stolen or embezzled and other proceeds or fruits of the offense; and (c) Used or intended to be used as the means of committing an offense. Accordingly, the above items seized from accused-appellant should be returned to her. Second. Accused-appellant argues that the prosecution failed to fully ascertain the quantity of methamphetamine hydrochloride to justify the imposition of the penalty of reclusion perpetua. Section 20 of R.A. No. 6425, as amended by RA. No. 7659, states: Section 20 Application Of Penalties, Confiscation And Forfeiture Of The Proceeds or Instrument Of The Crime The penalties for offenses under Section 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A 15 and 16 of Article III of this Act, shall be applied if the dangerous drugs involved is in any of the following quantities: 1. 40 grams or more of opium; 2. 40 grams or more of morphine; 3. 200 grams or more of shabu, or methylamphetamine hydrochloride; 4. 40 grams or more of heroin; 5. 750 grams or more of indian hemp of marijuana; 6. 50 grams of marijuana resin or marijuana resin oil; 7. 40 grams or more of cocaine or cocaine hydrochloride, or 8. In case of other dangerous drugs, the quantity of which is far beyond therapeutic requirements as determined and promulgated by the Dangerous Drugs Board, after public consultation/hearings conducted for the purpose. ETDaIC Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity. Under this provision, accused-appellant therefore stands to suffer the penalty of reclusion perpetua to death for her possession of 580.2 grams of shabu. Accused-appellant attempts to distinguish between a quantitative and a qualitative examination of the substance contained in Exhibits C-1, C-2 and C-3. She argues that the examination conducted by the NBI forensic chemist was a qualitative one which merely yielded positive findings for shabu, but failed to establish its purity; hence, its exact quantity remains indeterminate and unproved. This contention is likewise without merit. The expert witness, George De Lara, stated that the tests conducted would have indicated the presence of impurities if there were any. He testified PROS. VELASCO By mixing it twice, Mr. Witness, if there are any adulterants or impurities, it will be discovered by just mixing it? WITNESS If some drugs or additives were present, it will appear in a thin layer chromatographic examination. PROS. VELASCO Did other drugs or other additives appear Mr. Witness? WITNESS In my thin layer chromatographic plate, it only appears one spot which resembles or the same as the Methamphetamine Hydrochloride sample xxx xxx xxx PROS. VELASCO So, Mr. Witness, if there are any adulterants present in the chemicals you have examined, in chemical examination, what color it will register, if any? WITNESS In sample, it contained a potassium aluminum sulfate, it will not react with the reagent, therefore it will not dissolve. In my examination, all the specimens reacted on the re-agents, sir. PROS. VELASCO And what is potassium aluminum sulfate in layman's term.? WITNESS It is only a tawas. xxx xxx xxx COURT In this particular case, did you find any aluminum sulfate or tawas in the specimen.? WITNESS None, your Honor. xxx xxx xxx ATTY. AGOOT I will cite an example, supposing ten grams of Methamphetamine Hydrochloride is mixed with 200 grams of tawas, you will submit that to qualitative examination, what will be your findings, negative or positive, Mr. Witness? WITNESS It will give a positive result for Methamphetamine Hydrochloride. ATTY. AGOOT That is qualitative examination. WITNESS And also positive for aluminum sulfate. 21 A qualitative determination relates to the identity of the material, whereas a quantitative analysis requires the determination of the percentage combination of the components of a mixture. Hence, a qualitative identification of a powder may reveal the presence of heroin and quinine, for instance, whereas a quantitative analysis may conclude the presence of 10 percent heroin and 90 percent quinine. 22 De Lara testified that he used a chromatography test to determine the contents of Exhibits C-1, C-2 and C-3. Chromatography is a means of separating and tentatively identifying the components of a mixture. It is particularly useful for analyzing the multicomponent specimens that are frequently received in a crime lab. For example, illicit drugs sold on the street may be diluted with practically any material that is at the disposal of the drug dealer to increase the quantity of the product that is made available to prospective customers. Hence, the task of identifying an illicit drug preparation would be an arduous one without the aid of chromatographic methods to first separate the mixture into its components. 23 The testimony of De Lara established not only that the tests were thorough, but also that the scientifically correct method of obtaining an accurate representative sample had been obtained. 24 At any rate, as the Solicitor-General has pointed out, if accused-appellant was not satisfied with the results, it would have been a simple matter for her to ask for an independent examination of the substance by another chemist. This she did not do. Third. Accused-appellant argues that the prosecution failed to prove the negative allegation in the information that she did not have a license to possess or use methamphetamine hydrochloride or "shabu." Art. III of Republic Act No. 6425, as amended by Republic Act No. 7659 provides: SEC. 16. Possession or Use of Regulated Drugs. The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who shall possess or use any regulated drug without the corresponding license or prescription, subject to the provisions of Section 20 hereof. ETDaIC Accused-appellant claims that possession or use of methamphetamine hydrochloride or "shabu," a regulated drug, is not unlawful unless the possessor or user does not have the required license or prescription. She points out that since the prosecution failed to present any certification that she is not authorized to possess or use regulated drugs, it therefore falls short of the quantum of proof needed to sustain a conviction. The contention has no merit. The question raised in this case is similar to that raised in United States v. Chan Toco. 25 The accused in that case was charged with smoking opium without being duly registered. He demurred to the information on the ground that it failed to allege that the use of opium had not been prescribed as a medicine by a duly licensed and practicing physician. This Court denied the motion and said: The evident interest and purpose of the statute is to prohibit and to penalize generally the smoking of opium in these Islands. But the legislator desired to withdraw from the operation of the statute a limited class of smokers who smoked under the advice and by prescription of a licensed and practicing physician . . . Hence where one is charged with a violation of the general provisions of the Opium Law, it is more logical as well as more practical and convenient, if he did in fact smoke opium under the advice of a physician, that he should set up this fact by way of defense, than that the prosecution should be called upon to prove that every smoker, charged with a violation of the law, does so without such advice or prescription. Indeed, when it is considered tit under the law any person may, in case of need and at any time, procure the advice of a physician to use opium or some of its derivatives, and that in the nature of things no public record of prescriptions of this kind is or can be required to be kept, it is manifest that it would be wholly impracticable and absurd to impose on the prosecution the burden of alleging and proving the fact that one using opium does so without the advice of a physician. To prove beyond a reasonable doubt, in a particular case, that one using opium does so without the advice or prescription of a physician would be in most cases a practical impossibility without the aid of the defendant himself, while a defendant charged with the illegal use of opium should find little difficulty in establishing the fact that he used it under the advice and on the prescription of a physician, if in fact he did so. 26 An accused person sometimes owes a duty to himself if not to the State. If he does not perform that duty he may not always expect the State to perform it for him. If he fails to meet the obligation which he owes to himself, when to meet it is an easy thing for him to do, he has no one but himself to blame. Moreover, as correctly pointed out by the Solicitor General, there is nothing in R.A. No. 6425 or the Dangerous Drugs Act, as amended, which requires the prosecution to present a certification that accused- appellant has no license or permit to possess shabu. Mere possession of the prohibited substance is a crime per se and the burden of proof is upon accused-appellant to show that she has a license or permit under the law to possess the prohibited drug. Fourth. Lastly, accused appellant contends that the evidence presented by the prosecution is not sufficient to support a finding that she is guilty of the crime charged. This contention must likewise be rejected. Credence was properly accorded to the testimonies of the prosecution witnesses, who are law enforcers. When police officers have no motive to testify falsely against the accused, courts are inclined to uphold this presumption. In this case, no evidence has been presented to suggest any improper motive on the part of the police enforcers in arresting accused-appellant. This Court accords great respect to the findings of the trial court on the matter of credibility of the witnesses in the absence of any palpable error or arbitrariness in its findings. 27 It is noteworthy that, aside from the denial of accused-appellant, no other witness was presented in her behalf. Her denial cannot prevail over the positive testimonies of the prosecution witnesses. 28 As has been held, denial as a rule is a weak form of defense, particularly when it is not substantiated by clear and convincing evidence. The defense of denial or frame-up, like alibi, has been invariably viewed by the courts with disfavor for it can just as easily be concocted and is a common and standard defense ploy in most prosecutions for violation of the Dangerous Drugs Act. 29 The Court is convinced that the requirements of the law in order that a person may be validly charged with and convicted of illegal possession of a dangerous drug in violation of RA. No. 6425, as amended, have been complied with by the prosecution in this case. The decision of the trial court must accordingly be upheld. TcADCI As regards the fine imposed by the trial court, it is been held that courts may fix any amount within the limits established by law. 30 Considering that five hundred eighty point two (580.2) grams of shabu were confiscated from accused-appellant, the fine imposed by the trial court may properly be reduced to P50,000.00. WHEREFORE, the decision of the Regional Trial Court of Pasay City, Branch 110, finding accused-appellant guilty of violation of 16 of R.A. No. 6425, as amended, and imposing upon her the penalty of reclusion perpetua is hereby AFFIRMED with the MODIFICATION that the fine imposed on accused-appellant is reduced to P50,000.00. Costs against appellant. The passport, airline ticket, luggage, girdle and other personal effects not yet returned to the accused-appellant are hereby ordered returned to her. SO ORDERED. Bellosillo, Quisumbing, Buena and De Leon, Jr., JJ., concur. EN BANC [G.R. No. 120670. October 23, 2003.] PEOPLE OF THE PHILIPPINES, appellee, vs. HEDISHI SUZUKI, appellant. Solicitor General for plaintiff-appellee. Carlito Cudiamat and Jesus N. Borromeo for accused appellant. SYNOPSIS Appellant was found guilty of illegal possession of marijuana. As established, appellant was at the Bacolod Airport Terminal carrying a box which activated the detector machine at the pre departure area. When inspected, the box revealed 18 small packs of dried marijuana fruiting tops. While appellant invoked his constitutional right against unreasonable search and seizure, the Court ruled that the search conducted by the Police Aviation Security Command (PASCOM) was reasonable. The authority of PASCOM to open packages was provided under Section 8 of RA No. 6235 and the search conducted pursuant to routine airport security procedure was held an exception to the proscription against warrantless searches. The Court noted that appellant voluntarily gave his consent to the search and thus, when several marijuana fruiting tops were found in the box, appellant was deemed caught in flagrante delicto, justifying his arrest without a warrant. The packs of marijuana obtained in the course of such valid search are admissible as evidence against appellant. SYLLABUS 1. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE; SEARCH PURSUANT TO ROUTINE AIRPORT SECURITY PROCEDURE AS AN EXCEPTION TO THE PROSCRIPTION AGAINST WARRANTLESS SEARCHES. Pertinent is Section 8 of Republic Act No. 6235 which reads: "SECTION 8. Aircraft companies which operate as public utilities or operators of aircraft which are for hire are authorized to open and investigate suspicious packages and cargoes in the presence of the owner or shipper, or his authorized representatives if present, in order to help the authorities in the enforcement of the provisions of this Act: Provided, That if the owner, shipper or his representative refuses to have the same opened and inspected, the airline or air carrier is authorized to refuse the loading thereof." In line with the afore-cited law, the trial court correctly upheld the PASCOM's authority to open packages and cargoes. This is not the first time we recognize a search conducted pursuant to routine airport security procedure an exception to the proscription against warrantless search In People vs. Canton, and People vs. Johnson, we validated the search conducted on the departing passengers and the consequent seizure of the shabu found in their persons. simply refuse passengers carrying suspected illegal items enter the pre-departure area, as claimed by appellant, is to deprive the authorities of their duty to conduct search, thus sanctioning impotence and ineffectivity of the law enforcers, to the detriment of society. It should be stressed, however, that whenever the right against unreasonable search and seizure is challenged, an individual may choose between invoking the constitution protection or waiving his right by giving consent to the search or seizure. 2. ID.; ID.; ID.; ID.; ID.; WHERE SEARCH REVEALED MARIJUANA FRUITING TOPS, APPELLANT WAS DEEMED CAUGHT IN FLAGRANTE DELICTO, THE SAME ADMISSIBLE IN EVIDENCE AND WARRANTLESS ARREST JUSTIFIED. It is axiomatic that a reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case. Given the circumstances obtaining here, we find the search conducted by the airport authorities reasonable and, therefore, not violative of his constitutional rights. Hence, when the search of the box of piaya revealed several marijuana fruiting tops, appellant is deemed to have been caught in flagrante delicto, justifying his arrest even without a warrant under Section 5(a), Rule 113 of the Rules of Criminal Procedure. The packs of marijuana obtained in the course of such valid search are thus admissible as evidence against appellant. 3. ID.; ID.; ID.; ID.; ID.; PLAIN VIEW DOCTRINE, NOT APPLICABLE. Nonetheless, we find the trial court's reliance on the plain view doctrine misplaced. Such doctrine find application only when the incriminating nature of the object is in the "plain view" of the police officer. Here, it is beyond cavil that the marijuana seized from appellant is contained in the box of piaya, wrapped in aluminum foil and not immediately apparent to the airport authorities. 4. ID.; ID.; ID.; ID.; ID.; SEARCH INCIDENTAL TO LAWFUL ARREST, NOT APPLICABLE. Neither was the search incidental to a lawful arrest since appellant was not yet arrested at the time of the search. To be considered a search incidental to a lawful arrest, the law requires that there must be a lawful arrest before the search can be made. 5. CRIMINAL LAW; DANGEROUS DRUGS ACT; ILLEGAL POSSESSION OF PROHIBITED SUBSTANCE; MERE POSSESSION IS CRIME PER SE. It bears stressing that mere possession of the prohibited substance is a crime per se and the burden of proof is upon appellant to show that he has a license or permit under the law to possess the prohibited drug. Here, appellant failed to prove that he has a license to possess the marijuana. In People vs. Bongcarawan, we held that such possession constitutes prima facie evidence of animus possidendi sufficient to convict an accused in the absence of any satisfactory explanation. 6. REMEDIAL LAW; EVIDENCE; PRESUMPTIONS; REGULAR PERFORMANCE OF OFFICIAL DUTY; NOT AFFECTED BY MERE ALLEGATION OF FRAME-UP. We have ruled that clear and convincing evidence is required to prove the defense of "frame-up" because in the absence of proof of any intent on the part of the police authorities to falsely impute such crime against appellant, the presumption of regularity in the performance of official duty stands. Also, allegations of frame-up are easily fabricated, making it the common and standard line of defense in prosecutions involving the Dangerous Drugs Law. 7. ID.; ID.; FINDINGS OF TRIAL COURT, RESPECTED. We have carefully reviewed the records and found no cogent reason to overthrow the findings of fact and conclusions of law by the trial court. That this is a matter exclusively within its competence, since it had the unique opportunity of observing the witnesses and their manner of testifying during trial, had long been established. Hence, its findings are accorded respect and will not be disturbed on appeal, except when there is a clear showing that facts of weight and substance which would affect the outcome of the case have been overlooked misunderstood, or misapplied. This exception is not present here. 8. CRIMINAL LAW; DANGEROUS DRUGS ACT; ILLEGAL POSSESSION OF PROHIBITED SUBSTANCE; PROPER PENALTY FOR POSSESSION OF 1,547.70 GRAMS OF MARIJUANA ABSENT ANY MODIFYING CIRCUMSTANCE. Under Republic Act No. 6425, as amended by Republic Act No. 7659, the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to P10,000,000.00 shall be imposed ( if the quantity of marijuana or Indian hemp shall be 750 grams or more. Section 63 of the Revised Penal Code provides that when the law prescribes a penalty composed of two indivisible penalties, the lesser penalty shall be applied in the absence of any aggravating or mitigating circumstance. In the case at bar there being no mitigating or aggravating circumstance appellant's possession of 1,547.70 grams of marijuana does not merit the supreme penalty of death but only reclusion perpetua. While the imposition of a fine is mandatory in cases of conviction of possession of illegal drugs, we, however, reduce the fine imposed by the trial court to P1,000,000.00 considering that courts may fix any amount within the limits established by law. D E C I S I O N SANDOVAL-GUTIERREZ, J p: For automatic review is the Decision 1 of the Regional Trial Court, Branch 45, Bacolod City in Criminal Case No. 94-16100 convicting Hedishi Suzuki, appellant, of illegal possession of marijuana, defined and penalized under Section 8, Article II of R.A. No. 6525, as amended, 2 and sentencing him to suffer the penalty of death and to pay a fine of P10,000,000.00. The Information 3 against appellant reads: "That on or about the 12th day of April, 1994, in the City of Bacolod, Philippines, and within the jurisdiction of this Honorable Court, the herein accused, not being lawfully authorized to possess, prepare, administer or otherwise use any prohibited drug, did then and there willfully, unlawfully and feloniously have in his possession and under his custody and control 1.9 kilos or 1,900 grams, more or less, of marijuana which is a prohibited drug, in violation of the aforementioned laws. "Acts contrary to law." Upon arraignment, appellant entered a plea of not guilty. Thereafter, trial followed. ADaSEH The prosecution presented P/Inspector Rea Abastillas Villavicencio, the forensic chemist of the Philippine National Police (PNP) Crime Laboratory, SPO1 Arturo Casugod, Sr. of the Police Aviation Security Command (PASCOM), PO3 Rhodelio Poyugao, also of the PASCOM, and SPO1 Gilbert Linda of the Narcotics Command (NARCOM), all of Bacolod City. Their testimonies, woven together, established the following facts: Sometime in November, 1993, the PNP Narcotics Command issued a directive to all Chiefs of Narcotics Regional Field Units to cover all domestic airport terminals within their respective areas of responsibility, following reports that drug trafficking is prevalent in domestic airports; and to coordinate with local airport authorities and the PASCOM. In the morning of April 12, 1994, while the prosecution witnesses were in their respective stations, appellant and Takeshi Koketsu, both Japanese nationals, entered the pre-departure area of the Bacolod Airport Terminal. Appellant was bound for Manila via flight No. 132 of the Philippine Airlines and was carrying a small traveling bag and a box marked "Bongbong's piaya." 4 At the pre-departure area, upon the advice of Corazon Sinosa, a civilian personnel of the PASCOM, appellant proceeded to the "walk-through metal detector," a machine which produces a red light and an alarm once it detects the presence of metallic substance or object. Thereupon, the red light switched on and the alarm sounded, signifying the presence of metallic substance either in his person or in the box he was carrying. This prompted PO3 Poyugao to frisk him bodily. Finding no metallic object in his body, PO3 Poyugao picked up the box of piaya and passed it through the machine. Again, the machine was activated. PO3 Poyugao then ordered appellant to go to the hand-carried luggage inspection counter where several PASCOM and NARCOM personnel were present. SPO1 Casugod requested appellant to open the box. He appeared tense and reluctant and started to leave, but SPO1 Casugod called him. Eventually he consented, saying in faltering English, "open, open." SPO1 Casugod opened the box and found therein eighteen (18) small packs, seventeen (17) of which were wrapped in aluminum foil. SPO1 Casugod opened one pack. Inside were dried fruiting tops which looked like marijuana. Upon seeing this, appellant ran outside the pre-departure area but he was chased by PO3 Poyugao, SPO1 Linda and Donato Barnezo of the PASCOM. They apprehended appellant near the entrance of the terminal and brought him to the PASCOM office. They also brought Takeshi and his wife, Lourdes Linsangan, to the office, being suspects as conspirators with appellant in drug trafficking. Lourdes asked permission to call Atty. Silvestre Tayson. When he arrived, the police apprised appellant of his constitutional rights. Meanwhile, SPO1 Casugod weighed the contents of the box and inventoried the same. The total weight of the suspected marijuana fruiting tops was 1.9 kilograms or 1,900 grams. He then drafted a "confiscation receipt" which appellant, upon the advice of Atty. Tayson, refused to acknowledge. SPO1 Casugod turned over appellant to SPO1 Linda for investigation. Subsequently, appellant and his companions were brought to the prosecutor's office for inquest and placed under the custody of C/Inspector Ernesto Alcantara at the NARCOM office. The box with its contents was brought to the PNP Crime Laboratory. Inspector Villavicencio conducted three tests on the specimen samples which proved positive for marijuana. The defense presented appellant as its sole witness whose testimony is as follows: On April 9, 1994, he and Takeshi Koketsu arrived in Manila from Osaka, Japan. The purpose of his trip was to collect from Takeshi Y2.5 million or P500,000.00 which the latter owed him. Waiting for them at the airport was Takeshi's wife, Lourdes. On the same day, the three flew to Bacolod City. Appellant stayed at the house of Takeshi. Two days later, appellant asked Takeshi to pay. When Takeshi admitted he had no money, appellant got angry and went to the Casino Filipino where he stayed until 10:30 in the evening. Upon leaving the casino, he met Pinky who enticed him to have sex with her. They then proceeded to the Moonlight Motel. Moments later, Pinky left, while appellant stayed there for the night. He told her he was leaving the following morning. The following day or on April 12, 1994, appellant went to the airport. Pinky, who was there waiting, gave him a box of "Bongbong's piaya" as "pasalubong" from Bacolod City. He did not ascertain the contents of the box since he trusted Pinky although he just met her the previous night. Appellant found and joined Takeshi and Lourdes at the coffee shop. Takeshi apologized for his failure to pay his debt, assuring him that he would settle his obligation next month. When it was time to leave, appellant, accompanied by Takeshi, proceeded to the pre-departure area. When he passed through the metal detector, a policeman frisked him, got the box and placed it inside the metal detector. The machine produced a red light, hence, the policeman brought the box to the inspection table, with appellant following him. Thereafter, the policeman, whom he later knew as SPO1 Arturo Casugod, pointed to the box uttering something appellant did not understand. Appellant said, "wait a minute," (in Japanese) and went outside to ask Takeshi and Lourdes to interpret for him, but they did not respond. When PO3 Rhodelin Poyugao called him back to the pre-departure area he found Takeshi near the table and the box containing something wrapped in aluminum foil already opened. Takeshi told him that he was carrying marijuana. He replied it was given to him by a woman that morning. Then he and SPO1 Casugod went to the PASCOM office where the latter weighed the contents of the box. He did not sign the "Confiscation Receipt" presented to him. They then proceeded to the NARCOM office with C/Inspector Ernesto Alcantara, SPO1 Linda, PO3 Poyugao, and three other officers. From the NARCOM office, appellant was brought to the Bacolod Police Station. HCTAEc Shortly thereafter, they went to the Nagoya Restaurant owned by Takeshi where appellant saw C/Inspector Alcantara and Lourdes talking. When he inquired from Takeshi what was going on, he was told they needed money in dealing with the police. Appellant was then brought to the prosecutor's office. There Takeshi told him to keep silent as he would make a deal with the prosecutor. Then they went to Takeshi's house where appellant stayed for two days. On April 14, 1994, C/Inspector Alcantara and SPO1 Linda brought appellant to the Bacolod City Jail. Takeshi visited him twice, advising him to ask someone from Japan to send him money and be discreet, otherwise he would be killed; and to admit he has in his possession less than 750 grams of marijuana so he could post bail. However, he refused. Five days later, appellant, escorted by the police, went to Takeshi's house to retrieve his money (Y120,000 equivalent to P30,000.00), but Takeshi told him that it was already spent for the food and drinks of the NARCOM agents and the airport policemen. On December 7, 1994, the trial court rendered its Decision the dispositive portion of which reads: "WHEREFORE, finding the accused HEDISHI SUZUKI guilty beyond reasonable doubt of the offense charged, he is hereby sentenced to suffer the maximum penalty of death, to pay a fine of Ten Million Pesos (P10,000,000.00), and to pay the costs. "Pursuant to Section 20, Article IV of Republic Act No. 6425, as amended by Section 17 of Republic Act No. 7659, let the 1,547.07 grams of dried marijuana fruiting tops, subject matter of this case, be confiscated and forfeited in favor of the government and be turned over to the Dangerous Drugs Board Custodian, NBI, to be disposed according to law. "SO ORDERED." Hence the instant mandatory review. In his brief, appellant ascribes to the trial court the following errors: "I THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE GOVERNMENT AGENTS HAD THE LEGAL AUTHORITY WHEN THEY OPENED AND SEARCHED THE SMALL CARTON IN QUESTION. II THE TRIAL COURT GRAVELY ERRED IN FINDING THAT SUFFICIENT PROBABLE CAUSE EXISTS FOR THE OPENING AND SEARCH OF THE SUBJECT CARTON AND IN DECLARING LEGAL AND VALID THE SEIZURE OF SAID CARTON AND THE SUBSEQUENT ARREST OF THE APPELLANT. III THE TRIAL COURT GRAVELY ERRED IN ADMITTING IN EVIDENCE THE MARIJUANA CONTENTS OF THE SUBJECT CARTON AGAINST THE APPELLANT. IV THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE SEARCH ON THE CARTON IN QUESTION WAS INCIDENTAL TO A LAWFUL ARREST. V THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE SEARCH ON THE SUBJECT CARTON WAS MADE UNDER THE EXCEPTION OF SEIZURE OF EVIDENCE IN PLAIN VIEW. VI THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE ARREST OF THE APPELLANT WAS VALID AS HE WAS CAUGHT IN FLAGRANTE DELICTO POSSESSING MARIJUANA. VII THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THERE WAS UNQUALIFIED, VOLUNTARY AND AUTHORITATIVE CONSENT GIVEN BY THE APPELLANT TO THE OPENING OF THE CARTON. VIII ON THE ASSUMPTION EX GRATIA ARGUMENTI THAT THE APPELLANT WAS CAUGHT IN POSSESSION OF MARIJUANA, THE TRIAL COURT GRAVELY ERRED IN CONVICTING HIM, FOR THE PROSECUTION FAILED TO PROVE THE NEGATIVE ELEMENT OF THE OFFENSE. IX ON THE ASSUMPTION EX GRATIA ARGUMENTI THAT HE WAS CAUGHT IN PHYSICAL POSSESSION OF THE CARTON IN QUESTION (CONTAINING MARIJUANA), THE TRIAL COURT GRAVELY ERRED IN FINDING THAT APPELLANT INTENDED TO POSSESS SAID PACKS OF MARIJUANA. X THE TRIAL COURT GRAVELY ERRED IN FINDING THAT APPELLANT'S PETITION TO BE RELEASED ON BAIL CONSTITUTES WAIVER OF ANY IRREGULARITY ATTENDING HIS ARREST AND ESTOPS HIM FROM QUESTIONING ITS VALIDITY. XI THE TRIAL COURT GRAVELY ERRED IN NOT GIVING DUE WEIGHT, CONSIDERATION AND CREDIT TO THE TESTIMONY OF THE APPELLANT AND IN DECLARING THE SAME SELF-SERVING AND NOT AMPLY PROVEN. XII THE TRIAL COURT GRAVELY ERRED IN DISREGARDING SUBSTANTIAL CONTRADICTIONS IN THE EVIDENCE FOR THE PROSECUTION WHICH CREATE REASONABLE DOUBT ON THE GUILT OF THE APPELLANT. XIII THE TRIAL COURT GRAVELY ERRED IN GOING BEYOND THE EVIDENCE PRESENTED BY THE PROSECUTION IN SUPPORT OF ITS DECISION CONVICTING APPELLANT. XIV THE TRIAL COURT GRAVELY ERRED IN SENTENCING APPELLANT TO THE MAXIMUM PENALTY OF DEATH AND IMPOSING A FINE OF TEN MILLION PESOS. XV THE TRIAL COURT GRAVELY ERRED IN HOLDING THAT THE GUILT OF THE APPELLANT WAS PROVEN BY THE PROSECUTION BEYOND REASONABLE DOUBT AND IN NOT ACQUITTING HIM." Considering that the above assigned errors are interrelated, they will be discussed jointly. Appellant invokes his constitutional right against unreasonable search and seizure, contending that: (1) the authority to open and investigate suspicious packages and cargoes under Section 8 of Republic Act No. 6235 5 does not apply to PASCOM and NARCOM agents but is limited only to aircraft companies or operators of aircraft for hire; (2) he did not consent to be searched by the authorities; (3) the prohibited substances confiscated by the authorities were not actually in their plain view; and (4) the search they conducted was not incidental to a lawful arrest. Pertinent is Section 8 of Republic Act No. 6235 which reads: "SECTION 8. Aircraft companies which operate as public utilities or operators of aircraft which are for hire are authorized to open and investigate suspicious packages and cargoes in the presence of the owner or shipper, or his authorized representatives if present, in order to help the authorities in the enforcement of the provisions of this Act: Provided, That if the owner, shipper or his representative refuses to have the same opened and inspected, the airline or air carrier is authorized to refuse the loading thereof." SDITAC In line with the afore-cited law, the trial court correctly upheld the PASCOM's authority to open packages and cargoes, thus: "This Court does not subscribe to the contention of the accused. The Police Aviation Security Command (PASCOM) is the implementing arm of the National Action Committee on Anti-Hijacking (NACAH), which is a creation of Presidential Letter of Instruction (LOI) No. 399, dated April 28, 1976. "On February 18, 1978, a Memorandum of Understanding among the Secretary of National Defense, the Secretary of Public Works, Transportation and Communication, the Secretary of Justice, the Director General, National Intelligence and Security Authority and the Secretary of Finance was signed. The purpose was to establish a working arrangement among cognizant agencies, set up guidelines and procedures for the security of the airport complex throughout the Philippines particularly handling, coordination and disposition of hijacking and other criminal incidents that may occur thereat (PAFM 3-9, page 1-3). 'Under the said Memorandum of Understanding the then AVSECOM (now PASCOM) shall have the following functions and responsibilities: 1. Secure all airports against offensive and terroristic acts that threaten civil aviation; 2. Undertake aircraft anti-hijacking operations; 3. Exercise operational control and supervision over all agencies involved in airport security operations; 4. Take all necessary preventive measures to maintain peace and order, and provide other pertinent public safety services within the airports; xxx xxx xxx 'One of its guidelines before the passenger can enter the sanitized area (pre-departure area) is to check the hand-carried luggage and personal effects of passengers (PAFM 3-9, page 23). 'Passengers are allowed one hand-carried bag or attach case with the following limitation: a. . . . b. . . . c. It can be readily opened for inspection (PAFM 3-9, page 24). 'Based upon the Memorandum of Understanding, pursuant to President LOI 399, in relation to R.A. 6235, the PASCOM had the legal authority to be at the Bacolod Airport, Bacolod City and to inspect luggages or hand-carried bags. 'Under DOC 8973/3, Security Manual for Safeguarding Civil Aviation against Acts of Unlawful Interference, particularly paragraph 3.6.4 'when x-ray inspection is not possible or when the x- ray image of a bag gives rise to suspicion, . . ., a manual search must be carried out' (Memorandum of the Prosecution, pp. 1516; emphasis supplied).' "The prosecution correctly argued that the PASCOM established a system of checkpoint at the pre-departure area of the Bacolod Airport to quickly inspect or screen persons or hand-carried baggages for illegal items pursuant to said Memorandum of Agreement, which in turn derived its life from LOI 399. In short, the setting up of checkpoint at the Bacolod Airport on April 12, 1994 does not have only jurisprudential basis (Valmonte vs. De Villa, et al., G.R. No. 83288, September 29, 1989, 178 SCRA 211, more popularly known as the 'checkpoints cases') but also statutory basis. "Moreover, to sustain the stand of the accused exclusively limiting the authority to open and search 'suspicious' luggages would result to absurdity. It would deprive law enforcers of their authority to perform their duty of maintaining order, preserving peace, protecting life and property and other police works such as crime detection, while within the airport premises. The construction given by the accused conveniently omitted the phrase found in Section 8 of Republic Act No. 6235 which reads 'in order to help the authorities in the enforcement of the provisions of this Act.' The word 'authorities' evidently refers to police officers and other law enforcers such as the PASCOM officers. It follows that in allowing or authorizing aircraft companies which operate as public utilities or operators of aircraft which are for hire, to open and investigate suspicious packages and seizures, the authors of the law does not disallow or prohibit law enforcement agencies of the government from assisting or conducting the opening and investigation of suspicious packages and cargoes. Otherwise, they will be remiss in their sworn duty of protecting the public in general and more particularly those in the aviation industry. . . .. It becomes crystal-clear that the PASCOM officers and personnel had the legal authority when they opened and investigated the box in the presence of the accused and his counsel." This is not the first time we recognize a search conducted pursuant to routine airport security procedure as an exception to the proscription against warrantless searches. In People vs. Canton, 6 and People vs. Johnson, 7 we validated the search conducted on the departing passengers and the consequent seizure of the shabu found in their persons, thus: "Persons may lose the protection of the search and seizure clause by exposure of their persons or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to recognize as reasonable. Such recognition is implicit in airport security procedures. With increased concern over airplane hijacking and terrorism has come increased security at the nation's airports. Passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence of suspicious objects, physical searches are conducted to determine what the objects are. There is little question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacy expectations associated with airline travel. Indeed, travelers are often notified through airport public address systems, signs and notices in their airline tickets that they are subject to search and, if any prohibited materials or substances are found, such would be subject to seizure. These announcements place passengers on notice that ordinary constitutional protections against warrantless searches and seizures do not apply to routine airport procedures." (Emphasis ours) Clearly, the PASCOM agents have the right under the law to conduct search of prohibited materials or substances. To simply refuse passengers carrying suspected illegal items to enter the pre-departure area, as claimed by appellant, is to deprive the authorities of their duty to conduct search, thus sanctioning impotence and ineffectivity of the law enforcers, to the detriment of society. 8 It should be stressed, however, that whenever the right against unreasonable search and seizure is challenged, an individual may choose between invoking the constitutional protection or waiving his right by giving consent to the search or seizure. 9 Here, appellant voluntarily gave his consent to the search conducted by the PASCOM agents. The testimony of SPO1 Arturo Casugod, Sr. is quite revealing, thus: "Q And when the said carton box was passed for the second time thru the walk-through machine it indicated this metallic element by flashing a red light, is that correct? A Yes, sir. Q And because of that, what did you do? A Rhodelin Poyugao put the box on top of the inspection table. Q What happened then? A And then our non-uniformed personnel, Mr. Donato Barnezo, asked the passenger Mr. Hedishi Suzuki, saying, 'kindly open your box for inspection'. Q What happened after he asked the accused to open the box? A Mr. Hedishi Suzuki refused to open, sir. He signaled 'no, no'. Q What happened then? STcHEI A At that juncture, sir. I advised the said passenger, Mr. Hedishi Suzuki: 'I am very sorry, sir, we need to open your luggage because it indicated a red light'. Q When you say open the luggage you are referring to the box? A Referring to the small carton marked Bongbong Piaya. Q What happened then? A Mr. Hedishi Suzuki tried to get outside of the pre-departure area instead of opening the box. Q Where did Mr. Suzuki go if he went away? A Before he could get out of the door of the pre-departure area I called his attention to come back. Q Did he come back? A He came back and I explained to him again, sir, that we are very sorry but we need to open your small carton marked Bongbong Piaya. I told him, 'I am very sorry, sir, but we need to open your small carton marked Bongbong Piaya'. Q And what did Mr. Suzuki do? A Mr. Suzuki answered me, 'open'. Q What did you do? A I said 'kindly open your carton' and he repeated, 'open'. Q For the second time? A Yes, sir. Q What did you do then because he said 'open'? A I explained to him, sir, and I asked him again, 'sir, I am going to open this' and he told me 'you open'. Q Then, what did you do? A I got hold of the carton and opened it by means of cutting the masking tape that bound both ends of the carton. Q And what did you find inside the said box? A When I opened the box, sir, I found out that it contained suspected dried marijuana fruiting tops wrapped in an aluminum foil, sir, and transparent cellophane. xxx xxx xxx" 10 That appellant gave his consent when PO1 Casugod asked him to open the box was confirmed by SPO1 Linda and PO3 Poyugao. 11 As succinctly found by the trial court, appellant cannot deny that he consented by feigning ignorance of the English language, thus: "Accused through counsel would want this Court to believe that the opening of the carton containing marijuana fruiting tops was without the consent of the accused. The defense relied on the alleged inability of the accused to understand nor speak the English language because he is a Japanese national. It made capital on the presence of Japanese interpreters, Tsuyushi Tsuchida and Hideo Agarie, who assisted during the trial. "The Court has no doubt in the positive testimonies of the prosecution witnesses and their categorical declaration that accused Hedishi Suzuki gave his consent not only nodding his head but also by saying 'Open. Open. Open.' There was even a 'third-party consent' given by his Japanese companion Takeshi Koketsu. "The allegation of the accused that he does not understand English is indeed incredible to believe. As aptly observed by Assistant City Prosecutor Rafael Guanco, the trial prosecutor, 'the accused might not be able to speak straight English yet he might understand English' (Memorandum of the Prosecution, page 21). The prosecution witnesses categorically declared that accused Hedishi Suzuki was speaking English during the airport encounter with the PASCOM and NARCOM operatives and while being investigated at the PASCOM Office. While it may be true that Lourdes Linsangan participated on some occasions, her participation merely facilitated the conversation. "The Court cannot believe accused's protestation of ignorance of the English language. There are several indications that accused understand the English language. It may be noted that in filing a motion to terminate the legal services of Atty. Nicanor Villarosa, it appeared that accused caused its preparation or filing without the assistance of a lawyer (Motion To Terminate Services of Counsel, page 53, expedient. The accused testified that his wife is proficient in English. Accused was able to play games in the casino, the night before the airport incident. He was able to give direction to the driver from the motel to the airport. He has traveled to the Philippines about ten (10) times. He claims to be an owner and manager of a company where some clients or customers are non-Japanese such as Germans and Americans. During the trial accused appeared to be an intelligent witness and this Court has keenly observed that accused had shown eagerness and readiness to answer the questions propounded in the English language even before the Japanese translation. Above all, accused answered in the affirmative when queried by the Court whether he was able to attend English classes while in college. In short, the Court was literally taken for a ride when initially made to believe that the accused could not read, speak and understand the English language." It is axiomatic that a reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case. 12 Given the circumstances obtaining here, we find the search conducted by the airport authorities reasonable and, therefore, not violative of his constitutional rights. Hence, when the search of the box of piaya revealed several marijuana fruiting tops, appellant is deemed to have been caught in flagrante delicto, justifying his arrest even without a warrant under Section 5(a), Rule 113 of the Rules of Criminal Procedure. 13 The packs of marijuana obtained in the course of such valid search are thus admissible as evidence against appellant. 14 Nonetheless, we find the trial court's reliance on the plain view doctrine misplaced. Such doctrine finds application only when the incriminating nature of the object is in the "plain view of the police officer. 15 Here, it is beyond cavil that the marijuana seized from appellant is contained in the box of piaya, wrapped in aluminum foil and not immediately apparent to the airport authorities. Neither was the search incidental to a lawful arrest since appellant was not yet arrested at the time of the search. To be considered a search incidental to a lawful arrest, the law requires that there must be a lawful arrest before the search can be made. 16 At this point, it bears stressing that mere possession of the prohibited substance is a crime per se and the burden of proof is upon appellant to show that he has a license or permit under the law to possess the prohibited drug. 17 Here, appellant failed to prove that he has a license to possess the marijuana. In People vs. Bongcarawan, 18 we held that such possession constitutes prima facie evidence of animus possidendi sufficient to convict an accused in the absence of any satisfactory explanation. Appellant vigorously contends that the trial court should have sustained his unrebutted testimony that he was a victim of frame-up contrived by Takeshi in connivance with the arresting officers, especially C/Inspector Ernesto Alcantara, accused in several criminal charges. It is noteworthy that aside from appellant's testimony, not a shred of evidence was presented by the defense to prove his claim that he was framed-up. Not even Pinky who allegedly gave him the box of piaya containing marijuana was presented as a witness to confirm his story. We have ruled that clear and convincing evidence is required to prove the defense of "frame-up" because in the absence of proof of any intent on the part of the police authorities to falsely impute such crime against appellant, the presumption of regularity in the performance of official duty stands. 19 Also, allegations of frame-up are easily fabricated, making it the common and standard line of defense in prosecutions involving the Dangerous Drugs Law. 20 We are not swayed by appellant's reference to C/Inspector Alcantara's criminal records. Suffice it to state that he is neither an accused in this case or a prosecution witness. We have carefully reviewed the records and found no cogent reason to overthrow the findings of fact and conclusions of law by the trial court. That this is a matter exclusively within its competence, since it had the unique opportunity of observing the witnesses and their manner of testifying during trial, had long been established. Hence, its findings are accorded respect and will not be disturbed on appeal, except when there is a clear showing that facts of weight and substance which would affect the outcome of the case have been overlooked, misunderstood, or misapplied. 21 This exception is not present here. However, the trial court imposed the wrong penalty. Under Republic Act No. 6425, as amended by Republic Act No. 7659, the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to P10,000,000.00 shall be imposed if the quantity of marijuana or Indian hemp shall be 750 grams or more. 22 Section 63 of the Revised Penal Code provides that when the law prescribes a penalty composed of two indivisible penalties, the lesser penalty shall be applied in the absence of any aggravating or mitigating circumstance. 23 In the case at bar, there being no mitigating or aggravating circumstance, appellant's possession of 1,547.70 grams 24 of marijuana does not merit the supreme penalty of death but only reclusion perpetua. DHSaCA While the imposition of a fine is mandatory in cases of conviction of possession of illegal drugs, 25 we, however, reduce the fine imposed by the trial court to P1,000,000.00, considering that courts may fix any amount within the limits established by law. 26 WHEREFORE, the Decision of the Regional Trial Court, Branch 45, Bacolod City in Criminal Case No. 94-16100 finding appellant Hedishi Suzuki guilty beyond reasonable doubt of violation of Section 8, Article II of R.A. No. 6425, as amended, is hereby AFFIRMED with the MODIFICATION in the sense that he is sentenced to reclusion perpetua and fined One Million (P1,000,000.00) Pesos. Costs de oficio. SO ORDERED. Davide, Jr., C .J ., Bellosillo, Puno. Vitug, Panganiban, Quisumbing, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ ., concur. Ynares-Santiago, J ., is on leave. U.S. Supreme Court TERRY v. OHIO, 392 U.S. 1 (1968) 392 U.S. 1 TERRY v. OHIO. CERTIORARI TO THE SUPREME COURT OF OHIO. No. 67. Argued December 12, 1967. Decided June 10, 1968. A Cleveland detective (McFadden), on a downtown beat which he had been patrolling for many years, observed two strangers (petitioner and another man, Chilton) on a street corner. He saw them proceed alternately back and forth along an identical route, pausing to stare in the same store window, which they did for a total of about 24 times. Each completion of the route was followed by a conference between the two on a corner, at one of which they were joined by a third man (Katz) who left swiftly. Suspecting the two men of "casing a job, a stick-up," the officer followed them and saw them rejoin the third man a couple of blocks away in front of a store. The officer approached the three, identified himself as a policeman, and asked their names. The men "mumbled something," whereupon McFadden spun petitioner around, patted down his outside clothing, and found in his overcoat pocket, but was unable to remove, a pistol. The officer ordered the three into the store. He removed petitioner's overcoat, took out a revolver, and ordered the three to face the wall with their hands raised. He patted down the outer clothing of Chilton and Katz and seized a revolver from Chilton's outside overcoat pocket. He did not put his hands under the outer garments of Katz (since he discovered nothing in his pat-down which might have been a weapon), or under petitioner's or Chilton's outer garments until he felt the guns. The three were taken to the police station. Petitioner and Chilton were charged with carrying [392 U.S. 1, 2] concealed weapons. The defense moved to suppress the weapons. Though the trial court rejected the prosecution theory that the guns had been seized during a search incident to a lawful arrest, the court denied the motion to suppress and admitted the weapons into evidence on the ground that the officer had cause to believe that petitioner and Chilton were acting suspiciously, that their interrogation was warranted, and that the officer for his own protection had the right to pat down their outer clothing having reasonable cause to believe that they might be armed. The court distinguished between an investigatory "stop" and an arrest, and between a "frisk" of the outer clothing for weapons and a full-blown search for evidence of crime. Petitioner and Chilton were found guilty, an intermediate appellate court affirmed, and the State Supreme Court dismissed the appeal on the ground that "no substantial constitutional question" was involved. Held: 1. The Fourth Amendment right against unreasonable searches and seizures, made applicable to the States by the Fourteenth Amendment, "protects people, not places," and therefore applies as much to the citizen on the streets as well as at home or elsewhere. Pp. 8-9. 2. The issue in this case is not the abstract propriety of the police conduct but the admissibility against petitioner of the evidence uncovered by the search and seizure. P. 12. 3. The exclusionary rule cannot properly be invoked to exclude the products of legitimate and restrained police investigative techniques; and this Court's approval of such techniques should not discourage remedies other than the exclusionary rule to curtail police abuses for which that is not an effective sanction. Pp. 13-15. 4. The Fourth Amendment applies to "stop and frisk" procedures such as those followed here. Pp. 16-20. (a) Whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person within the meaning of the Fourth Amendment. P. 16. (b) A careful exploration of the outer surfaces of a person's clothing in an attempt to find weapons is a "search" under that Amendment. P. 16. 5. Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous [392 U.S. 1, 3] regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed. Pp. 20-27. (a) Though the police must whenever practicable secure a warrant to make a search and seizure, that procedure cannot be followed where swift action based upon on-the-spot observations of the officer on the beat is required. P. 20. (b) The reasonableness of any particular search and seizure must be assessed in light of the particular circumstances against the standard of whether a man of reasonable caution is warranted in believing that the action taken was appropriate. Pp. 21-22. (c) The officer here was performing a legitimate function of investigating suspicious conduct when he decided to approach petitioner and his companions. P. 22. (d) An officer justified in believing that an individual whose suspicious behavior he is investigating at close range is armed may, to neutralize the threat of physical harm, take necessary measures to determine whether that person is carrying a weapon. P. 24. (e) A search for weapons in the absence of probable cause to arrest must be strictly circumscribed by the exigencies of the situation. Pp. 25-26. (f) An officer may make an intrusion short of arrest where he has reasonable apprehension of danger before being possessed of information justifying arrest. Pp. 26-27. 6. The officer's protective seizure of petitioner and his companions and the limited search which he made were reasonable, both at their inception and as conducted. Pp. 27-30. (a) The actions of petitioner and his companions were consistent with the officer's hypothesis that they were contemplating a daylight robbery and were armed. P. 28. (b) The officer's search was confined to what was minimally necessary to determine whether the men were armed, and the intrusion, which was made for the sole purpose of protecting himself and others nearby, was confined to ascertaining the presence of weapons. Pp. 29-30. 7. The revolver seized from petitioner was properly admitted into evidence against him, since the search which led to its seizure was reasonable under the Fourth Amendment. Pp. 30-31. Affirmed. [392 U.S. 1, 4] Louis Stokes argued the cause for petitioner. With him on the brief was Jack G. Day. Reuben M. Payne argued the cause for respondent. With him on the brief was John T. Corrigan. Briefs of amici curiae, urging reversal, were filed by Jack Greenberg, James M. Nabrit III, Michael Meltsner, Melvyn Zarr, and Anthony G. Amsterdam for the NAACP Legal Defense and Educational Fund, Inc., and by Bernard A. Berkman, Melvin L. Wulf, and Alan H. Levine for the American Civil Liberties Union et al. Briefs of amici curiae, urging affirmance, were filed by Solicitor General Griswold, Assistant Attorney General Vinson, Ralph S. Spritzer, Beatrice Rosenberg, and Mervyn Hamburg for the United States; by Louis J. Lefkowitz, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Maria L. Marcus and Brenda Soloff, Assistant Attorneys General, for the Attorney General of New York; by Charles Moylan, Jr., Evelle J. Younger, and Harry Wood for the National District Attorneys' Assn., and by James R. Thompson for Americans for Effective Law Enforcement. MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. This case presents serious questions concerning the role of the Fourth Amendment in the confrontation on the street between the citizen and the policeman investigating suspicious circumstances. Petitioner Terry was convicted of carrying a concealed weapon and sentenced to the statutorily prescribed term of one to three years in the penitentiary. 1 Following [392 U.S. 1, 5] the denial of a pretrial motion to suppress, the prosecution introduced in evidence two revolvers and a number of bullets seized from Terry and a codefendant, Richard Chilton, 2 by Cleveland Police Detective Martin McFadden. At the hearing on the motion to suppress this evidence, Officer McFadden testified that while he was patrolling in plain clothes in downtown Cleveland at approximately 2:30 in the afternoon of October 31, 1963, his attention was attracted by two men, Chilton and Terry, standing on the corner of Huron Road and Euclid Avenue. He had never seen the two men before, and he was unable to say precisely what first drew his eye to them. However, he testified that he had been a policeman for 39 years and a detective for 35 and that he had been assigned to patrol this vicinity of downtown Cleveland for shoplifters and pickpockets for 30 years. He explained that he had developed routine habits of observation over the years and that he would "stand and watch people or walk and watch people at many intervals of the day." He added: "Now, in this case when I looked over they didn't look right to me at the time." His interest aroused, Officer McFadden took up a post of observation in the entrance to a store 300 to 400 feet [392 U.S. 1, 6] away from the two men. "I get more purpose to watch them when I seen their movements," he testified. He saw one of the men leave the other one and walk southwest on Huron Road, past some stores. The man paused for a moment and looked in a store window, then walked on a short distance, turned around and walked back toward the corner, pausing once again to look in the same store window. He rejoined his companion at the corner, and the two conferred briefly. Then the second man went through the same series of motions, strolling down Huron Road, looking in the same window, walking on a short distance, turning back, peering in the store window again, and returning to confer with the first man at the corner. The two men repeated this ritual alternately between five and six times apiece - in all, roughly a dozen trips. At one point, while the two were standing together on the corner, a third man approached them and engaged them briefly in conversation. This man then left the two others and walked west on Euclid Avenue. Chilton and Terry resumed their measured pacing, peering, and conferring. After this had gone on for 10 to 12 minutes, the two men walked off together, heading west on Euclid Avenue, following the path taken earlier by the third man. By this time Officer McFadden had become thoroughly suspicious. He testified that after observing their elaborately casual and oft- repeated reconnaissance of the store window on Huron Road, he suspected the two men of "casing a job, a stick-up," and that he considered it his duty as a police officer to investigate further. He added that he feared "they may have a gun." Thus, Officer McFadden followed Chilton and Terry and saw them stop in front of Zucker's store to talk to the same man who had conferred with them earlier on the street corner. Deciding that the situation was ripe for direct action. Officer McFadden approached the three men, identified [392 U.S. 1, 7] himself as a police officer and asked for their names. At this point his knowledge was confined to what he had observed. He was not acquainted with any of the three men by name or by sight, and he had received no information concerning them from any other source. When the men "mumbled something" in response to his inquiries, Officer McFadden grabbed petitioner Terry, spun him around so that they were facing the other two, with Terry between McFadden and the others, and patted down the outside of his clothing. In the left breast pocket of Terry's overcoat Officer McFadden felt a pistol. He reached inside the overcoat pocket, but was unable to remove the gun. At this point, keeping Terry between himself and the others, the officer ordered all three men to enter Zucker's store. As they went in, he removed Terry's overcoat completely, removed a .38-caliber revolver from the pocket and ordered all three men to face the wall with their hands raised. Officer McFadden proceeded to pat down the outer clothing of Chilton and the third man, Katz. He discovered another revolver in the outer pocket of Chilton's overcoat, but no weapons were found on Katz. The officer testified that he only patted the men down to see whether they had weapons, and that he did not put his hands beneath the outer garments of either Terry or Chilton until he felt their guns. So far as appears from the record, he never placed his hands beneath Katz' outer garments. Officer McFadden seized Chilton's gun, asked the proprietor of the store to call a police wagon, and took all three men to the station, where Chilton and Terry were formally charged with carrying concealed weapons. On the motion to suppress the guns the prosecution took the position that they had been seized following a search incident to a lawful arrest. The trial court rejected this theory, stating that it "would be stretching the facts beyond reasonable comprehension" to find that Officer [392 U.S. 1, 8] McFadden had had probable cause to arrest the men before he patted them down for weapons. However, the court denied the defendants' motion on the ground that Officer McFadden, on the basis of his experience, "had reasonable cause to believe . . . that the defendants were conducting themselves suspiciously, and some interrogation should be made of their action." Purely for his own protection, the court held, the officer had the right to pat down the outer clothing of these men, who he had reasonable cause to believe might be armed. The court distinguished between an investigatory "stop" and an arrest, and between a "frisk" of the outer clothing for weapons and a full-blown search for evidence of crime. The frisk, it held, was essential to the proper performance of the officer's investigatory duties, for without it "the answer to the police officer may be a bullet, and a loaded pistol discovered during the frisk is admissible." After the court denied their motion to suppress, Chilton and Terry waived jury trial and pleaded not guilty. The court adjudged them guilty, and the Court of Appeals for the Eighth Judicial District, Cuyahoga County, affirmed. State v. Terry, 5 Ohio App. 2d 122, 214 N. E. 2d 114 (1966). The Supreme Court of Ohio dismissed their appeal on the ground that no "substantial constitutional question" was involved. We granted certiorari, 387 U.S. 929 (1967), to determine whether the admission of the revolvers in evidence violated petitioner's rights under the Fourth Amendment, made applicable to the States by the Fourteenth. Mapp v. Ohio, 367 U.S. 643 (1961). We affirm the conviction. I. The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." This inestimable right of [392 U.S. 1, 9] personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs. For, as this Court has always recognized, "No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891). We have recently held that "the Fourth Amendment protects people, not places," Katz v. United States,389 U.S. 347, 351 (1967), and wherever an individual may harbor a reasonable "expectation of privacy," id., at 361 (MR. JUSTICE HARLAN, concurring), he is entitled to be free from unreasonable governmental intrusion. Of course, the specific content and incidents of this right must be shaped by the context in which it is asserted. For "what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures." Elkins v. United States, 364 U.S. 206, 222 (1960). Unquestionably petitioner was entitled to the protection of the Fourth Amendment as he walked down the street in Cleveland. Beck v. Ohio, 379 U.S. 89 (1964); Rios v. United States, 364 U.S. 253 (1960); Henry v. United States, 361 U.S. 98 (1959); United States v. Di Re, 332 U.S. 581 (1948); Carroll v. United States, 267 U.S. 132 (1925). The question is whether in all the circumstances of this on-the-street encounter, his right to personal security was violated by an unreasonable search and seizure. We would be less than candid if we did not acknowledge that this question thrusts to the fore difficult and troublesome issues regarding a sensitive area of police activity - issues which have never before been squarely [392 U.S. 1, 10] presented to this Court. Reflective of the tensions involved are the practical and constitutional arguments pressed with great vigor on both sides of the public debate over the power of the police to "stop and frisk" - as it is sometimes euphemistically termed - suspicious persons. On the one hand, it is frequently argued that in dealing with the rapidly unfolding and often dangerous situations on city streets the police are in need of an escalating set of flexible responses, graduated in relation to the amount of information they possess. For this purpose it is urged that distinctions should be made between a "stop" and an "arrest" (or a "seizure" of a person), and between a "frisk" and a "search."3 Thus, it is argued, the police should be allowed to "stop" a person and detain him briefly for questioning upon suspicion that he may be connected with criminal activity. Upon suspicion that the person may be armed, the police should have the power to "frisk" him for weapons. If the "stop" and the "frisk" give rise to probable cause to believe that the suspect has committed a crime, then the police should be empowered to make a formal "arrest," and a full incident "search" of the person. This scheme is justified in part upon the notion that a "stop" and a "frisk" amount to a mere "minor inconvenience and petty indignity," 4 which can properly be imposed upon the [392 U.S. 1, 11] citizen in the interest of effective law enforcement on the basis of a police officer's suspicion. 5 On the other side the argument is made that the authority of the police must be strictly circumscribed by the law of arrest and search as it has developed to date in the traditional jurisprudence of the Fourth Amendment. 6 It is contended with some force that there is not - and cannot be - a variety of police activity which does not depend solely upon the voluntary cooperation of the citizen and yet which stops short of an arrest based upon probable cause to make such an arrest. The heart of the Fourth Amendment, the argument runs, is a severe requirement of specific justification for any intrusion upon protected personal security, coupled with a highly developed system of judicial controls to enforce upon the agents of the State the commands of the Constitution. Acquiescence by the courts in the compulsion inherent [392 U.S. 1, 12] in the field interrogation practices at issue here, it is urged, would constitute an abdication of judicial control over, and indeed an encouragement of, substantial interference with liberty and personal security by police officers whose judgment is necessarily colored by their primary involvement in "the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 14 (1948). This, it is argued, can only serve to exacerbate police-community tensions in the crowded centers of our Nation's cities. 7 In this context we approach the issues in this case mindful of the limitations of the judicial function in controlling the myriad daily situations in which policemen and citizens confront each other on the street. The State has characterized the issue here as "the right of a police officer . . . to make an on-the-street stop, interrogate and pat down for weapons (known in street vernacular as `stop and frisk')." 8But this is only partly accurate. For the issue is not the abstract propriety of the police conduct, but the admissibility against petitioner of the evidence uncovered by the search and seizure. Ever since its inception, the rule excluding evidence seized in violation of the Fourth Amendment has been recognized as a principal mode of discouraging lawless police conduct. See Weeks v. United States, 232 U.S. 383, 391 -393 (1914). Thus its major thrust is a deterrent one, see Linkletter v. Walker, 381 U.S. 618, 629 -635 (1965), and experience has taught that it is the only effective deterrent to police misconduct in the criminal context, and that without it the constitutional guarantee against unreasonable searches and seizures would be a mere "form of words." Mapp v. Ohio, 367 U.S. 643, 655(1961). The rule also serves another vital function - "the imperative of judicial integrity." Elkins [392 U.S. 1, 13] v. United States, 364 U.S. 206, 222 (1960). Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions. Thus in our system evidentiary rulings provide the context in which the judicial process of inclusion and exclusion approves some conduct as comporting with constitutional guarantees and disapproves other actions by state agents. A ruling admitting evidence in a criminal trial, we recognize, has the necessary effect of legitimizing the conduct which produced the evidence, while an application of the exclusionary rule withholds the constitutional imprimatur. The exclusionary rule has its limitations, however, as a tool of judicial control. It cannot properly be invoked to exclude the products of legitimate police investigative techniques on the ground that much conduct which is closely similar involves unwarranted intrusions upon constitutional protections. Moreover, in some contexts the rule is ineffective as a deterrent. Street encounters between citizens and police officers are incredibly rich in diversity. They range from wholly friendly exchanges of pleasantries or mutually useful information to hostile confrontations of armed men involving arrests, or injuries, or loss of life. Moreover, hostile confrontations are not all of a piece. Some of them begin in a friendly enough manner, only to take a different turn upon the injection of some unexpected element into the conversation. Encounters are initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute for crime. 9 Doubtless some [392 U.S. 1, 14] police "field interrogation" conduct violates the Fourth Amendment. But a stern refusal by this Court to condone such activity does not necessarily render it responsive to the exclusionary rule. Regardless of how effective the rule may be where obtaining convictions is an important objective of the police, 10 it is powerless to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forgo successful prosecution in the interest of serving some other goal. Proper adjudication of cases in which the exclusionary rule is invoked demands a constant awareness of these limitations. The wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain, 11 will not be [392 U.S. 1, 15] stopped by the exclusion of any evidence from any criminal trial. Yet a rigid and unthinking application of the exclusionary rule, in futile protest against practices which it can never be used effectively to control, may exact a high toll in human injury and frustration of efforts to prevent crime. No judicial opinion can comprehend the protean variety of the street encounter, and we can only judge the facts of the case before us. Nothing we say today is to be taken as indicating approval of police conduct outside the legitimate investigative sphere. Under our decision, courts still retain their traditional responsibility to guard against police conduct which is overbearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires. When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials. And, of course, our approval of legitimate and restrained investigative conduct undertaken on the basis of ample factual justification should in no way discourage the employment of other remedies than the exclusionary rule to curtail abuses for which that sanction may prove inappropriate. Having thus roughly sketched the perimeters of the constitutional debate over the limits on police investigative conduct in general and the background against which this case presents itself, we turn our attention to the quite narrow question posed by the facts before us: whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest. [392 U.S. 1, 16] Given the narrowness of this question, we have no occasion to canvass in detail the constitutional limitations upon the scope of a policeman's power when he confronts a citizen without probable cause to arrest him. II. Our first task is to establish at what point in this encounter the Fourth Amendment becomes relevant. That is, we must decide whether and when Officer McFadden "seized" Terry and whether and when he conducted a "search." There is some suggestion in the use of such terms as "stop" and "frisk" that such police conduct is outside the purview of the Fourth Amendment because neither action rises to the level of a "search" or "seizure" within the meaning of the Constitution. 12 We emphatically reject this notion. It is quite plain that the Fourth Amendment governs "seizures" of the person which do not eventuate in a trip to the station house and prosecution for crime - "arrests" in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person. And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person's clothing all over his or her body in an attempt to find weapons is not a "search." Moreover, it is simply fantastic to urge that such a procedure [392 U.S. 1, 17] performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a "petty indignity." 13 It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly. 14 The danger in the logic which proceeds upon distinctions between a "stop" and an "arrest," or "seizure" of the person, and between a "frisk" and a "search" is two-fold. It seeks to isolate from constitutional scrutiny the initial stages of the contact between the policeman and the citizen. And by suggesting a rigid all-or-nothing model of justification and regulation under the Amendment, it obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means of constitutional regulation. 15 This Court has held in [392 U.S. 1, 18] the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope. Kremen v. United States, 353 U.S. 346 (1957); Go-Bart Importing Co. v. [392 U.S. 1, 19] United States, 282 U.S. 344, 356 -358 (1931); see United States v. Di Re, 332 U.S. 581, 586 -587 (1948). The scope of the search must be "strictly tied to and justified by" the circumstances which rendered its initiation permissible. Warden v. Hayden, 387 U.S. 294, 310 (1967) (MR. JUSTICE FORTAS, concurring); see, e. g., Preston v. United States, 376 U.S. 364, 367 -368 (1964); Agnello v. United States, 269 U.S. 20, 30 -31 (1925). The distinctions of classical "stop-and-frisk" theory thus serve to divert attention from the central inquiry under the Fourth Amendment - the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security. "Search" and "seizure" are not talismans. We therefore reject the notions that the Fourth Amendment does not come into play at all as a limitation upon police conduct if the officers stop short of something called a "technical arrest" or a "full-blown search." In this case there can be no question, then, that Officer McFadden "seized" petitioner and subjected him to a "search" when he took hold of him and patted down the outer surfaces of his clothing. We must decide whether at that point it was reasonable for Officer McFadden to have interfered with petitioner's personal security as he did. 16 And in determining whether the seizure and search were "unreasonable" our inquiry [392 U.S. 1, 20] is a dual one - whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. III. If this case involved police conduct subject to the Warrant Clause of the Fourth Amendment, we would have to ascertain whether "probable cause" existed to justify the search and seizure which took place. However, that is not the case. We do not retreat from our holdings that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure, see, e. g., Katz v. United States, 389 U.S. 347 (1967); Beck v. Ohio, 379 U.S. 89, 96 (1964); Chapman v. United States, 365 U.S. 610 (1961), or that in most instances failure to comply with the warrant requirement can only be excused by exigent circumstances, see, e. g., Warden v. Hayden, 387 U.S. 294(1967) (hot pursuit); cf. Preston v. United States, 376 U.S. 364, 367 -368 (1964). But we deal here with an entire rubric of police conduct - necessarily swift action predicated upon the on-the-spot observations of the officer on the beat - which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures. 17 Nonetheless, the notions which underlie both the warrant procedure and the requirement of probable cause remain fully relevant in this context. In order to assess the reasonableness of Officer McFadden's conduct as a general proposition, it is necessary "first to focus upon [392 U.S. 1, 21] the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen," for there is "no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails." Camara v. Municipal Court, 387 U.S. 523, 534 -535, 536-537 (1967). And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. 18 The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. 19 And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts [392 U.S. 1, 22] available to the officer at the moment of the seizure or the search "warrant a man of reasonable caution in the belief" that the action taken was appropriate? Cf. Carroll v. United States, 267 U.S. 132 (1925); Beck v. Ohio, 379 U.S. 89, 96 -97 (1964).20 Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction. See, e. g., Beck v. Ohio, supra; Rios v. United States, 364 U.S. 253 (1960); Henry v. United States, 361 U.S. 98 (1959). And simple "`good faith on the part of the arresting officer is not enough.' . . . If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be `secure in their persons, houses, papers, and effects,' only in the discretion of the police." Beck v. Ohio, supra, at 97. Applying these principles to this case, we consider first the nature and extent of the governmental interests involved. One general interest is of course that of effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. It was this legitimate investigative function Officer McFadden was discharging when he decided to approach petitioner and his companions. He had observed Terry, Chilton, and Katz go through a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation. There is nothing unusual in two men standing together on a street corner, perhaps waiting for someone. Nor is there anything suspicious about people [392 U.S. 1, 23] in such circumstances strolling up and down the street, singly or in pairs. Store windows, moreover, are made to be looked in. But the story in quite different where, as here, two men hover about a street corner for an extended period of time, at the end of which it becomes apparent that they are not waiting for anyone or anything; where these men pace alternately along an identical route, pausing to stare in the same store window roughly 24 times; where each completion of this route is followed immediately by a conference between the two men on the corner; where they are joined in one of these conferences by a third man who leaves swiftly; and where the two men finally follow the third and rejoin him a couple of blocks away. It would have been poor police work indeed for an officer of 30 years' experience in the detection of thievery from stores in this same neighborhood to have failed to investigate this behavior further. The crux of this case, however, is not the propriety of Officer McFadden's taking steps to investigate petitioner's suspicious behavior, but rather, whether there was justification for McFadden's invasion of Terry's personal security by searching him for weapons in the course of that investigation. We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. [392 U.S. 1, 24] Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives. 21 In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. We must still consider, however, the nature and quality of the intrusion on individual rights which must be accepted if police officers are to be conceded the right to search for weapons in situations where probable cause to arrest for crime is lacking. Even a limited search of the outer clothing for weapons constitutes a severe, [392 U.S. 1, 25] though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience. Petitioner contends that such an intrusion is permissible only incident to a lawful arrest, either for a crime involving the possession of weapons or for a crime the commission of which led the officer to investigate in the first place. However, this argument must be closely examined. Petitioner does not argue that a police officer should refrain from making any investigation of suspicious circumstances until such time as he has probable cause to make an arrest; nor does he deny that police officers in properly discharging their investigative function may find themselves confronting persons who might well be armed and dangerous. Moreover, he does not say that an officer is always unjustified in searching a suspect to discover weapons. Rather, he says it is unreasonable for the policeman to take that step until such time as the situation evolves to a point where there is probable cause to make an arrest. When that point has been reached, petitioner would concede the officer's right to conduct a search of the suspect for weapons, fruits or instrumentalities of the crime, or "mere" evidence, incident to the arrest. There are two weaknesses in this line of reasoning, however. First, it fails to take account of traditional limitations upon the scope of searches, and thus recognizes no distinction in purpose, character, and extent between a search incident to an arrest and a limited search for weapons. The former, although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon, Preston v. United States, 376 U.S. 364, 367 (1964), is also justified on other grounds, ibid., and can therefore involve a relatively extensive exploration of the person. A search for weapons in the absence of probable cause to [392 U.S. 1, 26] arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Warden v. Hayden, 387 U.S. 294, 310 (1967) (MR. JUSTICE FORTAS, concurring). Thus it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a "full" search, even though it remains a serious intrusion. A second, and related, objection to petitioner's argument is that it assumes that the law of arrest has already worked out the balance between the particular interests involved here - the neutralization of danger to the policeman in the investigative circumstance and the sanctity of the individual. But this is not so. An arrest is a wholly different kind of intrusion upon individual freedom from a limited search for weapons, and the interests each is designed to serve are likewise quite different. An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society's interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual's freedom of movement, whether or not trial or conviction ultimately follows. 22 The protective search for weapons, on the other hand, constitutes a brief, though far from inconsiderable, intrusion upon the sanctity of the person. It does not follow that because an officer may lawfully arrest a person only when he is apprised of facts sufficient to warrant a belief that the person has committed or is committing a crime, the officer is equally unjustified, absent that kind of evidence, in making any intrusions short of an arrest. Moreover, a perfectly reasonable apprehension of danger may arise long before the officer is possessed of adequate information to justify taking a person into custody for [392 U.S. 1, 27] the purpose of prosecuting him for a crime. Petitioner's reliance on cases which have worked out standards of reasonableness with regard to "seizures" constituting arrests and searches incident thereto is thus misplaced. It assumes that the interests sought to be vindicated and the invasions of personal security may be equated in the two cases, and thereby ignores a vital aspect of the analysis of the reasonableness of particular types of conduct under the Fourth Amendment. See Camara v. Municipal Court, supra. Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Cf. Beck v. Ohio, 379 U.S. 89, 91 (1964); Brinegar v. United States, 338 U.S. 160, 174 -176 (1949); Stacey v. Emery, 97 U.S. 642, 645 (1878). 23 And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Cf. Brinegar v. United States supra. IV. We must now examine the conduct of Officer McFadden in this case to determine whether his search and seizure of petitioner were reasonable, both at their inception [392 U.S. 1, 28] and as conducted. He had observed Terry, together with Chilton and another man, acting in a manner he took to be preface to a "stick-up." We think on the facts and circumstances Officer McFadden detailed before the trial judge a reasonably prudent man would have been warranted in believing petitioner was armed and thus presented a threat to the officer's safety while he was investigating his suspicious behavior. The actions of Terry and Chilton were consistent with McFadden's hypothesis that these men were contemplating a daylight robbery - which, it is reasonable to assume, would be likely to involve the use of weapons - and nothing in their conduct from the time he first noticed them until the time he confronted them and identified himself as a police officer gave him sufficient reason to negate that hypothesis. Although the trio had departed the original scene, there was nothing to indicate abandonment of an intent to commit a robbery at some point. Thus, when Officer McFadden approached the three men gathered before the display window at Zucker's store he had observed enough to make it quite reasonable to fear that they were armed; and nothing in their response to his hailing them, identifying himself as a police officer, and asking their names served to dispel that reasonable belief. We cannot say his decision at that point to seize Terry and pat his clothing for weapons was the product of a volatile or inventive imagination, or was undertaken simply as an act of harassment; the record evidences the tempered act of a policeman who in the course of an investigation had to make a quick decision as to how to protect himself and others from possible danger, and took limited steps to do so. The manner in which the seizure and search were conducted is, of course, as vital a part of the inquiry as whether they were warranted at all. The Fourth Amendment proceeds as much by limitations upon the [392 U.S. 1, 29] scope of governmental action as by imposing preconditions upon its initiation. Compare Katz v. United States, 389 U.S. 347, 354 -356 (1967). The entire deterrent purpose of the rule excluding evidence seized in violation of the Fourth Amendment rests on the assumption that "limitations upon the fruit to be gathered tend to limit the quest itself." United States v. Poller, 43 F.2d 911, 914 (C. A. 2d Cir. 1930); see, e. g., Linkletter v. Walker, 381 U.S. 618, 629 - 635 (1965); Mapp v. Ohio, 367 U.S. 643 (1961); Elkins v. United States, 364 U.S. 206, 216 -221 (1960). Thus, evidence may not be introduced if it was discovered by means of a seizure and search which were not reasonably related in scope to the justification for their initiation. Warden v. Hayden, 387 U.S. 294, 310 (1967) (MR. JUSTICE FORTAS, concurring). We need not develop at length in this case, however, the limitations which the Fourth Amendment places upon a protective seizure and search for weapons. These limitations will have to be developed in the concrete factual circumstances of individual cases. See Sibron v. New York, post, p. 40, decided today. Suffice it to note that such a search, unlike a search without a warrant incident to a lawful arrest, is not justified by any need to prevent the disappearance or destruction of evidence of crime. See Preston v. United States, 376 U.S. 364, 367 (1964). The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer. The scope of the search in this case presents no serious problem in light of these standards. Officer McFadden patted down the outer clothing of petitioner and his two companions. He did not place his hands in their pockets or under the outer surface of their garments until he had [392 U.S. 1, 30] felt weapons, and then he merely reached for and removed the guns. He never did invade Katz' person beyond the outer surfaces of his clothes, since he discovered nothing in his pat-down which might have been a weapon. Officer McFadden confined his search strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons. He did not conduct a general exploratory search for whatever evidence of criminal activity he might find. V. We conclude that the revolver seized from Terry was properly admitted in evidence against him. At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized. The policeman carefully restricted his search to what was appropriate to the discovery of the particular items which he sought. Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. [392 U.S. 1, 31] Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken. Affirmed. MR. JUSTICE BLACK concurs in the judgment and the opinion except where the opinion quotes from and relies upon this Court's opinion in Katz v. United States and the concurring opinion in Warden v. Hayden. SECOND DIVISION [G.R. No. 119220. September 20, 1996.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NILO SOLAYAO, accused-appellant. The Solicitor General for plaintiff-appellee. Violeta M. Parea for accused-appellant. SYLLABUS 1. CRIMINAL LAW; P.D. NO. 1866; ILLEGAL POSSESSION OF FIREARM AND AMMUNITION; ELEMENTS THEREOF. This Court, in the case of People v. Lualhati ruled that in crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz: (a) the existence of the subject firearm and (b) the fact that the accused who owned or possessed it does not have the corresponding license or permit to possess the same. 2. POLITICAL LAW; CONSTITUTIONAL LAW; RIGHTS OF THE ACCUSED; RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES; WARRANTLESS SEARCH BEFORE MAKING AN ARREST JUSTIFIED BY SUSPICIOUS CONDUCT OF ACCUSED; CASE AT BENCH. Accused appellant argued that the trial court erred in admitting the subject firearm in evidence as it was the product of an unlawful warrantless search. He maintained that the search made on his person violated his constitutional right to be secure in his person and effects against unreasonable searches and seizures. Not only was the search made without a warrant but it did not fall under any of the circumstances enumerated under Section 5, Rule 113 of the 1985 Rules on Criminal Procedure. . . . Under the circumstances obtaining in this case, however, accused-appellant's arguments are hardly tenable. He and his companions' drunken actuations aroused the suspicion of SPO3 Nio's group. After SPO3 Nio told accused-appellant not to run away, the former identified himself as a government agent. The peace officers did not know that he had committed, or was actually committing, the offense of illegal possession of firearm. Tasked with verifying the report that there were armed men roaming in the barangays surrounding Caibiran, their attention was understandably drawn to the group that had aroused their suspicion. They could not have known that the object wrapped in coconut leaves which accused- appellant was carrying hid a firearm. As with Posadas, where this Court ruled that the search and seizure brought about by the suspicious conduct of Posadas himself can be likened to a "stop and frisk" situation. There was probable cause to conduct a search even before an arrest could be made. . . ., the case at bar constitutes an instance where a search and seizure may be effected without first making an arrest. There was justifiable cause to "stop and frisk" accused-appellant when his companions fled upon seeing the government agents. Under the circumstances, the government agents could not possibly have procured a search warrant first. Thus, there was no violation of the constitutional guarantee against unreasonable searches and seizures. Nor was there error on the part of the trial court when it admitted the homemade firearm as evidence. 3. REMEDIAL LAW; EVIDENCE; PROSECUTION MUST RELY ON STRENGTH OF ITS OWN EVIDENCE; LACK OF LICENSE TO POSSESS FIREARM NOT SUFFICIENTLY ESTABLISHED IN CASE AT BENCH. As to the question of whether or not the prosecution was able to prove the second element, that is, the absence of a license or permit to possess the subject firearm, this Court agrees with the Office of the Solicitor General which pointed out that the prosecution failed to prove that accused- appellant lacked the necessary permit or license to possess the subject firearm. . . . This Court agrees with the argument of the Solicitor General that "while the prosecution was able to establish the fact that the subject firearm was seized by the police from the possession of appellant, without the latter being able to present any license or permit to possess the same, such fact alone is not conclusive proof that he was not lawfully authorized to carry such firearm. In other words, such fact does not relieve the prosecution from its duty to establish the lack of a license or permit to carry the firearm by clear and convincing evidence, like a certification from the government agency concerned." Putting it differently, "when a negative is averred in a pleading, or a plaintiff's case depends upon the establishment of a negative, and the means of proving the fact are equally within the control of each party, then the burden of proof is upon the party averring the negative." In this case, a certification from the Firearms and Explosives Unit of the Philippine National Police that accused- appellant was not a licensee of a firearm of any kind or caliber would have sufficed for the prosecution to prove beyond reasonable doubt the second element of the crime of illegal possession of firearm. 4. ID.; ID.; EXTRAJUDICIAL ADMISSION BY ACCUSED NOT SUFFICIENT TO PROVE LACK OF A LICENSE; CASE AT BENCH. In the case at bar, the prosecution was only able to prove by testimonial evidence that accused-appellant admitted before Police Officer Nio at the time that he was accosted that he did not have any authority or license to carry the subject firearm when he was asked if he had one. In other words, the prosecution relied on accused- appellant's admission to prove the second element. . . . By its very nature, an "admission is the mere acknowledgment of a fact or of circumstances from which guilt may be inferred tending to incriminate the speaker, but not sufficient of itself to establish his guilt." In other words, it is a "statement by defendant of fact or facts pertinent to issues pending, in connection with proof of other facts or circumstances, to prove guilt, but which is, of itself, insufficient to authorize conviction." From the above principles, this Court can infer that an admission in criminal cases is insufficient to prove beyond reasonable doubt the commission of the crime charged. Moreover, said admission is extra-judicial in nature. As such, it does not fall under Section 4 of Rule 129 of the Revised Rules of Court . . . . Not being a judicial admission, said statement by accused-appellant does not prove beyond reasonable doubt the second element of illegal possession of firearm. It does not even establish a prima facie case. It merely bolsters the case for the prosecution but does not stand as proof of the fact of absence or lack of a license. D E C I S I O N ROMERO, J p: Accused-appellant Nilo Solayao was charged before the Regional Trial Court of Naval, Biliran, Branch 16, with the crime of illegal possession of firearm and ammunition 1 defined and penalized under Presidential Decree No. 1866. The lone prosecution witness, SPO3 Jose Nio, narrated that at about 9:00 o'clock in the evening of July 9, 1992, with CAFGU members Teofilo Llorad, Jr. and Cecilio Cenining, he went to Barangay Caulangohan, Caibiran, Biliran. They were to conduct an intelligence patrol as required of them by their intelligence officer to verify reports on the presence of armed persons roaming around the barangays of Caibiran. 2 From Barangay Caulangohan, the team of Police Officer Nio proceeded to Barangay Onion where they met the group of accused- appellant Nilo Solayao numbering five. The former became suspicious when they observed that the latter were drunk and that accused-appellant himself was wearing a camouflage uniform or a jungle suit. Accused-appellant's companions, upon seeing the government agents, fled. 3 Police Officer Nio told accused-appellant not to run away and introduced himself as "PC," after which he seized the dried coconut leaves which the latter was carrying and found wrapped in it a 49- inch long homemade firearm locally known as "latong." When he asked accused-appellant who issued him a license to carry said firearm or whether he was connected with the military or any intelligence group, the latter answered that he had no permission to possess the same. Thereupon, SPO3 Nio confiscated the firearm and turned him over to the custody of the policemen of Caibiran who subsequently investigated him and charged him with illegal possession of firearm. 4 Accused-appellant, in his defense, did not contest the confiscation of the shotgun but averred that this was only given to him by one of his companions, Hermogenes Cenining, when it was still wrapped in coconut leaves. He claimed that he was not aware that there was a shotgun concealed inside the coconut leaves since they were using the coconut leaves as a torch. He further claimed that this was the third torch handed to him after the others had been used up. 5 Accused- appellant's claim was corroborated by one Pedro Balano that he indeed received a torch from Hermogenes Cenining which turned out to be a shotgun wrapped in coconut leaves. 6 On August 25, 1994, the trial court found accused-appellant guilty of illegal possession of firearm under Section 1 of Presidential Decree No. 1866 and imposed upon him the penalty of imprisonment ranging from reclusion temporal maximum to reclusion perpetua. The trial court, having found no mitigating but one aggravating circumstance of nighttime, sentenced accused-appellant to suffer the prison term of reclusion perpetua with the accessory penalties provided by law. 7 It found that accused-appellant did not contest the fact that SPO3 Nio confiscated the firearm from him and that he had no permit or license to possess the same. It hardly found credible accused-appellant's submission that he was in possession of the firearm only by accident and that upon reaching Barangay Onion, he followed four persons, namely, Hermogenes Cenining, Antonio Sevillano, Willie Regir and Jovenito Jaro when he earlier claimed that he did not know his companions. 8 Accused-appellant comes to this Court on appeal and assigns the following errors: "I. The trial court erred in admitting in evidence the homemade firearm. II. The trial court erred in appreciating the aggravating circumstance of nighttime in the imposition of the maximum penalty against the accused-appellant." 9 This Court, in the case of People v. Lualhati 10 ruled that in crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz: (a) the existence of the subject firearm and (b) the fact that the accused who owned or possessed it does not have the corresponding license or permit to possess the same. In assigning the first error, accused-appellant argued that the trial court erred in admitting the subject firearm in evidence as it was the product of an unlawful warrantless search. He maintained that the search made on his person violated his constitutional right to be secure in his person and effects against unreasonable searches and seizures. Not only was the search made without a warrant but it did not fall under any of the circumstances enumerated under Section 5, Rule 113 of the 1985 Rules on Criminal Procedure which provides, inter alia: "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." Hence, the search being unlawful, the homemade firearm confiscated from him is inadmissible in evidence for being "the fruit of the poisonous tree." 11 As such, the prosecution's case must necessarily fail and the accused-appellant acquitted. Accused-appellant's arguments follow the line of reasoning in People v. Cuizon, et al. 12 where this Court declared: ". . . emphasis is to be laid on the fact that the law requires that the search be incident to a lawful arrest, in order that the search itself may likewise be considered legal. Therefore, it is beyond cavil that a lawful arrest must precede the search of a person and his belongings. Were a search first undertaken, then an arrest effected based on evidence produced by the search, both such search and arrest would be unlawful, for being contrary to law." Under the circumstances obtaining in this case, however, accused- appellant's arguments are hardly tenable. He and his companions' drunken actuations aroused the suspicion of SPO3 Nio's group, as well as the fact that he himself was attired in a camouflage uniform or a jungle suit 13 and that upon espying the peace officers, his companions fled. It should be noted that the peace officers were precisely on an intelligence mission to verify reports that armed persons were roaming around the barangays of Caibiran. 14 The circumstances in this case are similar to those obtaining in Posadas v. Court of Appeals 15 where this Court held that "at the time the peace officers identified themselves and apprehended the petitioner as he attempted to flee, they did not know that he had committed, or was actually committing the offense of illegal possession of firearm and ammunitions. They just suspected that he was hiding something in the buri bag. They did not know what its contents were. The said circumstances did not justify an arrest without a warrant." This Court, nevertheless, ruled that the search and seizure in the Posadas case brought about by the suspicious conduct of Posadas himself can be likened to a "stop and frisk" situation. There was probable cause to conduct a search even before an arrest could be made. In the present case, after SPO3 Nio told accused-appellant not to run away, the former identified himself as a government agent. 16 The peace officers did not know that he had committed, or was actually committing, the offense of illegal possession of firearm. Tasked with verifying the report that there were armed men roaming in the barangays surrounding Caibiran, their attention was understandably drawn to the group that had aroused their suspicion. They could not have known that the object wrapped in coconut leaves which accused- appellant was carrying hid a firearm. As with Posadas, the case at bar constitutes an instance where a search and seizure may be effected without first making an arrest. There was justifiable cause to "stop and frisk" accused-appellant when his companions fled upon seeing the government agents. Under the circumstances, the government agents could not possibly have procured a search warrant first. Thus, there was no violation of the constitutional guarantee against unreasonable searches and seizures. Nor was there error on the part of the trial court when it admitted the homemade firearm as evidence. As to the question of whether or not the prosecution was able to prove the second element, that is, the absence of a license or permit to possess the subject firearm, this Court agrees with the Office of the Solicitor General which pointed out that the prosecution failed to prove that accused-appellant lacked the necessary permit or license to possess the subject firearm. 17 Undoubtedly, it is the constitutional presumption of innocence that lays such burden upon the prosecution. The absence of such license and legal authority constitutes an essential ingredient of the offense of illegal possession of firearm, and every ingredient or essential element of an offense must be shown by the prosecution by proof beyond reasonable doubt. 18 In People v. Tiozon, 19 this Court said: "It is true that People vs. Lubo, 101 Phil. 179 and People vs. Ramos, 8 SCRA 758 could be invoked to support the view that it is incumbent upon a person charged with illegal possession of a firearm to prove the issuance to him of a license to possess the firearm, but we are of the considered opinion that under the provisions of Section 2, Rule 131 of the Rules of Court which provide that in criminal cases the burden of proof as to the offense charged lies on the prosecution and that a negative fact alleged by the prosecution must be proven if 'it is an essential ingredient of the offense charged,' the burden of proof was with the prosecution in this case to prove that the firearm used by appellant in committing the offense charged was not properly licensed. It cannot be denied that the lack or absence of a license is an essential ingredient of the offense of illegal possession of a firearm. The information filed against appellant in Criminal Case No. 3558 of the lower court (now G.R. No. 27681) specifically alleged that he had no 'license or permit to possess' the .45 caliber pistol mentioned therein. Thus it seems clear that it was the prosecution's duty not merely to allege that negative fact but to prove it. This view is supported by similar adjudicated cases. In U.S. vs. Tria, 17 Phil. 303, the accused was charged with 'having criminally inscribed himself as a voter knowing that he had none of the qualifications required to be a voter. It was there held that the negative fact of lack of qualification to be a voter was an essential element of the crime charged and should be proved by the prosecution. In another case (People vs. Quebral, 68 Phil. 564) where the accused was charged with illegal practice of medicine because he had diagnosed, treated and prescribed for certain diseases suffered by certain patients from whom he received monetary compensation, without having previously obtained the proper certificate of registration from the Board of Medical Examiners, as provided in Section 770 of the Administrative Code, this Court held that if the subject of the negative averment like, for instance, the act of voting without the qualifications provided by law is an essential ingredient of the offense charged, the prosecution has the burden of proving the same, although in view of the difficulty of proving a negative allegation, the prosecution, under such circumstance, need only establish a prima facie case from the best evidence obtainable. In the case before Us, both appellant and the Solicitor General agree that there was not even a prima facie case upon which to hold appellant guilty of the illegal possession of a firearm. Former Chief Justice Moran upholds this view as follows: 'The mere fact that the adverse party has the control of the better means of proof of the fact alleged, should not relieve the party making the averment of the burden of proving it. This is so, because a party who alleges a fact must be assumed to have acquired some knowledge thereof, otherwise he could not have alleged it. Familiar instance of this is the case of a person prosecuted for doing an act or carrying on a business, such as, the sale of liquor without a license. How could the prosecution aver the want of a license if it had acquired no knowledge of that fact? Accordingly, although proof of the existence or non-existence of such license can, with more facility, be adduced by the defendant, it is nevertheless, incumbent upon the party alleging the want of the license to prove the allegation. Naturally, as the subject matter of the averment is one which lies peculiarly within the control or knowledge of the accused prima facie evidence thereof on the part of the prosecution shall suffice to cast the onus upon him.' (6 Moran, Comments on the Rules of Court, 1963 edition, p. 8)." Finally, the precedents cited above have been crystallized as the present governing case law on this question. As this Court summed up the doctrine in People v. Macagaling: 20 "We cannot see how the rule can be otherwise since it is the inescapable duty of the prosecution to prove all the ingredients of the offense as alleged against the accused in an information, which allegations must perforce include any negative element provided by the law to integrate that offense. We have reiterated quite recently the fundamental mandate that since the prosecution must allege all the elements of the offense charged, then it must prove by the requisite quantum of evidence all the elements it has thus alleged." In the case at bar, the prosecution was only able to prove by testimonial evidence that accused-appellant admitted before Police Officer Nio at the time that he was accosted that he did not have any authority or license to carry the subject firearm when he was asked if he had one. 21 In other words, the prosecution relied on accused- appellant's admission to prove the second element. Is this admission sufficient to prove beyond reasonable doubt the second element of illegal possession of firearm which is that accused- appellant does not have the corresponding license? Corollary to the above question is whether an admission by the accused-appellant can take the place of any evidentiary means establishing beyond reasonable doubt the fact averred in the negative in the pleading and which forms an essential ingredient of the crime charged. This Court answers both questions in the negative. By its very nature, an "admission is the mere acknowledgment of a fact or of circumstances from which guilt may be inferred, tending to incriminate the speaker, but not sufficient of itself to establish his guilt." 22 In other words, it is a "statement by defendant of fact or facts pertinent to issues pending, in connection with proof of other facts or circumstances, to prove guilt, but which is, of itself, insufficient to authorize conviction." 23 From the above principles, this Court can infer that an admission in criminal cases is insufficient to prove beyond reasonable doubt the commission of the crime charged. Moreover, said admission is extra-judicial in nature. As such, it does not fall under Section 4 of Rule 129 of the Revised Rules of Court which states: "An admission, verbal or written, made by a party in the course of the trial or other proceedings in the same case does not require proof." Not being a judicial admission, said statement by accused-appellant does not prove beyond reasonable doubt the second element of illegal possession of firearm. It does not even establish a prima facie case. It merely bolsters the case for the prosecution but does not stand as proof of the fact of absence or lack of a license. This Court agrees with the argument of the Solicitor General that "while the prosecution was able to establish the fact that the subject firearm was seized by the police from the possession of appellant, without the latter being able to present any license or permit to possess the same, such fact alone is not conclusive proof that he was not lawfully authorized to carry such firearm. In other words, such fact does not relieve the prosecution from its duty to establish the lack of a license or permit to carry the firearm by clear and convincing evidence, like a certification from the government agency concerned." 24 Putting it differently, "when a negative is averred in a pleading, or a plaintiff's case depends upon the establishment of a negative, and the means of proving the fact are equally within the control of each party, then the burden of proof is upon the party averring the negative." 25 In this case, a certification from the Firearms and Explosives Unit of the Philippine National Police that accused-appellant was not a licensee of a firearm of any kind or caliber would have sufficed for the prosecution to prove beyond reasonable doubt the second element of the crime of illegal possession of firearm. In view of the foregoing, this Court sees no need to discuss the second assigned error. WHEREFORE, the assailed judgment of the court a quo is REVERSED and SET ASIDE. Accused-appellant Nilo Solayao is hereby ACQUITTED for insufficiency of evidence and ordered immediately released unless there are other legal grounds for his continued detention, with costs de oficio. SO ORDERED. Regalado, Puno and Torres, Jr., JJ ., concur. Mendoza, J ., is on leave. THIRD DIVISION [G.R. No. 113447. October 9, 1997.] ALAIN MANALILI y DIZON, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. SYNOPSIS Alain Manalili y Dizon was charged with violation of Section 8, Article II of Republic Act No. 6425. After trial, the Regional Trial Court of Caloocan City rendered a decision convicting appellant of illegal possession of marijuana residue. The accused was sentenced to suffer imprisonment of six years and one day and to pay a fine of P6,000.00 and to pay the costs. The conviction of petitioner was based on the strength of the arresting officers' testimony. On appeal, the Court of Appeals found no proof that the decision of the trial court was based on speculations, surmises or conjectures. Hence, this petition for review on certiorari under Rule 45 of the Rules of Court, seeking the reversal of the decision of the Court of Appeals. cdasia The Supreme Court affirmed the assailed decision with modification as to the imposable penalty. The Court held that the search made was valid, being akin to a stop-and-frisk. The general rule is that a search and seizure must be validated by a previously secured judicial warrant; otherwise, such search and seizure is unconstitutional and subject to challenge. This right, however is not absolute. Stop-and- frisk has already been adopted as another exception to the general rule against a search without a warrant. SYLLABUS 1. POLITICAL LAW; SEARCH AND SEIZURE; STOP-AND- FRISK; DEFINED AND CONSTRUED; WHEN AKIN TO A VALID SEARCH. The Court held that the search was valid, being akin to a stop-and-frisk. In the landmark case of Terry vs. Ohio, (20 L Ed 2d 889; 88 S Ct 1868, 392 US 1, 900 June 10, 1968) a stop-and- frisk was defined as the vernacular designation of the right of a police officer to stop a citizen on the street, interrogate him, and pat him for weapon(s): ". . . (W)here a police officer observes an unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identified himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapon seized may properly be introduced in evidence against the person from whom they were taken." cdasia 2. ID.; ID.; MUST BE VALIDATED BY A PREVIOUSLY SECURED JUDICIAL WARRANT; EFFECT OF ABSENCE THEREOF. In Philippine jurisprudence, the general rule is that a search and seizure must be validated by a previously secured judicial warrant; otherwise, such search and seizure is unconstitutional and subject to challenge. Section 2, Article III of the 1987 Constitution, gives this guarantee. Any evidence obtained in violation of the mentioned provision is legally inadmissible in evidence as a "fruit of the poisonous tree," falling under the exclusionary rule: "SEC. 3. . . . (2) Any evidence obtained in violation of . . . the preceding section shall be inadmissible for any purpose in any proceeding." 3. ID.; ID.; ID.; RECOGNIZED EXCEPTIONS. This right, however, is not absolute. The recent case of People vs. Lacena, G.R. No. 109250, September 5, 1997, enumerated five recognized exceptions to the rule against warrantless search and seizure, viz.: "(1) search incidental to a lawful arrest, (2) search of moving vehicles, (3) seizure in plain view, (4) customs search, and (5) waiver by the accused themselves of their right against unreasonable search and seizure." In People vs. Encinada, G.R. No. 116720, October 2, 1997, the Court further explained that "[i]n these cases, the search and seizure may be made only with probable cause as the essential requirement. Although the term eludes exact definition, probable cause for a search is, at best, defined as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged; or the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the item(s), article(s) or object(s) sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched." Stop-and-frisk has already been adopted as another exception to the general rule against a search without a warrant. In Posadas vs. Court of Appeals, 188 SCRA 288, 292-293, August 2, 1990, the Court held that there were many instances where a search and seizure could be effected without necessarily being preceded by an arrest, one of which was stop-and- frisk. In said case, members of the Integrated National Police of Davao stopped petitioner, who was carrying a buri bag and acting suspiciously. They found inside petitioner's bag one .38-cal. revolver with two rounds of live ammunition, two live ammunitions for a .22- cal. gun and a tear gas grenade. In upholding the legality of the search, the Court said that to require the police officers to search the bag only after they had obtained a search warrant might prove to be useless, futile and much too late under the circumstances. In such a situation, it was reasonable for a police officer to stop a suspicious individual briefly in order to determine his identity or to maintain the status quo while obtaining more information, rather than to simply shrug his shoulders and allow a crime to occur. 4. ID.; ID.; RIGHT AGAINST UNREASONABLE SEARCH; REQUIREMENTS FOR WAIVER THEREOF; CASE AT BAR. A valid waiver of a right, more particularly of the constitutional right against unreasonable search, requires the concurrence of the following requirements: (1) the right to be waived existed; (2) the person waiving it had knowledge, actual or constructive, thereof; and (3) he or she had an actual intention to relinquish the right. Otherwise, the Courts will indulge every reasonable presumption against waiver of fundamental safeguards and will not deduce acquiescence from the failure to exercise this elementary right. In the present case, however, petitioner is deemed to have waived such right for his failure to raise its violation before the trial court. In petitions under Rule 45, as distinguished from an ordinary appeal of criminal cases where the whole case is opened for review, the appeal is generally limited to the errors assigned by petitioner. Issues not raised below cannot be pleaded for the first time on appeal. 5. REMEDIAL LAW; EVIDENCE; TESTIMONY; CREDIBILITY OF WITNESSES; ASSESSMENT BY THE TRIAL COURT; ACCORDED GREAT WEIGHT AND RESPECT; EXCEPTION. Time and again, this Court has ruled that the trial court's assessment of the credibility of witnesses, particularly when affirmed by the Court of Appeals as in this case, is accorded great weight and respect, since it had the opportunity to observe their demeanor and deportment as they testified before it. Unless substantial facts and circumstances have been overlooked or misappreciated by the trial court which, if considered, would materially affect the result of the case, the Court will not countenance a departure from this rule. 6. ID.; ID.; FRAME-UP; LIKE ALIBI IS VIEWED WITH DISFAVOR BY THE COURT. The petitioner's defense of frame- up, like alibi, is viewed by this Court with disfavor because it is easy to concoct and fabricate. 7. CRIMINAL LAW; ILLEGAL POSSESSION OF PROHIBITED DRUGS; ELEMENTS. The elements of illegal possession of marijuana are: (a) the accused is in possession of an item or object which is identified to be a prohibited drug; (b) such possession is not authorized by law; and (c) the accused freely and consciously possessed the said drug. 8. ID.; ID.; IMPOSABLE PENALTY. The trial and the appellate courts overlooked the Indeterminate Sentence Law (Act No. 4103, as amended) by sentencing petitioner to a straight penalty of six years and one day of imprisonment, aside from the imposed fine of six thousand pesos. This Act requires the imposition of an indeterminate penalty. The Dangerous Drugs Law, R.A. 6425, as amended by B.P. 179, imposes the following penalty for illegal possession of marijuana: "Sec. 8. . . . The penalty of imprisonment ranging from six years and one day to twelve years and a fine ranging from six thousand to twelve thousand pesos shall be imposed upon any person who, unless authorized by law, shall possess or use Indian hemp." Prescinding from the foregoing, the Court holds that the proper penalty is an indeterminate sentence of imprisonment ranging from six years and one day to twelve years. ASDTEa D E C I S I O N PANGANIBAN, J p: When dealing with a rapidly unfolding and potentially criminal situation in the city streets where unarguably there is no time to secure an arrest or a search warrant, policemen should employ limited, flexible responses like "stop-and-frisk" which are graduated in relation to the amount of information they possess, the lawmen being ever vigilant to respect and not to violate or to treat cavalierly the citizen's constitutional rights against unreasonable arrest, search and seizure. The Case This rule is reiterated as we resolve this petition for review on certiorari under Rule 45 of the Rules of Court, seeking the reversal of the Decision of the Court of Appeals dated April 19, 1993 and its Resolution dated January 20, 1994 in CA G.R. CR No. 07266, entitled "People of the Philippines vs. Alain Manalili y Dizon." In an Information dated April 11, 1988, 1 Petitioner Alain Manalili y Dizon was charged by Assistant Caloocan City Fiscal E. Juan R. Bautista with violation of Section 8, Article II of Republic Act No. 6425, allegedly committed as follows: 2 "That on or about the 11th day of April 1988 in Caloocan City, MM, Philippines and within the jurisdiction of this Honorable Court, the above-named accused without any authority of law, did then and there willfully, unlawfully and feloniously have in his custody, possession and control crushed marijuana residue, which is a prohibited drug and knowing the same to be such. Contrary to Law." Upon his arraignment on April 21, 1988, appellant pleaded "not guilty" to the charge. 3 With the agreement of the public prosecutor, appellant was released after filing a P10,000.00 bail bond. 4 After trial in due course, the Regional Trial Court of Caloocan City, Branch 124, acting as a Special Criminal Court, rendered on May 19, 1989 a decision 5 convicting appellant of illegal possession of marijuana residue. The dispositive portion of the decision reads: 6 "WHEREFORE, in view of all the foregoing, this Court finds the accused ALAIN MANALILI Y DIZON guilty beyond reasonable doubt of violation of Section 8, Article II, of Republic Act No. 6425, as amended (Illegal Possession of Marijuana residue), and hereby sentences (sic) said accused to suffer imprisonment of SIX (6) YEARS and ONE (1) DAY; and to pay a fine of P6,000.00; and to pay the costs. xxx xxx xxx" Appellant remained on provisional liberty. 7 Atty. Benjamin Razon, counsel for the defense, filed a Notice of Appeal 8 dated May 31, 1989. On April 19, 1993, Respondent Court 9 promulgated its assailed Decision, denying the appeal and affirming the trial court: 10 "ACCORDINGLY, the decision appealed from dated May 19, 1989 is hereby AFFIRMED in all respects. Costs against appellant." Respondent Court 11 denied reconsideration via its assailed Resolution dated January 20, 1994, disposing: "ACCORDINGLY, accused-appellant's motion for reconsideration is, as is hereby DENIED." The Facts Version of the Prosecution The facts, as found by the trial court, are as follows: 12 "At about 2:10 o'clock in the afternoon of April 11, 1988, policemen from the Anti-Narcotics Unit of the Kalookan City Police Station were conducting a surveillance along A. Mabini street, Kalookan City, in front of the Kalookan City Cemetery. The policemen were Pat. Romeo Espiritu and Pat. Anger Lumabas and a driver named Arnold Enriquez was driving a Tamaraw vehicle which was the official car of the Police Station of Kalookan City. The surveillance was being made because of information that drug addicts were roaming the area in front of the Kalookan City Cemetery. Upon reaching the Kalookan City Cemetery, the policemen alighted from their vehicle. They then chanced upon a male person in front of the cemetery who appeared high on drugs. The male person was observed to have reddish eyes and to be walking in a swaying manner. When this male person tried to avoid the policemen, the latter approached him and introduced themselves as police officers. The policemen then asked the male person what he was holding in his hands. The male person tried to resist. Pat. Romeo Espiritu asked the male person if he could see what said male person had in his hands. The latter showed the wallet and allowed Pat. Romeo Espiritu to examine the same. Pat. Espiritu took the wallet and examined it. He found suspected crushed marijuana residue inside. He kept the wallet and its marijuana contents. aisadc The male person was then brought to the Anti-Narcotics Unit of the Kalookan City Police Headquarters and was turned over to Cpl. Wilfredo Tamondong for investigation. Pat. Espiritu also turned over to Cpl. Tamondong the confiscated wallet and its suspected marijuana contents. The man turned out to be the accused ALAIN MANALILI y DIZON. Upon receipt of the confiscated suspected marijuana residue from Pat. Espiritu, Cpl. Tamondong wrapped the same with a white sheet of paper on which he wrote 'Evidence 'A' 4/11/88 Alain Manalili'. The white sheet of paper was marked as Exhibit 'E-3'. The residue was originally wrapped in a smaller sheet of folded paper. (Exhibit 'E-4'). Cpl. Tamondong next prepared a referral slip addressed to the NBI Forensic Chemistry Section requesting a chemical analysis of the subject marijuana residue (Exhibit 'D'). Cpl. Tamondong thereafter prepared a Joint Affidavit of the apprehending policemen (Exhibit 'A'). Pat. Angel Lumabas handcarried the referral slip (Exhibit 'D') to the National Bureau of Investigation (NBI), including the subject marijuana residue for chemical analysis. The signature of Pat. Lumabas appears on the left bottom corner of Exhibit 'D'. The Forensic Chemistry Section of the NBI received the aforesaid referral slip and the subject marijuana residue at 7:40 o'clock in the evening of April 11, 1988 as shown on the stamped portion of Exhibit 'D'. It was NBI Aida Pascual who conducted the microscopic and chemical examinations of the specimen which she identified. (Exhibit 'E') 13 Mrs. Pascual referred to the subject specimen as 'crushed marijuana leaves' in her Certification dated April 11, 1988 (Exhibit 'F'). 14 These crushed marijuana leaves gave positive results for marijuana, according to the Certificate. Mrs. Pascual also conducted a chromatographic examination of the specimen. In this examination, she also found that the 'crushed marijuana leaves' gave positive results for marijuana. She then prepared a Final Report of her examinations (Exhibit 'G'). After conducting the examinations, Ms. Pascual placed the specimen in a white letter-envelope and sealed it. (Exhibit 'E'). She then wrote identification notes on this letter-envelope. (Exhibit 'E-1'). Pat. Lumabas carried the Certification marked as Exhibit 'F' from the NBI Forensic Chemistry Section to Cpl. Tamondong. Upon receipt thereof, Cpl. Tamondong prepared a referral slip addressed to the City Fiscal of Kalookan City. (Exhibit 'C')" On rebuttal, Pat. Espiritu testified that appellant was not riding a tricycle but was walking in front of the cemetery when he was apprehended. 15 Version of the Defense The trial court summarized the testimonies of the defense witnesses as follows: 16 "At about 2:00 o'clock in the afternoon of April 11, 1988, the accused ALAIN MANALILI was aboard a tricycle at A. Mabini street near the Kalookan City Cemetery on the way to his boarding house. Three policemen ordered the driver of the tricycle to stop because the tricycle driver and his lone passenger were under the influence of marijuana. The policemen brought the accused and the tricycle driver inside the Ford Fiera which the policemen were riding in. The policemen then bodily searched the accused and the tricycle driver. At this point, the accused asked the policemen why he was being searched and the policemen replied that he (accused) was carrying marijuana. However, nothing was found on the persons of the accused and the driver. The policemen allowed the tricycle driver to go while they brought the accused to the police headquarters at Kalookan City where they said they would again search the accused. On the way to the police headquarters, the accused saw a neighbor and signaled the latter to follow him. The neighbor thus followed the accused to the Kalookan City Police Headquarters. Upon arrival thereat, the accused was asked to remove his pants in the presence of said neighbor and another companion. The policemen turned over the pants of the accused over a piece of bond paper trying to look for marijuana. However, nothing was found, except for some dirt and dust. This prompted the companion of the neighbor of the accused to tell the policemen to release the accused. The accused was led to a cell. The policemen later told the accused that they found marijuana inside the pockets of his pants. At about 5:00 o'clock in the afternoon on the same day, the accused was brought outside the cell and was led to the Ford Fiera. The accused was told by the policemen to call his parents in order to 'settle' the case. The policemen who led the accused to the Ford Fiera were Pat. Lumabas, Pat. Espiritu and Cpl. Tamondong. Pat. Lumabas was the policeman who told the accused to call his parents. The accused did not call his parents and he told the policemen that his parents did not have any telephone. At about 5:30 o'clock in the afternoon of the same day, the accused was brought in the office of an inquest Fiscal. There, the accused told the Fiscal that no marijuana was found on his person but the Fiscal told the accused not to say anything. The accused was then brought back to the Kalookan City Jail. Loreto Medenilla, the tricycle driver who was allegedly with the accused when he and the accused were stopped by policemen and then bodily searched on April 11, 1988, testified. He said that the policemen found nothing either on his person or on the person of the accused when both were searched on April 11, 1988. Roberto Abes, a neighbor of the accused, testified that he followed the accused at the Kalookan City Police Headquarters on April 11, 1988. He said that the police searched the accused who was made to take off his pants at the police headquarters but no marijuana was found on the body of the accused". Appellant, who was recalled to the stand as sur-rebuttal witness, presented several pictures showing that tricycles were allowed to ply in front of the Caloocan Cemetery. 17 The Rulings of the Trial and the Appellate Courts The trial court convicted petitioner of illegal possession of marijuana residue largely on the strength of the arresting officers testimony. Patrolmen Espiritu and Lumabas were "neutral and disinterested" witnesses, testifying only on what transpired during the performance of their duties. Substantially, they asserted that the appellant was found to be in possession of a substance which was later identified as crushed marijuana residue. The trial court disbelieved appellant's defense that this charge was merely "trumped up," because the appellant neither took any legal action against the allegedly erring policemen nor moved for a reinvestigation before the city fiscal of Kalookan City. On appeal, Respondent Court found no proof that the decision of the trial court was based on speculations, surmises or conjectures. On the alleged "serious" discrepancies in the testimonies of the arresting officers, the appellate court ruled that the said inconsistencies were insubstantial to impair the essential veracity of the narration. It further found petitioner's contention that he could not be convicted of illegal possession of marijuana residue to be without merit, because the forensic chemist reported that what she examined were marijuana leaves. cda Issues Petitioner assigns the following errors on the part of Respondent Court. "I The Court of Appeals erred in upholding the findings of fact of the trial court. II The Court of Appeals erred in upholding the conviction of (the) accused (and) in ruling that the guilt of the accused had been proved (beyond) reasonable doubt. III The Court of Appeals erred in not ruling that the inconsistencies in the testimonies of the prosecution witnesses were material and substantial and not minor. IV The Court of Appeals erred in not appreciating the evidence that the accused was framed for the purpose of extorting money. V The Court of Appeals erred in not acquitting the accused when the evidence presented is consistent with both innocence and guilt. VI The Court of Appeals erred in admitting the evidence of the prosecution which are inadmissible in evidence." Restated more concisely, petitioner questions (1) the admissibility of the evidence against him, (2) the credibility of prosecution witnesses and the rejection by the trial and the appellate courts of the defense of extortion, and (3) the sufficiency of the prosecution evidence to sustain his conviction. The Court's Ruling The petition has no merit. First Issue: Admissibility of the Evidence Seized During a Stop-and-Frisk Petitioner protests the admission of the marijuana leaves found in his possession, contending that they were products of an illegal search. The Solicitor General, in his Comment dated July 5, 1994, which was adopted as memorandum for respondent, counters that the inadmissibility of the marijuana leaves was waived because petitioner never raised this issue in the proceedings below nor did he object to their admissibility in evidence. He adds that, even assuming arguendo that there was no waiver, the search was legal because it was incidental to a warrantless arrest under Section 5 (a), Rule 113 of the Rules of Court. We disagree with petitioner and hold that the search was valid, being akin to a stop-and-frisk. In the landmark case of Terry vs. Ohio, 18 a stop-and-frisk was defined as the vernacular designation of the right of a police officer to stop a citizen on the street, interrogate him, and pat him for weapon(s): ". . . (W)here a police officer observes an unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identified himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapon seized may properly be introduced in evidence against the person from whom they were taken." 19 In allowing such a search, the United States Supreme Court held that the interest of effective crime prevention and detection allows a police officer to approach a person, in appropriate circumstances and manner, for purposes of investigating possible criminal behavior even though there is insufficient probable cause to make an actual arrest. This was the legitimate investigative function which Officer McFadden discharged in that case, when he approached petitioner and his companion whom he observed to have hovered alternately about a street corner for an extended period of time, while not waiting for anyone; paused to stare in the same store window roughly 24 times; and conferred with a third person. It would have been sloppy police work for an officer of 30 years experience to have failed to investigate this behavior further. In admitting in evidence two guns seized during the stop-and-frisk, the US Supreme Court held that what justified the limited search was the more immediate interest of the police officer in taking steps to assure himself that the person with whom he was dealing was not armed with a weapon that could unexpectedly and fatally be used against him. It did not, however, abandon the rule that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure, excused only by exigent circumstances. In Philippine jurisprudence, the general rule is that a search and seizure must be validated by a previously secured judicial warrant; otherwise, such search and seizure is unconstitutional and subject to challenge. 20 Section 2, Article III of the 1987 Constitution, gives this guarantee: "SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized." Any evidence obtained in violation of the mentioned provision is legally inadmissible in evidence as a "fruit of the poisonous tree," falling under the exclusionary rule: "SEC. 3. . . . (2) Any evidence obtained in violation of . . . the preceding section shall be inadmissible for any purpose in any proceeding." This right, however, is not absolute. 21 The recent case of People vs. Lacerna enumerated five recognized exceptions to the rule against warrantless search and seizure, viz.: "(1) search incidental to a lawful arrest, (2) search of moving vehicles, (3) seizure in plain view, (4) customs search, and (5) waiver by the accused themselves of their right against unreasonable search and seizure." 22 In People vs. Encinada, 23 the Court further explained that "[in] these cases, the search and seizure may be made only with probable cause as the essential requirement. Although the term eludes exact definition, probable cause for a search is, at best, defined as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged; or the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the item(s), article(s) or object(s) sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched." Stop-and-frisk has already been adopted as another exception to the general rule against a search without a warrant. In Posadas vs. Court of Appeals, 24 the Court held that there were many instances where a search and seizure could be effected without necessarily being preceded by an arrest, one of which was stop-and-frisk. In said case, members of the Integrated National Police of Davao stopped petitioner, who was carrying a buri bag and acting suspiciously. They found inside petitioner's bag one .38-cal. revolver with two rounds of live ammunition, two live ammunitions for a .22-cal. gun and a tear gas grenade. In upholding the legality of the search, the Court said that to require the police officers to search the bag only after they had obtained a search warrant might prove to be useless, futile and much too late under the circumstances. In such a situation, it was reasonable for a police officer to stop a suspicious individual briefly in order to determine his identity or to maintain the status quo while obtaining more information, rather than to simply shrug his shoulders and allow a crime to occur. In the case at hand, Patrolman Espiritu and his companions observed during their surveillance that appellant had red eyes and was wobbling like a drunk along the Caloocan City Cemetery, which according to police information was a popular hangout of drug addicts. From his experience as a member of the Anti-Narcotics Unit of the Caloocan City Police, such suspicious behavior was characteristic of drug addicts who were "high." The policemen therefore had sufficient reason to stop petitioner to investigate if he was actually high on drugs. During such investigation, they found marijuana in petitioner's possession: 25 "FISCAL RALAR: Q And why were you conducting surveillance in front of the Caloocan Cemetery, Sangandaan, Caloocan City? A Because there were some informations that some drug dependents were roaming around at A. Mabini Street in front of the Caloocan Cemetery, Caloocan City. xxx xxx xxx Q While you were conducting your surveillance, together with Pat. Angel Lumabas and one Arnold Enriquez, what happened, if any? A We chanced upon one male person there in front of the Caloocan Cemetery then when we called his attention he tried to avoid us, then prompting us to approach him and introduce ourselves as police officers in a polite manner. cdtai xxx xxx xxx Q Could you describe to us the appearance of that person when you chanced upon him? A That person seems like he is high on drug. Q How were you able to say Mr. Witness that that person that you chanced upon was high on drug? A Because his eyes were red and he was walking on a swaying manner. Q What was he doing in particular when you chanced upon him? A He was roaming around, sir. Q You said that he avoided you, what did you do when he avoided you? A We approached him and introduced ourselves as police officers in a polite manner, sir. Q How did you introduce yourselves? A In a polite manner, sir. Q What did you say when you introduced yourselves? A We asked him what he was holding in his hands, sir. Q And what was the reaction of the person when you asked him what he was holding in his hands? A He tried to resist, sir. Q When he tried to resist, what did you do? A I requested him if I can see what was he was (sic) holding in his hands. Q What was the answer of the person upon your request? A He allowed me to examine that something in his hands, sir. xxx xxx xxx Q What was he holding? A He was holding his wallet and when we opened it, there was a marijuana (sic) crushed residue." Furthermore, we concur with the Solicitor General's contention that petitioner effectively waived the inadmissibility of any evidence illegally obtained when he filed to raise this issue or to object thereto during the trial. A valid waiver of a right, more particularly of the constitutional right against unreasonable search, requires the concurrence of the following requirements: (1) the right to be waived existed; (2) the person waiving it had knowledge, actual or constructive, thereof; and (3) he or she had an actual intention to relinquish the right. 26 Otherwise, the Courts will indulge every reasonable presumption against waiver of fundamental safeguards and will not deduce acquiescence from the failure to exercise this elementary right. In the present case, however, petitioner is deemed to have waived such right for his failure to raise its violation before the trial court. In petitions under Rule 45, as distinguished from an ordinary appeal of criminal cases where the whole case is opened for review, the appeal is generally limited to the errors assigned by petitioner. Issues not raised below cannot be pleaded for the first time on appeal. 27 Second Issue: Assessment of Evidence Petitioner also contends that the two arresting officers' testimony contained "polluted, irreconcilable and unexplained" contradictions which did not support petitioner's conviction. We disagree. Time and again, this Court has ruled that the trial court's assessment of the credibility of witnesses, particularly when affirmed by the Court of Appeals as in this case, is accorded great weight and respect, since it had the opportunity to observe their demeanor and deportment as they testified before it. Unless substantial facts and circumstances have been overlooked or misappreciated by the trial court which, if considered, would materially affect the result of the case, we will not countenance a departure from this rule. 28 We concur with Respondent Court's ruling: "(e)ven assuming as contended by appellant that there had been some inconsistencies in the prosecution witnesses' testimonies, We do not find them substantial enough to impair the essential veracity of their narration. In People vs. Avila, it was held that "As long as the witnesses concur on the material points, slight differences in their remembrance of the details, do not reflect on the essential veracity of their statements." However, we find that, aside from the presumption of regularity in the performance of duty, the bestowal of full credence on Pat. Espiritu's testimony is justified by tangible evidence on record. Despite Pat. Lumabas' contradictory testimony, that of Espiritu is supported by the Joint Affidavit 29 signed by both arresting policemen. The question of whether the marijuana was found inside petitioner's wallet or inside a plastic bag is immaterial, considering that petitioner did not deny possession of said substance. Failure to present the wallet in evidence did not negate that marijuana was found in petitioner's possession. This shows that such contradiction is minor and does not destroy Espiritu's credibility. 30 Third Issue: Sufficiency of Evidence The elements of illegal possession of marijuana are: (a) the accused is in possession of an item or object which is identified to be a prohibited drug; (b) such possession is not authorized by law; and (c) the accused freely and consciously possessed the said drug. 31 The substance found in petitioner's possession was identified by NBI Forensic Chemist Aida Pascual to be crushed marijuana leaves. Petitioner's lack of authority to possess these leaves was established. His awareness thereof was undeniable, considering that petitioner was high on drugs when stopped by the policemen and that he resisted when asked to show and identify the thing he was holding. Such behavior clearly shows that petitioner knew that he was holding marijuana and that it was prohibited by law. aisadc Furthermore, like the trial and the appellate courts, we have not been given sufficient grounds to believe the extortion angle in this case. Petitioner did not file any administrative or criminal case against the arresting officers or present any evidence other than his bare claim. His argument that he feared for his life was lame and unbelievable, considering that he was released on bail and continued to be on bail as early as April 26, 1988. 32 Since then, he could have made the charge in relative safety, as he was no longer in the custody of the police. His defense of frame-up, like alibi, is viewed by this Court with disfavor, because it is easy to concoct and fabricate. 33 The Proper Penalty The trial and the appellate courts overlooked the Indeterminate Sentence Law (Act No. 4103, as amended) by sentencing petitioner to a straight penalty of six years and one day of imprisonment, aside from the imposed fine of six thousand pesos. This Act requires the imposition of an indeterminate penalty: "SEC. 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. (As amended by Act No. 4225.) "SEC. 2. This Act shall not apply to persons convicted of offenses punished with death penalty or life-imprisonment; to those convicted of treason; to those convicted of misprision of treason, rebellion, sedition or espionage; to those convicted of piracy; to those who are habitual delinquents; to those who shall have escaped from confinement or evaded sentence; to those who having been granted conditional pardon by the Chief Executive shall have violated the terms thereof; to those whose maximum term of imprisonment does not exceed one year, not to those already sentenced by final judgment at the time of approval of this Act, except as provided in Section 5 hereof." (Emphasis supplied) The Dangerous Drugs Law, R.A. 6425, as amended by B.P. 179, imposes the following penalty for illegal possession of marijuana: "Sec. 8. . . . The penalty of imprisonment ranging from six years and one day to twelve years and a fine ranging from six thousand to twelve thousand pesos shall be imposed upon any person who, unless authorized by law, shall possess or use Indian hemp." Prescinding from the foregoing, the Court holds that the proper penalty is an indeterminate sentence of imprisonment ranging from six years and one day to twelve years. 34 WHEREFORE, the assailed Decision and Resolution are hereby AFFIRMED with MODIFICATION. Petitioner is sentenced to suffer IMPRISONMENT of SIX (6) YEARS, as minimum, to TWELVE (12) YEARS, as maximum, and to PAY a FINE of SIX THOUSAND PESOS. Costs against petitioner. SO ORDERED. Narvasa, C .J ., Romero, Melo and Francisco, JJ ., concur. EN BANC [G.R. No. 123595. December 12, 1997.] SAMMY MALACAT y MANDAR, petitioner, vs. COURT OF APPEALS, and PEOPLE OF THE PHILIPPINES, respondents. Brillantes, Navarro, Jumamil, Arcilla, Escolin and Martinez Law Offices for petitioner. SYNOPSIS In an information filed before the Regional Trial Court (RTC) of Manila, petitioner was charged with violating Section 3 of Presidential Decree No. 1866 for keeping, possessing and/or acquiring a hand grenade, without first securing the necessary license and permit from the proper authorities. On arraignment, petitioner, assisted by counsel de officio, entered a plea of not guilty. After trial on the merits, the court a quo found petitioner guilty of the crime of illegal possession of explosives under the said law and sentenced him to suffer the penalty of not less than seventeen years, four months and one day of reclusion temporal as minimum and not more than thirty years of reclusion perpetua, as maximum. Petitioner filed a notice of appeal indicating that he was appealing to the Supreme Court. However, the record of the case was forwarded to the Court of Appeals. In its decision, the Court of Appeals affirmed the trial court's decision. Unable to accept conviction, petitioner filed the instant petition alleging that the respondent court erred in affirming the findings of the trial court that the warrantless arrest of petitioner was valid and legal. The Supreme Court finds the petition impressed with merit. For purposes of determining appellate jurisdiction in criminal cases, the maximum of the penalty, and not the minimum, is taken into account. Since the maximum of the penalty is reclusion perpetua, the appeal therefrom should have been to the Court and not the Court of Appeals. Hence, the challenged decision immediately fall in jurisdictional grounds. Additionally, the Court is convinced that the prosecution failed to establish petitioner's guilt with moral certainty. First, serious doubts surrounds the story of police office Yu that a grenade was found in and seized from petitioner's possession. Notably, Yu did not identify in court the grenade he allegedly seized. Second, if indeed petitioner had a grenade with him and that two days earlier he was with the group about to detonate an explosive at Plaza Miranda, it was then unnatural and against common experience that petitioner simply stood in Plaza Miranda in proximity to the police officers. Lastly, even assuming that petitioner admitted possession of the grenade during his custodial investigation police officer Serapio, such admission is inadmissible in evidence for it was taken in palpable violation of Section 12(1) and (3) of Article III of the Constitution. Verily, the search conducted on petitioner could not have been one incidental to a lawful arrest. In view thereof, the challenged decision of the Court of Appeals is set aside for lack of jurisdiction and on ground of reasonable doubt. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; APPEAL TO THE SUPREME COURT; FOR PURPOSES OF DETERMINING APPELLATE JURISDICTION OF THE SUPREME COURT IN CRIMINAL CASES, THE MAXIMUM OF THE PENALTY IMPOSABLE BY LAW IS TAKEN INTO ACCOUNT AND NOT THE MINIMUM. For purposes of determining appellate jurisdiction in criminal cases, the maximum of the penalty, and not the minimum, is taken into account. Since the maximum of the penalty is reclusion perpetua, the appeal therefrom should have been to Supreme Court, and not the Court of Appeals, pursuant to Section 9(3) of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129), in relation to Section 17 of the Judiciary Act of 1948, Section 5(2) of Article VIII of the Constitution and Section 3(c) of Rule 122 of the Rules of Court. The term life imprisonment as used in Section 9 of B.P. Blg. 129, the Judiciary Act of 1948, and Section 3 of Rule 122 must be deemed to include reclusion perpetua in view of Section 5(2) of Article VIII of the Constitution. 2. ID.; ID.; RIGHTS OF THE ACCUSED; PETITIONER'S ADMISSION OF POSSESSION OF THE GRENADE DURING CUSTODIAL INVESTIGATION, WITHOUT THE ASSISTANCE OF COUNSEL, INADMISSIBLE IN EVIDENCE. Even assuming that petitioner admitted possession of the grenade during his custodial investigation by police officer Serapio, such admission was inadmissible in evidence for it was taken in palpable violation of Section 12(1) and (3) of Article III of the Constitution. Serapio conducted the custodial investigation on petitioner the day following his arrest. No lawyer was present and Serapio could not have requested a lawyer to assist petitioner as no PAO lawyer was then available. Thus, even if petitioner consented to the investigation and waived his rights to remain silent and to counsel, the waiver was invalid as it was not in writing, neither was it executed in the presence of counsel. 3. ID.; ID.; WARRANTLESS ARREST; LACK OF PERSONAL KNOWLEDGE ON THE PART OF THE ARRESTING OFFICER OR AN OVERT PHYSICAL ACT ON THE PART OF THE ACCUSED, INDICATING THAT THE CRIME HAD JUST BEEN COMMITTED, OR WAS GOING TO BE COMMITTED, MAKES THE SEARCH CONDUCTED ON THE ACCUSED NOT ONE INCIDENTAL TO A LAWFUL ARREST; CASE AT BAR. 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 first be a lawful arrest before a search can be made the process cannot be reversed. At bottom, assuming a valid arrest, the arresting officer may search the person of the arrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and seize any money or property found which was used in the commission of the crime, or the fruit of the crime, or that which may be used as evidence, or which might furnish the arrestee with the means of escaping or committing violence. Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in light of the lack of personal knowledge on the part of Yu, 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. Having thus shown the invalidity of the warrantless arrest in this case, plainly, the search conducted on petitioner could not have been one incidental to a lawful arrest. 4. ID.; ID.; ID.; "STOP AND FRISK" AS A "LIMITED PROTECTIVE SEARCH OF OUTER CLOTHING FOR WEAPONS"; JUSTIFICATION FOR AND ALLOWABLE SCOPE THEREOF. We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited protective search of outer clothing for weapons," as laid down in Terry, thus: We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment . . . Other notable points of Terry are that while probable cause is not required to conduct a "stop and frisk," it nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A genuine reason must exist, in light of the police officer's experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. Finally, a "stop- and-frisk" serves a two-fold interest: the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer. PANGANIBAN, J., separate opinion: 1. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARRESTS AND SEARCHES; PROBABLE CAUSE, NEEDED FOR THEIR VALIDITY. After reviewing previous decisions on valid warrantless arrests and searches, the Court underscored in sum that there was need for facts providing probable cause, such as "the distinct odor of marijuana, reports about drug transporting or positive identification by informers, suspicious behavior, attempt to flee, [or] failure to produce identification papers" to justify warrantless arrests and searches. Likewise, urgency must attend such arrests and searches, as where motor vehicles are used and there is great probability that the suspect would get away before a warrant can be procured. Most important is that the law enforcers must act immediately on the information received, suspicions raised or probable cause established, and should effect the arrests and searches without any delay. 2. ID.; ID.; ID.; ID.; THE STOP-AND-FRISK CONDUCTED BY ORDINARY POLICEMEN AGAINST THE ACCUSED ON THE BASIS THAT HIS EYES WERE MOVING VERY FAST AND THERE IS NO INDICATION THAT HE IS HIDING EXPLOSIVE PARAPHERNALIA, IS ILLEGAL; CASE AT BAR. As in Manalili, lawmen were on surveillance in response to information that a criminal activity could be in the offing at a specified place. The stark difference, however, is that in Manalili, the reported activity involved drug use and the lawmen belonged to the anti-narcotics group, while in the instant case, the police on patrol were ordinary law enforcers on the lookout for possible bombers. In the former, the law enforcers concerned may be presumed to possess special knowledge and skill to detect the physical features exhibited by a current drug user. Thus, when these specially trained enforcers saw Manalili with reddish eyes and walking in a wobbly manner characteristic of a person "high" on drugs per their experience, and in a known hangout of drug users, there was sufficient genuine reason to stop and frisk the suspect. It is well to emphasize that under different circumstances such as where the policemen are not specially-trained, and in common places where people ordinarily converge, the same features displayed by a person will not normally justify a warrantless arrest or search on him. The case before us presents such a situation. The policemen merely observed that Malacat's eyes were moving very fast. They did not notice any bulges or packets about the bodies of these men indicating that they might be hiding explosive paraphernalia. From their outward look, nothing suggested that they were at the time armed and dangerous. Hence, there was no justification for a stop-and-frisk. 3. ID.; ID.; ID.; ID.; ID.; DOCTRINE LAID DOWN IN PEOPLE VS. MENGOTE, SQUARELY APPLICABLE IN CASE AT BAR. Bolstering the invalidity of the arrest and search of Malacat is People vs. Mengote, another classic on the right against unreasonable searches and seizures. Upon receiving a telephone call shortly before noon from an informer that there were suspicious looking persons at a certain street corner in Tondo, Manila, the Western Police District dispatched a surveillance team to said place. There they saw two men "looking from side to side" with one "holding his abdomen." The police approached them and identified themselves, whereupon the two tried to flee but failed as other lawmen surrounded them. The suspects were searched, and recovered from Mengote was a fully loaded pistol; from his companion, a fan knife. The Court ruled that the situation was not one calling for a lawful warrantless search and arrest. As the Court, through Mr. Justice Isagani A. Cruz, succinctly put it: "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? Under our rule in Mengote, petitioner's dubious act of moving his eyes swiftly from side to side can in no way justify a stop-and-frisk. To convict a person on the basis only of his queer behavior and to sentence him to practically a lifetime in prison would simply be unfathomable. Nothing can be more wrong, unjust and inhuman. D E C I S I O N DAVIDE, JR., J p: In an Information 1 filed on 30 August 1990, in Criminal Case No. 90-86748 before the Regional Trial Court (RTC) of Manila, Branch 5, petitioner Sammy Malacat y Mandar was charged with violating Section 3 of Presidential Decree No. 1866, 2 as follows: LLjur That on or about August 27, 1990, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and knowingly keep, possess and/or acquire a hand grenade, without first securing the necessary license and/or permit therefor from the proper authorities. At arraignment 3 on 9 October 1990, petitioner, assisted by counsel de officio, entered a plea of not guilty. At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits "A," "A-1," and "A-2," 4 while the prosecution admitted that the police authorities were not armed with a search warrant nor warrant of arrest at the time they arrested petitioner. 5 At trial on the merits, the prosecution presented the following police officers as its witnesses: Rodolfo Yu, the arresting officer; Josefino C. Serapio, the investigating officer; and Orlando Ramilo, who examined the grenade. Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated National Police, Police Station No. 3, Quiapo, Manila, testified that on 27 August 1990, at about 6:30 p.m., in response to bomb threats reported seven days earlier, he was on foot patrol with three other police officers (all of them in uniform) along Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store at Plaza Miranda. They chanced upon two groups of Muslim-looking men, with each group, comprised of three to four men, posted at opposite sides of the corner of Quezon Boulevard near the Mercury Drug Store. These men were acting suspiciously with "[t]their eyes . . . moving very fast." 6 Yu and his companions positioned themselves at strategic points and observed both groups for about thirty minutes. The police officers then approached one group of men, who then fled in different directions. As the policemen gave chase, Yu caught up with and apprehended petitioner. Upon searching petitioner, Yu found a fragmentation grenade tucked inside petitioner's "front waist line." 7 Yu's companion, police officer Rogelio Malibiran, apprehended Abdul Casan from whom a .38 caliber revolver was recovered. Petitioner and Casan were then brought to Police Station No. 3 where Yu placed an "X" mark at the bottom of the grenade and thereafter gave it to his commander. 8 On cross-examination, Yu declared that they conducted the foot patrol due to a report that a group of Muslims was going to explode a grenade somewhere in the vicinity of Plaza Miranda. Yu recognized petitioner as the previous Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw petitioner and 2 others attempt to detonate a grenade. The attempt was aborted when Yu and other policemen chased petitioner and his companions; however, the former were unable to catch any of the latter. Yu further admitted that petitioner and Casan were merely standing on the corner of Quezon Boulevard when Yu saw them on 27 August 1990. Although they were not creating a commotion, since they were supposedly acting suspiciously, Yu and his companions approached them. Yu did not issue any receipt for the grenade he allegedly recovered from petitioner. 9 Josefino C. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner and a certain Abdul Casan were brought in by Sgt. Saquilla 10 for investigation. Forthwith, Serapio conducted the inquest of the two suspects, informing them of their rights to remain silent and to be assisted by competent and independent counsel. Despite Serapio's advice, petitioner and Casan manifested their willingness to answer questions even without the assistance of a lawyer. Serapio then took petitioner's uncounselled confession (Exh. "E"), there being no PAO lawyer available, wherein petitioner admitted possession of the grenade. Thereafter, Serapio prepared the affidavit of arrest and booking sheet of petitioner and Casan. Later, Serapio turned over the grenade to the Intelligence and Special Action Division (ISAD) of the Explosive Ordinance Disposal Unit for examination. 11 On cross-examination, Serapio admitted that he took petitioner's confession knowing it was inadmissible in evidence. 12 Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties included, among other things, the examination of explosive devices, testified that on 22 March 1991, he received a request dated 19 March 1991 from Lt. Eduardo Cabrera and PO Diosdado Diotoy for examination of a grenade. Ramilo then affixed an orange tag on the subject grenade detailing his name, the date and time he received the specimen. During the preliminary examination of the grenade, he "found that [the] major components consisting of [a] high filler and fuse assembly [were] all present," and concluded that the grenade was "[l]ive and capable of exploding." On even date, he issued a certification stating his findings, a copy of which he forwarded to Diotoy on 11 August 1991. 13 Petitioner was the lone defense witness. He declared that he arrived in Manila on 22 July 1990 and resided at the Muslim Center in Quiapo, Manila. At around 6:30 in the evening of 27 August 1990, he went to Plaza Miranda to catch a breath of fresh air. Shortly after, several policemen arrived and ordered all males to stand aside. The policemen searched petitioner and two other men, but found nothing in their possession. However, he was arrested with two others, brought to and detained at Precinct No. 3, where he was accused of having shot a police officer. The officer showed the gunshot wounds he allegedly sustained and shouted at petitioner "[i]to ang tama mo sa akin." This officer then inserted the muzzle of his gun into petitioner's mouth and said, "[y]ou are the one who shot me." Petitioner denied the charges and explained that he only recently arrived in Manila. However, several other police officers mauled him, hitting him with benches and guns. Petitioner was once again searched, but nothing was found on him. He saw the grenade only in court when it was presented. 14 The trial court ruled that the warrantless search and seizure of petitioner was akin to a "stop and frisk," where a "warrant and seizure can be effected without necessarily being preceded by an arrest" and "whose object is either to maintain the status quo momentarily while the police officer seeks to obtain more information." 15 Probable cause was not required as it was not certain that a crime had been committed, however, the situation called for an investigation, hence to require probable cause would have been "premature." 16 The RTC emphasized that Yu and his companions were "[c]onfronted with an emergency, in which the delay necessary to obtain a warrant, threatens the destruction of evidence" 17 and the officers "[h]ad to act in haste," as petitioner and his companions were acting suspiciously, considering the time, place and "reported cases of bombing." Further, petitioner's group suddenly ran away in different directions as they saw the arresting officers approach, thus "[i]t is reasonable for an officer to conduct a limited search, the purpose of which is not necessarily to discover evidence of a crime, but to allow the officer to pursue his investigation without fear of violence." 18 The trial court then ruled that the seizure of the grenade from petitioner was incidental to a lawful arrest, and since petitioner "[l]ater voluntarily admitted such fact to the police investigator for the purpose of bombing the Mercury Drug Store," concluded that sufficient evidence existed to establish petitioner's guilt beyond reasonable doubt. In its decision 19 dated 10 February 1994 but promulgated on 15 February 1994, the trial court thus found petitioner guilty of the crime of illegal possession of explosives under Section 3 of P.D. No. 1866, and sentenced him to suffer: [T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum. On 18 February 1994, petitioner filed a notice of appeal 20 indicating that he was appealing to this Court. However, the record of the case was forwarded to the Court of Appeals which docketed it as CA-G.R. CR No. 15988 and issued a notice to file briefs. 21 In his Appellant's Brief 22 filed with the Court of Appeals, petitioner asserted that: 1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH UPON THE PERSON OF ACCUSED-APPELLANT AND THE SEIZURE OF THE ALLEGED HANDGRENADE FROM HIM "WAS AN APPROPRIATE INCIDENT TO HIS ARREST." 2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE AGAINST ACCUSED-APPELLANT THE HANDGRENADE ALLEGEDLY SEIZED FROM HIM AS IT WAS A PRODUCT OF AN UNREASONABLE AND ILLEGAL SEARCH. In sum, petitioner argued that the warrantless arrest was invalid due to absence of any of the conditions provided for in Section 5 of Rule 113 of the Rules of Court, citing People vs. Mengote. 23 As such, the search was illegal, and the hand grenade seized, inadmissible in evidence. In its Brief for the Appellee, the Office of the Solicitor General agreed with the trial court and prayed that its decision be affirmed in toto. 24 In its decision of 24 January 1996, 25 the Court of Appeals affirmed the trial court, noting, first, that petitioner abandoned his original theory before the court a quo that the grenade was "planted" by the police officers; and second, the factual finding of the trial court that the grenade was seized from petitioner's possession was not raised as an issue. Further, respondent court focused on the admissibility in evidence of Exhibit "D," the hand grenade seized from petitioner. Meeting the issue squarely, the Court of Appeals ruled that the arrest was lawful on the ground that there was probable cause for the arrest as petitioner was "attempting to commit an offense," thus: We are at a loss to understand how a man, who was in possession of a live grenade and in the company of other suspicious character[s] with unlicensed firearm[s] lurking in Plaza Miranda at a time when political tension ha[d] been enkindling a series of terroristic activities, [can] claim that he was not attempting to commit an offense. We need not mention that Plaza Miranda is historically notorious for being a favorite bomb site especially during times of political upheaval. As the mere possession of an unlicensed grenade is by itself an offense, Malacat's posture is simply too preposterous to inspire belief. In so doing, the Court of Appeals took into account petitioner's failure to rebut the testimony of the prosecution witnesses that they received intelligence reports of a bomb threat at Plaza Miranda; the fact that PO Yu chased petitioner two days prior to the latter's arrest, or on 27 August 1990; and that petitioner and his companions acted suspiciously, the "accumulation" of which was more than sufficient to convince a reasonable man that an offense was about to be committed. Moreover, the Court of Appeals observed: The police officers in such a volatile situation would be guilty of gross negligence and dereliction of duty, not to mention of gross incompetence, if they [would] first wait for Malacat to hurl the grenade, and kill several innocent persons while maiming numerous others, before arriving at what would then be an assured but moot conclusion that there was indeed probable cause for an arrest. We are in agreement with the lower court in saying that the probable cause in such a situation should not be the kind of proof necessary to convict, but rather the practical considerations of everyday life on which a reasonable and prudent mind, and not legal technicians, will ordinarily act. Finally, the Court of Appeals held that the rule laid down in People v. Mengote, 26 which petitioner relied upon, was inapplicable in light of "[c]rucial differences," to wit: [In Mengote] the police officers never received any intelligence report that someone [at] the corner of a busy street [would] be in possession of a prohibited article. Here the police officers were responding to a [sic] public clamor to put a check on the series of terroristic bombings in the Metropolis, and, after receiving intelligence reports about a bomb threat aimed at the vicinity of the historically notorious Plaza Miranda, they conducted foot patrols for about seven days to observe suspicious movements in the area. Furthermore, in Mengote, the police officers [had] no personal knowledge that the person arrested has committed, is actually committing, or is attempting to commit an offense. Here, PO3 Yu [had] personal knowledge of the fact that he chased Malacat in Plaza Miranda two days before he finally succeeded in apprehending him. Unable to accept his conviction, petitioner forthwith filed the instant petition and assigns the following errors: 1. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF THE TRIAL COURT THAT THE WARRANTLESS ARREST OF PETITIONER WAS VALID AND LEGAL. 2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING IN PEOPLE VS. MENGOTE DOES NOT FIND APPLICATION IN THE INSTANT CASE. In support thereof, petitioner merely restates his arguments below regarding the validity of the warrantless arrest and search, then disagrees with the finding of the Court of Appeals that he was "attempting to commit a crime," as the evidence for the prosecution merely disclosed that he was "standing at the corner of Plaza Miranda and Quezon Boulevard" with his eyes "moving very fast" and "looking at every person that come (sic) nearer (sic) to them." Finally, petitioner points out the factual similarities between his case and that of People v. Mengote to demonstrate that the Court of Appeals miscomprehended the latter. In its Comment, the Office of the Solicitor General prays that we affirm the challenged decision. For being impressed with merit, we resolved to give due course to the petition. The challenged decision must immediately fall on jurisdictional grounds. To repeat, the penalty imposed by the trial court was: [N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum. The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall unlawfully possess grenades is reclusion temporal in its maximum period to reclusion perpetua. For purposes of determining appellate jurisdiction in criminal cases, the maximum of the penalty, and not the minimum, is taken into account. Since the maximum of the penalty is reclusion perpetua, the appeal therefrom should have been to us, and not the Court of Appeals, pursuant to Section 9(3) of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129), 27 in relation to Section 17 of the Judiciary Act of 1948, 28 Section 5(2) of Article VIII of the Constitution 29 and Section 3(c) of Rule 122 of the Rules of Court. 30 The term "life imprisonment" as used in Section 9 of B.P. Blg. 129, the Judiciary Act of 1948, and Section 3 of Rule 122 must be deemed to include reclusion perpetua in view of Section 5(2) of Article VIII of the Constitution. Petitioner's Notice of Appeal indicated that he was appealing from the trial court's decision to this Court, yet the trial court transmitted the record to the Court of Appeals and the latter proceeded to resolve the appeal. We then set aside the decision of the Court of Appeals for having been rendered without jurisdiction, and consider the appeal as having been directly brought to us, with the petition for review as petitioner's Brief for the Appellant, the comment thereon by the Office of the Solicitor General as the Brief for the Appellee and the memoranda of the parties as their Supplemental Briefs. Deliberating on the foregoing pleadings, we find ourselves convinced that the prosecution failed to establish petitioner's guilt with moral certainty. First, serious doubt surrounds the story of police officer Yu that a grenade was found in and seized from petitioner's possession. Notably, Yu did not identify, in court, the grenade he allegedly seized. According to him, he turned it over to his commander after putting an "X" mark at its bottom; however, the commander was not presented to corroborate this claim. On the other hand, the grenade presented in court and identified by police officer Ramilo referred to what the latter received from Lt. Eduardo Cabrera and police officer Diotoy not immediately after petitioner's arrest, but nearly seven (7) months later or on 19 March 1991; further, there was no evidence whatsoever that what Ramilo received was the very same grenade seized from petitioner. In his testimony, Yu never declared that the grenade passed on to Ramilo was the grenade the former confiscated from petitioner. Yu did not, and was not made to, identify the grenade examined by Ramilo, and the latter did not claim that the grenade he examined was that seized from petitioner. Plainly, the law enforcement authorities failed to safeguard and preserve the chain of evidence so crucial in cases such as these. Second, if indeed petitioner had a grenade with him, and that two days earlier he was with a group about to detonate an explosive at Plaza Miranda, and Yu and his fellow officers chased, but failed to arrest them, then considering that Yu and his three fellow officers were in uniform and therefore easily cognizable as police officers, it was then unnatural and against common experience that petitioner simply stood there in proximity to the police officers. Note that Yu observed petitioner for thirty minutes and must have been close enough to petitioner in order to discern petitioner's eyes "moving very fast." Finally, even assuming that petitioner admitted possession of the grenade during his custodial investigation by police officer Serapio, such admission was inadmissible in evidence for it was taken in palpable violation of Section 12(1) and (3) of Article III of the Constitution, which provide as follows: SEC. 12 (1). Any person under 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. xxx xxx xxx (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. Serapio conducted the custodial investigation on petitioner the day following his arrest. No lawyer was present and Serapio could not have requested a lawyer to assist petitioner as no PAO lawyer was then available. Thus, even if petitioner consented to the investigation and waived his rights to remain silent and to counsel, the waiver was invalid as it was not in writing, neither was it executed in the presence of counsel. Even granting ex gratia that petitioner was in possession of a grenade, the arrest and search of petitioner were invalid, as will be discussed below. The general rule as regards arrests, searches and seizures is that a warrant is needed in order to validly effect the same. 31 The Constitutional prohibition against unreasonable arrests, searches and seizures refers to those effected without a validly issued warrant, 32 subject to certain exceptions. As regards valid warrantless arrests, these are found in Section 5, Rule 113 of the Rules of Court, which reads, in part: Sec. 5. Arrest, without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped . . . A warrantless arrest under the circumstances contemplated under Section 5(a) has been denominated as one "in flagrante delicto," while that under Section 5(b) has been described as a "hot pursuit" arrest. Turning to valid warrantless searches, they are limited to the following: (1) customs searches; (2) search of moving vehicles; (3) seizure of evidence in plain view; (4) consent searches; 33 (5) a search incidental to a lawful arrest; 34 and (6) a "stop and frisk." 35 In the instant petition, the trial court validated the warrantless search as a "stop and frisk" with "the seizure of the grenade from the accused [as] an appropriate incident to his arrest," hence necessitating a brief discussion on the nature of these exceptions to the warrant requirement. At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a search incidental to a lawful arrest. These two types of warrantless searches differ in terms of the requisite quantum of proof before they may be validly effected and in their allowable scope. 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. 36 In this instance, the law requires that there first be a lawful arrest before a search can be made the process cannot be reversed. 37 At bottom, assuming a valid arrest, the arresting officer may search the person of the arrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and seize any money or property found which was used in the commission of the crime, or the fruit of the crime, or that which may be used as evidence, or which might furnish the arrestee with the means of escaping or committing violence. 38 Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in light of the lack of personal knowledge on the part of Yu, 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. Having thus shown the invalidity of the warrantless arrest in this case, plainly, the search conducted on petitioner could not have been one incidental to a lawful arrest. We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited protective search of outer clothing for weapons," as laid down in Terry; thus: We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment . . . 39 Other notable points of Terry are that while probable cause is not required to conduct a "stop and frisk," 40 it nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A genuine reason must exist, in light of the police officer's experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. 41 Finally, a "stop-and- frisk" serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer. Here, there are at least three (3) reasons why the "stop-and-frisk" was invalid: First, we harbor grave doubts as to Yu's claim that petitioner was a member of the group which attempted to bomb Plaza Miranda two days earlier. This claim is neither supported by any police report or record nor corroborated by any other police officer who allegedly chased that group. Aside from impairing Yu's credibility as a witness, this likewise diminishes the probability that a genuine reason existed so as to arrest and search petitioner. If only to further tarnish the credibility of Yu's testimony, contrary to his claim that petitioner and his companions had to be chased before being apprehended, the affidavit of arrest (Exh. "A") expressly declares otherwise, i.e., upon arrival of five (5) other police officers, petitioner and his companions were "immediately collared." 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 corner and were not creating any commotion or trouble, as Yu explicitly declared on cross- examination: cdrep Q And what were they doing? A They were merely standing. Q You are sure of that? A Yes, sir. Q And when you saw them standing, there were nothing or they did not create any commotion? A None, sir. Q Neither did you see them create commotion? A None, sir. 42 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. In fact, as noted by the trial court: When the policemen approached the accused and his companions, they were not yet aware that a handgrenade was tucked inside his waistline. They did not see any bulging object in [sic] his person. 43 What is unequivocal then in this case are blatant violations of petitioner's rights solemnly guaranteed in Sections 2 and 12(1) of Article III of the Constitution. WHEREFORE, the challenged decision of the Seventeenth Division of the Court of Appeals in CA-G.R. CR No. 15988 is SET ASIDE for lack of jurisdiction on the part of said Court and, on ground of reasonable doubt, the decision of 10 February 1994 of Branch 5 of the Regional Trial Court of Manila is REVERSED and petitioner SAMMY MALACAT y MANDAR is hereby ACQUITTED and ORDERED immediately released from detention, unless his further detention is justified for any other lawful cause. SO ORDERED. Narvasa, C .J ., Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco and Martinez, JJ ., concur. FLORIDA v. J.L. CERTI ORARI TO THE SUPREME COURT OF FLORI DA
98-1993 Argued: February 29, 2000 --- Decided: March 28, 2000
After an anonymous caller reported to the Miami-Dade Police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun, officers went to the bus stop and saw three black males, one of whom, respondent J. L., was wearing a plaid shirt. Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct. The officers did not see a firearm or observe any unusual movements. One of the officers frisked J. L. and seized a gun from his pocket. J. L., who was then almost 16, was charged under state law with carrying a concealed firearm without a license and possessing a firearm while under the age of 18. The trial court granted his motion to suppress the gun as the fruit of an unlawful search. The intermediate appellate court reversed, but the Supreme Court of Florida quashed that decision and held the search invalid under the Fourth Amendment. Held: An anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer's stop and frisk of that person. An officer, for the protection of himself and others, may conduct a carefully limited search for weapons in the outer clothing of persons engaged in unusual conduct where, inter alia, the officer reasonably concludes in light of his experience that criminal activity may be afoot and that the persons in question may be armed and presently dangerous. Terry v. Ohio, 392 U.S. 1, 30. Here, the officers' suspicion that J. L. was carrying a weapon arose not from their own observations but solely from a call made from an unknown location by an unknown caller. The tip lacked sufficient indicia of reliability to provide reasonable suspicion to make a Terry stop: It provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility. See Alabama v. White, 496 U.S. 325, 327. The contentions of Florida and the United States as amicus that the tip was reliable because it accurately described J. L.'s visible attributes misapprehend the reliability needed for a tip to justify a Terry stop. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. This Court also declines to adopt the argument that the standard Terry analysis should be modified to license a "firearm exception," under which a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing. The facts of this case do not require the Court to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great-e.g., a report of a person carrying a bomb-as to justify a search even without a showing of reliability. 727 So. 2d 204, affirmed. Ginsburg, J., delivered the opinion for a unanimous Court. Kennedy, J., filed a concurring opinion, in which Rehnquist, C. J., joined. EN BANC [G.R. No. L-27360. February 28, 1968.] HON. RICARDO G. PAPA, as Chief of Police of Manila, HON. JUAN PONCE ENRILE, as Commissioner of Customs, PEDRO PACIS, as Collector of Customs of the Port of Manila, and MARTIN ALAGAO, as Patrolman of the Manila Police- Department, petitioners, vs. REMEDIOS MAGO and HON. HILARION U. JARENCIO, as Presiding Judge of Branch 23, Court of First Instance of Manila, respondents. Solicitor General for petitioners. Juan T . David for respondents. SYLLABUS 1. CUSTOMS BUREAU; POWERS AND DUTIES OF BUREAU OF CUSTOMS. Among others, the Bureau of Customs has the duties, powers and the jurisdiction to assess and collect all lawful revenues from imported articles and all other dues, fees, charges, fines and penalties accruing under the tariff and customs laws; to prevent and suppress smuggling and other frauds upon the customs; and to enforce tariff and customs laws. 2. ID.; JURISDICTION; CUSTOMS BUREAU HAS JURISDICTION OVER IMPORTED GOODS; "IMPORTATION", MEANING OF. Where the goods in question were imported from Hongkong as shown in the statement and receipts of duties collected on informal entry and where the importation has not been terminated, the imported goods remain under the jurisdiction of the Bureau of Customs. Importation is terminated only upon the payment of duties, taxes and other charges upon the articles, or secured to be paid, at the port of entry and the legal permit for withdrawal shall have been granted. Payment of the duties, taxes, fees and other charges must be in full. 3. ID; ID; BUREAU OF CUSTOMS, NOT THE COURT OF FIRST INSTANCE, HAS JURISDICTION OVER THE CASE WHERE GOODS ARE UNDER CUSTODY OF SAID BUREAU, EVEN IF NO WARRANT OF SEIZURE AND DETENTION IS YET ISSUED ON GOODS. Since the goods were under the custody and at the disposal of the Bureau of Customs when the petition for mandamus was filed in the Court of First Instance, the latter could not exercise jurisdiction over said goods even if the warrant of seizure and detention of goods for purposes of seizure and forfeiture proceedings had not yet been issued by the Collector. It is settled that the Bureau of Customs acquires exclusive jurisdiction over imported goods for purposes of enforcing the Customs laws, from the moment the goods are actually in possession and control of said Bureau even in the absence on any warrant of seizure or detention. 4. ID.; ID.; SEIZURE OF GOODS BY MPD, DEPUTIZED BY BUREAU OF CUSTOMS GAVE THE LATTER EXCLUSIVE JURISDICTION OVER CASE; ISSUANCE OF WARRANT OF SEIZURE BY CUSTOMS BUREAU AFTER FILING OF MANDAMUS SUIT IN CFI, DID NOT DIVEST THE LATTER OF JURISDICTION IT DID NOT ACQUIRE. Where the Bureau of Customs, through the Manila Police Department acting under petitioner police chief Papa who was formally deputized by the Commissioner of Customs seized the goods on November 4, 1966, the Bureau from that date acquired jurisdiction over the goods to the exclusion of the regular courts. The issuance of the warrant of seizure and detention by the Customs Collector after the filing of the mandamus suit in the regular court, did not deprive the latter of its jurisdiction which it never acquired in the first place, as the Bureau of Customs had already previously acquired jurisdiction on the case to the exclusion of regular courts for purposes of enforcement of customs and tariff laws. 5. ID.; ID.; GOODS, EVEN IF BROUGHT OUT OF CUSTOMS AREA, STILL FALL WITHIN JURISDICTION OF BUREAU OF CUSTOMS; JURISDICTION OF CUSTOMS BUREAU IS REGAINED. Even if it be conceded, arguendo, that after the goods have been brought out of the customs area, the Bureau of Customs lost jurisdiction over the same, still when said goods were intercepted at the Agrifina Circle by members of the MPD acting under directions and orders of petitioner Papa who had been formally deputized by the Commissioner of Customs, such jurisdiction was regained by the Bureau of Customs. Sec. 1206 of the Tariff and Customs Code imposes upon the Collector of Customs the duty to hold possession of all imported articles upon which duties, taxes and other charges have not been paid or secured to be paid and to dispose of the same according to law. 6. ID.; IMPORTATIONS MADE CONTRARY TO LAW ARE SUBJECT TO FORFEITURE. Where from the record, the duties, taxes and other charges on the imported articles have not been paid in full, such articles are subject to forfeiture under Section 2530 pars. e and m, (1), (4) and (5) of the Tariff and Customs Code; for well settled is the rule that merchandise imported contrary to law is subject to forfeiture and goods released contrary to law are likewise subject to seizure and forfeiture. 7. ID.; ID.; SEARCH WARRANT; LAWFUL SEARCH WITHOUT SEARCH WARRANT CAN BE EFFECTED. The Tariff and Customs Code does not require a search warrant for purposes of enforcing customs and tariff laws. Under Sec. 2203 thereof, persons having police authority may enter, pass through or search any land, inclosure, warehouse, store or building not being a dwelling house and also, to inspect, search and examine any vehicle or aircraft and any trunk, package, box or envelope or any person on board or stop and search and examine any vehicle, beast or person suspected of holding or conveying any dutiable or prohibited article introduced into the Philippines contrary to law, without mentioning the need of a search warrant in said cases. Except in the search of a dwelling house, therefore, persons exercising police authority under the customs law may effect search and seizure without search warrant in the enforcement of customs laws. D E C I S I O N ZALDIVAR, J p: This is an original action for prohibition and certiorari, with preliminary injunction, filed by Ricardo Papa, Chief of Police of Manila; Juan Ponce Enrile, Commissioner of Customs; Pedro Pacis, Collector of Customs of the Port of Manila; and Martin Alagao, a patrolman of the Manila Police Department, against Remedios Mago and Hon. Hilarion Jarencio, Presiding Judge of Branch 23 of the Court of First Instance of Manila, praying for the annulment of the order issued by respondent Judge in Civil Case No. 67496 of the Court of First Instance of Manila under date of March 7, 1967, which authorized the release under bond of certain goods which were seized and held by petitioners in connection with the enforcement of the Tariff and Customs Code, but which were claimed by respondent Remedios Mago, and to prohibit respondent Judge from further proceeding in any manner whatsoever in said Civil Case No. 67496. Pending the determination of this case this Court issued a writ of preliminary injunction restraining the respondent Judge from executing, enforcing and/or implementing the questioned order in Civil Case No. 67496 and from proceeding with said case. Petitioner Martin Alagao, head of the counter-intelligence unit of the Manila Police Department, acting upon a reliable information received on November 3, 1966 to the effect that a certain shipment of personal effects, allegedly misdeclared and undervalued, would be released the following day from the customs zone of the port of Manila and loaded on two trucks, and upon orders of petitioner Ricardo Papa, Chief of Police of Manila and a duly deputized agent of the Bureau of Customs, conducted surveillance at gate No. 1 of the customs zone. When the trucks left gate No. 1 at about 4:30 in the afternoon of November 4, 1966, elements of the counter-intelligence unit went after the trucks and intercepted them at the Agrifina Circle, Ermita, Manila. The load of the two trucks, consisting of nine bales of goods, and the two trucks, were seized on instructions of the Chief of Police. Upon investigation, a person claimed ownership of the goods and showed to the policemen a "Statement and Receipts of Duties Collected on Informal Entry No. 147-5501", issued by the Bureau of Customs in the name of a certain Bienvenido Naguit. Claiming to have been prejudiced by the seizure and detention of the two trucks and their cargo, Remedios Mago and Valentin B. Lanopa filed with the Court of First Instance of Manila a petition "for mandamus with restraining order or preliminary injunction," docketed as Civil Case No. 67496, alleging, among others, that Remedios Mago was the owner of the goods seized, having purchased them from the Sta. Monica Grocery in San Fernando, Pampanga; that she hired the trucks owned by Valentin B. Lanopa to transport the goods from said place to her residence at 1657 Laon Laan St., Sampaloc, Manila; that the goods were seized by members of the Manila Police Department without search warrant issued by a competent court; that Manila Chief of Police Ricardo Papa denied the request of counsel for Remedios Mago that the bales be not opened and the goods contained therein be not examined; that then Customs Commissioner Jacinto Gavino had illegally assigned appraisers to examine the goods because the goods were no longer under the control and supervision of the Commissioner of Customs; that the goods, even assuming them to have been misdeclared and undervalued, were not subject to seizure under Section 2531 of the Tariff and Customs Code because Remedios Mago had bought them from another person without knowledge that they were imported illegally; that the bales had not yet been opened, although Chief of Police Papa had arranged with the Commissioner of Customs regarding the disposition of the goods, and that unless restrained their constitutional rights would be violated and they would truly suffer irreparable injury. Hence Remedios Mago and Valentin Lanopa prayed for the issuance of a restraining order, ex parte, enjoining the above-named police and customs authorities, or their agents, from opening the bales and examining the goods, and a writ of mandamus for the return of the goods and the trucks, as well as a judgment for actual, moral and exemplary damages in their favor. On November 10, 1966, respondent Judge Hilarion Jarencio issued an order ex parte restraining the respondents in Civil Case No. 67496 now petitioners in the instant case before this Court from opening the nine bales in question, and at the same time set the hearing of the petition for preliminary injunction on November 16, 1966. However, when the restraining order was received by herein petitioners, some bales had already been opened by the examiners of the Bureau of Customs in the presence of officials of the Manila Police Department, an assistant city fiscal and a representative of herein respondent Remedios Mago. Under date of November 15, 1966, Remedios Mago filed an amended petition in Civil Case No. 67496, including as party defendants Collector of Customs Pedro Pacis of the Port of Manila and Lt. Martin Alagao of the Manila Police Department. Herein petitioners (defendants below) filed, on November 24, 1966, their "Answer with Opposition to the Issuance of a Writ of Preliminary Injunction", denying the alleged illegality of the seizure and detention of the goods and the trucks and of their other actuations, and alleging special and affirmative defenses, to wit: that the Court of First Instance of Manila had no jurisdiction to try the case; that the case fell within the exclusive jurisdiction of the Court of Tax Appeals; that, assuming that the court had jurisdiction over the case, the petition stated no cause of action in view of the failure of Remedios Mago to exhaust the administrative remedies provided for in the Tariff and Customs Code; that the Bureau of Customs had not lost jurisdiction over the goods because the full duties and charges thereon had not been paid; that the members of the Manila Police Department had the power to make the seizure; that the seizure was not unreasonable; and that the persons deputized under Section 2203 (c) of the Tariff and Customs Code could effect searches, seizures and arrests in inland places in connection with the enforcement of the said Code. In opposing the issuance of the writ of preliminary injunction, herein petitioners averred in the court below that the writ could not be granted for the reason that Remedios Mago was not entitled to the main reliefs she prayed for; that the release of the goods, which were subject to seizure proceedings under the Tariff and Customs Code, would deprive the Bureau of Customs of the authority to forfeit them; and that Remedios Mago and Valentin Lanopa would not suffer irreparable injury. Herein petitioners prayed the court below for the lifting of the restraining order, for the denial of the issuance of the writ of preliminary injunction, and for the dismissal of the case. At the hearing on December 9, 1966, the lower court, with the conformity of the parties, ordered that an inventory of the goods be made by its clerk of court in the presence of the representatives of the claimant of the goods, the Bureau of Customs, and the Anti- Smuggling Center of the Manila Police Department. On December 13, 1966, the above-named persons filed a "Compliance" itemizing the contents of the nine bales. Herein respondent Remedios Mago, on December 23, 1966, filed an ex parte motion to release the goods, alleging that since the inventory of the goods seized did not show any article of prohibited importation, the same should be released as per agreement of the parties upon her posting of the appropriate bond that may be determined by the court. Herein petitioners filed their opposition to the motion, alleging that the court had no jurisdiction to order the release of the goods in view of the fact that the court had no jurisdiction over the case, and that most of the goods, as shown in the inventory, were not declared and were, therefore, subject to forfeiture. A supplemental opposition was filed by herein petitioners on January 19, 1967, alleging that on January 12, 1967 seizure proceedings against the goods had been instituted by the Collector of Customs of the Port of Manila, and the determination of all questions affecting the disposal of property proceeded against in seizure and forfeiture proceedings should thereby be left to the Collector of Customs. On January 30, 1967, herein petitioners filed a manifestation that the estimated duties, taxes and other charges due on the goods amounted to P95,772.00. On February 2, 1967, herein respondent Remedios Mago filed an urgent manifestation and reiteration of the motion for the release under bond of the goods. On March 7, 1967, the respondent Judge issued an order releasing the goods to herein respondent Remedios Mago upon her filing of a bond in the amount of P40,000.00, and on March 13, 1967, said respondent filed the corresponding bond. On March 13, 1967, herein petitioner Ricardo Papa, on his own behalf, filed a motion for reconsideration of the order of the court releasing the goods under bond, upon the ground that the Manila Police Department had been directed by the Collector of Customs of the Port of Manila to hold the goods pending termination of the seizure proceedings. Without waiting for the court's action on the motion for reconsideration, and alleging that they had no plain, speedy and adequate remedy in the ordinary course of law, herein petitioners filed the present action for prohibition and certiorari with preliminary injunction before this Court. In their petition petitioners allege, among others, that the respondent Judge acted without jurisdiction in ordering the release to respondent Remedios Mago of the disputed goods, for the following reasons: (1) the Court of First Instance of Manila, presided by respondent Judge, had no jurisdiction over the case; (2) respondent Remedios Mago had no cause of action in Civil Case No. 67496 of the Court of First Instance of Manila due to her failure to exhaust all administrative remedies before invoking judicial intervention; (3) the Government was not estopped by the negligent and/or illegal acts of its agents in not collecting the correct taxes; and (4) the bond fixed by respondent Judge for the release of the goods was grossly insufficient. In due time, the respondents filed their answer to the petition for prohibition and certiorari in this case. In their answer, respondents alleged, among others: (1) that it was within the jurisdiction of the lower court presided by respondent Judge to hear and decide Civil Case No. 67496 and to issue the questioned order of March 7, 1967, because said Civil Case No. 67496 was instituted long before seizure and identification proceedings against the nine bales of goods in question were instituted by the Collector of Customs; (2) that petitioners could no longer go after the goods in question after the corresponding duties and taxes had been paid and said goods had left the customs premises and were no longer within the control of the Bureau of Customs; (3) that respondent Remedios Mago is a purchaser in good faith of the goods in question so that those goods can not be the subject of seizure and forfeiture proceedings; (4) that the seizure of the goods was effected by members of the Manila Police Department at a place outside the control and jurisdiction of the Bureau of Customs and effected without any search warrant or a warrant of seizure and detention; (5) that the warrant of seizure and detention subsequently issued by the Collector of Customs is illegal and unconstitutional, it not being issued by a judge; (6) that the seizing officers have no authority to seize the goods in question because they are not articles of prohibited importation; (7) that petitioners are estopped to institute the present action because they had agreed before the respondent Judge that they would not interpose any objection to the release of the goods under bond to answer for whatever duties and taxes the said goods may still be liable; and (8) that the bond for the release of the goods was sufficient. The principal issue in the instant case is whether or not, the respondent Judge had acted with jurisdiction in issuing the order of March 7, 1967 releasing the goods in question. The Bureau of Customs has the duties, powers and jurisdiction, among others, (1) to assess and collect all lawful revenues from imported articles, and all other dues, fees, charges, fines and penalties, accruing under the tariff and customs laws; (2) to prevent and suppress smuggling and other frauds upon the customs; and (3) to enforce tariff and customs laws. 1 The goods in question were imported from Hongkong, as shown in the "Statement and Receipts of Duties Collected on Informal Entry." 2 As long as the importation has not been terminated the imported goods remain under the jurisdiction of the Bureau of Customs. Importation is deemed terminated only upon the payment of the duties, taxes and other charges upon the articles, or secured to be paid, at the port of entry and the legal permit for withdrawal shall have been granted. 3 The payment of the duties, taxes, fees and other charges must be in full. 4 The record shows, by comparing the articles and duties stated in the aforesaid "Statement and Receipts of Duties Collected on Informal Entry" with the manifestation of the Office of the Solicitor General 5 wherein it is stated that the estimated duties, taxes and other charges on the goods subject of this case amounted to P95,772.00 as evidenced by the report of the appraiser of the Bureau of Customs, that the duties, taxes and other charges had not been paid in full. Furthermore, a comparison of the goods on which duties had been assessed, as shown in the "Statement and Receipts of Duties Collected on Informal Entry" and the "compliance" itemizing the articles found in the bales upon examination and inventory, 6 shows that the quantity of the goods was underdeclared, presumably to avoid the payment of duties thereon. For example, Annex B (the statement and receipts of duties collected) states that there were 40 pieces of ladies' sweaters, whereas Annex H (the inventory contained in the "compliance") states that in bale No. 1 alone there were 42 dozens and 1 piece of ladies' sweaters of assorted colors; in Annex B, only 100 pieces of watch bands were assessed, but in Annex H, there were in bale No. 2, 209 dozens and 5 pieces of men's metal watch bands (white) and 120 dozens of men's metal watch bands (gold color), and in bale No. 7, 320 dozens of men's metal watch bands (gold color); in Annex B, 20 dozens only of men's handkerchief were declared, but in Annex H it appears that there were 224 dozens of said goods in bale No. 2, 120 dozens in bale No. 6, 380 dozens in bale No. 7, 220 dozens in bale No. 8, and another 200 dozens in bale No. 9. The articles contained in the nine bales in question, were, therefore, subject to forfeiture under Section 2530, pars. e and m, (1), (3), (4), and (5) of the Tariff and Customs Code. And this Court has held that merchandise, the importation of which is effected contrary to law, is subject to forfeiture, 7 and that goods released contrary to law are subject to seizure and forfeiture. 8 Even if it be granted, arguendo, that after the goods in question had been brought out of the customs area the Bureau of Customs had lost jurisdiction over the same, nevertheless, when said goods were intercepted at the Agrifina Circle on November 4, 1966 by members of the Manila Police Department, acting under directions and orders of their Chief, Ricardo G. Papa, who had been formally deputized by the Commissioner of Customs, 9 the Bureau of Customs had regained jurisdiction and custody of the goods. Section 1206 of the Tariff and Customs Code imposes upon the Collector of Customs the duty to hold possession of all imported articles upon which duties, taxes, and other charges have not been paid or secured to be paid, and to dispose of the same according to law. The goods in question, therefore, were under the custody and at the disposal of the Bureau of Customs at the time the petition for mandamus, docketed as Civil Case No. 67496, was filed in the Court of First Instance of Manila on November 9, 1966. The Court of First Instance of Manila, therefore, could not exercise jurisdiction over said goods even if the warrant of seizure and detention of the goods for the purposes of the seizure and forfeiture proceedings had not yet been issued by the Collector of Customs. The ruling in the case of "Alberto de Joya, et al. v. Hon. Gregorio Lantin, et al.," G. R. No. L-24037, decided by this Court on April 27, 1967, is squarely applicable to the instant case. In the De Joya case, it appears that Francindy Commercial of Manila bought from Ernerose Commercial of Cebu City 90 bales of assorted textiles and rags, valued at P117,731.00, which had been imported and entered thru the port of Cebu. Ernerose Commercial shipped the goods to Manila on board an inter-island vessel. When the goods were about to leave the customs premises in Manila, on October 6, 1964, the customs authorities held them for further verification, and upon examination the goods were found to be different from the declaration in the cargo manifest of the carrying vessel. Francindy Commercial subsequently demanded from the customs authorities the release of the goods, asserting that it is a purchaser in good faith of those goods; that a local purchase was involved so the Bureau of Customs had no right to examine the goods; and that the goods came from a coastwise port. On October 26, 1964, Francindy Commercial filed in the Court of First Instance of Manila a petition for mandamus against the Commissioner of Customs and the Collector of Customs of the port of Manila to compel said customs authorities to release the goods. Francindy Commercial alleged in its petition for mandamus that the Bureau of Customs had no jurisdiction over the goods because the same were not imported to the port of Manila; that it was not liable for duties and taxes because the transaction was not an original importation; that the goods were not in the hands of the importer nor subject to said importer's control, nor were the goods imported contrary to law with its (Francindy Commercial's) knowledge; and that the importation had been terminated. On November 12, 1964, the Collector of Customs of Manila issued a warrant of seizure and identification against the goods. On December 3, 1964, the Commissioner of Customs and the Collector of Customs, as respondents in the mandamus case, filed a motion to dismiss the petition on the grounds of lack of jurisdiction, lack of cause of action, and in view of the pending seizure and forfeiture proceedings. The court of first instance held resolution on the motion to dismiss in abeyance pending decision on the merits. On December 14, 1964, the Court of First Instance of Manila issued a writ of preventive and mandatory injunction, on prayer by Francindy Commercial, upon a bond of P20,000.00. The Commissioner of Customs and the Collector of Customs sought the lifting of the preliminary and mandatory injunction, and the resolution of their motion to dismiss. The Court of First Instance of Manila, however, on January 12, 1965, ordered them to comply with the preliminary and mandatory injunction, upon the filing by Francindy Commercial of an additional bond of P50,000.00. Said customs authorities thereupon filed with this Court, on January 14, 1965, a petition for certiorari and prohibition with preliminary injunction. In resolving the question raised in that case, this Court held: "This petition raises two related issues: first, has the Customs bureau jurisdiction to seize the goods and institute forfeiture proceeding against them? and (2) has the Court of First Instance jurisdiction to entertain the petition for mandamus to compel the Customs authorities to release the goods? "Francindy Commercial contends that since the petition in the Court of First Instance was filed (on October 26, 1964) ahead of the issuance of the Customs warrant of seizure and forfeiture (on November 12, 1964), the Customs bureau should yield to the jurisdiction of the said court. "The record shows, however, that the goods in question were actually seized on October 6, 1964, i.e., before Francindy Commercial sued in court. The purpose of the seizure by the Customs bureau was to verify whether or not Custom duties and taxes were paid for their importation. Hence, on December 23, 1964, Customs released 22 bales thereof, for the same were found to have been released regularly from the Cebu Port (Petition Annex 'L'). As to goods imported illegally or released irregularly from Customs custody, these are subject to seizure under Section 2530 m. of the Tariff and Customs Code (RA 1957). "The Bureau of Customs has jurisdiction and power, among others, to collect revenues from imported articles, fines and penalties and suppress smuggling and other frauds on customs; and to enforce tariff and customs laws (Sec. 602, Republic Act 1957). "The goods in question are imported articles entered at the Port of Cebu. Should they be found to have been released irregularly from Customs custody in Cebu City, they are subject to seizure and forfeiture, the proceedings for which comes within the jurisdiction of the Bureau of Customs pursuant to Republic Act 1937. "Said proceedings should be followed; the owner of the goods may set up defenses therein (Pacis v. Averia, L-22526, Nov. 20, 1966). From the decision of the Commissioner of Customs appeal lies to the Court of Tax Appeals, as provided in Sec. 2402 of Republic Act 1937 and Sec. 11 of Republic Act 1125. To permit recourse to the Court of First Instance in cases of seizure of imported goods would in effect render ineffective the power of the Customs authorities under the Tariff Code and deprive the Court of Tax Appeals of one of its exclusive appellate jurisdictions. As this Court has ruled in Pacis v. Averia, supra, Republic Acts 1937 and 1125 vest jurisdiction over seizure and forfeiture proceedings exclusively upon the Bureau of Customs and the Court of Tax Appeals. Such law being special in nature, while the Judiciary Act defining the jurisdiction of Courts of First Instance is a general legislation, not to mention that the former are later enactments, the Court of First Instance should yield to the jurisdiction of the Customs authorities." It is the settled rule, therefore, that the Bureau of Customs acquires exclusive jurisdiction over imported goods, for the purposes of enforcement of the customs laws, from the moment the goods are actually in its possession or control, even if no warrant of seizure or detention had previously been issued by the Collector of Customs in connection with seizure and forfeiture proceedings. In the present case, the Bureau of Customs actually seized the goods in question on November 4, 1966, and so from that date the Bureau of Customs acquired jurisdiction over the goods for the purposes of the enforcement of the tariff and customs laws, to the exclusion of the regular courts. Much less then would the Court of First Instance of Manila have jurisdiction over the goods in question after the Collector of Customs had issued the warrant of seizure and detention on January 12, 1967. 10 And so, it cannot be said, as respondents contend, that the issuance of said warrant was only an attempt to divest the respondent Judge of jurisdiction over the subject matter of the case. The court presided by respondent Judge did not acquire jurisdiction over the goods in question when the petition for mandamus was filed before it, and so there was no need of divesting it of jurisdiction. Not having acquired jurisdiction over the goods, it follows that the Court of First Instance of Manila had no jurisdiction to issue the questioned order of March 7, 1967 releasing said goods. Respondents also aver that petitioner Martin Alagao, an officer of the Manila Police Department, could not seize the goods in question without a search warrant. This contention cannot be sustained. The Chief of the Manila Police Department, Ricardo G. Papa, having been deputized in writing by the Commissioner of Customs, could, for the purposes of the enforcement of the customs and tariff laws, effect searches, seizures, and arrests, 11 and it was his duty to make seizure, among others, of any cargo, articles or other movable property when the same may be subject to forfeiture or liable for any fine imposed under customs and tariff laws. 12 He could lawfully open and examine any box, trunk, envelope or other container wherever found when he had reasonable cause to suspect the presence therein of dutiable articles introduced into the Philippines contrary to law; and likewise to stop, search and examine any vehicle, beast or person reasonably suspected of holding or conveying such article as aforesaid. 13 It cannot be doubted, therefore, that petitioner Ricardo G. Papa, Chief of Police of Manila, could lawfully effect the search and seizure of the goods in question. The Tariff and Customs Code authorizes him to demand assistance of any police officer to effect said search and seizure, and the latter has the legal duty to render said assistance. 14 This was what happened precisely in the case of Lt. Martin Alagao who, with his unit, made the search and seizure of the two trucks loaded with the nine bales of goods in question at the Agrifina Circle. He was given authority by the Chief of Police to make the interception of the cargo. 15 Petitioner Martin Alagao and his companion policemen had authority to effect the seizure without any search warrant issued by a competent court. The Tariff and Customs Code does not require said warrant in the instant case. The Code authorizes persons having police authority under Section 2203 of the Tariff and Customs Code to enter, pass through or search any land, inclosure, warehouse, store or building, not being a dwelling house; and also to inspect, search and examine any vessel or aircraft and any trunk, package, box or envelope or any person on board, or stop and search and examine any vehicle, beast or person suspected of holding or conveying any dutiable or prohibited article introduced into the Philippines contrary to law, without mentioning the need of a search warrant in said cases. 16 But in the search of a dwelling house, the Code provides that said "dwelling house may be entered and searched only upon warrant issued by a judge or justice of the peace . . ." 17 It is our considered view, therefore, that except in the case of the search of a dwelling house, persons exercising police authority under the customs law may effect search and seizure without a search warrant in the enforcement of customs laws. Our conclusion finds support in the case of Carroll v. United States, 39 A.L.R., 790, 799, wherein the court, considering a legal provision similar to Section 2211 of the Philippine Tariff and Customs Code, said as follows: "Thus, contemporaneously with the adoption of the 4th Amendment, we find in the first Congress, and in the following second and fourth Congresses, a difference made as to the necessity for a search warrant between goods subject to forfeiture, when concealed in a dwelling house or similar place, and like goods in course of transportation and concealed in a movable vessel, where they readily could be put out of reach of a search warrant . . ." "Again, by the 2d section of the Act of March 3, 1815 (3 Stat. at L. 231, 232, chap. 94), it was made lawful for customs officers not only to board and search vessels within their own and adjoining districts, but also to stop, search, and examine any vehicle, beast, or person on which or whom they should suspect there was merchandise which was subject to duty or had been introduced into the United States in any manner contrary to law, whether by the person in charge of the vehicle or beast or otherwise, and if they should find any goods, wares, or merchandise thereon, which they had probable cause to believe had been so unlawfully brought into the country, to seize and secure the same, and the vehicle or beast as well, for trial and forfeiture. This Act was renewed April 27, 1816 (3 Stat. at L. 315, chap. 100), for a year and expired. The Act of February 28, 1865, revived 2 of the Act of 1815, above described, chap. 67, 13 Stat. at L. 441. The substance of this section was re-enacted in the 3d section of the Act of July 18, 1866, chap. 201, 14 Stat. at L. 178, and was thereafter embodied in the Revised Statutes as 3061, Comp. Stat. 5763, 2 Fed. Stat. Anno. 2d ed. p. 1161. Neither 3061 nor any of its earlier counterparts has ever been attacked as unconstitutional. Indeed, that section was referred to and treated as operative by this court in Von Cotzhausen v. Nazro, 107 U. S. 215, 219, 27 L. ed. 540, 541, 2 Sup. Ct. Rep. 503 . . ." In the instant case, we note that petitioner Martin Alagao and his companion policemen did not have to make any search before they seized the two trucks and their cargo. In their original petition, and amended petition, in the court below Remedios Mago and Valentin Lanopa did not even allege that there was a search. 18 All that they complained of was, "That while the trucks were on their way, they were intercepted without any search warrant near the Agrifina Circle and taken to the Manila Police, where they were detained." But even if there was a search, there is still authority to the effect that no search warrant would be needed under the circumstances obtaining in the instant case. Thus, it has been held that: "The guaranty of freedom from unreasonable searches and seizures is construed as recognizing a necessary difference between a search of a dwelling house or other structure in respect of which a search warrant may readily be obtained and a search of a ship, motorboat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." (47 Am. Jur., pp. 513-514, citing Carroll v. United States, 267 U.S., 132, 69 L. ed., 543, 45 S. Ct., 280, 39 A.L.R., 790; People v. Case, 320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686.) In the case of People v. Case (320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686), the question raised by defendant's counsel was whether an automobile truck or an automobile could be searched without search warrant or other process and the goods therein seized used afterwards as evidence in a trial for violation of the prohibition laws of the State. Same counsel contended the negative, urging the constitutional provision forbidding unreasonable searches and seizures. The Court said: ". . . Neither our state nor the Federal Constitution directly prohibits search and seizure without a warrant, as is sometimes asserted. Only 'unreasonable' search and seizure is forbidden. . . . ". . . The question whether a seizure or a search is unreasonable in the language of the Constitution is a judicial and not a legislative question; but in determining whether a seizure is or is not unreasonable, all of the circumstances under which it is made must be looked to. "The automobile is a swift and powerful vehicle of recent development, which has multiplied by quantity production and taken possession of our highways in battalions, until the slower, animal- drawn vehicles, with their easily noted individuality, are rare. Constructed as covered vehicles to standard form in immense quantities, and with a capacity for speed rivaling express trains, they furnish for successful commission of crime a disguising means of silent approach and swift escape unknown in the history of the world before their advent. The question of their police control and reasonable search on highways or other public places is a serious question far deeper and broader than their use in so-called "bootlegging' or 'rum running,' which is itself is no small matter. While a possession in the sense of private ownership, they are but a vehicle constructed for travel and transportation on highways. Their active use is not in homes or on private premises, the privacy of which the law especially guards from search and seizure without process. The baffling extent to which they are successfully utilized to facilitate commission of crime of all degrees, from those against morality, chastity, and decency, to robbery, rape, burglary, and murder, is a matter of common knowledge. Upon that problem a condition, and not a theory, confronts proper administration of our criminal laws. Whether search of and seizure from an automobile upon a highway or other public place without a search warrant is unreasonable is in its final analysis to be determined as a judicial question in view of all the circumstances under which it is made." Having declared that the seizure by the members of the Manila Police Department of the goods in question was in accordance with law and by that seizure the Bureau of Customs had acquired jurisdiction over the goods for the purposes of the enforcement of the customs and tariff laws, to the exclusion of the Court of First Instance of Manila, We have thus resolved the principal and decisive issue in the present case. We do not consider it necessary, for the purposes of this decision, to discuss the incidental issues raised by the parties in their pleadings. WHEREFORE, judgment is hereby rendered, as follows: (a) Granting the writ of certiorari and prohibition prayed for by petitioners; (b) Declaring null and void, for having been issued without jurisdiction, the order of respondent Judge Hilarion U. Jarencio, dated March 7, 1967, in Civil Case No. 67496 of the Court of First Instance of Manila; (c) Declaring permanent the preliminary injunction issued by this Court on March 31, 1967 restraining respondent Judge from executing, enforcing and/or implementing his order of March 7, 1967 in Civil Case No. 67496 of the Court of First Instance of Manila, and from proceeding in any manner in said case; (d) Ordering the dismissal of Civil Case No. 67496 of the Court of First Instance of Manila; and (e) Ordering the private respondent, Remedios Mago, to pay the costs. It is so ordered. Concepcion, C . J ., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Sanchez, Castro, Angeles and Fernando, JJ ., concur. FIRST DIVISION [G.R. No. L-41686. November 17, 1980.] PEOPLE OF THE PHILIPPINES, petitioner, vs. COURT OF FIRST INSTANCE OF RIZAL, BRANCH IX, QUEZON CITY, presided by HON. ULPIANO SARMIENTO, JESSIE HOPE and MONINA MEDINA, respondents. D E C I S I O N GUERRERO, J p: This original petition for certiorari seeks to nullify the Order dated August 20, 1975 issued by District Judge Ulpiano Sarmiento in Criminal Case No. Q-3781 which stalled the prosecution of respondents Sgt. Jessie C. Hope and Monina Medina for the alleged violation of Section 3601 1 of the Tariff and Customs Code. The order declared as inadmissible in evidence the allegedly smuggled articles obtained by apprehending agents in the course of a warrantless search and seizure. Dispositively, the order decreed: "WHEREFORE in accordance with Article IV, Sec. 4, paragraph 2 of the present Constitution, the boxes and the watches and bracelets contained therein seized from the car of the accused Sgt. Jessie C. Hope, are hereby declared inadmissible in evidence in this case; likewise, the pictures taken of said items attempted to be presented as evidence in the instant case is hereby declared inadmissible as evidence against the accused. "SO ORDERED." dctai The records disclose that one week before February 9, 1974, the Regional Anti-Smuggling Action Center (RASAC) was informed by an undisclosed Informer that a shipment of highly dutiable goods would be transported to Manila from Angeles City on a blue Dodge car. Spurred by such lead, RASAC Agents Arthur Manuel and Macario Sabado, on the aforesaid date and upon order of the Chief of Intelligence and Operations Branch, RASAC-MBA, Col. Antonio Abad, Jr., stationed themselves in the vicinity of the toll gate of the North Diversion Road at Balintawak, Quezon City. At about 6:45 A.M. of the same day, a light blue Dodge car with Plate No. 21-87-73, driven by Sgt. Jessie Hope who was accompanied by Monina Medina approached the exit gate and after giving the toll receipt sped away towards Manila. The RASAC agents gave a chase and overtook Sgt. Hope's car. Agent Sabado blew his whistle and signaled Sgt. Hope to stop but the latter instead of heeding, made a U- turn back to the North Diversion Road, but he could not go through because of the buses in front of his car. At this point, the agents succeeded in blocking Sgt. Hope's car and the latter stopped. Manuel and Sabado who were in civilian clothes showed their identification cards to respondents and introduced themselves as RASAC agents. The Agents saw four (4) boxes on the back seat of the Dodge and upon inquiry as to what those boxes were, Sgt. Hope answered "I do not know." Further, respondents were asked where they were bringing the boxes, to which respondent Medina replied that they were bringing them (boxes) to the Tropical Hut at Epifanio de los Santos. Agent Sabado boarded the Dodge car with respondents while Agent Manuel took their own car and both cars drove towards Tropical Hut making a brief stop at the Bonanza where Agent Manuel called up Col. Abad by telephone. Arriving at the Tropical Hut, the party, together with Col. Abad who had joined them waited for the man who according to Monina Medina was supposed to receive the boxes. As the man did not appear, Col. Abad "called off the mission" and brought respondents and their car to Camp Aguinaldo arriving there at about 9:00 A.M. (Respondents' Memorandum, records, pp. 180-183). An inspection of Sgt. Hope's car at Camp Aguinaldo yielded eleven (11) sealed boxes, four (4) on the rear seat and seven (7) more in the baggage compartment which was opened on orders of Col. Abad. On the same order of the intelligence officer, the boxes were opened before the presence of respondents Hope and Medina, representatives of the Bureau of Internal Revenue, Bureau of Customs, P.C., COSAC and photographers of the Department of National Defense. The contents of the bozes revealed some "4,441 more or less wrist watches of assorted brands; 1,075 more or less watch bracelets of assorted brands" (based on a later inventory), supposedly untaxed. As consequence, thereof, ASAC Chairman General Pelagio Cruz requested the Bureau of Customs to issue a Warrant of Seizure and Detention against the articles including the Dodge car. The Collector of Customs did issue the same on February 12, 1974. It was admitted, however, that when the apprehending agents arrested respondents and brought them together with the seized articles to the ASAC Office in Camp Aguinaldo, the former were not armed with a warrant of arrest and seizure. Cdpr In conjunction with the Warrant of Seizure and Detention issued by the Collector of Customs, seizure proceedings were instituted and docketed as Seizure Identification No. 14281 against the wrist watches and watch bracelets pursuant to Section 2530 (m) 1 of the Tariff and Customs Code, and Seizure Identification No. 14281-A against the Dodge car pursuant to Section 2530(k) of the same Code. 2 During the hearing of the aforesaid cases, respondents disclaimed ownership of the seized articles. Ownership was instead claimed by one Antonio del Rosario who intervened in the proceedings. The claimant-intervenor testified that he bought the watches and bracelets from Buenafe Trading as evidenced by a sales invoice certified to be authentic by the BIR Revenue Regional Office No. 6 of Quezon City, which transaction was entered in the book of accounts of aforesaid claimant; that the same articles were brought to a buyer in Angeles City, but when the sale failed to materialize, claimant contracted respondent Monina Medina to transport back the boxes to Manila for a consideration of P1,000.00 without disclosing the contents thereof which claimant simply represented as PX goods; that when he bought the watches from Buenafe, he presumed that the corresponding duties have already been paid, only to be surprised later on when he was informed that the same were seized for non-payment of taxes. LLjur On the other hand, respondent Hope testified to the effect that at the time of apprehension, he had no knowledge of the contents of the boxes, and granting that he had such knowledge, he never knew that these are untaxed commodities; that he consented to transport said boxes from Angeles City to Manila in his car upon request of his girl friend Monina as a personal favor; that he was not present when the boxes were loaded in his car nor was he ever told of their contents on the way. On the part of respondent Monina Medina, she testified that what she did was only in compliance with the agreement with Mr. Del Rosario to transport the boxes and deliver them to a certain Mr. Peter at the Tropical Hut who will in turn give her the contracted price; that Mr. Del Rosario did not reveal the contents of the boxes which she came to know of only when the boxes were opened at Camp Aguinaldo. As there was not enough evidence to controvert the testimonies of respondents and the narration of claimant Antonio del Rosario, the Collector of Customs issued his decision in the seizure cases on April 1, 1975 declaring that the seized articles including the car are not subject of forfeiture. The dispositive portion of this decision reads: "WHEREFORE, by virtue of Section 2312 of the Tariff and Customs Code, it is hereby ordered and decreed that the subject motor vehicle, one (1) Dodge, Model 1965, Motor No. 33859, Serial No. W357348361, File No. 2B-1884, with Plate No. EH 21-87, '73 covered by Seizure Identification No. 14281-A be, as it is hereby declared released to its registered owner, Jessie C. Hope, upon proper identification. Relative to Seizure Identification No. 14281, it is further ordered and decreed that the subject matter thereof to wit: 4,606 pcs. of assorted brands of wrist watches, 1,399 pieces of assorted brands of wrist bracelets and 100 pcs. of tools he, as they are hereby likewise declared released to the rightful owner thereof, Antonio del Rosario, upon payment of the levitable duties, taxes and other charges due thereon plus a fine equivalent to 100% of the duties and taxes thereof. Furthermore, should claimant-intervenor fail to pay the assessable duties, taxes and other charges owing from the aforestated articles within 30 days from the time this decision becomes final and unappealable, the same shall be deemed abandoned in favor of the government to be disposed of in the manner provided for by law." Meanwhile, on March 14, 1974, after the requisite preliminary investigation, the City Fiscal of Quezon City, finding the existence of a prima facie case against respondents Hope and Medina, filed Criminal Case No. Q-3781 in the Court of First Instance of Rizal (Quezon City). Upon arraignment on April 23, 1974, respondents pleaded not guilty. Trial commenced on January 28, 1975 and while the prosecution through its first witness, Agent Macario Sabado, was adducing as evidence the pictures of the eleven (11) boxes containing the assorted watches and watch bracelets, counsel for respondents objected to the presentation of the pictures and the subject articles on the ground that they were seized without the benefit of warrant, and therefore inadmissible in evidence under Section 4(2), Article IV of the New Constitution. After the parties have argued their grounds in their respective memoranda, respondent trial court issued the questioned order of August 20, 1975 as cited earlier. The prosecution's motion for reconsideration was denied on September 30, 1975. Hence, this petition which was treated as a special civil action in Our Resolution of May 5, 1976. llcd The substantive issue as urged in the petition is whether or not the seizure of the merchandise in a moving vehicle by authorized agents commissioned to enforce customs laws without warrant of seizure breaches the constitutional immunity against unreasonable search and seizure and therefore, such merchandise are inadmissible in evidence. Corollary to the issue is, has the trial court gravely abused its discretion in finding the affirmative? The State holds on the proposition that the rules governing search and seizure had been liberalized when a moving vehicle is the object of the search and the necessity of a prior warrant has been relaxed on the ground of practicality, considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge a requirement which borders on impossibility in the case of smuggling effected by the use of a moving vehicle that can transport contraband from one place to another with impunity. Petitioner vigorously contends that contraband may be seized without necessity of a search warrant since the Constitution does not guaranty immunity to smugglers and that a warrantless seizure of contraband in a moving vehicle is justified by the traditional exception attached to the Fourth Amendment of the U.S. Constitution, and such exception must be adopted in interpreting the relevant provision in the new Philippine Constitution. As counter argument, respondents maintain that the decision of the Collector of Customs in the seizure cases which has now become final and unappealable has made no pronouncement that the subject articles are smuggled items. More so, the decision has entirely cleared respondents of any liability or responsibility in the alleged smuggling activity and as a consequence, the decision has the direct effect of deciding finally that the watches and bracelets are not smuggled and that respondents have not violated the customs and tariff laws as charged in the criminal complaint. Respondents argue further that the interception of accused Jessie Hope's car by RASAC Agents while in the course of a normal trip without any order of the court and without having shown that the interception was necessary in the interest of national security, public safety or public health, is an impairment of the liberty of travel under section 5, Article IV of the 1973 Constitution. Finally, they claim that the agents had one week's time before the date of apprehension to secure the necessary warrant but since they failed to get this court order, the search of Hope's car and the spontaneous seizure of the boxes loaded therein and the contents thereof is a violation of the constitutional guarantee against "unreasonable searches and seizure of whatever nature and for any purpose" under section 3, Article IV of the fundamental law. We find for petitioner. The opposing counsel's attempt to draw an identity between the seizure cases and the present criminal action to the ultimate end that the decision in the former should be made decisive of the issue of criminal liability must be overruled. It is not accurate to say that the Collector of Customs made no findings that the articles were smuggled. In fact, what the Collector stated was that the prosecution failed to present the quantum of evidence sufficient to warrant the forfeiture of the subject articles (Pages 128 and 130 of Annex "E", Records, p. 109). In a general sense, this does not necessarily exclude the possibility of smuggling. But if the aim of a confirmation that the goods are indeed smuggled, is to draw an inference to tie up respondents' criminal liability, the Collector is not duty bound, nor is there any need for him to arrive at such a conclusion. It is quite clear that seizure and forfeiture proceedings under the tariff and customs laws are not criminal in nature as they do not result in the conviction of the offender nor in the imposition of the penalty provided for in section 3601 of the Code. 3 As can be gleaned from Section 2533 of the code, seizure proceedings, such as those instituted in this case, are purely civil and administrative in character, the main purpose of which is to enforce the administrative fines or forfeiture incident to unlawful importation of goods or their deliberate possession. The penalty in seizure cases is distinct and separate from the criminal liability that might be imposed against the indicted importer or possessor and both kinds of penalties may be imposed. 4 In the case at bar, the decision of the Collector of Customs, as in other seizure proceedings, concerns the res rather than the persona. The proceeding is a probe on contraband or illegally imported goods. These merchandise violated the revenue law of the country, and as such, have been prevented from being assimilated in lawful commerce until corresponding duties are paid thereon and the penalties imposed and satisfied either in the form of fines or of forfeiture in favor of the government who will dispose of them in accordance with law. The importer or possessor is treated differently. The fact that the administrative penalty befalls on him is an inconsequential incidence to criminal liability. By the same token, the probable guilt cannot be negated simply because he was not held administratively liable. The Collector's final declaration that the articles are not subject to forfeiture does not detract his findings that untaxed goods were transported in respondents' car and seized from their possession by agents of the law. Whether criminal liability lurks on the strength of the provision of the Tariff and Customs Code adduced in the information can only be determined in a separate criminal action. Respondents' exoneration in the administrative cases cannot deprive the State of its right to prosecute. But under our penal laws, criminal responsibility, if any, must be proven not by preponderance of evidence but by proof beyond reasonable doubt. LLjur Considering now the critical area of the dispute, under the law, the authority of persons duly commissioned to enforce tariff and customs laws is quite exceptional when it pertains to the domain of searches and seizures of goods suspected to have been introduced in the country in violation of the customs laws. This Court had occasion to recognize this power granted to persons having police authority under Section 2203 of the Code, who in order to discharge their official duties more effectively ". . . may at anytime enter, pass through, or search any land or inclosure of any warehouse, store or other building not being a dwelling house." (Section 2208, emphasis supplied) ". . . (to) go aboard any vessel or aircraft within the limits of any collection district, and to inspect, search and examine said vessel or aircraft and any trunk, package, box or envelope on board, and search any person on board the said vessel or aircraft and to this end to hail and stop such vessel or aircraft if under way, to use all necessary force to compel compliance; and if it shall appear that any breach or violation of the customs and tariff laws of the Philippines has been committed, whereby or in consequence of which such vessels or aircrafts, or the article, or any part thereof, on board of or imported by such vessel or aircrafts, is liable to forfeiture to make seizure of the same or any part thereof. "The power of search herein above given shall extend to the removal of any false bottom, partition, bulkhead or other obstruction, so far as may be necessary to enable the officer to discover whether any dutiable or forfeitable articles may be concealed." (Section 2210) or, ". . . (to) open and examine any box, trunk, envelope or other container wherever found when he has reasonable cause to suspect the presence therein of dutiable or prohibited article or articles introduced into the Philippines contrary to law, and likewise to stop, search and examine any vehicle, beast or person reasonably suspected of holding or conveying such article as aforesaid." (Section 2211, emphasis supplied) As enunciated in the leading case of Papa vs. Mago, 5 in the exercise of the specific functions aforecited, the Code does not mention the need of a search warrant unlike Section 2209 which explicitly provides that a "dwelling house may be entered and searched only upon warrant issued by a judge (or justice of the peace), upon sworn application showing probable cause and particularly describing the place to be searched and person or thing to be seized." Aware of this delineation, the Court in that case expressed the considered view that "except in the case of the search of a dwelling house, persons exercising police authority under the customs law may effect search and seizure without a search warrant in the enforcement of customs laws." The rationale of the Mago ruling was nurtured by the traditional doctrine in Carroll v. United States 6 wherein an imprimatur against, constitutional infirmity was stamped in favor of a warrantless search and seizure of such nature as in the case at bar. On this stable foundation We refute the constitutional charge of respondents that the warrantless seizure violated Article IV, Section 3 of the 1973 Constitution, which finds origin in the Fourth Amendment of the American Constitution. 7 The Carroll doctrine arose from the indictment and conviction of George Carroll and partner for transporting in an automobile intoxicating liquor in violation of the National Prohibition Act. They assailed the conviction on the ground that the trial court admitted in evidence two of the sixty-eight bottles found by searching the automobile and eventual seizure of the same allegedly in violation of the 4th Amendment, and therefore that the use of the liquor as evidence was improper. 8 To paraphrase the significant views of Mr. Chief Justice Taft, the legislative history of the Act clearly established the intent of Congress to make a distinction between the necessity for a search warrant in the search of private dwellings and that of automobiles and other road vehicles in the enforcement of the Act. This distinction is consistent with the 4th Amendment since the latter does not denounce all searches or seizures, but only such as are unreasonable. Searches and seizures without warrant are valid if made upon probable cause, that is, upon a belief reasonably arising, out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction. 9 Similarly, other statutes of the Union such as the Act of 1789, Act of August 4, 1790, and Act of March 3, 1815, among others, construed in the light of the 4th Amendment had recognized the distinctive feature of a warrantless search of a ship, motorboat, wagon, or automobile for contraband goods where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. 10 In such a situation, what appears to be the measure of legality of the seizure was formulated in this sense: "that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported." Therein the guarantee of the 4th Amendment was fulfilled. Where seizure is impossible except without warrant, the seizing officer acts unlawfully and at his peril unless he can show the court probable cause. 11 The counsel for the State is candid enough to admit that the Anti- Smuggling Action Center tries its best to follow-up the more promising tips and information from informers, but very often, the information proves false or the smugglers are forewarned. 12 It is quite true the ASAC received one such information several days or a week before the encounter; but the fact that its agents failed to obtain a warrant in spite of the time allowance is not a sign that they have been remiss in their duty. The records hardly reveal anything certain and confirmatory of the report during the said period except the general knowledge that some highly dutiable goods would be transported from Angeles City to Manila in a blue Dodge automobile. Not even the trial court has made any findings that ASAC has established with exactitude the place to be searched and the person or thing to be seized. Lacking this essential determination, the agents could not have possibly secured a valid warrant even if they had foreseen its compelling necessity. For one thing, the information could have been just another false alarm. Providentially, however, things turned out differently when in the morning of February 9, 1974, the undisclosed Informer himself went along with the agents to the rendezvous point where at the appointed time he positively identified an approaching car as the one described by him a week earlier to be the suspected carrier of untaxed merchandise. Clearly therefore, the agents acted not on the basis of a mere hearsay but on a confirmed information worthy of belief and probable cause enough for them to adopt measures to freeze the fleeting event. LLphil We need not argue that the subjective phase of the police action taken by the ASAC Agents to effect the apprehension of the suspected violators can be anything less than the ensuing interception and stoppage of respondents' vehicle after a short chase. Neither can We sustain the argument that in doing so, the agents violated respondents' constitutional "liberty of travel". To recall again Mr. Chief Justice Taft: "(B)ut those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise." 13 What followed next in the scene was a simple inquiry as to the contents of the boxes seen inside the car. Respondents' baffled denial of knowledge thereof could not but only heighten the suspicion of a reasonable and inquisitive mind. Thus, the probable cause has not been any less mitigated. The purpose of the constitutional guarantee against unreasonable searches and seizures is to prevent violations of private security in person and property and unlawful invasion of the sanctity of the home by officers of the law acting under legislative or judicial sanction and to give remedy against such usurpation when attempted. 14 The right to privacy is an essential condition to the dignity and happiness and to the peace and security of every individual, whether it be of home or of persons and correspondence. 15 The constitutional inviolability of this great fundamental right against unreasonable searches and seizures must be deemed absolute as nothing is more closer to a man's soul than the serenity of his privacy and the assurance of his personal security. Any interference allowable can only be for the best of causes and reasons. We draw from the context of the Constitution that an intended search or seizure attains a high degree of propriety only when a probable cause duly determined is branded on a warrant duly issued by a judge or other responsible person as may be authorized by law. Not invariably, however, the reasonableness or unreasonableness of the interference is not wholly defendant on the presence of a warrant or the lack of it. In the ordinary cases where warrant is indispensably necessary, the mechanics described by the Constitution and reiterated in the Rules of Court must be followed and satisfied. But We need not argue that there are exceptions. Thus, in the extraordinary events where warrant is not necessary to effect a valid search or seizure, or when the latter cannot be performed except without warrant, what constitutes a reasonable or unreasonable search or seizure becomes purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched and the character of the articles procured. 16 The ultimate question then, if any, that should confront the actuations of the ASAC Agents in this case is whether the warrantless search and seizure conducted by them is lawful or not. We have already seen that what they did was a faithful performance of a duty authorized under the Tariff and Customs Code directing them as authorized agents to retrieve articles reasonably suspected of having been possessed, issued or procured in violation of the tariff laws for which the government has a direct interest. The official capacity of the agents has never been questioned by respondents. Neither did respondents raise an issue on the constitutionality of the law giving the agents the power to act as mandated. There is no question that the Agents have not exceeded their authority nor have they acted so licentiously to bear upon respondents moral embarrassment or substantial prejudice beyond what is necessary. The purpose of the search and seizure is more than clear to Us, hence, We rule out the suspicion that the intention is only to elicit evidence to be used against respondents. dctai We do not see strong justification for the trial court's failure to recognize the circumstances at bar as among the "rare cases" which it admittedly conceded to be exempted from the requirement of a warrant. 17 The lapse lies on the dismal gap in the trial court's developmental treatment of the law on arrest, search and seizure. It missed the vital distinction emphatically laid down in Boyd v. United States. 18 which was cited in Carroll with "particular significance and applicability." Thus, We quote Mr. Justice Bradley in Boyd: ". . . The search and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof , are totally different things from a search for and seizure of a man's private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him. The two things differ in toto coelo. In the one case, the government is entitled to the possession of the property; in the other it is not. The seizure of stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of the revenue laws or concealed to avoid the duties payable on them, has been authorized by English statutes for at least two centuries past; and the like seizure have been authorized by our revenue acts from the commencement of the government. The first statute passed by Congress to regulate the collection of duties, the Act of July 31, 1789, 1 Stat. at L. 29, 43, chap. 5, contains provisions to tins effect. As this act was passed by the same Congress which proposed for adoption the original Amendments to the Constitution, it is clear that the members of that body did not regard searches and seizures of this kind as 'unreasonable' and they are not embraced within the prohibition of the Amendment. So also the supervision authorized to be exercised by officers of the revenue over the manufacture of custody of excisable articles, and the entries thereof in books required by law to be kept for their inspection, are necessarily excepted out of the category of unreasonable searches and seizures. So also the laws which provide for the search and seizure of articles and things which it is unlawful for a person to have in his possession for the purpose of issue or disposition, such as counterfeit coin, lottery tickets, implements of gambling, etc. are not within this category. Commonwealth v. Dana, 2 Met. 329. Many other things of this character might be enumerated." (Emphasis supplied). LibLex Recently, in Viduya v. Berdiago, 19 this Court reiterated the controlling force of the Papa v. Mago ruling herein before cited and the persuasive authority of the leading decision in Carroll v. U.S., supra, and in explaining the rationale of the doctrine significantly said that "(i)t is not for this Court to do less than it can to implement and enforce the mandates of the customs and revenue laws. The evils associated with tax evasion must be stamped out without any disregard, it is to be affirmed, of any constitutional right. . . ." The circumstances of the case at bar undoubtedly fall squarely within the privileged area where search and seizure may lawfully be effected without the need of a warrant. The facts being no less receptive to the applicability of the classic American ruling, the latter's force and effect as well as the Mago decision must be upheld and reiterated in this petition. We find that the constitutional guarantee has not been violated and the respondent court gravely erred in issuing the order of August 20, 1975 declaring as inadmissible evidence the items or articles obtained and seized by the apprehending agents without any search warrant, as well as the pictures of said items attempted to be presented as evidence against the accused. Notwithstanding the reversal and setting aside of the order of respondent judge assailed herein, thereby allowing the introduction and admission of the subject prohibited articles in the trial of the accused Jessie C. Hope and Monina Medina for alleged smuggling, in the interest of speedy justice, the prosecution is directed forthwith to re assess and re-evaluate the evidence at its disposal, considering the lapse of time since the trial commenced on June 28, 1975 and was thus delayed due to the filing of the instant certiorari petition and that on April 1, 1975, after seizure proceedings initiated by the Collector of Customs, the said articles were ordered released upon payment of the leviable duties, taxes and other charges due thereon plus a fine equivalent to 100% of the duties and taxes thereof. After such re- assessment and re-evaluation, the prosecution must promptly take the necessary action on the premises for the protection of the rights and interests of all parties concerned. prLL WHEREFORE, the Order appealed from is hereby set aside and the case is ordered remanded for further trial and reception of evidence without excluding the articles subject of the seizure or for such action as the prosecution may take after the re-assessment and re-evaluation of its evidence as herein above directed. This judgment is immediately executory. SO ORDERED. Makasiar, Fernandez, De Castro * and Melencio-Herrera, JJ ., concur. THIRD DIVISION [G.R. No. 146706. July 15, 2005.] TOMAS SALVADOR, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, respondent. Araullo & Raymundo for petitioner. The Solicitor General for respondent. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURE; RECOGNIZED EXCEPTIONS. As a rule, the Bill of Rights prohibits intrusions by the law enforcers to a person's body, personal effects or residence, unless the same are conducted pursuant to a valid search warrant issued in compliance with the procedure mandated by the Constitution and the Rules of Court. Sections 2 and 3 (2), Article 3 of the 1987 Constitution do not prohibit searches and seizures, but only such as are unreasonable. Our jurisprudence provides for privileged areas where searches and seizures may lawfully be effected sans a search warrant. These recognized exceptions include: (1) search of moving vehicles; (2) search in plain view; (3) customs searches; (4) waiver or consented searches; (5) stop-and-frisk situations; and (6) search incidental to a lawful arrest. ASHEca 2. ID.; ID.; ID.; SEARCH MADE BY THE PHILIPPINE AIR FORCE MEN ON PETITIONER AND HIS CO-ACCUSED WAS IN THE NATURE OF A CUSTOMS SEARCH; AS SUCH, THE TEAM PROPERLY EFFECTED THE SEARCH AND SEIZURE WITHOUT A SEARCH WARRANT SINCE IT EXERCISED POLICE AUTHORITY UNDER CUSTOMS LAW. Here, it should be noted that during the incident in question, the special mission of the PAF operatives was to conduct a surveillance operation to verify reports of drug trafficking and smuggling by certain PAL personnel in the vicinity of the airport. In other words, the search made by the PAF team on petitioner and his co-accused was in the nature of a customs search. As such, the team properly effected the search and seizure without a search warrant since it exercised police authority under the customs law. 3. ID.; ID.; ID.; SEARCH OF A MOVING VEHICLE IS RECOGNIZED AS A VALID EXCEPTION TO THE REQUIREMENT FOR A SEARCH WARRANT. We recall that at the time of the search, petitioner and his co-accused were on board a moving PAL aircraft tow truck. As stated earlier, the search of a moving vehicle is recognized in this jurisdiction as a valid exception to the requirement for a search warrant. Such exception is easy to understand. A search warrant may readily be obtained when the search is made in a store, dwelling house or other immobile structure. But it is impracticable to obtain a warrant when the search is conducted in a mobile ship, aircraft or other motor vehicle since they can quickly be moved out of the locality or jurisdiction where the warrant must be sought. Verily, we rule that the Court of Appeals committed no reversible error in holding that the articles involved in the instant controversy were validly seized by the authorities even without a search warrant, hence, admissible in evidence against petitioner and his co-accused. 4. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; TESTIMONY OF WITNESSES; NOT AFFECTED BY INCONSISTENCIES ON TRIVIAL AND INSIGNIFICANT DETAILS. After a careful examination of the purported inconsistencies mentioned by petitioner, we find that they do not relate with the elements of the offense charged. Rather, they tend to focus on minor and insignificant matters as for instance: which PAF operative was in possession of the hand-held radio; how the girdles (garters) were removed; and what time the aircraft in question arrived. It bears stressing that these inconsistencies detract from the fact that all members of the special PAF team who conducted the search positively identified the petitioner and his co-accused as the same persons who boarded the PAL plane; stayed therein for a significant length of time; disembarked in a manner which stirred suspicion from the team; and with unusually bulging uniforms, rode an aircraft tow truck towards Lima Gate where they were caught in flagrante delicto. As a rule, inconsistencies in the testimonies of witnesses which refer to trivial and insignificant details do not destroy their credibility. Moreover, minor inconsistencies serve to strengthen rather than diminish the prosecution's case as they tend to erase suspicion that the testimonies have been rehearsed, thereby negating any misgivings that the same were perjured. aHECST 5. CRIMINAL LAW; SMUGGLING; ELEMENTS; PRESENT IN CASE AT BAR. Smuggling is thus committed by any person who (1) fraudulently imports or brings into the Philippines or assists in importing or bringing into the Philippines any article, contrary to law, or (2) receives, conceals, buys, sells or in any manner facilitates the transportation, concealment, or sale of such article after importation, knowing the same to have been imported contrary to law. Importation commences when the carrying vessel or aircraft enters the jurisdiction of the Philippines with intention to unload and is deemed terminated upon payment of the duties, taxes and other charges due upon the articles and the legal permit for withdrawal has been issued, or where the articles are duty-free, once the articles have left the jurisdiction of the customs. In the instant case, the prosecution established by positive, strong, and convincing evidence that petitioner and his co-accused were caught red-handed by a team from the PAF Special Operations Squadron, while in the possession of highly dutiable articles inside the premises of the airport. The contraband items were taken by petitioner and his co-accused from a PAL plane which arrived from Hong Kong on the night of June 3, 1994. Petitioner and his colleagues then attempted to bring out these items in the cover of darkness by concealing them inside their uniforms. When confronted by the PAF team, they were unable to satisfactorily explain why the questioned articles were in their possession. They could not present any document to prove lawful importation. Thus, their conviction must necessarily be upheld. Clearly, the Court of Appeals committed no reversible error in affirming the trial court's Decision convicting petitioner and his co- accused. D E C I S I O N SANDOVAL-GUTIERREZ, J p: At bar is the petition for review on certiorari 1 filed by Tomas Salvador assailing the Decision 2 dated August 9, 2000 and Resolution dated January 9, 2001 of the Court of Appeals in CA-G.R. CR No. 20186. aSDCIE On the wee hours of June 4, 1994, Aurelio Mandin, Danilo Santos and petitioner Tomas Salvador, then aircraft mechanics employed by the Philippine Air Lines (PAL) and assigned at the Ninoy Aquino International Airport (NAIA) and Manila Domestic Airport, were nabbed by intelligence operatives of the Philippine Air Force (PAF) for possessing thirteen (13) packets containing assorted smuggled watches and jewelries valued at more than half a million pesos. Consequently, they were charged before the Regional Trial Court (RTC), Branch 117, Pasay City with violation of Section 3601 of the Tariff and Customs Code, docketed as Criminal Case No. 94-5843. The Information reads: "That on or about the 4th day of June 1994 at the NAIA/Domestic Airport vicinity, Pasay City and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually helping one another, did then and there, willfully, unlawfully, and felonious assist in the concealment and unlawful importation of the following items: 198 pieces of means watches P187,110.00 76 pieces of men's diving watches 8,640.00 32 pieces of ladies watches 11,600.00 1600 grams of assorted jewelry 322,000.00 with a total market value of P537,500.00 FIVE HUNDRED THIRTY-SEVEN THOUSAND THREE HUNDRED FIFTY PESOS, more or less, Philippine Currency, without authority or permit from proper authorities. cHSIAC CONTRARY TO LAW." 3 When arraigned, all the accused, duly assisted by counsel, pleaded not guilty to the charge. Trial on the merits then ensued. The prosecution established the following facts: On June 3, 1994, a Special Mission Group from the PAF Special Operations Squadron, headed by Major Gerardo B. Pagcaliuangan and composed of Sgts. Rodolfo A. Teves, Geronimo G. Escarola, Virgilio M. Sindac and Edwin B. Ople, conducted routine surveillance operations at the Manila Domestic Airport to check on reports of alleged drug trafficking and smuggling being facilitated by certain PAL personnel. Major Pagcaliuangan then ordered Sgts. Teves and Ople to keep close watch on the second airplane parked inside the Domestic Airport terminal. This aircraft is an Airbus 300 with tail number RPC-3001. It arrived at the NAIA at 10:25 in the evening of June 3, 1994 from Hong Kong as Flight No. PR-311. After its passengers disembarked and its cargo unloaded, it was towed by the PAL ground crew and parked at the ramp area of the Domestic Airport terminal. At around 11:30 that same evening, Sgt. Teves reported over his radio that three (3) persons had boarded the Airbus 300. The team did not move, but continued its surveillance. At 12:15 a.m. the following day (June 4), Sgt. Teves reported that the three (3) persons who earlier boarded the Airbus 300 had disembarked with their abdominal areas bulging. They then boarded an airplane tow truck with its lights off. IcSADC The PAF surveillance team promptly boarded their vehicles and followed the aircraft tow truck. At the Lima Gate of the Domestic Airport, the team blocked and stopped the tow truck. Sgt. Teves then got off, identified himself and asked the four (4) persons on board to alight. They were later identified as Tomas Salvador, petitioner, Aurelio Mandin, Danilo Santos and Napoleon Clamor, the driver of the tow truck. Sgt. Teves approached Aurelio Mandin. He noticed that Mandin's uniform was partly open, showing a girdle. While Sgt. Teves was reaching for the girdle, a package wrapped in brown packaging tape fell. Suspecting that the package contained smuggled items, Sgt. Teves yelled to his teammates, "Positive!" Thereupon, the rest of the team surrounded petitioner and his two co-accused who surrendered without a fight. The team searched their bodies and found that the three were wearing girdles beneath their uniforms, all containing packets wrapped in packaging tape. Mandin yielded five (5) packets, while petitioner and Santos had four (4) each. The team confiscated the packets and brought all the accused to the PAFSECOM Office. At around 8:00 o'clock the following morning, Emilen Balatbat, an examiner of the Bureau of Customs, arrived at the PAFSECOM Office. She opened one of the packets and on seeing that it contained dutiable goods, she proceeded to weigh the thirteen (13) packets seized from the accused. She then prepared an inventory of the items seized and listed the weight of the packets. 4 Thereafter, she brought the seized packets to the In-Board Section, Bureau of Customs, Airport Office where their contents were identified and appraised. The Bureau of Customs found 248 pieces of assorted watches and fourteen karat (14K) gold jewelries valued as follows: QTY. UNIT DESCRIPTION APPRAISED VALUE 10 pcs. Half-bangles with Charms Tricolors 122.8 gms. 6 pcs. Bracelet with Charms Tricolors 52.4 gms. 8 pcs. Bracelet (Tricolor) 64.2 gms. 5 pcs. Bangles (3 pcs./set) Tricolor 155.3 gms. Baby's Bangles with charm 18.2 gms. L-Bangles with charm 68.5 gms. L-Bangles 112.3 gms. L-Creolla Earrings 901.56 gms. TOTAL GRAMS 1,495 x P200.00/gm. + P299,052.00 Assorted Watches 204 pcs. Citizen M watches with black dial with gold metal bracelet (-1) x $25 $2,600.00 24 pcs. Seiko 5 Ladies watches with blue dial with white metal bracelet (-1) x $25 600.00 16 pcs. Seiko Divers Watch Mens- Black dial with rubberized bracelet (-1) x $50 800.00 4 pcs. Seiko 5 Ladies watches with yellow dial with gold metal bracelet (1) x $25 100.00 4 pcs. Citizen L-watches with white dial (4) x $20 80.00 62 pcs. Seiko 5 Men's watches with yellow dial with gold metal bracelet (1) x $25 1,550.00 34 pcs. Seiko 5 Men's watches with black dial with gold metal bracelet (1) x $25 850.00
248 pcs. $6,580.00 The Investigating State Prosecutor conducted an inquest and thereafter recommended that petitioner and his co-accused be charged with violating Section 3601 of the Tariff and Customs Code. Accordingly, the Information, mentioned earlier, was filed with the RTC. THEDCA After the prosecution rested its case, the accused filed a Joint Demurrer to Evidence. In an Order dated October 12, 1995, the trial court denied the demurrer and directed the accused to present their evidence. All the accused denied committing the offense charged, claiming they were framed-up by the military. Danilo Santos testified that on the night of June 3, 1994, he was assigned to the Airbus 300 with tail No. RPC-3001, joining three junior mechanics who were then working on said aircraft. He was conducting a visual check of the plane when a tow truck arrived on its way to Nichols Airfield. He told one of the junior mechanics that he would take a break and be back in an hour. He then boarded the tow truck. When it was near the Lima Gate, a jeep with four (4) men in civilian attire aboard approached him. The four pointed their firearms at him and, after searching him for drugs, he was frisked but nothing was found. He was nonetheless brought by the men to the PAFSECOM Office, then to Villamor Airbase Hospital for a medical examination and alcohol test. Thereafter, he was brought back to the PAFSECOM Office. There, another military man arrived and brought out a box containing packets. Then he and his companions were told to put on their mechanic's uniforms and to wear girdles. The packets were placed on their bodies, after which they were photographed. He further testified that he was asked to sign a certain paper but was not allowed to read it thoroughly. During the investigation, he was not apprised of his rights nor assisted by a counsel. ICTacD Petitioner Tomas Salvador likewise denied any knowledge of the questioned items seized from him. He testified that during the incident in question, he only boarded the tow truck to take a break at the PAL canteen. He saw a box on the tow truck but was not aware of its contents. After his arrest, he was made to sign a document under duress. Aurelio Mandin also denied committing the offense charged. He declared that after his arrest, he was made to sign a document by the PAF personnel, the contents of which he was not able to read. He signed it because he was struck with a .45 caliber handgun by one of the military men and threatened him with summary execution if he would not do so. He was not informed of his rights nor given the services of counsel during the investigation. After hearing, the trial court rendered its Decision convicting all the accused of the offense charged, thus: "WHEREFORE, in view of the foregoing, the Court finds the accused Aurelio Mandin y Liston, Danilo Santos y Antonio and Tomas Salvador y Magno GUILTY beyond reasonable doubt for violation of Section 3601 of the Tariff and Customs Code of the Philippines (TCCP). There being no aggravating or mitigating circumstance and applying the Indeterminate Sentence Law, the court sentences each of the accused to an indeterminate term of EIGHT (8) YEARS and ONE (1) DAY of prision mayor, as minimum, to TEN (10) YEARS of prision mayor, as maximum, and to pay a fine of EIGHT THOUSAND PESOS (P8,000.00), without subsidiary imprisonment in case of insolvency, and to pay the costs. The court also orders the forfeiture of the confiscated articles in favor of the Government. ICTacD SO ORDERED." 5 All the accused then seasonably interposed an appeal to the Court of Appeals, docketed as CA-G.R. CR No. 20186. On August 9, 2000, the Appellate Court promulgated its Decision affirming the trial court's Decision, thus: "We cannot see any justification for the setting aside of the contested Decision. THE FOREGOING CONSIDERED, the appealed Decision is hereby AFFIRMED. SO ORDERED." 6 They filed a motion for reconsideration but was denied in a Resolution dated January 9, 2001. 7 Only Tomas Salvador opted to elevate his case to this Court by way of the instant petition for review on certiorari. He submits for our consideration the following assignments of error: "I THE ESSENTIAL ELEMENTS OF THE CRIME CHARGED IN THE INFORMATION LIKE UNLAWFUL IMPORTATION, POSSESSION OF UNLAWFULLY IMPORTED ARTICLES AND CONSPIRACY IN THE COMMISSION OF THE SAME, WERE NEVER PROVEN BEYOND REASONABLE DOUBT. DEHaTC II THERE WAS NO PROBABLE CAUSE FOR THE ARREST AND SEARCH OF THE PERSONS OF THE ACCUSED. III THE ACCEPTANCE BY THE TRIAL COURT AND THE AFFIRMANCE BY THE APPELLATE COURT OF THE TESTIMONIES OF PROSECUTION WITNESSES, AS WELL AS ALL ITS DOCUMENTARY EXHIBITS, DESPITE THE FACT THAT THE SAME WERE APPARENTLY OBTAINED IN VIOLATION OF THE CONSTITUTIONAL RIGHTS OF THE ACCUSED WERE UNLAWFUL. IV THE DENIAL BY THE TRIAL COURT AND THE CONCURRENCE BY THE APPELLATE COURT OF THE DEMURRER TO EVIDENCE WERE ALSO WITHOUT LEGAL BASIS." 8 The above assignments of error boil down to these issues: (1) whether the seized items are admissible in evidence; and (2) whether the prosecution has proved the guilt of petitioner beyond reasonable doubt. On the first issue, petitioner contends that the warrantless search and seizure conducted by the PAF operatives is illegal. Citing People v. Burgos, 9 he maintains that at the time he and his co-accused were stopped by the PAF law enforces, they were unaware that a crime was being committed. Accordingly, the law enforcers were actually engaged in a fishing expedition in violation of his Constitutional right against unlawful search and seizure. Thus, the seized items should not have been admitted in evidence against him. TEaADS The Office of the Solicitor General (OSG) counters that under the factual circumstances of the case at bar, there was sufficient probable cause for the PAF surveillance team to stop and search petitioner and his companions. They boarded the parked Air Bus 300 PAL plane at the time when there were no other PAL personnel working therein. They stayed inside the plane for sometime and surprisingly, came out with bulging waists. They then stopped and looked around and made apparent signals. All these acts were sufficient to engender a reasonable suspicion that petitioner and his colleagues were up to something illegal. Moreover, the search and seizure was conducted in connection with the enforcement of customs law when the petitioner and his co-accused were riding a motor vehicle. In addition, the search was conducted at the vicinity of Lima Gate of the Manila Domestic Airport which, like every gate in the airport perimeter, has a checkpoint. Finally, the petitioner and his companions agreed to the search after one of them was caught with a suspicious-looking packet. Under these circumstances, the search and seizure is legal and the seized items are admissible in evidence. We agree with the OSG. As a rule, the Bill of Rights prohibits intrusions by the law enforcers to a person's body, personal effects or residence, unless the same are conducted pursuant to a valid search warrant issued in compliance with the procedure mandated by the Constitution and the Rules of Court. Thus, Sections 2 and 3(2), Article 3 of the 1987 Constitution provide: "SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. HADTEC SEC. 3. xxx xxx xxx (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. xxx xxx xxx." The above Constitutional provisions do not prohibit searches and seizures, but only such as are unreasonable. Our jurisprudence provides for privileged areas where searches and seizures may lawfully be effected sans a search warrant. These recognized exceptions include: (1) search of moving vehicles; (2) search in plain view; (3) customs searches; (4) waiver or consented searches; (5) stop-and-frisk situations; and (6) search incidental to a lawful arrest. 10 Here, it should be noted that during the incident in question, the special mission of the PAF operatives was to conduct a surveillance operation to verify reports of drug trafficking and smuggling by certain PAL personnel in the vicinity of the airport. In other words, the search made by the PAF team on petitioner and his co-accused was in the nature of a customs search. As such, the team properly effected the search and seizure without a search warrant since it exercised police authority under the customs law. 11 In Papa vs. Mago 12 involving a customs search, we held that law enforcers who are tasked to effect the enforcement of the customs and tariff laws are authorized to search and seize, without a search warrant, any article, cargo or other movable property when there is reasonable cause to suspect that the said items have been introduced into the Philippines in violation of the tariff and customs law. They may likewise conduct a warrantless search of any vehicle or person suspected of holding or conveying the said articles, as in the case at bar. DIETHS In short, Mago clearly recognizes the power of the State to foil any fraudulent schemes resorted to by importers who evade payment of customs duties. The Government's policy to combat the serious malady of smuggling cannot be reduced to futility and impotence on the ground that dutiable articles on which the duty has not been paid are entitled to the same Constitutional protection as an individual's private papers and effects. Here, we see no reason not to apply this State policy which we have continued to affirm. 13 Moreover, we recall that at the time of the search, petitioner and his co-accused were on board a moving PAL aircraft tow truck. As stated earlier, the search of a moving vehicle is recognized in this jurisdiction as a valid exception to the requirement for a search warrant. Such exception is easy to understand. A search warrant may readily be obtained when the search is made in a store, dwelling house or other immobile structure. But it is impracticable to obtain a warrant when the search is conducted in a mobile ship, aircraft or other motor vehicle since they can quickly be moved out of the locality or jurisdiction where the warrant must be sought. 14 Verily, we rule that the Court of Appeals committed no reversible error in holding that the articles involved in the instant controversy were validly seized by the authorities even without a search warrant, hence, admissible in evidence against petitioner and his co-accused. On the second issue, petitioner faults the Court of Appeals for readily sustaining the trial court's finding that the witnesses for the prosecution were credible, notwithstanding that their testimonies contain glaring inconsistencies which tend to detract from their veracity. Petitioner submits that these inconsistencies create serious doubt which should have been resolved in his favor. ESAHca We are not persuaded. After a careful examination of the purported inconsistencies mentioned by petitioner, we find that they do not relate with the elements of the offense charged. Rather, they tend to focus on minor and insignificant matters as for instance: which PAF operative was in possession of the hand-held radio; how the girdles (garters) were removed; and what time the aircraft in question arrived. It bears stressing that these inconsistencies detract from the fact that all members of the special PAF team who conducted the search positively identified the petitioner and his co-accused as the same persons who boarded the PAL plane; stayed therein for a significant length of time; disembarked in a manner which stirred suspicion from the team; and with unusually bulging uniforms, rode an aircraft tow truck towards Lima Gate where they were caught in flagrante delicto. As a rule, inconsistencies in the testimonies of witnesses which refer to trivial and insignificant details do not destroy their credibility. 15 Moreover, minor inconsistencies serve to strengthen rather than diminish the prosecution's case as they tend to erase suspicion that the testimonies have been rehearsed, thereby negating any misgivings that the same were perjured. 16 Section 3601 of the Tariff and Customs Code provides in part: "SEC. 3601. Unlawful Importation. Any person who shall fraudulently import or bring into the Philippines, or assist in so doing, any article contrary to law, or shall receive, conceal, buy, seal or in any manner facilitate the importation, concealment or sale of such article after importation, knowing the same to have been imported contrary to law, shall be guilty of smuggling. . . . xxx xxx xxx When, upon trial for violation of this section, the defendant is shown to have had possession of the article in question, possession shall be deemed sufficient evidence to authorize conviction, unless the defendant shall explain the possession to the satisfaction of the court: Provided, however, That payment of the tax due after apprehension shall not constitute a valid defense in any prosecution under this section." HcTEaA Smuggling is thus committed by any person who (1) fraudulently imports or brings into the Philippines or assists in importing or bringing into the Philippines any article, contrary to law, or (2) receives, conceals, buys, sells or in any manner facilitates the transportation, concealment, or sale of such article after importation, knowing the same to have been imported contrary to law. 17 Importation commences when the carrying vessel or aircraft enters the jurisdiction of the Philippines with intention to unload and is deemed terminated upon payment of the duties, taxes and other charges due upon the articles and the legal permit for withdrawal has been issued, or where the articles are duty-free, once the articles have left the jurisdiction of the customs. 18 In the instant case, the prosecution established by positive, strong, and convincing evidence that petitioner and his co-accused were caught red-handed by a team from the PAF Special Operations Squadron, while in the possession of highly dutiable articles inside the premises of the airport. The contraband items were taken by petitioner and his co-accused from a PAL plane which arrived from Hong Kong on the night of June 3, 1994. Petitioner and his colleagues then attempted to bring out these items in the cover of darkness by concealing them inside their uniforms. When confronted by the PAF team, they were unable to satisfactorily explain why the questioned articles were in their possession. They could not present any document to prove lawful importation. Thus, their conviction must necessarily be upheld. Clearly, the Court of Appeals committed no reversible error in affirming the trial court's Decision convicting petitioner and his co-accused. AHacIS WHEREFORE, the petition is DENIED. The appealed Decision and Resolution of the Court of Appeals in CA-G.R. CR No. 20186 are AFFIRMED IN ALL RESPECTS. Costs against the petitioner. SO ORDERED. Panganiban, Corona, Carpio-Morales and Garcia, JJ., concur. MICHAEL A. WHREN and JAMES L. BROWN, PETITIONERS v. UNITED STATES ON WRI T OF CERTI ORARI TO THE UNI TED STATES COURT OF APPEALS FOR THE DI STRI CT OF COLUMBI A CI RCUI T [June 10, 1996] Justice Scalia delivered the opinion of the Court. On the evening of June 10, 1993, plainclothes vice squad officers of the District of Columbia Metropolitan Police Department were patrolling a "high drug area" of the city in an unmarked car. Their suspicions were aroused when they passed a dark Pathfinder truck with temporary license plates and youthful occupants waiting at a stop sign, the driver looking down into the lap of the passenger at his right. The truck remained stopped at the intersection for what seemed an unusually long time--more than 20 seconds. When the police car executed a U turn in order to head back toward the truck, the Pathfinder turned suddenly to its right, without signalling, and sped off at an "unreasonable" speed. The policemen followed, and in a short while overtook the Pathfinder when it stopped behind other traffic at a red light. They pulled up alongside, and Officer Ephraim Soto stepped out and approached the driver's door, identifying himself as a police officer and directing the driver, petitioner Brown, to put the vehicle in park. When Soto drew up to the driver's window, he immediately observed two large plastic bags of what appeared to be crack cocaine in petitioner Whren's hands. Petitioners were arrested, and quantities of several types of illegal drugs were retrieved from the vehicle. Petitioners were charged in a four count indictment with violating various federal drug laws, including 21 U.S.C. 844(a) and 860(a). At a pretrial suppression hearing, they challenged the legality of the stop and the resulting seizure of the drugs. They argued that the stop had not been justified by probable cause to believe, or even reasonable suspicion, that petitioners were engaged in illegal drug dealing activity; and that Officer Soto's asserted ground for approaching the vehicle--to give the driver a warning concerning traffic violations-- was pretextual. The District Court denied the suppression motion, concluding that "the facts of the stop were not controverted," and "[t]here was nothing to really demonstrate that the actions of the officers were contrary to a normal traffic stop." App. 5. Petitioners were convicted of the counts at issue here. The Court of Appeals affirmed the convictions, holding with respect to the suppression issue that, "regardless of whether a police officer subjectively believes that the occupants of an automobile may be engaging in some other illegal behavior, a traffic stop is permissible as long as a reasonable officer in the same circumstances could havestopped the car for the suspected traffic violation." 53 F. 3d 371, 374-375 (CADC 1995). We granted certiorari. 516 U. S. ___ (1996). The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" of "persons" within the meaning of this provision. SeeDelaware v. Prouse, 440 U.S. 648, 653 (1979); United States v. Martinez Fuerte,428 U.S. 543, 556 (1976); United States v. Brignoni Ponce, 422 U.S. 873, 878 (1975). An automobile stop is thus subject to the constitutional imperative that it not be "unreasonable" under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. See Prouse, supra, at 659;Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977) (per curiam). Petitioners accept that Officer Soto had probable cause to believe that various provisions of the District of Columbia traffic code had been violated. See 18 D. C. Mun. Regs. 2213.4 (1995) ("An operator shall . . . give full time and attention to the operation of the vehicle"); 2204.3 ("No person shall turn any vehicle . . . without giving an appropriate signal"); 2200.3 ("No person shall drive a vehicle . . . at a speed greater than is reasonable and prudent under the conditions"). They argue, however, that "in the unique context of civil traffic regulations" probable cause is not enough. Since, they contend, the use of automobiles is so heavily and minutely regulated that total compliance with traffic and safety rules is nearly impossible, a police officer will almost invariably be able to catch any given motorist in a technical violation. This creates the temptation to use traffic stops as a means of investigating other law violations, as to which no probable cause or even articulable suspicion exists. Petitioners, who are both black, further contend that police officers might decide which motorists to stop based on decidedly impermissible factors, such as the race of the car's occupants. To avoid this danger, they say, the Fourth Amendment test for traffic stops should be, not the normal one (applied by the Court of Appeals) of whether probable cause existed to justify the stop; but rather, whether a police officer, acting reasonably, would have made the stop for the reason given. Petitioners contend that the standard they propose is consistent with our past cases' disapproval of police attempts to use valid bases of action against citizens as pretexts for pursuing other investigatory agendas. We are reminded that inFlorida v. Wells, 495 U.S. 1, 4 (1990), we stated that "an inventory search [
[n.1]
] must not be used as a ruse for a general rummaging in order to discover incriminating evidence"; that in Colorado v. Bertine, 479 U.S. 367, 372 (1987), in approving an inventory search, we apparently thought it significant that there had been "no showing that the police, who were following standard procedures, acted in bad faith or for the sole purpose of investigation"; and that in New York v. Burger, 482 U.S. 691, 716-717, n. 27 (1987), we observed, in upholding the constitutionality of a warrantless administrative inspection, [n.2] that the search did not appear to be "a `pretext' for obtaining evidence of . . . violation of . . . penal laws." But only an undiscerning reader would regard these cases as endorsing the principle that ulterior motives can invalidate police conduct that is justifiable on the basis of probable cause to believe that a violation of law has occurred. In each case we were addressing the validity of a search conducted in the absence of probable cause. Our quoted statements simply explain that the exemption from the need for probable cause (and warrant), which is accorded to searches made for the purpose of inventory or administrative regulation, is not accorded to searches that are not made for those purposes. See Bertine,supra, at 371- 372; Burger, supra, at 702-703. Petitioners also rely upon Colorado v. Bannister, 449 U.S. 1 (1980) (per curiam),a case which, like this one, involved a traffic stop as the prelude to a plain view sighting and arrest on charges wholly unrelated to the basis for the stop. Petitioners point to our statement that "there was no evidence whatsoever that the officer's presence to issue a traffic citation was a pretext to confirm any other previous suspicion about the occupants" of the car. Id., at 4, n. 4. That dictum at most demonstrates that the Court in Bannister found no need to inquire into the question now under discussion; not that it was certain of the answer. And it may demonstrate even less than that: if by "pretext" the Court meant that the officer really had not seen the car speeding, the statement would mean only that there was no reason to doubt probable cause for the traffic stop. It would, moreover, be anomalous, to say the least, to treat a statement in a footnote in the per curiam Bannister opinion as indicating a reversal of our prior law. Petitioners' difficulty is not simply a lack of affirmative support for their position. Not only have we never held, outside the context of inventory search or administrative inspection (discussed above), that an officer's motive invalidates objectively justifiable behavior under the Fourth Amendment; but we have repeatedly held and asserted the contrary. In United States v.Villamonte Marquez, 462 U.S. 579, 584, n. 3 (1983), we held that an otherwise valid warrantless boarding of a vessel by customs officials was not rendered invalid "because the customs officers were accompanied by a Louisiana state policeman, and were following an informant's tip that a vessel in the ship channel was thought to be carrying marihuana." We flatly dismissed the idea that an ulterior motive might serve to strip the agents of their legal justification. In United States v. Robinson, 414 U.S. 218 (1973), we held that a traffic violation arrest (of the sort here) would not be rendered invalid by the fact that it was "a mere pretext for a narcotics search," id., at 221, n. 1; and that a lawful post arrest search of the person would not be rendered invalid by the fact that it was not motivated by the officer safety concern that justifies such searches, see id., at 236. See also Gustafson v. Florida, 414 U.S. 260, 266 (1973). And in Scott v. United States, 436 U.S. 128, 138 (1978), in rejecting the contention that wiretap evidence was subject to exclusion because the agents conducting the tap had failed to make any effort to comply with the statutory requirement that unauthorized acquisitions be minimized, we said that "[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional." We described Robinson as having established that "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." 436 U. S., at 138. We think these cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved. We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis. Recognizing that we have been unwilling to entertain Fourth Amendmentchallenges based on the actual motivations of individual officers, petitioners disavow any intention to make the individual officer's subjective good faith the touchstone of "reasonableness." They insist that the standard they have put forward--whether the officer's conduct deviated materially from usual police practices, so that a reasonable officer in the same circumstances would not have made the stop for the reasons given--is an "objective" one. But although framed in empirical terms, this approach is plainly and indisputably driven by subjective considerations. Its whole purpose is to prevent the police from doing under the guise of enforcing the traffic code what they would like to do for different reasons. Petitioners' proposed standard may not use the word "pretext," but it is designed to combat nothing other than the perceived "danger" of the pretextual stop, albeit only indirectly and over the run of cases. Instead of asking whether the individual officer had the proper state of mind, the petitioners would have us ask, in effect, whether (based on general police practices) it is plausible to believe that the officer had the proper state of mind. Why one would frame a test designed to combat pretext in such fashion that the court cannot take into account actual and admitted pretext is a curiosity that can only be explained by the fact that our cases have foreclosed the more sensible option. If those cases were based only upon the evidentiary difficulty of establishing subjective intent, petitioners' attempt to root out subjective vices through objective means might make sense. But they were not based only upon that, or indeed even principally upon that. Their principal basis--which applies equally to attempts to reach subjective intent through ostensibly objective means--is simply that the Fourth Amendment's concern with "reasonableness" allows certain actions to be taken in certain circumstances,whatever the subjective intent. See, e.g., Robinson, supra, at 236 ("Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that [the officer] did not indicate any subjective fear of the [arrestee] or that he did not himself suspect that [the arrestee] was armed");Gustafson, supra, at 266 (same). But even if our concern had been only an evidentiary one, petitioners' proposal would by no means assuage it. Indeed, it seems to us somewhat easier to figure out the intent of an individual officer than to plumb the collective consciousness of law enforcement in order to determine whether a "reasonable officer" would have been moved to act upon the traffic violation. While police manuals and standard procedures may sometimes provide objective assistance, ordinarily one would be reduced to speculating about the hypothetical reaction of a hypothetical constable--an exercise that might be called virtual subjectivity. Moreover, police enforcement practices, even if they could be practicably assessed by a judge, vary from place to place and from time to time. We cannot accept that the search and seizure protections of the Fourth Amendment are so variable, cf. Gustafson, supra, at 265; United States v. Caceres, 440 U.S. 741, 755-756 (1979), and can be made to turn upon such trivialities. The difficulty is illustrated by petitioners' arguments in this case. Their claim that a reasonable officer would not have made this stop is based largely on District of Columbia police regulations which permit plainclothes officers in unmarked vehicles to enforce traffic laws "only in the case of a violation that is so grave as to pose animmediate threat to the safety of others." Metropolitan Police Department-- Washington, D. C., General Order 303.1, pt. 1, Objectives and Policies (A)(2)(4) (Apr. 30, 1992), reprinted as Addendum to Brief for Petitioners. This basis of invalidation would not apply in jurisdictions that had a different practice. And it would not have applied even in the District of Columbia, if Officer Soto had been wearing a uniform or patrolling in a marked police cruiser. Petitioners argue that our cases support insistence upon police adherence to standard practices as an objective means of rooting out pretext. They cite no holding to that effect, and dicta in only two cases. In Abel v. United States, 362 U.S. 217 (1960), the petitioner had been arrested by the Immigration and Naturalization Service (INS), on the basis of an administrative warrant that, he claimed, had been issued on pretextual grounds in order to enable the Federal Bureau of Investigation (FBI) to search his room after his arrest. We regarded this as an allegation of "serious misconduct," but rejected Abel's claims on the ground that "[a] finding of bad faith is . . . not open to us on th[e] record" in light of the findings below, including the finding that " `the proceedings taken by the [INS] differed in no respect from what would have been done in the case of an individual concerning whom [there was no pending FBI investigation],' "id., at 226-227. But it is a long leap from the proposition that following regular procedures is some evidence of lack of pretext to the proposition that failure to follow regular procedures proves (or is an operational substitute for) pretext.Abel, moreover, did not involve the assertion that pretext could invalidate a search or seizure for which there was probable cause--and even what it said about pretext in other contexts is plainly inconsistent with the views we later stated in Robinson, Gustafson, Scott, and Villamonte Marquez. In the other case claimed to contain supportive dicta, United States v. Robinson, 414 U.S. 218 (1973), in approving a search incident to an arrest for driving without a license, we noted that the arrest was "not a departure from established police department practice." Id., at 221, n. 1. That was followed, however, by the statement that "[w]e leave for another day questions which would arise on facts different from these." Ibid. This is not even a dictum that purports to provide an answer, but merely one that leaves the question open. In what would appear to be an elaboration on the "reasonable officer" test, petitioners argue that the balancing inherent in any Fourth Amendment inquiry requires us to weigh the governmental and individual interests implicated in a traffic stop such as we have here. That balancing, petitioners claim, does not support investigation of minor traffic infractions by plainclothes police in unmarked vehicles; such investigation only minimally advances the government's interest in traffic safety, and may indeed retard it by producing motorist confusion and alarm--a view said to be supported by the Metropolitan Police Department's own regulations generally prohibiting this practice. And as for theFourth Amendment interests of the individuals concerned, petitioners point out that our cases acknowledge that even ordinary traffic stops entail "a possibly unsettling show of authority"; that they at best "interfere with freedom of movement, are inconvenient, and consume time" and at worst "may create substantial anxiety," Prouse, 440 U. S., at 657. That anxiety is likely to be even more pronounced when the stop is conducted by plainclothes officers in unmarked cars. It is of course true that in principle every Fourth Amendment case, since it turns upon a "reasonableness" determination, involves a balancing of all relevant factors. With rare exceptions not applicable here, however, the result of that balancing is not in doubt where the search or seizure is based upon probable cause. That is why petitioners must rely upon cases like Prouse to provide examples of actual "balancing" analysis. There, the police action in question was a random traffic stop for the purpose of checking a motorist's license and vehicle registration, a practice that--like the practices at issue in the inventory search and administrative inspection cases upon which petitioners rely in making their "pretext" claim--involves police intrusion without the probable cause that is its traditional justification. Our opinion in Prouse expressly distinguished the case from a stop based on precisely what is at issue here: "probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations." 440 U. S., at 661. It noted approvingly that "[t]he foremost method of enforcing traffic and vehicle safety regulations . . . is acting upon observed violations," id., at 659, which afford the " `quantum of individualized suspicion' " necessary to ensure that police discretion is sufficiently constrained, id., at 654-655 (quoting United States v.Martinez Fuerte, 428 U. S., at 560). What is true of Prouse is also true of other cases that engaged in detailed "balancing" to decide the constitutionality of automobile stops, such as Martinez Fuerte, supra, which upheld checkpoint stops, see 428 U. S., at 556-562, and Brignoni Ponce, supra, which disallowed so called "roving patrol" stops, see 422 U. S., at 882-884: the detailed "balancing" analysis was necessary because they involved seizures without probable cause. Where probable cause has existed, the only cases in which we have found it necessary actually to perform the "balancing" analysis involved searches or seizures conducted in an extraordinary manner, unusually harmful to an individual's privacy or even physical interests--such as, for example, seizure by means of deadly force, see Tennessee v. Garner, 471 U.S. 1 (1985), unannounced entry into a home, see Wilson v. Arkansas, 514 U. S. ___ (1995), entry into a home without a warrant, see Welsh v. Wisconsin, 466 U.S. 740(1984), or physical penetration of the body, see Winston v. Lee, 470 U.S. 753(1985). The making of a traffic stop out of uniform does not remotely qualify as such an extreme practice, and so is governed by the usual rule that probable cause to believe the law has been broken "outbalances" private interest in avoiding police contact. Petitioners urge as an extraordinary factor in this case that the "multitude of applicable traffic and equipment regulations" is so large and so difficult to obey perfectly that virtually everyone is guilty of violation, permitting the police to single out almost whomever they wish for a stop. But we are aware of no principle that would allow us to decide at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement. And even if we could identify such exorbitant codes, we do not know by what standard (or what right) we would decide, as petitioners would have us do, which particular provisions are sufficiently important to merit enforcement. For the run of the mine case, which this surely is, we think there is no realistic alternative to the traditional common law rule that probable cause justifies a search and seizure. * * * Here the District Court found that the officers had probable cause to believe that petitioners had violated the traffic code. That rendered the stop reasonable under the Fourth Amendment, the evidence thereby discovered admissible, and the upholding of the convictions by the Court of Appeals for the District of Columbia Circuit correct. Judgment affirmed. SECOND DIVISION [G.R. Nos. 102009-10. July 6, 1994.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO DE GRACIA, CHITO HENSON and JOHN DOES, accused. ROLANDO DE GRACIA, accused-appellant. D E C I S I O N REGALADO, J p: The incidents involved in this case took place at the height of the coup d'etat staged in December, 1989 by ultra-rightist elements headed by the Reform the Armed Forces Movement-Soldiers of the Filipino People (RAM-SFP) against the Government. At that time, various government establishments and military camps in Metro Manila were being bombarded by the rightist group with their "tora- tora" planes. At around midnight of November 30, 1989, the 4th Marine Battalion of the Philippine Marines occupied Villamor Air Base, while the Scout Rangers took over the Headquarters of the Philippine Army, the Army Operations Center, and Channel 4, the government television station. Also, some elements of the Philippine Army coming from Fort Magsaysay occupied the Greenhills Shopping Center in San Juan, Metro Manila. 1 Accused-appellant Rolando de Gracia was charged in two separate informations for illegal possession of ammunition and explosives in furtherance of rebellion, and for attempted homicide, docketed as Criminal Cases Nos. Q-90-11755 and Q-90-11756, respectively, which were tried jointly by the Regional Trial Court of Quezon City, Branch 103. prcd In Criminal Case No. Q-90-11755, Rolando de Gracia, Chito Henson and several John Does whose true names and identities have not as yet been ascertained, were charged with the crime of illegal possession of ammunition and explosives in the furtherance of rebellion, penalized under Section 1, paragraph 3, of Presidential Decree No. 1866, allegedly committed as follows: "That on or about the 5th day of DECEMBER, 1989, in QUEZON CITY, METRO MANILA, PHILIPPINES, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, and without authority of law, did then and there willfully, unlawfully, feloniously and knowingly have in their possession, custody and control, the following to wit: Five (5) bundles of C-4 or dynamites Six (6) cartoons of M-16 ammunition at 20 each One hundred (100) bottles of MOLOTOV bombs. without first securing the necessary license and/or permit to possess the same from the proper authorities, and armed with said dynamites, ammunition and explosives and pursuant to their conspiracy heretofore agreed upon by them and prompted by common designs, come to an agreement and decision to commit the crime of rebellion, by then and there participating therein and publicly taking arms against the duly constituted authorities, for the purpose of overthrowing the Government of the Republic of the Philippines, disrupting and jeopardizing its activities and removing from its allegiance the territory of the Philippines or parts thereof." 2 In Criminal Case No. Q-90-11756, Rolando de Gracia, Chito Henson, Lamberto Bicus, Rodolfo Tor and several John Does were charged with attempted homicide allegedly committed on December 1, 1989 in Quezon city upon the person of Crispin Sagario who was shot and hit on the right thigh. Appellant was convicted for illegal possession of firearms in furtherance of rebellion, but was acquitted of attempted homicide. During the arraignment, appellant pleaded not guilty to both charges. However, he admitted that he is not authorized to posses any firearms, ammunition and/or explosive. 3 The parties likewise stipulated that there was a rebellion during the period from November 30 up to December 9, 1989. 4 The records show that in the early morning of December 1, 1989, Maj. Efren Soria of the Intelligence Division, National Capital Region Defense Command, was on board a brown Toyota car conducting a surveillance of the Eurocar Sales Office located at Epifanio de los Santos Avenue in Quezon City, together with his team composed of Sgt. Crispin Sagario, M/Sgt. Ramon Briones, S/Sgt. Henry Aquino, one S/Sgt. Simon and a Sgt. Ramos. The surveillance, which actually started on the night of November 30, 1989 at around 10:00 P.M., was conducted pursuant to an intelligence report received by the division that said establishment was being occupied by elements of the RAM-SFP as a communication command post. LLpr Sgt. Crispin Sagario, the driver of the car, parked the vehicle around ten to fifteen meters away from the Eurocar building near P. Tuazon Street, S/Sgt. Henry Aquino had earlier alighted from the car to conduct his surveillance on foot. A crowd was then gathered near the Eurocar office watching the on-going bombardment near Camp Aguinaldo. After a while a group of five men disengaged themselves from the crowd and walked towards the car of the surveillance team. At that moment, Maj. Soria, who was then seated in front, saw the approaching group and immediately ordered Sgt. Sagario to start the car and leave the area. As they passed by the group, then only six meters away, the latter pointed to them, drew their guns and fired at the team, which attack resulted in the wounding of Sgt. Sagario on the right thigh. Nobody in the surveillance team was able to retaliate because they sought cover inside the car and they were afraid that civilians or bystanders might be caught in the cross-fire. As a consequence, at around 6:30 A.M. of December 5, 1989, searching them composed of F/Lt. Virgilio Babao as team leader, M/Sgt. Lacdao, Sgt. Magallion, Sgt. Patricio Pacatang, and elements of the 16th Infantry Battalion under one Col. delos Santos raided the Eurocar Sales Office. They were able to find and confiscate six cartons of M-16 ammunition, five bundles of C-4 dynamites, M- shells of different calibers, and "molotov" bombs inside one of the rooms belonging to a certain Col. Matillano which is located at the right portion of the building. Sgt. Oscar Obenia, the first one to enter the Eurocar building, saw appellant De Gracia inside the office of Col. Matillano, holding a C-4 and suspiciously peeping through a door. De Gracia was the only person then present through a door. De Gracia was the only person then present inside the room. A uniform with the nametag of Col. Matillano was also found. As a result of the raid, the team arrested appellant, as well as Soprieso Verbo and Roberto Jimena who were janitors at the Eurocar building. They were then made to sign an inventory, written in Tagalog, of the explosives and ammunition confiscated by the raiding team. No search warrant was secured by the raiding team. No search warrant was secured by the raiding team because, according to them, at that time there was so much disorder considering that the nearby Camp Aguinaldo was being mopped up by the rebel forces and there was simultaneous firing within the vicinity of the Eurocar office, aside from the fact that the courts were consequently closed. The group was able to confirm later that the owner of Eurocar office is a certain Mr. Gutierrez and that appellant is supposedly a "boy" therein. llcd Appellant Rolando de Gracia gave another version of the incident. First, he claims that on November 30, 1989, he was in Antipolo to help in the birthday party of Col. Matillano. He denies that he was at the Eurocar Sales Office on December 1, 1989. Second, he contends that when the raiding team arrived at the Eurocar Sales Office on December 5, 1989, he was inside his house, a small nipa hut which is adjacent to the building. According to him, he was tasked to guard the office of Col. Matillano which is located at the right side of the building. He denies, however, that he was inside the room of Col. Matillano when the raiding team barged in and that he had explosives in his possession. He testified that when the military raided the office, he was ordered to get out of his house and made to lie on the ground face down, together with "Obet" and "Dong" who were janitors of the building. He avers that he does not know anything about the explosives and insists that when they were asked to stand up, the explosives were already there. Appellants stated that he visited Col. Matillano in 1987 at the stockade of the Philippine Constabulary-Integrated National Police (PC-INP), and that he knew Matillano was detained because of the latter's involvement in the 1987 coup d'etat. In July, 1989, appellant again went to see Matillano because he had no job. Col. Matillano then told him that he could stay in the PC-INP stockade and do the marketing for them. From that time until his arrest at the Eurocar office, appellant worked for Matillano. De Gracia believes that the prosecution witnesses were moved to testify against him because "bata raw ako ni Col. Matillano eh may atraso daw sa kanila si Col. Matillano kaya sabi nila ito na lang bata niya ang ipitin natin." On February 22, 1991, the trial court rendered judgment 5 acquitting appellant Rolando de Gracia of attempted homicide, but found him guilty beyond reasonable doubt of the offense of illegal possession of firearms in furtherance of rebellion and sentenced him to serve the penalty of reclusion perpetua. Moreover, it made a recommendation that "(i)nasmuch as Rolando de Gracia appears to be merely executing or obeying orders and pursuant to the spirit contained in the 2nd paragraph of Art. 135, R.P.C., the court recommends that Rolando de Gracia be extended executive clemency after serving a jail term of five (5) years of good behavior." That judgment of conviction is now challenged before us in this appeal. Appellant principally contends that he cannot be held guilty of illegal possession of firearms for the reason that he did not have either physical or constructive possession thereof considering that he had no intent to possess the same; he is neither the owner nor a tenant of the building where the ammunition and explosives were found; he was merely employed by Col. Matillano as an errand boy; he was guarding the explosives for and in behalf of Col. Matillano; and he did not have actual possession of the explosives. He claims that intent to possess, which is necessary before one can be convicted under Presidential Decree No. 1866, was not present in the case at bar. cdll Presidential Decree No. 1866 provides as follows: "SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or intended to be used in the Manufacture of Firearms or Ammunition. The Penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearms, part of firearms, ammunition or machinery, took or instrument used or intended to be used in the manufacture of any firearm or ammunition. If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed. If the violation of this Section is in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or supervision, the penalty of death shall be imposed." Presidential Decree No. 1866 was passed because of an upsurge of crimes vitally affecting public order and safety due to the proliferation of illegally possessed and manufactured firearms, ammunition and explosives, and which criminal acts have resulted in loss of human lives, damage to property and destruction of valuable resources of the country. The series of coup d' etats unleashed in the country during the first few years of the transitional government under then President Corazon P. Aquino attest to the ever-growing importance of laws such as Presidential Decree No. 1866 which seek to nip in the bud and preempt the commission of any act or acts which tend to disturb public peace and order. I. The first issue to be resolved is whether or not intent to possess is an essential element of the offense punishable under Presidential Decree No. 1866 and, if so, whether appellant De Gracia did intend to illegally possess firearms and ammunition. The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. what the law requires is merely possession which includes not only actual physical possession but also constructive possession or the subjection of the thing to one's control and management. 6 This has to be so if the manifest intent of the law is to be effective. The same evils, the same perils to public security, which the law penalizes exist whether the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this law the proprietary concept of the possession can have no bearing whatsoever. 7 But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession of firearms or must there be an intent to possess to constitute a violation of the law? This query assumes significance since the offense of illegal possession of firearms is a malum prohibitum punished by a special law, 8 in which case good faith and absence of criminal intent are not valid defenses. 9 When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to perpetrate the act must be distinguished. A person may not have consciously intended to commit a crime; but he did intend to commit an act, and that act is, by the very nature of things, the crime itself. In the first (intent to commit the crime), there must be criminal intent; in the second (intent to perpetrate the act) it is enough that the prohibited act is done freely and consciously. 10 In the present case, a distinction should be made between criminal intent and intent to possess. While mere possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still be shown that there was animus possidendi or an intent to possess on the part of the accused. 11 Such intent to possess is, however, without regard to any other criminal or felonious intent which the accused may have harbored in possessing the firearm. Criminal intent here refers to the intention of the accused to commit an offense with the use of an unlicensed firearm. This is not important in convicting a person under Presidential Decree No. 1866. Hence, in order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority or licensed to possess a firearm, and that he intended to possess the same, even if such possession was in good faith and without criminal intent. LibLex Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot be considered a violation of a statute prohibiting the possession of this kind of weapon, 12 such as Presidential Decree No. 1866. Thus, although there is physical or constructive possession, for as long as the animus possidendi is absent, there is no offense committed. Coming now to the case before us, there is no doubt in our minds that appellant De Gracia is indeed guilty of having intentionally possessed several firearms, explosives and ammunition without the requisite license or authority therefor. Prosecution witness Sgt. Oscar Abenia categorically testified that he was the first one to enter the Eurocar Sales Office when the military operatives raided the same, and he saw De Gracia standing in the room and holding the several explosives marked in evidence as Exhibits D to D-4. 13 At first, appellant denied any knowledge about the explosives. Then, he alternatively contended that his act of guarding the explosives for and in behalf of Col. Matillano does not constitute for and in behalf of Col. Matillano does not constitute illegal possession thereof because there was no intent on his part to possess the same, since he was merely employed as an errand by Col. Matillano. His pretension of impersonal or indifferent material possession does not and cannot inspire credence. Animus possidendi is a state of mind which may be determined on a case to case basis, taking into consideration the prior and coetaneous acts of the accused and the surrounding circumstances. What exists in the realm of thought is often disclosed in the range of action. It is not controverted that appellant De Gracia is a former soldier, having served with the Philippine Constabulary prior to his separation from the service for going on absence without leave (AWOL). 14 We do not hesitate, therefore, to believe and conclude that he is familiar with and knowledgeable about the dynamites, "molotov" bombs, and various kinds of ammunition which were confiscated by the military from his possession. As a former soldier, it would be absurd for him not to know anything about the dangerous uses and power of these weapons. A fortiori, he cannot feign ignorance on the import of having in his possession such a large quantity of explosives and ammunition. Furthermore, the place where the explosives were found is not a military camp or office, nor one where such items can ordinarily but lawfully be stored, as in a gun store, a arsenal or armory. Even an ordinarily prudent man would be put on guard and be suspicious if he finds articles of this nature in a place intended to carry out the business of selling cars and which has nothing to do at all, directly or indirectly, with the trade of firearms and ammunition. llcd On the basis of the foregoing disquisition, it is apparent, and we sold hold, that appellant De Gracia actually intended to possess the articles confiscated from his person. II. The next question that may be asked is whether or not there was a valid search and seizure in this case. While the matter has not been squarely put in issue, we deem it our bounden duty, in light of advertence thereto by the parties, to delve into the legality of the warrantless search conducted by the raiding them, considering the gravity of the offense for which herein appellant stands to be convicted and the penalty sought to be imposed. It is admitted that the military operatives who raided the Eurocar Sales Office were not armed with a search warrant at that time. 15 The raid was actually precipitated by intelligence reports that said office was being used as headquarters by the RAM. 16 Prior to the raid, there was a surveillance conducted on the premises wherein the surveillance team was fired at by a group of men coming from the Eurocar building. When the military operatives raided the place, the occupants thereof refused to open the door despite the requests for them to do so, thereby compelling the former to break into the office. 17 The Eurocar Sales Office is obviously not a gun store and it is definitely not an armory or arsenal which are the usual depositories for explosives and ammunition. It is primarily and solely engaged in the sale of automobiles. The presence of an unusual quantity of high- powered firearms and explosives could not be justifiably or even colorably explained. In addition, there was general chaos and disorder at that time because of simultaneous and intense firing within the vicinity of the office and in the nearby Camp Aguinaldo which was under attack by rebel forces. 18 The courts in the surrounding areas were obviously closed and, for that matter, the building and houses therein were deserted. Under the foregoing circumstances, it is out considered opinion that the instant case falls under one of the exceptions to the prohibition against a warrantless search. In the first place, the military operatives, taking into account the facts obtaining in this case, had reasonable ground to believe that a crime was being committed. There was consequently more than sufficient probable cause to warrant their action. Furthermore, under the situation then prevailing, the raiding team had no opportunity to apply for and secure a search warrant from the courts. The trial judge himself manifested that on December 5, 1989 when the raid was conducted, his court was closed. 19 Under such urgency and exigency of the moment, a search warrant could lawfully be dispensed with. LexLib The view that we here take is in consonance with our doctrinal ruling which was amply explained in People vs. Malmsted 20 and bears reiteration: "While it is true that the NARCOM officers were not alarmed with a 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 would 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. 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. "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, or where the accused was acting suspiciously, and attempted to flee. "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. llcd "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, 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 passengers therein, and no extensive search was initially made. It was only when one of the officers noticed a bulge on the waist of accused, during the course of the inspection, that accused was required to present his passport. The failure of accused to present his identification papers, when ordered to do so, only managed to arouse the suspicion of the officer that accused was trying to hide his identity. For is it not a regular norm for an innocent man, who has nothing to hide from the authorities, to readily present his identification papers when required to do so? "The receipt of information by NARCOM that a Causasian 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) teddy bears with hashish stuffed inside the, 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 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." In addition, we find the principles enunciated in Umil, et al. vs. Ramos, et al., 21 applicable, by analogy, to the present case: "The arrest of persons involved in the rebellion whether as its fighting armed elements, or for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which requires the determination by a judge of the existence of probable cause before the issuance of a judicial warrant of arrest and the granting of bail if the offense is bailable. Obviously the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against government forces, or any other milder acts but really in pursuance of the rebellious movement. The arrest or capture is thus impelled by the exigencies of the situation that involves the very survival of society and its government and duly constituted authorities. If killing and other acts of violence against the rebels find justification in the exigencies of armed hostilities which (are) of the essence of waging a rebellion or insurrection, most assuredly so in case of invasion, merely seizing their persons and detaining them while any of these contigencies continues cannot be less justified." III. As earlier stated, it was stipulated and admitted by both parties that from November 30, 1989 up to and until December 9, 1989, there was a rebellion. Ergo, our next inquiry is whether or not appellant's possession of the firearms, explosives and ammunition seized and recovered from him was for the purpose and in furtherance of rebellion. The trial court found accused guilty of illegal possession of firearms in furtherance of rebellion pursuant to paragraph 2 of Article 135 of the Revised Penal Code which states that "any person merely participating or executing the command of others in a rebellion shall suffer the penalty of prision mayor in its minimum period." The court below held that appellant De Gracia, who has been servicing the personal needs of Co. Matillano (whose active armed opposition against the Government, particularly at the Camelot Hotel, was well known), is guilty of the act of guarding the explosives and "molotov" bombs for and in behalf of the latter. We accept this finding of the lower court. LexLib The above provision of the law was, however, erroneously and improperly used by the court below as a basis in determining the degree of liability of appellant and the penalty to be imposed on him. It must be made clear that appellant is charged with the qualified offense of illegal possession of firearms in furtherance of rebellion under Presidential Decree No. 1866 which, in law, is distinct from the crime of rebellion punished under Articles 134 and 135 of the Revised Penal Code. These are two separate statutes penalizing different offenses with discrete penalties. The Revised Penal Code treats rebellion as a crime apart from murder, homicide, arson, or other offenses, such as illegal possession of firearms, that might conceivably be committed in the course of a rebellion. Presidential Decree No. 1866 defines and punishes, as a specific offense, the crime of illegal possession of firearms committed in the course or as part of a rebellion. 22 As a matter of fact, in one case involving the constitutionality of Section 1 of Presidential Decree No. 1866, the Court has explained that said provision of the law will not be invalidated by the mere fact that the same act is penalized under two different statutes with different penalties, even if considered highly advantageous to the prosecution and onerous to the accused. 23 It follows that, subject to the presence of the requisite elements in each case, unlawful possession of an unlicensed firearm in furtherance of rebellion may give rise to separate prosecutions for a violation of Section 1 of Presidential Decree No. 1866, and also a violation of Articles 134 and 135 of the Revised Penal Code on rebellion. Double jeopardy in this case cannot be invoked because the first is an offense punished by a special law while the second is a felony punished by the Revised Penal Code, 24 with variant elements. It was a legal malapropism for the lower court to interject the aforestated provision of the Revised Penal Code in this prosecution for a crime under a special law. Consequently, there is no basis for its recommendation for executive clemency in favor of appellant De Gracia after he shall have served a jail term of five years with good behavior. In any event, this is a matter within the exclusive prerogative of the President whose decision thereon should be insulated against any tenuous importunity. Withal, we are duly convinced that the firearms, explosives and ammunition confiscated from appellant De Gracia were illegally possessed by him in furtherance of the rebellion then admittedly existing at that time. In the words of the court a quo: "2. the nature and quantity of the items 5 bundles of C-4 dynamites, 6 cartons of M-16 ammo and 100 bottles of molotov bombs indicate that the reports received by the military that the Eurocar Sales Building was being used by the rebels was not without basis. Those items are clearly not for one's personal defense. They are for offensive operations. De Gracia admitted that per instruction of Col. Matillano he went down to Eurocar Sales Building from Antipolo to stay guard there. "His manifestation of innocence of those items and what he had been guarding in that office is not credible for: (a) he was a former military personnel; (b) at the birthday party of Col. Matillano on November 30, 1989 may soldiers and ex-soldiers were present which self- evidently discloses that De Gracia, in the company of his boss, was till very much at home and constantly in touch with soldiers and the armed rebellion of November 30, 1989 to December 8 or 9, 1989 was a military coup d'etat; (c) it appears that he is the only person tasked with caretaking (sic) there in the Matillano office, which shows that he is a highly trusted right-hand man of Col. Matillano; and (d) as heretofore discussed, de Gracia was earlier seen with some who fired upon a car of the AFP intelligence agents." 25 Presidential Decree No. 1866 imposes the death penalty where the illegal possession firearms and ammunition is committed in furtherance of rebellion. At the time the offense charged in this case was committed under the governance of that law, the imposition of the death penalty was prescribed by the Constitution. Consequently, appellant De Gracia could only sentenced to serve the penalty of reclusion perpetua which was correctly meted out by the trial court, albeit with an erroneous recommendation in connection therewith. cdrep WHEREFORE, the impugned judgment of the trial court is hereby AFFIRMED, but its recommendation therein for executive clemency and the supposed basis thereof are hereby DELETED, with cots against accused-appellant. SO ORDERED. Narvasa, C.J., Padilla, Regalado, Puno and Mendoza, JJ., concur. EN BANC [G.R. No. 83988. May 24, 1990.] RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLES'S RIGHTS (ULAP), petitioners, vs. GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT COMMAND, respondents. Ricardo C. Valmonte for and in his own behalf and co-petitioners. D E C I S I O N PADILLA, J p: In the Court's decision dated 29 September 1989, petitioners' petition for prohibition seeking the declaration of the checkpoints as unconstitutional and their dismantling and/or banning, was dismissed. cdphil Petitioners have filed the instant motion and supplemental motion for reconsideration of said decision. Before submission of the incident for resolution, the Solicitor General, for the respondents, filed his comment, to which petitioners filed a reply. It should be stated, at the outset, that nowhere in the questioned decision did this Court legalize all checkpoints, i.e. at all times and under all circumstances. What the Court declared is, that checkpoints are not illegal per se. Thus, under exceptional circumstances, as where the survival of organized government is on the balance, or where the lives and safety of the people are in grave peril, checkpoints may be allowed and installed by the government. Implicit in this proposition is, that when the situation clears and such grave perils are removed, checkpoints will have absolutely no reason to remain. Recent and on-going events have pointed to the continuing validity and need for checkpoints manned by either military or police forces. The sixth (6th) attempted coup d'etat (stronger than all previous ones) was staged only last 1 December 1989. Another attempt at a coup d'etat is taken almost for granted. The NPA, through its sparrow units, has not relented but instead accelerated its liquidation of armed forces and police personnel. Murders, sex crimes, hold-ups and drug abuse have become daily occurrences. Unlicensed firearms and ammunition have become favorite objects of trade. Smuggling is at an all-time high. Whether or not effective as expected, checkpoints have been regarded by the authorities as a security measure designed to entrap criminals and insurgents and to constitute a dragnet for all types of articles in illegal trade. No one can be compelled, under our libertarian system, to share with the present government its ideological beliefs and practices, or commend its political, social and economic policies or performance. But, at least, one must concede to it the basic right to defend itself from its enemies and, while in power, to pursue its program of government intended for public welfare; and in the pursuit of those objectives, the government has the equal right, under its police power, to select the reasonable means and methods for best achieving them. The checkpoint is evidently one of such means it has selected. cdphil Admittedly, the routine checkpoint stop does intrude, to a certain extent, on motorist's right to "free passage without interruption", but it cannot be denied that, as a rule, it involves only a brief detention of travellers during which the vehicle's occupants are required to answer a brief question or two. 1 For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual's right against unreasonable search. These routine checks, when conducted in a fixed area, are even less intrusive. As held by the U.S. Supreme Court: "Routine checkpoint stops do not intrude similarly on the motoring public. First, the potential interference with legitimate traffic is minimal. Motorists using these highways are not taken by surprise as they know, or may obtain knowledge of, the location of the checkpoints and will not be stopped elsewhere. Second checkpoint operations both appear to and actually involve less discretionary enforcement activity. The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law- abiding motorists, that the stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class, and since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals them there was in the case of roving- patrol stops. Moreover, a claim that a particular exercise of discretion in locating or operating a checkpoint is unreasonable is subject to post-stop judicial review." 2 The checkpoints are nonetheless attacked by the movants as a warrantless search and seizure and, therefore, violative of the Constitution. 3 As already stated, vehicles are generally allowed to pass these checkpoints after a routine inspection and a few questions. If vehicles are stopped and extensively searched, it is because of some probable cause which justifies a reasonable belief of the men at the checkpoints that either the motorist is a law-offender or the contents of the vehicle are or have been instruments of some offense. Again, as held by the U.S. Supreme Court "Automobiles, because of their mobility, may be searched without a warrant upon facts not justifying a warrantless search of a residence or office. Brinegar v. United States, 338 US 160, 93 L Ed 1879, 69 S Ct 1302(1949); Carroll v. United States, 267 US 132, 69 L Ed 543, 45 S Ct 280, 39 ALR 790 (1925). The cases so holding have, however, always insisted that the officers conducting the search have 'reasonable or probable cause' to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search. . . ." 4 Besides these warrantless searches and seizures at the checkpoints are quite similar to searches and seizures accompanying warrantless arrests during the commission of a crime, or immediately thereafter. In People vs. Kagui Malasuqui, it was held "To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many instances." 5 By the same token, a warrantless search of incoming and outgoing passengers, at the arrival and departure areas of an international airport, is a practice not constitutionally objectionable because it is founded on public interest, safety, and necessity. Lastly, the Court's decision on checkpoints does not, in any way, validate nor condone abuses committed by the military manning the checkpoints. The Court's decision was concerned with power, i.e. whether the government employing the military has the power to install said checkpoints. Once that power is acknowledged, the Court's inquiry ceases. True, power implies the possibility of its abuse. But whether there is abuse in a particular situation is a different "ball game" to be resolved in the constitutional arena. The Court, like all other concerned members of the community, has become aware of how some checkpoints have been used as points of thievery and extortion practiced upon innocent civilians. Even the increased prices of foodstuffs coming from the provinces, entering the Metro Manila area and other urban centers, are largely blamed on the checkpoints, because the men manning them have reportedly become "experts" in mulcting travelling traders. This, of course, is a national tragedy. llcd But the Court could not a priori regard in its now assailed decision that the men in uniform are rascals or thieves. The Court had to assume that the men in uniform live and act by the code of honor and they are assigned to the checkpoints to protect, and not to abuse, the citizenry. 6 The checkpoint is a military "concoction." It behooves the military to improve the QUALITY of their men assigned to these checkpoints. For no system or institution will succeed unless the men behind it are honest, noble and dedicated. In any situation, where abuse marks the operation of a checkpoint, the citizen is not helpless. For the military is not above but subject to the law. And the courts exist to see that the law is supreme. Soldiers, including those who man checkpoints, who abuse their authority act beyond the scope of their authority and are, therefore, liable criminally and civilly for their abusive acts. 7 This tenet should be ingrained in the soldiery in the clearest of terms by higher military authorities. ACCORDINGLY, the Motion and Supplemental Motion for Reconsideration are DENIED. This denial is FINAL. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano, Bidin, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur. Gancayco, J., is on leave. EN BANC [G.R. No. 104961. October 7, 1994.] CONGRESSMAN FRANCISCO B. ANIAG, JR., petitioner, vs. COMMISSION ON ELECTIONS and DEPARTMENT OF JUSTICE SPECIAL TASK FORCE, respondents. D E C I S I O N BELLOSILLO, J p: PETITIONER assails in this petition (for declaratory relief, certiorari and prohibition) the following resolutions of the Commission on Elections: Resolution No. 2327 dated 26 December 1991 for being unconstitutional, and Resolution No. 92-0829 dated 6 April 1992 and Resolution No. 92-0999 dated 23 April 1992, for want of legal and factual bases. cdrep The factual backdrop: In preparation for the synchronized national and local elections scheduled on 11 May 1992, the Commission on Elections (COMELEC) issued on 11 December 1991 Resolution No. 2323 otherwise referred to as the "Gun Ban," promulgating rules and regulations on bearing, carrying and transporting of firearms or other deadly weapons, on security personnel or bodyguards, on bearing arms by members of security agencies or police organizations, and organization or maintenance of reaction forces during the election period. 1 Subsequently, on 26 December 1991 COMELEC issued Resolution No. 2327 providing for the summary disqualification of candidates engaged in gunrunning, using and transporting of firearms, organizing special strike forces, and establishing spot checkpoints. 2 On 10 January 1992, pursuant to the "Gun Ban," Mr. Serapio P. Taccad, Sergeant-at-Arms, House of Representatives, wrote petitioner who was then Congressman of the 1st District of Bulacan requesting the return of the two (2) firearms 3 issued to him by the House of Representatives. Upon being advised of the request on 13 January 1992 by his staff, petitioner immediately instructed his driver, Ernesto Arellano, to pick up the firearms from petitioner's house at Valle Verde and return them to Congress. Meanwhile, at about five o'clock in the afternoon of the same day, the Philippine National Police (PNP) headed by Senior Superintendent Danilo Cordero set up a checkpoint outside the Batasan Complex some twenty (20) meters away from its entrance. About thirty minutes later, the policemen manning the outpost flagged down the car driven by Arellano as it approached the checkpoint. They searched the car and found the firearms neatly packed in their gun cases and placed in a bag in the trunk of the car. Arellano was then apprehended and detained. He explained that he was ordered by petitioner to get the firearms from the house and return them to Sergeant-at Arms Taccad of the House of Representatives. Thereafter, the police referred Arellano's case to the Office of the City Prosecutor for inquest. The referral did not include petitioner as among those charged with an election offense. On 15 January 1992, the City Prosecutor ordered the release of Arellano after finding the latter's sworn explanation meritorious. 4 On 28 January 1992, the City Prosecutor invited petitioner to shed light on the circumstances mentioned in Arellano's sworn explanation. Petitioner not only appeared at the preliminary investigation to confirm Arellano's statement but also wrote the City Prosecutor urging him to exonerate Arellano. He explained that Arellano did not violate the firearms ban as he in fact was complying with it when apprehended by returning the firearms to Congress; and, that he was petitioner's driver, not a security officer nor a bodyguard. 5 On 6 March 1992, the Office of the City Prosecutor issued a resolution which, among other matters, recommended that the case against Arellano be dismissed and that the "unofficial" charge against petitioner be also dismissed. 6 Nevertheless, on 6 April 1992, upon recommendation of its Law Department, COMELEC issued Resolution No. 92-0829 directing the filing of information against petitioner and Arellano for violation of Sec. 261, par. (q), of B.P. Blg. 881 otherwise known as the Omnibus Election Code, in relation to Sec. 32 of R.A. No. 7166; 7 and petitioner to show cause why he should not be disqualified from running for an elective position, pursuant to COMELEC Resolution No. 2327, in relation to Secs. 32, 33 and 35 of R.A. 7166, and Sec. 52, par. (c), of B.P. Blg. 881. 8 On 13 April 1992, petitioner moved for reconsideration and to hold in abeyance the administrative proceedings as well as the filing of the information in court. 9 On 23 April 1992, the COMELEC denied petitioner's motion for reconsideration. 10 Hence, this recourse. Petitioner questions the constitutionality of Resolution No. 2327. He argues that the rules and regulations of an administrative body must respect the limits defined by law; that the Omnibus Election Code provides for the disqualification of any person/candidate from running for or holding a public office, i.e., any person who has either been declared by competent authority as insane or incompetent or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude; that gunrunning, using or transporting firearms or similar weapons and other acts mentioned in the resolution are not within the letter or spirit of the provisions of the Code; that the resolution did away with the requirement of final conviction before the commission of certain offenses; that instead, it created a presumption of guilt as a candidate may be disqualified from office in situations (a) where the criminal charge is still pending, (b) where there is no pending criminal case, and (c) where the accused has already been acquitted, all contrary to the requisite quantum of proof for one to be disqualified from running or holding public office under the Omnibus Election Code, i.e., proof beyond reasonable doubt. As a result, petitioner concludes, Resolution No. 2327 violates the fundamental law thus rendering it fatally defective. But the issue on the disqualification of petitioner from running in the 11 May 1992 synchronized elections was rendered moot when he lost his bid for a seat in Congress in the elections that ensued. Consequently, it is now futile to discuss the implications of the charge against him on his qualification to run for public office. LibLex However, there still remains an important question to be resolved, i.e., whether he can be validly prosecuted for instructing his driver to return to the Sergeant-at-Arms of the House of Representatives the two firearms issued to him on the basis of the evidence gathered from the warrantless search of his car. Petitioner strongly protests against the manner by which the PNP conducted the search. According to him, without a warrant and without informing the driver of his fundamental rights the policemen searched his car. The firearms were not tucked in the waist nor within the immediate reach of Arellano but were neatly packed in their gun cases and wrapped in a bag kept in the trunk of the car. Thus, the search of his car that yielded the evidence for the prosecution was clearly violative of Secs. 2 and 3, par. (2), Art. III, of the Constitution. 11 Petitioner further maintains that he was neither impleaded as party respondent in the preliminary investigation before the Office of the City Prosecutor nor included in the charge sheet. Consequently, making him a respondent in the criminal information would violate his constitutional right to due process. Petitioner disputes the charge that he violated Sec. 33 of R.A. 7166, which prohibits any candidate for public office during the election period from employing or availing himself or engaging the services of security personnel or bodyguards since, admittedly, Arellano was not a security officer or bodyguard but a civilian employee assigned to him as driver by the House of Representatives. Specifically, petitioner further argues, Arellano was instructed to return to Congress, as he did, the firearms in compliance with the directive of its Sergeant-at- Arms pursuant to the "Gun Ban," thus, no law was in fact violated. 12 On 25 June 1992, we required COMELEC to file its own comment on the petition 13 upon manifestation of the Solicitor General that it could not take the position of COMELEC and prayed instead to be excused from filing the required comment. 14 COMELEC claims that petitioner is charged with violation of Sec. 261, par. (q), in relation to Sec. 263, of B.P. Blg. 881 which provides that "the principals, accomplices and accessories, as defined in the Revised Penal Code, shall be criminally liable for election offenses." It points out that it was upon petitioner's instruction that Arellano brought the firearms in question outside petitioner's residence, submitting that his right to be heard was not violated as he was invited by the City Prosecutor to explain the circumstances regarding Arellano's possession of the firearms. Petitioner also filed a sworn written explanation about the incident. Finally, COMELEC claims that violation of the "Gun Ban" is mala prohibita, hence, the intention of the offender is immaterial. 15 Be that as it may, we find no need to delve into the alleged constitutional infirmity of Resolution No. 2327 since this petition may be resolved without passing upon this particular issue. 16 As a rule, a valid search must be authorized by a search warrant duly issued by an appropriate authority. However, this is not absolute. Aside from a search incident to a lawful arrest, a warrantless search had been upheld in cases of moving vehicles and the seizure of evidence in plain view, 17 as well as the search conducted at police or military checkpoints which we declared are not illegal per se, and stressed that the warrantless search is not violative of the Constitution for as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is merely limited to a visual search. 18 Petitioner contends that the guns were not tucked in Arellano's waist nor placed within his reach, and that they were neatly packed in gun cases and placed inside a bag at the back of the car. Significantly, COMELEC did not rebut this claim. The records do not show that the manner by which the package was bundled led the PNP to suspect that it contained firearms. There was not mention either of any report regarding any nervous, suspicious or unnatural reaction from Arellano when the car was stopped and searched. Given these circumstances and relying on its visual observation, the PNP could not thoroughly search the car lawfully as well as the package without violating the constitutional injunction. An extensive search without warrant could only be resorted to if the officers conducting the search had reasonable or probable cause to believe before the search that either the motorist was a law offender or that they would find the instrumentality or evidence pertaining to the commission of a crime in the vehicle to be searched. 19 The existence of probable cause justifying the warrantless search is determined by the facts of each case. 20 Thus, we upheld the validity of the warrantless search in situations where the smell of marijuana emanated from a plastic bag owned by the accused, or where the accused was acting suspiciously, and attempted to flee. 21 We also recognize the stop-and-search without warrant conducted by police officers on the basis of prior confidential information which were reasonably corroborated by other attendant matters, e.g., where a confidential report that a sizeable volume of marijuana would be transported along the route where the search was conducted and appellants were caught in flagrante delicto transporting drugs at the time of their arrest; 22 where apart from the intelligence information, there were reports by an undercover "deep penetration" agent that appellants were bringing prohibited drugs into the country; 23 where the information that a Caucasian coming from Sagada bringing prohibited drugs was strengthened by the conspicuous bulge in accused's waistline and his suspicious failure to produce his passport and other identification papers; 24 where the physical appearance of the accused fitted the description given in the confidential information about a woman transporting marijuana; 25 where the accused carrying a bulging black leather bag were suspiciously quiet and nervous when queried about its contents; 26 or where the identity of the drug courier was already established by police authorities who received confidential information about the probable arrival of accused on board one of the vessels arriving in Dumaguete City. 27 In the case at bench, we find that the checkpoint was set up twenty (20) meters from the entrance to the Batasan Complex to enforce Resolution No. 2327. There was no evidence to show that the policemen were impelled to do so because of a confidential report leading them to reasonably believe that certain motorists matching the description furnished by their informant were engaged in gunrunning, transporting firearms or in organizing special strike forces. Nor, as adverted to earlier, was there any indication from the package or behavior of Arellano that could have triggered the suspicion of the policemen. Absent such justifying circumstances specifically pointing to the culpability of petitioner and Arellano, the search could not be valid. The action then of the policemen unreasonably intruded into petitioner's privacy and the security of his property, in violation of Sec. 2, Art. III, of the Constitution. Consequently, the firearms obtained in violation of petitioner's right against warrantless search cannot be admitted for any purpose in any proceeding. It may be argued that the seeming acquiescence of Arellano to the search constitutes an implied waiver of petitioner's right to question the reasonableness of the search of the vehicle and the seizure of the firearms. While Resolution No. 2327 authorized the setting up of checkpoints, it however stressed that "guidelines shall be made to ensure that no infringement of civil and political rights results from the implementation of this authority," and that "the places and manner of setting up of checkpoints shall be determined in consultation with the Committee on Firearms Ban and Security Personnel created under Sec. 5, Resolution No. 2323." 28 The facts show that PNP installed the checkpoint at about five o'clock in the afternoon of 13 January 1992. The search was made soon thereafter, or thirty minutes later. It was not shown that news of impending checkpoints without necessarily giving their locations, and the reason for the same have been announced in the media to forewarn the citizens. Nor did the informal checkpoint that afternoon carry signs informing the public of the purpose of its operation. As a result, motorists passing that place did not have any inkling whatsoever about the reason behind the instant exercise. With the authorities in control to stop and search passing vehicles, the motorists did not have any choice but to submit to the PNP's scrutiny. Otherwise, any attempt to turnabout albeit innocent would raise suspicion and provide probable cause for the police to arrest the motorist and to conduct an extensive search of his vehicle. In the case of petitioner, only his driver was at the car at that time it was stopped for inspection. As conceded by COMELEC, driver Arellano did not know the purpose of the checkpoint. In the face of fourteen (14) armed policemen conducting the operation, 29 driver Arellano being alone and a mere employee of petitioner could not have marshalled the strength and the courage to protest against the extensive search conducted in the vehicle. In such scenario, the "implied acquiescence," if there was any, could not be more than a mere passive conformity on Arellano's part to the search, and "consent" given under intimidating or coercive circumstances is no consent within the purview of the constitutional guaranty. Moreover, the manner by which COMELEC proceeded against petitioner runs counter to the due process clause of the Constitution. The facts show that petitioner was not among those charged by the PNP with violation of the Omnibus Election Code. Nor was he subjected by the City Prosecutor to a preliminary investigation for such offense. The non-disclosure by the City Prosecutor to the petitioner that he was a respondent in the preliminary investigation is violative of due process which requires that the procedure established by law should be obeyed. 30 COMELEC argues that petitioner was given the chance to be heard because he was invited to enlighten the City Prosecutor regarding the circumstances leading to the arrest of his driver, and that petitioner in fact submitted a sworn letter of explanation regarding the incident. This does not satisfy the requirement of due process the essence of which is the reasonable opportunity to be heard and to submit any evidence one may have in support of his defense. 31 Due process guarantees the observance of both substantive and procedural rights, whatever the source of such rights, be it the Constitution itself or only a statute or a rule of court. 32 In Go v. Court of Appeals, 33 we held that While the right to preliminary investigation is statutory rather than constitutional in its fundamental, since it has in fact been established by statute, it is a component part of due process in criminal justice. The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty is not a mere formal or technical right; it is a substantive right . . . . [T]he right to an opportunity to avoid a process painful to anyone save, perhaps, to hardened criminals is a valuable right. To deny petitioner's claim to a preliminary investigation would be to deprive him of the full measure of his right to due process. Apparently, petitioner was merely invited during the preliminary investigation of Arellano to corroborate the latter's explanation. Petitioner then was made to believe that he was not a party respondent in the case, so that his written explanation on the incident was only intended to exculpate Arellano, not petitioner himself. Hence, it cannot be seriously contended that petitioner was fully given the opportunity to meet the accusation against him as he was not apprised that he was himself a respondent when he appeared before the City Prosecutor. cdll Finally, it must be pointed out too that petitioner's filing of a motion for reconsideration with COMELEC cannot be considered as a waiver of his claim to a separate preliminary investigation for himself. The motion itself expresses petitioner's vigorous insistence on his right. Petitioner's protestation started as soon as he learned of his inclusion in the charge, and did not ease up even after COMELEC's denial of his motion for reconsideration. This is understandably so since the prohibition against carrying firearms bears the penalty of imprisonment of not less than one (1) year nor more than six (6) years without probation and with disqualification from holding public office, and deprivation of the right to suffrage. Against such strong stance, petitioner clearly did not waive his right to a preliminary investigation. WHEREFORE, the instant petition is GRANTED. The warrantless search conducted by the Philippine National Police on 13 January 1992 is declared illegal and the firearms seized during the warrantless search cannot be used as evidence in an proceeding against petitioner. Consequently, COMELEC Resolution No. 92-0829 dated 6 April 1992 being violative of the Constitution is SET ASIDE. The temporary restraining order we issued on 5 May 1992 is made permanent. SO ORDERED. Narvasa, C.J., Romero, Quiason, Puno, Kapunan and Mendoza, JJ., concur. Feliciano, Padilla and Bidin, JJ., are on leave. FIRST DIVISION [G.R. Nos. 129756-58. January 28, 2000.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JULIAN DEEN ESCAO, VIRGILIO TOME USANA and JERRY CASABAAN LOPEZ, accused. VIRGILIO TOME USANA and JERRY CASABAAN LOPEZ, accused-appellants. The Solicitor General for plaintiff-appellee. Fojas Caballero Salinas & Tan for accused-appellants. SYNOPSIS On April 5, 1995 and during the Comelec gun ban, some law enforcers of the Makati Police were manning a checkpoint at the corner of Gil Puyat Ave., and South Luzon Expressway. They were checking the cars going to Pasay City, stopping those they found suspicious, and imposing merely a running stop on the others. At about past midnight, they stopped a Kia Pride car with plate No. TBH 493. PO3 Suba saw a long firearm on the lap of the person seated at the passenger seat, who was later identified as Virgilio Usana. They asked the driver, identified as Escao, to open the door and seized the long firearm from Usana. When Escao, upon order of the police, parked along Sen. Gil Puyat Ave., the other passengers were searched for more weapons. Their search yielded a .45 caliber firearm which they seized from Escao. When PO3 Suba searched the car in the police station, he found a bag containing hashish. Due to this apprehension, Informations were filed before the Regional Trial Court of Makati City charging appellants Virgilio T. Usana and Jerry C. Lopez, together with Julian D. Escao, in Criminal Case No. 95- 936 for violation of Section 4, Article II of Republic Act No. 6425 for selling, distribution and transportation of 3.3143 kilograms of hashish. Escao and Usana were also charged in Criminal Cases No. 95-937 and No. 95-938 with illegal possession of firearms and ammunition in violation of Presidential Decree No. 1866 regarding the confiscated one piece of caliber .45 pistol with 7 live ammos and two more magazines for caliber .45 containing 7 live ammos each and one piece of rifle carbine loaded with 28 live ammunitions found in their possession. After trial on the merits, the court a quo convicted Escao and herein appellants in Criminal Case No. 95-936 guilty as charged and sentenced to suffer the penalty of reclusion perpetua. Escao was likewise convicted as charged in Criminal Case No. 95- 937, and appellant Usana in Criminal Case No. 95-938. Aggrieved by the decisions, herein appellants filed a notice of appeal on June 30, 1997 manifesting therein that they were appealing the said cases to the Court and to the Court of Appeals. Accordingly, Criminal Case No. 95-936 was forwarded to the Court in view of the penalty imposed. DHSACT The Supreme Court found the appeal meritorious. The Court ruled that despite the validity of the search, it cannot affirm the conviction of Usana and Lopez for violation of R.A. 6425, as amended. Particularly, the Court said that no fact was adduced to link appellants to the hashish found in the trunk of the car. Their having been with Escao in the latter's car before the finding of the hashish sometime after the lapse of an appreciable period of time and without appellants' presence left much to be desired to implicate them to the offense of selling, distributing or transporting the prohibited drug. In fact, there was no showing that Usana and Lopez knew of the presence of hashish in the trunk of the car or that they saw the same before it was seized. Accordingly, the Court reversed and set aside the decision of the RTC of Makati City and acquitted the appellants therein on ground of reasonable doubt. SYLLABUS 1. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF RIGHTS; SEARCHES AND SEIZURE; AN INSPECTION WHICH IS LIMITED TO A VISUAL SEARCH IS NOT VIOLATIVE OF THE RIGHT AGAINST UNREASONABLE SEARCH. This Court has ruled that not all checkpoints are illegal. Those which are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists are allowed. For, admittedly, routine checkpoints do intrude, to a certain extent, on motorists' right to "free passage without interruption," but it cannot be denied that, as a rule, it involves only a brief detention of travelers during which the vehicle's occupants are required to answer a brief question or two. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual's right against unreasonable search. In fact, these routine checks, when conducted in a fixed area, are even less intrusive. 2. ID.; ID.; ID.; ID.; A CHECKPOINT CONDUCTED PURSUANT TO A GUN BAN IS LEGAL. The checkpoint herein conducted was in pursuance of the gun ban enforced by the COMELEC. The COMELEC would be hard put to implement the ban if its deputized agents were limited to a visual search of pedestrians. It would also defeat the purpose for which such ban was instituted. Those who intend to bring a gun during said period would know that they only need a car to be able to easily perpetrate their malicious designs. The facts adduced do not constitute a ground for a violation of the constitutional rights of the accused against illegal search and seizure. PO3 Suba admitted that they were merely stopping cars they deemed suspicious, such as those whose windows are heavily tinted just to see if the passengers thereof were carrying guns. At best they would merely direct their flashlights inside the cars they would stop, without opening the car's doors or subjecting its passengers to a body search. There is nothing discriminatory in this as this is what the situation demands. AEHCDa 3. ID.; ID.; ID.; ID.; CHECKPOINTS NEED NOT BE ANNOUNCED. We see no need for checkpoints to be announced, as the accused have invoked. Not only would it be impractical, it would also forewarn those who intend to violate the ban. Even so, badges of legitimacy of checkpoints may still be inferred from their fixed location and the regularized manner in which they are operated. 4. ID.; ID.; ID.; ID.; EXCEPTIONS TO THE WARRANT REQUIREMENT; WARRANTLESS SEARCH OF VEHICLE WITH THE CONSENT OF THE ACCUSED IS VALID; CASE AT BAR. Usana and Lopez also question the validity of the search. The trial court, in convicting the three accused for violation of R.A. No. 6425, accepted as aboveboard the search done by the Makati Police of the trunk of the car. Jurisprudence recognizes six generally accepted exceptions to the warrant requirement: (1) search incidental to an arrest; (2) search of moving vehicles; (3) evidence in plain view; (4) customs searches; (5) consented warrantless search; and (6) stop- and-frisk situations. Even though there was ample opportunity to obtain a search warrant, we cannot invalidate the search of the vehicle, for there are indications that the search done on the car of Escao was consented to by him. Both Lopez and Usana testified that Escao was with the police officers when they searched the car. There was no apparent objection made by Escao as he seemed to have freely accompanied the police officers to the car. PO3 Suba, on the other hand, testified that "Escao readily agreed to open the trunk," upon request of SPO4 de los Santos. But according to Escao, he refused the request of the police officers to search his car. We must give credence to the testimony of PO3 Suba. Not only is it buttressed by the testimony of Usana and Lopez that Escao freely accompanied the police officers to the car, it is also deemed admitted by Escao in failing to appeal the decision. The findings of fact of the trial court are thus deemed final as against him. 5. CRIMINAL LAW; VIOLATION OF THE DANGEROUS DRUGS ACT; AN ACCUSED CANNOT BE CONVICTED OF SELLING, DISTRIBUTING OR TRANSPORTING A PROHIBITED DRUG WHERE THE "FINDING" OF THE DRUG WAS AFTER THE LAPSE OF AN APPRECIABLE TIME AND WITHOUT HIS PRESENCE. Despite the validity of the search, we cannot affirm the conviction of Usana and Lopez for violation of R.A. No. 6425, as amended. The following facts militate against a finding of conviction: (1) the car belonged to Escao; (2) the trunk of the car was not opened soon after it was stopped and after the accused were searched for firearms; (3) the car was driven by a policeman from the place where it was stopped until the police station; (4) the car's trunk was opened, with the permission of Escao, without the presence of Usana and Lopez; and (5) after arrival at the police station and until the opening of the car's trunk, the car was in the possession and control of the police authorities. No fact was adduced to link Usana and Lopez to the hashish found in the trunk of the car. Their having been with Escao in the latter's car before the "finding" of the hashish sometime after the lapse of an appreciable time and without their presence left much to be desired to implicate them to the offense of selling, distributing, or transporting the prohibited drug. In fact, there was no showing that Usana and Lopez knew of the presence of hashish in the trunk of the car or that they saw the same before it was seized. CSDcTH D E C I S I O N DAVIDE, JR., C.J p: Accused-appellants Virgilio T. Usana and Jerry C. Lopez, together with Julian D. Escao, were charged before the Regional Trial Court of Makati City, Branch 64, in Criminal Case No. 95-936 with violation of Section 4, Article II of Republic Act No. 6425, 1 as amended. Escao and Usana were also charged in Criminal Case No. 95-937 and No. 95-938 with illegal possession of firearms and ammunition in violation of Presidential Decree No. 1866. cdrep The accusatory portion of the Information in Criminal Case No. 95- 936 reads as follows: That on or about the 5th day of April, 1995, in the City of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and all of them mutually helping and aiding one another, without being authorized by law, did then and there willfully, unlawfully and feloniously sell, distribute and transport 3.3143 kilograms of "HASHISH," a prohibited drug, in violation of the above-cited law. 2 The charge against accused Julian D. Escao in Criminal Case No. 95-937 reads as follows: That on or about the 5th day of April, 1995, in the City of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully and feloniously have in his possession, direct custody and control one (1) pc. of cal. .45 pistol, government model with Serial No. 990255, with magazine containing 7 live ammos and two (2) more magazines for cal. .45 pistol containing 7 live ammos each, without first securing the necessary license or permit from the proper government authorities and which firearm and ammunitions he carried outside of his residence. 3 The accusatory portion of the information against Virgilio Usana in Criminal Case No. 95-938 reads: That on or about the 5th day of April, 1995, in the City of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession, direct custody and control One (1) pc. of rifle carbine with Serial No. 7176644 with a banana type magazine loaded with 28 live ammunitions without first securing the necessary license or permit from the proper government authorities and which firearms and ammunitions he carried outside of his residence. 4 The cases were consolidated and jointly tried. In its Decision of 30 May 1997, 5 which was promulgated on 17 June 1997, the trial court convicted Escao and herein appellants in Criminal Case No. 95-936, Escao in Criminal Case No. 95-937, and appellant Usana in Criminal Case No. 95-938. Escao filed on 19 June 1997 a Notice of Appeal, but on 16 July 1997, he filed a Manifestation and Withdrawal of Appeal, 6 which was granted by the trial court in its Order of 17 July 1997. 7 Usana and Lopez filed a Notice of Appeal on 30 June 1997, 8 manifesting therein that they were appealing to this Court and to the Court of Appeals. Considering the penalties imposed, the decision in Criminal Case No. 95-936 was appealed to this Court, while the Court of Appeals took cognizance of the appeal from Criminal Case No. 95-938. In its Order of 30 June 1997, 9 the trial court gave due course to the appeal and ordered the transmittal of the record in Criminal Case No. 95-936 to this Court and the record of Criminal Case No. 95-938 to the Court of Appeals. Accordingly, it is only the appeal from the judgment in Criminal Case No. 95-936 that is now before this Court. LexLib Due to the differing versions of the parties, there is a need to narrate each of the testimonies of the key players in this case. The prosecution has this version of the events: On the 5th of April 1995 and during a COMELEC gun ban, some law enforcers of the Makati Police, namely, PO3 Eduardo P. Suba, PO3 Bernabe Nonato, SPO4 Juan de los Santos, and Inspector Ernesto Guico, 10 were manning a checkpoint at the corner of Senator Gil Puyat Ave. and the South Luzon Expressway (SLEX). 11 They were checking the cars going to Pasay City, stopping those they found suspicious, and imposing merely a running stop on the others. At about past midnight, they stopped a Kia Pride car with Plate No. TBH 493. 12 P03 Suba saw a long firearm on the lap of the person seated at the passenger seat, who was later identified as Virgilio Usana. They asked the driver, identified as Escao, to open the door. P03 Suba seized the long firearm, an M-1 US Carbine, from Usana. When Escao, upon order of the police, parked along Sen. Gil Puyat Ave., the other passengers were searched for more weapons. Their search yielded a .45 caliber firearm which they seized from Escao. 13 The three passengers were thereafter brought to the police station Block 5 in the Kia Pride driven by PO3 Nonato. 14 Upon reaching the precinct, Nonato turned over the key to the desk officer. Since SPO4 de los Santos was suspicious of the vehicle, he requested Escao to open the trunk. 15 Escao readily agreed and opened the trunk himself using his key. 16 They noticed a blue bag inside it, 17 which they asked Escao to open. The bag contained a parcel wrapped in tape, 18 which, upon examination by National Bureau of Investigation Forensic Chemist Emilia A. Rosaldos, was found positive for hashish weighing 3.3143 kilograms. 19 A certification was issued by the Firearms and Explosive Office of the National Police Commission (NAPOLCOM) to the effect that Escao was not a licensed/registered firearms holder of any kind and caliber. Usana, however, according to the same certification is a licensed/registered holder of a pistol Colt .45 caliber with license issued on 14 October 1994 and to expire on April 1996. Usana also has an application for a pistol Uzi Cal. 9mm. Neither of the two guns seized were licensed/registered with the NAPOLCOM. 20 For his part, Escao (or Jovy) testified that on the 4th of April 1995, between 11:00 and 11:30 in the morning, he was at the lobby of Legend Hotel, at Pioneer St., Mandaluyong City, to meet with his business partners, including Usana and Lopez. He saw his friend and erstwhile co-employee at Philippine Airlines, Ramon Cabrera, who had borrowed his wife's car. Since it was his wife's birthday the following day, he asked Cabrera if he could get back the car. Cabrera readily gave him the keys of the car. 21 He left the hotel at around 11:45 in the evening with Usana and Lopez. Using his wife's car, they cruised southward along Epifanio de los Santos Avenue (EDSA) and turned right at Sen. Gil Puyat Avenue. They stopped before crossing SLEX because the traffic light turned red. From the other side of SLEX, he could see a group of policemen. Upon crossing SLEX, they were flagged down by one of the policemen, so he slowed down and stopped. PO3 Nonato asked him to roll down the window and demanded to see his license. He asked if he had committed any violation, but PO3 Nonato accused him of being drunk, which he denied. The policemen persisted in asking for his license, but he did not budge and instead reiterated that there was no reason for him to surrender his license for he had not committed any violation. A verbal tussle ensued resulting in the drawing of firearms by the policemen which prompted Usana to suggest that they go to the police station because the policemen were carrying guns and they have not done anything wrong. 22 He stated further that he was the one who drove to the police station along Dian St. with his companions. He parked the car then they were brought to the office of the Deputy Station Commander, Lieutenant Eco. 23 The policemen asked if they could search his car. He then inquired if he was not entitled to a lawyer and why they needed to conduct a search when they had not even told him what he had violated. Apparently, he thought they were there only for verification purposes. Lt. Eco explained that that was the reason why they were going to search his car, to see if he had done anything illegal. Although the police were insistent in asking for the keys to his car, he continuously refused. Lt. Eco asked his men to usher the trio into the detention cell. 24 After two hours, he was brought back to Lt. Eco's office. Lt. Eco pointed to a bag, a rifle, a pistol and a package wrapped in masking tape or packing tape on his desk, and said these items constituted evidence of illegal possession of firearms and transporting of drugs. He was surprised that they found those items from his car because his key had been with him all the time. He was handcuffed, brought to his car, and again was surprised to see its trunk open. 25 cdrep On the other hand, Lopez had a different story. He claimed he was the mechanic of Usana and they lived in the same subdivision. 26 On 4 April 1995, he was working on Usana's pick-up truck at the latter's house when Escao dropped by at around 4:30 in the afternoon looking for Usana who was then working in Forbes Park. 27 At around 5:30 p.m., they left Usana's house in Escao's metallic gray Kia Pride. Inside the car, he saw a .45 caliber pistol and two spare magazines tucked in the right side and left side of Escao's waist. He also saw a carbine under the right passenger seat. When he inquired about the guns, Escao replied that such did not pose any problem since they were licensed. Before going to Usana, they went to Pasay City to see a certain Jerry. 28 They met Usana at the Sen. Gil Puyat Station of the LRT at around 9:00 p.m. He gave his seat to Usana but was unaware if the latter noticed the rifle beneath the seat. 29 They went home via Sen. Gil Puyat Avenue but were stopped at a checkpoint after crossing SLEX. The policemen directed their flashlights at them and one opened the front passenger door. 30 The latter saw the rifle under Usana's seat. Usana and Escao were ordered to get out of the car. PO3 Nonato immediately saw the gun tucked in Escao's waist and asked if he was a policeman. Escao replied that everything would be explained at the police station. He was also asked to step out. No firearm was, however, found in his possession. 31 When confronted about the guns, Escao tried to intercede for his two companions and said that ". . . these two don't know anything about it, I just took them for a drive." They subsequently went to police station Block 5. A certain Toto, a policeman, drove the Kia Pride to Block 5. 32 Upon reaching the police station, Escao was immediately brought to the office of Lt. Eco while he and Usana were asked to sit on the bench. After a few minutes, PO3 de los Santos came out of the office of Lt. Eco to talk to him. He told him that all he knew about Escao is that he was a wealthy flight attendant with military connections. After returning to Lt. Eco's office, PO3 de los Santos went out of the police station with Lt. Eco and Escao. The three came back with a blue bag which he had never seen before. The bag was opened before the three suspects. Escao reiterated that his two companions had nothing to do with the bag. 33 cdasia He and Usana stayed overnight in their cell and only saw Escao in the morning of April 5. At around 4:00 p.m., they were transferred to the CID and stayed in the office of a certain Inspector Sipin. Escao admitted he owned the bag/case. 34 For his part, Usana testified that he was a duly licensed architect who was gainfully employed by Rolando de Asis and Taytay Management Corporation. 35 He admitted owning a licensed .45 caliber pistol. 36 In March 1995, he hired as mechanic Lopez, who lives in Bernabe Subdivision Phase II where he also lives. Escao on the other hand, was introduced to him by a certain Roberto Samparado, a neighbor of Lopez. Escao, an international flight attendant of Philippine Airlines and a businessman who owns Verge Enterprises, also supplied materials to the Philippine Army and planned to engage in a construction business. 37 On 4 April 1995, at around 7:30 p.m., he paged Escao to talk about the materials for the five prototype gunship helicopters they were supposed to supply. They talked on the phone, agreeing to meet between 8:30 and 9:00 p.m. at the Sen. Gil Puyat Ave. Station of the Light Rail Transit, 38 and met at around a quarter past nine. Escao was on board a metallic Kia Pride with Lopez on the passenger seat. Lopez vacated the seat for him. They went to Magallanes Village to meet a certain Norman Garcia and talk about the documents 39 relating to the helicopter gunship of the Air Force. They arrived there at 11:30 p.m. While they were talking with Garcia, he noticed a gun and magazines tucked in Escao's waist. Upon inquiry, Escao said it was not a problem and only for his protection. 40 On their way to Roxas Boulevard, they were stopped at a checkpoint along Sen. Gil Puyat Ave. Policemen knocked on the car windows so he and Escao rolled down their windows. A person in civilian clothes suddenly opened the right door, took something from the side of his seat and shouted, "There's a gun." He was surprised because he did not carry anything when he boarded the car; neither did he see anything inside the car because it was dark and he was not wearing his eyeglasses. 41 The person who took the gun asked if he was a policeman, and he said he was an architect. He was then asked to alight from the car, then frisked. Escao was also asked to alight from a car. They saw a gun tucked in his waist, so they asked if he was a policeman, and Escao answered in the negative. Lopez was then ordered to get out of the car by the person in civilian clothes and was also searched. They rode the Anfra service vehicle of the police. One of the policemen asked Lopez to handcuff him and Escao. The policeman who asked Escao to get out of the car drove the Anfra van to Block 5 where they arrived at 1:30 in the morning of 5 April. 42 He and Lopez waited outside the office of Lt. Eco while Escao was inside with the arresting officers. Lt. Eco came out of his office and urged Lopez to tell the truth. He heard Lopez say that they were both just with Escao and that they knew nothing about the guns; neither do they own any. SPO4 de los Santos entered the office of Lt. Eco and came out five minutes later with Escao, Lt. Eco, and the other arresting officers, Nonato, Suba and Erwin Eco, the person in civilian clothes. All six went out to the parking area and returned after about five minutes. Lt. Eco was carrying a bag which he placed on top his desk. Lopez and Escao were asked about the contents of the bag. The two replied it was the first time they saw that bag. Lt. Eco opened the bag before them. They all saw something in brown paper. He and Lopez simultaneously exclaimed that they knew nothing about the contents of the bag, and they implored Escao to tell the police that they had nothing to do with it. 43 The trial court found the prosecution's version more credible than that of any one of the accused, and ruled that the evidence presented by the prosecution was sufficient to convict the accused as charged. It decreed: WHEREFORE, in view of the foregoing judgment is hereby rendered as follows: 1. In Criminal Case No. 95-936, accused JULIAN ESCAO y DEEN, VIRGILIO USANA y TOME and JERRY LOPEZ y CASABAAN are GUILTY as charged and are sentenced to suffer imprisonment of RECLUSION PERPETUA, and to pay a fine of P500,000.00. The Branch Clerk of Court is directed to turn over to the Dangerous Drugs Board the 3.314 kilograms of Hashish (marijuana) for its appropriate disposition in accordance with law; and cdasia 2. In criminal Cases Nos. 95-937 and 95-938, accused JULIAN ESCAO y DEEN and VIRGILIO USANA y TOME are GUILTY as charged in the two separate informations respectively filed against them and are sentenced to suffer the indeterminate prison term from TEN (10) YEARS of PRISION MAYOR maximum, as minimum to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of RECLUSION TEMPORAL maximum as maximum. 44 The firearms and ammunitions subject matter of these cases which are still with the City Prosecutor's Office are forfeited in favor of the Government are directed to be turned over to the Firearms and Explosive Unit, PNP, Camp Crame, Quezon City for its appropriate disposition. SO ORDERED. 45 Accused-appellants Usana and Lopez anchor their appeal on the following arguments: 1. The trial court erred in admitting in evidence the hashish seized without search warrant when the police officers already had the opportunity to secure a search warrant before searching the bag found at the baggage compartment at the back of the car; 2. Assuming that the hashish is admissible in evidence, the trial court erred in finding appellants to have conspired with Escao in transporting the hashish when the evidence clearly shows that the hashish was owned and possessed solely by Escao; 3. The trial court erred in convicting appellants of illegal possession of hashish despite the fact that they were neither in actual nor constructive possession of the illegal drug; and 4. The trial court erred in not considering the exculpatory testimony of Julian Escao in favor of appellants. Before going any further, some words are in order regarding the establishment of checkpoints. Accused-appellants assail the manner by which the checkpoint in question was conducted. They contend that the checkpoint manned by elements of the Makati Police should have been announced. They also complain of its having been conducted in an arbitrary and discriminatory manner. We take judicial notice of the existence of the COMELEC resolution 46 imposing a gun ban during the election period issued pursuant to Section 52(c) in relation to Section 26(q) of the Omnibus Election Code (Batas Pambansa Blg. 881). The national and local elections in 1995 were held on 8 May, the second Monday of the month. The incident, which happened on 5 April 1995, was well within the election period. This Court has ruled that not all checkpoints are illegal. Those which are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists are allowed. 47 For, admittedly, routine checkpoints do intrude, to a certain extent, on motorists' right to "free passage without interruption," but it cannot be denied that, as a rule, it involves only a brief detention of travelers during which the vehicle's occupants are required to answer a brief question or two. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual's right against unreasonable search. In fact, these routine checks, when conducted in a fixed area, are even less intrusive. 48 The checkpoint herein conducted was in pursuance of the gun ban enforced by the COMELEC. The COMELEC would be hard put to implement the ban if its deputized agents were limited to a visual search of pedestrians. It would also defeat the purpose for which such ban was instituted. Those who intend to bring a gun during said period would know that they only need a car to be able to easily perpetrate their malicious designs. cdrep The facts adduced do not constitute a ground for a violation of the constitutional rights of the accused against illegal search and seizure. PO3 Suba admitted that they were merely stopping cars they deemed suspicious, such as those whose windows are heavily tinted just to see if the passengers thereof were carrying guns. At best they would merely direct their flashlights inside the cars they would stop, without opening the car's doors or subjecting its passengers to a body search. There is nothing discriminatory in this as this is what the situation demands. We see no need for checkpoints to be announced, as the accused have invoked. Not only would it be impractical, it would also forewarn those who intend to violate the ban. Even so, badges of legitimacy of checkpoints may still be inferred from their fixed location and the regularized manner in which they are operated. 49 Usana and Lopez also question the validity of the search. The trial court, in convicting the three accused for violation of R.A. No. 6425, accepted as aboveboard the search done by the Makati Police of the trunk of the car. Jurisprudence recognizes six generally accepted exceptions to the warrant requirement: (1) search incidental to an arrest; (2) search of moving vehicles; (3) evidence in plain view; (4) customs searches; (5) consented warrantless search; 50 and (6) stop- and-frisk situations. 51 Even though there was ample opportunity to obtain a search warrant, we cannot invalidate the search of the vehicle, for there are indications that the search done on the car of Escao was consented to by him. Both Lopez and Usana testified that Escao was with the police officers when they searched the car. 52 There was no apparent objection made by Escao as he seemed to have freely accompanied the police officers to the car. PO3 Suba, on the other hand, testified that "Escao readily agreed to open the trunk," upon request of SPO4 de los Santos. 53 But according to Escao, he refused the request of the police officers to search his car. 54 We must give credence to the testimony of PO3 Suba. Not only is it buttressed by the testimony of Usana and Lopez that Escao freely accompanied the police officers to the car, it is also deemed admitted by Escao in failing to appeal the decision. The findings of fact of the trial court are thus deemed final as against him. prLL Despite the validity of the search, we cannot affirm the conviction of Usana and Lopez for violation of R.A. No. 6425, as amended. The following facts militate against a finding of conviction: (1) the car belonged to Escao; (2) the trunk of the car was not opened soon after it was stopped and after the accused were searched for firearms; (3) the car was driven by a policeman from the place where it was stopped until the police station; (4) the car's trunk was opened, with the permission of Escao, without the presence of Usana and Lopez; and (5) after arrival at the police station and until the opening of the car's trunk, the car was in the possession and control of the police authorities. No fact was adduced to link Usana and Lopez to the hashish found in the trunk of the car. Their having been with Escao in the latter's car before the "finding" of the hashish sometime after the lapse of an appreciable time and without their presence left much to be desired to implicate them to the offense of selling, distributing, or transporting the prohibited drug. In fact, there was no showing that Usana and Lopez knew of the presence of hashish in the trunk of the car or that they saw the same before it was seized. IN VIEW WHEREOF, that portion of the challenged decision of 30 May 1997 of the Regional Trial Court, Makati, Branch 64, insofar as Criminal Case No. 95-936 is concerned with regard to accused- appellants VIRGILIO T. USANA and JERRY C. LOPEZ, holding them guilty of violation of Section 4, Article II of R.A. No. 6425, as amended, is hereby REVERSED and SET ASIDE and another is hereby rendered ACQUITTING them therein on ground of reasonable doubt and ORDERING their immediate release from confinement at the New Bilibid Prison, unless their further detention is justified for any lawful ground. The Director of the Bureau of Corrections is hereby directed to report to the Court the release of said accused- appellants within five (5) days from notice of this decision. SO ORDERED. Puno, Kapunan, Pardo, and Ynares-Santiago, JJ., concur. THIRD DIVISION [G.R. No. 141137. January 20, 2004.] PEOPLE OF THE PHILIPPINES, appellee, vs. VICTOR DIAZ VINECARIO, ARNOLD ROBLE and GERLYN WATES, appellants. The Solicitor General for plaintiff-appellee. Public Attorney's Office for V. Diaz Vinecario. Oswaldo A. Macadangdang for A. Roble and G. Wates. SYNOPSIS For illegally transporting 1,700 grams of prohibited drug known as marijuana, Victor Vinecario, Arnold Roble and Gerlyn Wates were convicted by the Regional Trial Court, Davao City, Branch 16 of violation of Section 4, Article II of Republic Act No. 6425 and were sentenced to suffer the penalty of reclusion perpetua. Hence, this appeal. EACIcH The Court ruled that the categorical and consistent testimonies and the positive identification by prosecution witnesses SPO1 Haydenburge Goc-ong and PO1 Vicente Carvajal, against whom no ill motive to falsely charge appellants was shown, must thus prevail over the unconvincing alibi and unsubstantiated denial of appellants. Accordingly, the instant petition was denied. SYLLABUS 1. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF RIGHTS; PROSCRIPTION AGAINST WARRANTLESS SEARCHES AND SEIZURES; EXCEPTIONS. The constitutional proscription against warrantless searches and seizures admits of certain exceptions, however. Search and/or 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; and (6) stop-and-frisk situations. aDATHC 2. ID.; ID.; ID.; ID.; ID.; SEARCHES CONDUCTED IN CHECKPOINTS ARE VALID; INSPECTION OF THE VEHICLE IS LIMITED TO VISUAL SEARCH. Searches conducted in checkpoints are valid for as long as they are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual's right against unreasonable search. 3. ID.; ID.; ID.; ID.; ID.; ID.; ID.; VEHICLES MAY BE EXTENSIVELY SEARCHED WHEN THERE IS PROBABLE CAUSE THAT EITHER THE MOTORIST IS A LAW OFFENDER OR THE CONTENTS OF THE VEHICLE ARE INSTRUMENTS OF SOME OFFENSE. Although the general rule is that motorists and their vehicles as well as pedestrians passing through checkpoints may only be subjected to a routine inspection, vehicles may be stopped and extensively searched when there is probable cause which justifies a reasonable belief of the men at the checkpoints that either the motorist is a law offender or the contents of the vehicle are or have been instruments of some offense. STHAID 4. REMEDIAL LAW; EVIDENCE; JUDICIAL NOTICE; EXISTENCE OF GUN BAN DURING AN ELECTION PERIOD. Judicial notice is taken of the existence of COMELEC Resolution No. 2735 imposing a gun ban during an election period issued pursuant to Section 52(c) of the Omnibus Election Code (Batas Pambansa Blg. 881). The national and local elections in 1995 having been held on May 8, the present incident, which occurred on April 10, 1995, was well within the election period. 5. ID.; CRIMINAL PROCEDURE; SEARCH AND SEIZURE; PROBABLE CAUSE; EXISTS WHERE THE ACCUSED WAS ACTING SUSPICIOUSLY AND ATTEMPTED TO FLEE. 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. 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. 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, or where the accused was acting suspiciously, and attempted to flee. acCTSE 6. ID.; EVIDENCE; ADMISSIBILITY; EXTRAJUDICIAL CONFESSION; CONSTITUTIONAL RIGHTS DURING CUSTODIAL INVESTIGATION BECOMES RELEVANT AND MATERIAL ONLY WHEN IT BECOMES THE BASIS OF THE ACCUSED'S CONVICTION; NOT APPLICABLE IN CASE AT BAR. As to Vinecario's allegation that his constitutional rights were violated during the custodial investigation conducted by the police officers, the same is relevant and material only when an extrajudicial admission or confession extracted from an accused becomes the basis of his conviction. In the case at bar, the trial court convicted appellants on the basis of the testimonies of the prosecution witnesses, particularly those of SPO1 Haydenburge Goc-ong and PO1 Vicente Carvajal. 7. ID.; ID.; DENIAL; CAN EASILY BE CONCOCTED. The defense of denial, like alibi, has invariably been viewed by the courts with disfavor for it can just as easily be concocted and is a common and standard defense ploy in most prosecutions of the Dangerous Drugs Act. CITSAc 8. ID.; ID.; ID.; CANNOT PREVAIL OVER THE CATEGORICAL AND CONSISTENT TESTIMONIES AND POSITIVE IDENTIFICATION BY PROSECUTION WITNESSES. The categorical and consistent testimonies, and the positive identification by prosecution witnesses SPO1 Goc-ong and PO1 Carvajal, against whom no ill motive to falsely charge appellants was shown, must thus then prevail over the unconvincing alibi and unsubstantiated denial of appellants. 9. CRIMINAL LAW; CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY; CONSPIRACY; ELUCIDATED. Conspiracy exists when two or more persons come to an agreement concerning the commission of a crime and decide to commit it. Where the acts of the accused collectively and individually demonstrate the existence of a common design towards the accomplishment of the same unlawful purpose, conspiracy is evident, and all the perpetrators will be liable as principals. To exempt himself from criminal liability, the conspirator must have performed an overt act to dissociate or detach himself from the unlawful plan to commit the crime. In People v. Concepcion, this Court held: ". . . Proof of agreement need not rest on direct evidence as the same may be inferred from the conduct of the parties indicating a common understanding among them with respect to the commission of the offense. It is not necessary to show that two or more persons met together and entered into an explicit agreement setting out the details of an unlawful scheme or the details by which an illegal objective is to be carried out. It may be deduced from the mode and manner in which the offense was perpetrated or inferred from the acts of the accused evincing a joint or common purpose and design, concerted action and community of interest." HDacIT 10. ID.; REPUBLIC ACT NO. 6425 (DANGEROUS DRUG ACT); ACT OF DELIVERING OR TRANSPORTING ILLEGAL DRUGS IS MALUM PROHIBITUM. In fine, appellants' defenses fail in light of their clearly proven act of delivering or transporting marijuana. The evidence shows that accused-appellant was apprehended in the act of delivering or transporting illegal drugs. "Transport" as used under the Dangerous Drugs Act is defined to mean: "to carry or convey from one place to another." When accused- appellant used his vehicle to convey the package containing marijuana to an unknown destination, his act was part of the process of transporting the said prohibited substance. Inherent in the crime of transporting the prohibited drug is the use of a motor vehicle. The very act of transporting a prohibited drug, like in the instant case, is a malum prohibitum since it is punished as an offense under a special law. The mere commission of the act constitutes the offense and is sufficient to validly charge and convict an individual committing the act, regardless of criminal intent. Since the appellant was caught transporting marijuana, the crime being mala prohibita, accused- appellant's intent, motive, or knowledge, thereof need not be shown. 11. ID.; ID.; ID.; PROPER PENALTY. A word on the penalty. As provided in Section 4 of the Dangerous Drugs Act, the penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall transport any prohibited drug. Section 20, Article IV of the same act provides that the penalty imposed in Section 4 shall be applied if the dangerous drug is, with respect to marijuana, 750 grams or more. In the case at bar, the marijuana involved weighed 1,700 grams. Since the law prescribes two indivisible penalties, a resort to Article 63 of the Revised Penal Code is necessary. There being no mitigating nor aggravating circumstance that attended the commission of the offense, the lesser penalty of reclusion perpetua was properly imposed by the trial court. A fine of P500,000.00 should, however, been likewise imposed on the appellants in solidum in accordance with the law. DAaIEc D E C I S I O N CARPIO-MORALES, J p: From the Decision of July 20, 1999, as amended by Order of September 9, 1999, of the Regional Trial Court of Davao City, Branch 16, finding appellants Victor Vinecario, Arnold Roble and Gerlyn Wates guilty beyond reasonable doubt of violation of Article IV of Republic Act No. 6425 (Dangerous Drugs Act of 1972, as amended by Republic Act No. 7659), and imposing upon them the penalty of reclusion perpetua, they lodged the present appeal. ISTCHE The Information dated April 25, 1995, filed against appellants reads as follows: The undersigned accuses the above-named accused for VIOLATION OF SECTION 4, ARTICLE II IN RELATION TO SECTION 21, ARTICLE IV OF R.A. 6425, committed as follows: That on or about April 10, 1995 in the City of Davao, Philippines and within the jurisdiction of this Honorable Court, the above-mentioned accused, conspiring, confederating and helping one another, without being authorized by law, willfully, unlawfully and feloniously transported, delivered and possessed 1.7 kilos dried marijuana leaves which are prohibited drugs. CONTRARY TO LAW. 1 Upon arraignment on September 11, 1995, appellants, duly assisted by counsel, pleaded not guilty to the offense charged. The facts as established by the prosecution are as follows: On the night of April 10, 1995, at around 10:45 p.m., as about fifteen police officers were manning a checkpoint at Ulas, Davao City pursuant to COMELEC Resolution No. 2735, otherwise known as the COMELEC gun ban, a Honda TMX motorcycle with three men on board sped past them. 2 One of the police officers blew his whistle 3 and ordered them to return to the checkpoint. Obliging, the three men aboard the motorcycle returned to the checkpoint. SPO1 Haydenburge Goc-ong (SPO1 Goc-ong) of the 11th Regional Mobile Force 4th Company thereupon asked them why they sped away to which appellant Victor Vinecario (Vinecario), who was seated behind appellant Arnold Roble (Roble) and in front of appellant Gerlyn Wates (Wates) on the motorcycle, retorted that he is a member of the army. 4 When asked by the law enforcers to produce an identification card, he could not, however, offer any. At this point, the police officers noticed that a big military backpack was slung over the right shoulder of Vinecario who was observed, as were his co- appellants, to be afraid and acting suspiciously. 5 SPO1 Goc-ong thus asked Vinecario what the contents of the backpack were. Vinecario answered that it merely contained a mat and proceeded to pass it to Wates, who in turn passed it to Roble who, however, returned it to Vinecario. 6 Suspecting that the backpack contained a bomb, SPO1 Goc-ong instructed his men to disperse, following which he ordered Vinecario to open the bag. Vinecario did as ordered and as SPO1 Goc-ong noticed something wrapped in paper, he told Vinecario to take the same out. Again Vinecario obliged, albeit reiterating that it was only a mat. SPO1 Goc-ong then touched the stuff wrapped in paper upon which Vinecario grabbed it, 7 resulting to the tearing off of the paper wrapper. Soon the smell of marijuana wafted in the air. Vinecario thereafter told SPO1 Goc-ong "let us talk about this," 8 but the latter ignored Vinecario and instead called his Commanding Officer and reported to him that marijuana was found in Vinecario's possession. On orders of the Commanding Officer, the other police officers brought appellants along with two bundles of marijuana, the backpack and the motorcycle to the battalion office at Camp Catitipan in Davao City and were turned over to one PO2 Cabalon, an investigator of Regional Mobile Force 11. Before proceeding to said battalion office, however, the incident was blottered 9 by PO3 Edward Morado at the Buhangin Police Station. 10 On April 11, 1995, SPO1 Goc-ong, PO1 Vicente Carvajal (PO1 Carvajal) and PO1 Pual Padasay brought the confiscated suspected marijuana to the camp's crime laboratory for examination 11 which determined it to weigh 1,700 grams 12 and to be indeed positive therefor. 13 As for appellants, their version of the incident follows: Vinecario, then a member of the 25th Infantry Battalion of the 6th Infantry Division of the Philippine army stationed at Pagakpak, Pantukan, 14 approached motorcycle driver Wates at a terminal in Andile, Mawab and requested him to bring him to his elder brother at Parang, Maguindanao for a fee of P500.00 which he paid. 15 The two thus proceeded to Carmen, Panabo where they picked up Roble to alternate with Wates as driver, and at 8:00 a.m., the three left for Parang. 16 On reaching Parang at about 1:20 p.m., Vinecario borrowed P3,000.00 from his brother Teofanis to shoulder the medical expenses of his son. At about 4:30 p.m., after partaking of snacks at Teofanis' residence, appellants left for Davao City. aIDHET Along Parang Highway, Abdul Karim Datolarta, Vinecario's former co-employee at Emerson Plywood where he previously worked, blocked the motorcycle. 17 Vinecario thus alighted from the motorcycle and shook hands with Datolarta 18 who asked where they were headed for and requested that he ride with them. Vinecario turned Datolarta down as there was no longer any room in the motorcycle. Datolarta then asked if he (Vinecario) could take his bag of clothes and bring it to his cousin, one Merly, in Roxas, Tagum. Without examining its contents, Vinecario acquiesced, took Datolarta's bag and left with his co-appellants. 19 On reaching Ulas in the evening of the same day, appellants, seeing that there was a checkpoint, 20 sped past it. When they were about 50 to 60 meters away from the checkpoint, they heard a whistle, prompting Wates to tap Vinecario, telling him that the whistle came from the checkpoint. Vinecario then told Roble to go back to the checkpoint. While at the checkpoint, five police officers approached appellants and instructed them to alight from the motorcycle. One of the officers asked Vinecario who he was, and Vinecario identified himself as a member of the Philippine National Police. 21 The officer asked for identification and when Vinecario could not produce any, the former got the backpack slung on Vinecario's shoulder. The same officer then asked Vinecario if they could open the bag, and as Vinecario acquiesced, two officers opened the bag upon which they shouted that it contained marijuana. Vinecario then grabbed the backpack to confirm if there was indeed marijuana. At that instant, the police officers held his hands and brought him, together with the other appellants, to the Buhangin Police Station, and later to Camp Catitipan. At the camp, appellants were investigated by police officials without the assistance of counsel, following which they were made to sign some documents which they were not allowed to read. 22 The trial court, by Decision of July 20, 1999, found appellants guilty as charged. The dispositive portion of the decision reads, quoted verbatim: WHEREFORE, finding the evidence of the prosecution, more than sufficient to prove the guilt of all three accused beyond reasonable doubt of the offense charged, accused PFC Victor Vinecario, Arnold Roble and Gerlyn Wates, pursuant to Sec. 4, Art. II in relation to Art. IV or (sic) Rep. Act 6425 as amended by Rep. Act 7659, Sec. 20, par. 5 thereof, are jointly sentence (sic) to suffer the supreme penalty of death by lethal injection, under Rep Act 8177 in the manner and procedure therein provided, in relation to Sec. 24 of Rep. Act 7659, amending Art. 81 of the Revised Penal Code. Finally pursuant to Rep. Act 7659 Sec. 22 the Branch Clerk of Court of RTC 16 Davao City, is ordered to elevate the entire records of this case with the Clerk of Court, Supreme Court Manila, for the automatic review of this Decision, after its promulgation. SO ORDERED. 23 (Underscoring supplied) By Order of September 9, 1999, the trial court set aside its decision of July 20, 1999 and disposed as follows, quoted verbatim: Accordingly, all accused (sic) motion for reconsideration on this aspect, on the imposition of the penalty against all accused, even if invoked only be accused Venecaio (sic) through his counsel de oficio, will apply to all accused since there exists conspiracy of all in the commission of the offense charged. Judgment of this court, dated July 20, 1999, is accordingly set aside and reconsidered, only insofar as the imposition of the supreme penalty of death through lethal injection under Republic Act No. 8177, is concerned. All accused PFC Victor Venecario, Arnold Roble and Gerlyn Wates, are instead sentence (sic) to suffer the penalty of reclusion perpetua, pursuant to Art. IV, Sec. 21, in relation to Art. IV of Republic Act No. 6425 as amended by Republic Act No. 7659, Sec. 20, par. 5 thereof, in accordance with Art. 63 of the Revised Penal Code, as decided by the Supreme Court in the recent case of Peope (sic) vs. Ruben Montilla G.R. No. 123872 dated January 30, 1998. However, the findings of this court for the conviction of all aaccused (sic) of the offense charged, is (sic) sustained. The corresponding motion (sic) for reconsideration of all accused through their counsel for their acquittal of (sic) the offense charged, is denied, for lack of merit. SO ORDERED. 24 (Emphasis and Underscoring supplied) EHSTDA The prosecution then filed a Motion for Reconsideration 25 dated September 14, 1995 of the above-mentioned Order of the trial court, it arguing that the commission of the offense charged against appellants was attended by an aggravating circumstance in that it was committed by an organized or syndicated crime group, thus warranting the imposition of the death penalty. In the meantime, Roble and Wates filed their Notice of Appeal 26 on September 15, 1999. Vinecario followed suit and filed his Notice of Appeal. 27 The trial court, by Order dated September 22, 1999, denied the prosecution's Motion. In their brief, Roble and Wates assign the following errors: 1. THE TRIAL COURT'S OBSERVATION THAT APPELLANTS WATES AND ROBLE CONSPIRED WITH VICTOR VINECARIO IN TRANSPORTING MARIJUANA FROM PARANG, MAGUINDANAO IS NOT BORNE BY THE EVIDNECE (sic) ON RECORD AND SHOWS THAT THE TRIAL COURT GRAVELY ERRED IN MISAPPREHENDING FACTS IF NOT A COMPLETE DISREGARD OF THE EVIDENCE, BOTH DOCUMENTARY AND TESTIMONIAL. 2. THE TRIAL COURT GRAVELY ERRED IN FAILING TO AFFORD EVIDENTIARY WEIGHT TO THE RECANTATION MADE BY POLICE OFFICERS HAYDENBURG GOC-ONG AND VICENTE CARVAJAL THAT BOTH APPELLANTS WATES AND ROBLE WERE NOT NERVOUS AND APPREHENSIVE AT THE THE (sic) OF THE OPENING OF THE MILITARY PACK CONTAINING MARIJUANA NEAR THE CHECKPOINT. 3. THE TRIAL COURT GRAVELY ERRED IN NOT GIVING CREDENCE TO THE TESTIMONIES OF APPELLANTS WATES AND ROBLE THAT THEY WERE MERELY HIRED BY VICTOR VINECARIO TO BRING HIM TO PARANG, MAGUINDANAO FOR A FEE OF P500.00 WITH FREE FOOD AND GASOLINE. 4. THE TRIAL COURT GRAVELY ERRED IN DECLARING THE RENTAL OF P500.00 WHICH VINECARIO PAID TO THE OWNER OF THE [MOTORCYCLE] AS INADEQUATE BY TAKING JUDICIAL NOTICE OF THE BUS FARE OF P268.00 FROM MACO, DAVAO PROVINCE TO SUN WAY CROSSING, MAGUINDANAO DOWN TO PARANG, MAGUINDANAO. 28 Wates and Roble argue that there is no iota of evidence to prove that they acted with unity of purpose and in the execution of any unlawful objective with Vinecario. 29 They assert that they had no prior knowledge of Vinecario's plan to meet with a man who would give the backpack containing marijuana; that prosecution witnesses SPO1 Goc-ong and PO1 Carvajal's declaration that they (appellants Wates and Roble) were not nervous, uneasy or apprehensive when the backpack was opened buttresses their claim that they did not conspire with Vinecario; and that the prosecution's theory of conspiracy was merely based on the testimony of PO1 Carvajal that they acted nervously when the backpack was ordered opened for inspection; that there was a "great variance" in the testimonies of SPO1 Goc-ong and PO1 Carvajal in the direct examination and their testimonies on rebuttal as to the events that transpired on April 10, 1995, thus casting serious doubts on the trial court's findings of guilt. On September 17, 2001, Vinecario filed an Urgent Motion to Withdraw Appeal, 30 stating that he is "practically satisfied with the decision of the trial court"; that "he would not waste anymore the effort of the honorable Supreme Court Justices in further reviewing his case"; and that as he was "driven by the sincerest desire in renewing his life," he "irrevocably moves for the withdrawal of his appeal." On even date, Roble and Wates likewise filed an Urgent Motion to Withdraw Appeal, 31 stating that they admit the commission of the offense for which they were convicted; that they are satisfied with the decision of the trial court; and that they are already serving the penalty for their offense and "realize the overt admittance of guilt as the only vehicle in [their] gradual renewal." By Resolution of November 27, 2001, this Court denied the Motions of appellants and directed Vinecario to file his brief within forty-five days from notice of the resolution. In a brief dated January 25, 2002, Vinecario attributes the following errors to the trial court: I. THE COURT A QUO GRAVELY ERRED IN HOLDING THAT THE SEARCH UPON THE PERSON OF ACCUSED- APPELLANT AND THE SEIZURE OF THE ALLEGED 1,700 GRAMS OF MARIJUANA AS (sic) VALID. ASHECD II. THE COURT A QUO GRAVELY ERRED IN ADMITTING AS EVIDENCE AGAINST ACCUSED-APPELLANT THE ALLEGED 1,700 GRAMS OF MARIJUANA AS IT WAS A PRODUCT OF AN ILLEGAL SEARCH. III. THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONY OF PROSECUTION WITNESSES AND IN GIVING THE POLICEMEN THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF DUTY DESPITE THE APPARENT IRREGULARITIES IN THE MANNER OF ARRESTING THE ACCUSED-APPELLANT. IV. THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT. 32 Vinecario argues that the prosecution failed to show that the search conducted by the police officers was incident to a lawful arrest; that he could not have been deemed to have consented to the search as any such consent was given under intimidating or coercive circumstances; and that there existed no probable cause to justify the search and seizure of the backpack, hence, the marijuana is inadmissible in evidence, it being a product of illegal search. Vinecario adds that the police officers who arrested and investigated him failed to inform him of his rights to remain silent and to have competent and independent counsel of his choice, thereby violating Section 12(1), Article III of the Constitution. 33 The rule is constitutionally enshrined that no search and seizure can lawfully be conducted without a valid warrant issued by a competent judicial authority. Section 2, Article III of the Constitution so ordains: 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. And Section 3(2), Article III of the same Constitution mandates that any evidence obtained in violation of the right of the people under Section 2 shall be inadmissible for any purpose in any proceeding. The constitutional proscription against warrantless searches and seizures admits of certain exceptions, however. Search and/or 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; and (6) stop-and-frisk situations. 34 Searches conducted in checkpoints are valid for as long as they are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists. 35 For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual's right against unreasonable search. 36 . . . [C]heckpoints are not illegal per se. Thus, under exceptional circumstances, as where the survival of organized government is on the balance, or where the lives and safety of the people are in grave peril, checkpoints may be allowed and installed by the government. xxx xxx xxx No one can be compelled, under our libertarian system, to share with the present government its ideological beliefs and practices, or commend its political, social and economic policies or performance. But, at least, one must concede to it the basic right to defend itself from its enemies and, while in power, to pursue its program of government intended for public welfare; and in the pursuit of those objectives, the government has the equal right, under its police power, to select the reasonable means and methods for best achieving them. The checkpoint is evidently one of such means it has selected. Admittedly, the routine checkpoint stop does intrude, to a certain extent, on motorists' right to "free passage without interruption", but it cannot be denied that, as a rule, it involves only a brief detention of travelers during which the vehicle's occupants are required to answer a brief question or two. . . . aTHASC These routine checks, when conducted in a fixed area, are even less intrusive. As held by the U.S. Supreme Court: "Routine checkpoint stops do not intrude similarly on the motoring public. First, the potential interference with legitimate traffic is minimal. Motorists using these highways are not taken by surprise as they know, or may obtain knowledge of, the location of the checkpoints and will not be stopped elsewhere. Second checkpoint operations both appear to and actually involve less discretionary enforcement activity. The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law- abiding motorists, that the stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by official responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class, and since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than there was in the case of roving- patrol stops. Moreover, a claim that a particular exercise of discretion in locating or operating a checkpoint is unreasonable is subject to post-stop judicial review." 37 Judicial notice is taken of the existence of COMELEC Resolution No. 2735 imposing a gun ban during an election period issued pursuant to Section 52(c) of the Omnibus Election Code (Batas Pambansa Blg. 881). 38 The national and local elections in 1995 having been held on May 8, the present incident, which occurred on April 10, 1995, was well within the election period. Although the general rule is that motorists and their vehicles as well as pedestrians passing through checkpoints may only be subjected to a routine inspection, vehicles may be stopped and extensively searched when there is probable cause which justifies a reasonable belief of the men at the checkpoints that either the motorist is a law offender or the contents of the vehicle are or have been instruments of some offense. 39 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. 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. 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, or where the accused was acting suspiciously, and attempted to flee. 40 (Emphasis supplied). That probable cause existed to justify the search conducted by the police officers at the checkpoint is gathered from the following testimony of SPO1 Goc-ong: Q: You said you saw three on board a motorcycle what did your unit do when these three persons approached? A: We were waiting for them. When they arrived they stopped and speeded away. Q: What was your reaction when you saw the motor speeding away? A: One of my men blew his whistle ordering to (sic) return back (sic). xxx xxx xxx Q: When they returned back (sic) what happened? A: When they returned back (sic) I asked them why they speeded away? Q: What did they answer? A: One of them said that he is a member of the army. Q: If that person who said that he is a member of the army is in court, can you point to him? A: (Witness went down from the witness stand and pointed to a man wearing yellow t-shirt who stood up and when asked about his name answered that he is Victor Venecario). acADIT xxx xxx xxx Q: What was your reaction when Venecario failed to show any identification papers to show that he is really a member of the army? A: We saw his big backpack and asked him what was inside. Q: Who was carrying that big backpack? A: Venecario. xxx xxx xxx Q: You said you asked him what was (sic) the contents of that backpack, can you tell us why did you (sic) ask him? A: I asked about that because I observed them to be acting suspiciously as if they were afraid and different reactions (sic). Q: They were acting suspiciously? A: Yes. Q: That is what you have observed from their faces? A: Yes, sir. Q: What did Venecario do when you asked him about the contents of that backpack? A: He said that it is a mat and passed it on to his companion. Q: You said he passed it on to his companion, there were two (2) companions, to whom did he pass it on? A: He passed it on to Wates and Wates passed it on to Roble. Q: What did Roble do when Wates passed it to him? A: Roble returned it back (sic) to Venecario. Q: So what was your reaction when you saw the three passing the bag from one person to another? A: My suspicion was it was a bomb and ordered my men to scatter. Q: Tell us why are you (sic) concerned about explosives was there any incident prior to that checkpoint? A: Election was past (sic) approaching and there was a threat that Davao City will be bombed. Q: Prior to that was there any incident? xxx xxx xxx A: In Ipil, Zamboanga on April 4. Q: If you recall when was that? A: April 4 of the same year. Q: You said the bag was passed to Venecario and you told your men to scatter, what happened next? A: I ordered Venecario to open the backpack. Q: What did Venecario do when you ordered him to open? A: They opened the backpack. 41 SPO1 Goc-ong's testimony was corroborated by PO1 Vicente Carvajal: Q: At about 10:45 in the evening of that date April 10, 1995 do you recall of any unusual incident while you were conducting that checkpoint? A: Yes, sir. Q: What was that incident all about? A: At that time, while we were conducting a checkpoint, we saw this motorcycle passing and flagged them to stop and there were three (3) persons and one was manning and they briefly stopped but speeded away. xxx xxx xxx Q: When these three (3) persons retured (sic) back (sic) what happened? DEICaA A: The one riding introduced himself as a member of the army. xxx xxx xxx Q: You said these three persons were nervous and one of them introduced himself as an army man, what did you do? A: I asked for an ID. Q: Who among you asked for an ID? A: Sgt. Goc-ong. Q: Where were you at that time when Goc-ong asked for his ID? A: I was behind him because I backed him up. Q: What was the reaction of Venecario when he was asked to produce an ID? A: He answered that he has no ID. Q: What was the reaction of the group when Venecario failed to show any ID that he was an army man? A: Our other companion moved closer as security. Q: Why? A: We were on alert because on April 4 the one who attacked were (sic) in uniform. Q: At that time what was Venecario wearing? A: He was in camouflage and wearing sleepers (sic). xxx xxx xxx Q: After that what happened? A: We were able to observe that he was carrying a bag. Q: What was the reaction of Venecario when he was asked what was (sic) the contents of the bag? A: He appeared to be hesitant and he said that it contained clothes. Q: Before that what did Venecario do? A: He placed it in (sic) his shoulder. Q: What did he do with the backpack? A: When asked he passed it to his other companions. Q: What did Venecario when he passed it to his companion? A: Venecario passed it to his companion and that companion passed it to his other companion. Q: After this companion received the backpack from his companion what did he do? A: He returned back (sic) to Venecario. Q: They passed it from one person to another until it was returned to Venecario? A: Yes, sir. xxx xxx xxx Q: You said that backpack was passed from one person to another and when he got hold of that backpack what happened? A: He opened the backpack. Q: Who told him to open the backpack? A: Sgt. Goc-ong. 42 In light then of appellants' speeding away after noticing the checkpoint and even after having been flagged down by police officers, their suspicious and nervous gestures when interrogated on the contents of the backpack which they passed to one another, and the reply of Vinecario, when asked why he and his co-appellants sped away from the checkpoint, that he was a member of the Philippine Army, apparently in an attempt to dissuade the policemen from proceeding with their inspection, there existed probable cause to justify a reasonable belief on the part of the law enforcers that appellants were offenders of the law or that the contents of the backpack were instruments of some offense. AEHTIC As to Vinecario's allegation that his constitutional rights were violated during the custodial investigation conducted by the police officers, the same is relevant and material only when an extrajudicial admission or confession extracted from an accused becomes the basis of his conviction. 43 In the case at bar, the trial court convicted appellants on the basis of the testimonies of the prosecution witnesses, particularly those of SPO1 Haydenburge Goc-ong and PO1 Vicente Carvajal. Finally, Vinecario harps on his defense of denial which he recounted as follows: Q: After leaving the residence of your brother was there any unusual incident that took place? A: Yes, Sir. Q: What was that? A: The moment we arrived there there was a person who blocked us. Q: Where? A: Parang Highway. Q: Coming here to Davao? A: Yes. Q: What happened after Crossing Parang? A: There was a person who blocked us. Q: A former companion of yours? A: Yes. Q: A former soldier? A: No, Sir. Q: You said your former companion, am I correct? A: Before I became a soldier, I worked in Emerson Plywood. Q: So that person who flagged down you were (sic) your former companion? A: Yes: Q: You are familiar with him? A: I know him very well. Q: He was your close friend? A: Yes. Q: What is the name of that person who stopped you? A: Abdul Karim Datolarta. Q: He was alone when he stopped you? A: Yes, Sir. Q: What happened when your friend Abdul Karin (sic) Datolarta stopped you? A: When he stopped us, I immediately disembarked from the motor vehicle and shook hands with him. Q: He was the one who stopped you or you were the one who told the driver to stop? A: My friend. Q: You immediately recognized the face of that friend of yours? A: Not yet. Q: What else happened aside from shaking hands and greeting? A: He asked me where I was heading. Q: What was your answer? A: I told him that I am going back to Davao. DIESaC Q: What else did he tell you? A: He told me if he can also ride with us. Q: What did you tell him? A: I told him we were already three. Q: What happened next? A: Since I refused he asked me if I could bring his bag and he mentioned the name of that cousin of his in Tagum. Q: He mentioned the name? A: Yes, Merly. Q: What is the family name? A: He just mentioned Merly who is residing in Tagum. Q: Where in Tagum? A: Roxas, Tagum. Q: What did you do when he asked you to bring that bag to his cousin in Tagum? A: I asked him what was (sic) the contents? Q: What did he answer you? A: He answered clothes. Q: What did you do? A: Because were (sic) were in a hurry I slung it in (sic) my shoulder. Q: You did not become suspicious? A: No more because I trusted the person and I have an emergency to take (sic) that time. 44 Vinecario's account that in the evening of April 10, 1995, while he and his co-appellants were cruising along the highway, a person whom he failed to recognize but who turned out to be an acquaintance, Abdul Karim Datolarta, flagged down 45 the motorcycle, and as requested by Datolarta, he readily agreed to bring a backpack to Datolarta's cousin without checking its contents is incredible, contrary to human experience, and taxes credulity. Datolarta was not even apprehended nor presented at the trial, thus further eliciting serious doubts on Vinecario's tale. The defense of denial, like alibi, has invariably been viewed by the courts with disfavor for it can just as easily be concocted and is a common and standard defense ploy in most prosecutions of the Dangerous Drugs Act. 46 The categorical and consistent testimonies, and the positive identification by prosecution witnesses SPO1 Goc-ong and PO1 Carvajal, against whom no ill motive to falsely charge appellants was shown, must thus then prevail over the unconvincing alibi and unsubstantiated denial of appellants. As for the challenged finding by the trial court of conspiracy among appellants, the same fails. Conspiracy exists when two or more persons come to an agreement concerning the commission of a crime and decide to commit it. 47 Where the acts of the accused collectively and individually demonstrate the existence of a common design towards the accomplishment of the same unlawful purpose, conspiracy is evident, and all the perpetrators will be liable as principals. 48 To exempt himself from criminal liability, the conspirator must have performed an overt act to dissociate or detach himself from the unlawful plan to commit the crime. 49 In People v. Concepcion, 50 this Court held: . . . Proof of agreement need not rest on direct evidence as the same may be inferred from the conduct of the parties indicating a common understanding among them with respect to the commission of the offense. It is not necessary to show that two or more persons met together and entered into an explicit agreement setting out the details of an unlawful scheme or the details by which an illegal objective is to be carried out. It may be deduced from the mode and manner in which the offense was perpetrated or inferred from the acts of the accused evincing a joint or common purpose and design, concerted action and community of interest. In the case at bar, as established by the evidence, appellants connived in unlawfully transporting the subject marijuana. Roble, who was driving the motorcycle at Ulas, did not stop but instead sped away upon seeing the checkpoint in a clear attempt to avoid inspection by the police officers. When asked as to the contents of the backpack by SPO1 Goc-ong, appellants passed the same to one another, indicating that they knew its contents. These circumstances manifest appellants' concerted efforts and cooperation towards the attainment of their criminal objective. ITScHa Wates and Roble assail the credibility of prosecution witnesses SPO1 Goc-ong and PO1 Carvajal, they contending that these witnesses contradicted their testimonies-in-chief when they subsequently testified on rebuttal that appellants were not nervous or apprehensive at all when they were being inspected by the policemen. It bears noting, however, that the alleged conflicting observations of SPO1 Goc-ong and PO1 Carvajal referred to by Roble and Wates on their deportment pertain to different stages of the checkpoint inspection as a scrutiny of the records reveals. Thus, in his direct examination, SPO1 Goc-ong testified as follows: Q: You said you asked him what was (sic) the contents of that backpack, can you tell us why did you (sic) ask him? A: I asked about that because I observed them to be acting suspiciously as if they were afraid and different reactions (sic). Q: They were acting suspiciously? A: Yes. Q: That is what you observed in their faces? A: Yes, sir. 51 PO1 Carvajal, on cross-examination, echoed Goc-ong's observations on appellants' deportment upon returning to the checkpoint: Q: You said when these three (3) suspects riding the motorcycle returned and stopped you said you noticed one of them was nervous, did I get you right? A: Yes, sir. Q: Only one was nervous? A: All of them. Q: When you said they appeared to be nervous, could that mean that they were trembling? A: Yes, sir. Q: In fact they were pale, is that correct? A: Yes. Q: You noticed they were pale despite the fact that it was dark and it was 10:00 o'clock in the evening? A: There was light. Q: The place was well-lighted? A: Yes, sir. 52 On rebuttal, SPO1 Goc-ong stated that appellants were not anxious or apprehensive when he flagged them down as they crossed the checkpoint. 53 PO1 Carvajal, on the other hand, testified on rebuttal that Wates was not nervous as Vinecario's backpack was being opened. 54 As to the other alleged discrepancies pointed out by Wates and Roble, the following arguments of the Office of the Solicitor General, which are quoted with approval, should dispose of the same: It is incorrect to suggest that just because SPO1 Goc-ong testified that other vehicles passed through the checkpoint before the appellants arrived, the latter could not have sped away from the checkpoint. SPO1 Goc-ong did not give any testimony that other vehicles were still at the checkpoint at the time the appellants arrived. On the contrary, he testified there was no other vehicle ahead of the appellants at the checkpoint when the latter arrived on their motorcycle (TSN, June 17, 1999, p. 7). It is also incorrect to suggest that appellants may not have noticed the checkpoint just because SPO1 Goc-ong made no mention of using reflectorized objects at the checkpoint. As described earlier in his Brief, this witness explained that the checkpoint was visible because it had a sign board at the middle of the road that read, "COMELEC GUN BAN" (TSN, June 17, 1999, pp. 6 and 8). There is no way for appellants not to have noticed the checkpoint. 55 In fine, appellants' defenses fail in light of their clearly proven act of delivering or transporting marijuana. CHcESa The evidence shows that accused-appellant was apprehended in the act of delivering or transporting illegal drugs. "Transport" as used under the Dangerous Drugs Act is defined to mean: "to carry or convey from one place to another." When accused-appellant used his vehicle to convey the package containing marijuana to an unknown destination, his act was part of the process of transporting the said prohibited substance. Inherent in the crime of transporting the prohibited drug is the use of a motor vehicle. The very act of transporting a prohibited drug, like in the instant case, is a malum prohibitum since it is punished as an offense under a special law. The mere commission of the act constitutes the offense and is sufficient to validly charge and convict an individual committing the act, regardless of criminal intent. Since the appellant was caught transporting marijuana, the crime being mala prohibita, accused- appellant's intent, motive, or knowledge, thereof need not be shown. 56 (Underscoring supplied) A word on the penalty. As provided in Section 4 of the Dangerous Drugs Act, the penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall transport any prohibited drug. Section 20, Article IV of the same act provides that the penalty imposed in Section 4 shall be applied if the dangerous drug is, with respect to marijuana, 750 grams or more. In the case at bar, the marijuana involved weighed 1,700 grams. Since the law prescribes two indivisible penalties, a resort to Article 63 of the Revised Penal Code 57 is necessary. There being no mitigating nor aggravating circumstance that attended the commission of the offense, the lesser penalty of reclusion perpetua was properly imposed by the trial court. A fine of P500,000.00 should, however, been likewise imposed on the appellants in solidum in accordance with the law. WHEREFORE, the decision of the Regional Trial Court, Davao City, Branch 16, in Criminal Case No. 35233-95 finding appellants Victor Vinecario, Arnold Roble and Gerlyn Wates guilty beyond reasonable doubt of illegally transporting marijuana under Section 4, Article II of Republic Act No. 6425, as amended, is hereby AFFIRMED with MODIFICATION. As modified, appellants are sentenced to each suffer the penalty of reclusion perpetua and solidarily pay a fine of P500,000.00. SO ORDERED. Vitug, Sandoval-Gutierrez and Corona, JJ., concur. EN BANC [G.R. No. 81567. July 9, 1990.] IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA. MANOLITA O. UMIL, and NICANOR P. DURAL, FELICITAS V. SESE, petitioners, vs. FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO, BRIG. GEN. ALEXANDER AGUIRRE, respondents. [G.R. Nos. 84581-82. July 9, 1990.] AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners, vs. GEN. RENATO DE VILLA and GEN. RAMON MONTANO, respondents. [G.R. Nos. 84583-84. July 9, 1990.] IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T. ANONUEVO and RAMON CASIPLE. DOMINGO T. ANONUEVO and RAMON CASIPLE, petitioners, vs. HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARINO, LT. COL. REX D. PIAD, T/ SGT. CONRADO DE TORRES, S/SGT. ARNOLD DURIAN, and Commanding Officer, PC-INP Detention Center, Camp Crame, Quezon City, respondents. [G.R. No. 83162. July 9, 1990.] IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A. OCAYA AND DANNY RIVERA. VIRGILIO A. OCAYA, petitioner, vs. BRIG. GEN. ALEXANDER AGUIRRE, COL., HERCULES CATALUNA, COL. NESTOR MARIANO, respondents. [G.R. No. 85727. July 9, 1990.] IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF: DEOGRACIAS ESPIRITU, petitioner, vs. BRIG. GEN. ALFREDO S. LIM, COL. RICARDO REYES, respondents. [G.R. No. 86332. July 9, 1990.] IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B. NAZARENO, ALFREDO NAZARENO, petitioner, vs. THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION, Muntinglupa, Metro Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and P/SGT. MAURO AROJADO, respondents. Efren H. Mercado for petitioners in G.R. No. 81567. Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82. Ramon S. Esguerra Barbara Anne C. Migallos and Agripino G. Morga for petitioners in G.R. Nos. 84583-84. Efren H. Mercado for petitioner in G.R. No. 83162. Banzuela, Flores, Miralles, Raneses, Sy, Taquio & Associates for petitioner in G.R. No. 85727. Josefina G. Campbell-Castillo for petitioners in G.R. No. 86332. The Solicitor General for the respondents. D E C I S I O N PER CURIAM p: These are eight (8) petitions for habeas corpus filed before the Court, which have been consolidated because of the similarity of issues raised, praying for the issuance of the writ of habeas corpus, ordering the respective respondents to produce the bodies of the persons named therein and to explain why they should not be set at liberty without further delay. In their respective Returns, the respondents uniformly assert that the privilege of the writ of habeas corpus is not available to the petitioners as they have been legally arrested and are detained by virtue of valid informations filed in court against them. LexLib The petitioners counter that their detention is unlawful as their arrests were made without warrant and, that no preliminary investigation was first conducted, so that the informations filed against them are null and void. The Court has carefully reviewed the contentions of the parties in their respective pleadings, and it finds that the persons detained have not been illegally arrested nor arbitrarily deprived of their constitutional right to liberty, and that the circumstances attending these cases do not warrant their release on habeas corpus. The arrest of a person without a warrant of arrest or previous complaint is recognized in law. The occasions or instances when such an arrest may be effected are clearly spelled out in Section 5, Rule 113 of the Rules of Court, as amended, which provides: "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 en offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7." An arrest without a warrant of arrest, under Section 5 paragraphs (a) and (b) of Rule 113 of the Rules of Court, as amended, is justified when the person arrested is caught in flagranti delicto, viz., in the act of committing an offense; or when an offense has just been committed and the person making the arrest has personal knowledge of the facts indicating that the person arrested has committed it. The rationale behind lawful arrests, without warrant, was stated by this Court in the case of People vs. Kagui Malasugui 1 thus: "To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many instances." The record of the instant cases would show that the persons in whose behalf these petitions for habeas corpus have been filed, had freshly committed or were actually committing an offense, when apprehended, so that their arrests without a warrant were clearly justified, and that they are, further, detained by virtue of valid informations filed against them in court. A brief narration of the facts and events surrounding each of the eight (8) petitions is in order. I In G.R. No. 81567 (Umil vs. Ramos), the record shows that, on 1 February 1988, the Regional Intelligence Operations Unit of the Capital Command (RIOU-CAPCOM) received confidential information about a member of the NPA Sparrow Unit (liquidation squad) being treated for a gunshot wound at the St. Agnes Hospital in Roosevelt Avenue, Quezon City. Upon verification, it was found that the wounded person, who was listed in the hospital records as Ronnie Javelon, is actually Rolando Dural, a member of the NPA liquidation squad, responsible for the killing of two (2) CAPCOM soldiers the day before, or on 31 January 1988, in Macanining Street, Bagong Barrio, Caloocan City. In view of this verification, Rolando Dural was transferred to the Regional Medical Services of the CAPCOM, for security reasons. While confined thereat, or on 4 February 1988, Rolando Dural was positively identified by eyewitnesses as the gunman who went on top of the hood of the CAPCOM mobile patrol car, and fired at the two (2) CAPCOM soldiers seated inside the car identified as T/Sgt. Carlos Pabon and CIC Renato Manligot. As a consequence of this positive identification, Rolando Dural was referred to the Caloocan City Fiscal who conducted an inquest and thereafter filed with the Regional Trial Court of Caloocan City an information charging Rolando Dural alias Ronnie Javelon with the crime of "Double Murder with Assault Upon Agents of Persons in Authority." The case was docketed therein as Criminal Case No. C- 30112 and no bail was recommended. On 15 February 1988, the information was amended to include, as defendant, Bernardo Itucal, Jr. who, at the filing of the original information, was still unidentified. cdphil Meanwhile, on 6 February 1988, a petition for habeas corpus was filed with this Court on behalf of Roberto Umil, Rolando Dural, and Renato Villanueva. The Court issued the writ of habeas corpus on 9 February 1988 and the respondents filed a Return of the Writ on 12 February 1988. Thereafter, the parties were heard on 15 February 1988. On 26 February 1988, however, Roberto Umil and Renato Villanueva posted bail before the Regional Trial Court of Pasay City where charges for violation of the Anti-Subversion Act had been filed against them, and they were accordingly released. The petition for habeas corpus, insofar as Umil and Villanueva are concerned, is now moot and academic and is accordingly dismissed, since the writ of habeas corpus does not lie in favor of an accused in a criminal case who has been released on bail. 2 As to Rolando Dural, it clearly appears that he was not arrested while in the act of shooting the two (2) CAPCOM soldiers aforementioned. Nor was he arrested just after the commission of the said offense for his arrest came a day after the said shooting incident. Seemingly, his arrest without warrant is unjustified. However, Rolando Dural was arrested for being a member of the New Peoples Army (NPA), an outlawed subversive organization. Subversion being a continuing offense, the arrest of Rolando Dural without warrant is justified as it can be said that he was committing an offense when arrested. The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct assaults against the State and are in the nature of continuing crimes. As stated by the Court in an earlier case: "From the facts as above-narrated, the claim of the petitioners that they were initially arrested illegally is, therefore, without basis in law and in fact. The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance, on the occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside from their essentially involving a massive conspiracy of nationwide magnitude. Clearly then, the arrest of the herein detainees was well within the bounds of the law and existing jurisprudence in our jurisdiction. 2. The arrest of persons involved in the rebellion whether as its fighting armed elements, or for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which requires the determination by a judge of the existence of probable cause before the issuance of a judicial warrant of arrest and the granting of bail if the offense is bailable. Obviously, the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against government forces, or any other milder acts but equally in pursuance of the rebellious movement. The arrest or capture is thus impelled by the exigencies of the situation that involves the very survival of society and its government and duly constituted authorities. If killing and other acts of violence against the rebels find justification in the exigencies of armed hostilities which is of the essence of waging a rebellion or insurrection, most assuredly so in case of invasion, merely seizing their persons and detaining them while any of these contingencies continue cannot be less justified. . . ." 3 The record, moreover, shows that the criminal case filed against Rolando Dural and Bernardo Itucal, Jr. for "Double Murder, etc." was tried in the court below and at the conclusion thereof, or on 17 August 1988, Rolando Dural and Bernardo Itucal, Jr. were found guilty of the charge and sentenced accordingly. Rolando Dural is now serving the sentence imposed upon him by the trial court. Thus, the writ of habeas corpus is no longer available to him. For, as held in the early case of U.S. vs. Wilson: 4 "In this case, whatever may be said about the manner of his arrest, the fact remains that the defendant was actually in court in the custody of the law on March 29, when a complaint sufficient in form and substance was read to him. To this he pleaded not guilty. The trial followed, in which, and in the judgment of guilty pronounced by the court, we find no error. Whether, if there were irregularities in bringing him personally before the court, he could have been released on a writ of habeas corpus or now has a civil action for damages against the person who arrested him we need not inquire. It is enough to say that such irregularities are not sufficient to set aside a valid judgment rendered upon a sufficient complaint and after a trial free from error." II In G.R. Nos. 84581-82 (Roque vs. De Villa), the arrest of Amelia Roque and Wilfredo Buenaobra, without warrant, is also justified. When apprehended at the house of Renato Constantino in Marikina Heights, Marikina, Metro Manila, Wilfredo Buenaobra admitted that he was an NPA courier and he had with him letters to Renato Constantino and other members of the rebel group. Amelia Roque, upon the other hand, was a member of the National United Front Commission, in charge of finance, and admitted ownership of subversive documents found in the house of her sister in Caloocan City. She was also in possession of ammunition and a fragmentation grenade for which she had no permit or authority to possess. LLpr The record of these two (2) cases shows that on 27 June 1988, one Rogelio Ramos y Ibanes, a member of the NPA, who had surrendered to the military authorities, told military agents about the operations of the Communist Party of the Philippines (CPP) and the New Peoples Army (NPA) in Metro Manila. He identified some of his former comrades as "Ka Mong", a staff member of the Communications and Transportation Bureau; "Ka Nelia" a staff member in charge of finance; "Ka Miller", an NPA courier from Sorsogon and Lopez, Quezon; "Ka Ted", and "Ka Totoy". He also pointed to a certain house occupied by Renato Constantino located in the Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro Manila, which is used as a safehouse of the National United Front Commission (NUFC) of the CPP-NPA. In view of these revelations, the Constantino house was placed under military surveillance and on 12 August 1988, pursuant to a search warrant issued by Judge Eutropio Migrino of the Regional Trial Court of Pasig, a search of the house was conducted at about 5:00 o'clock in the afternoon, by a combined team of the Criminal Investigation Service, National Capital District (CIS-NCD) and the Constabulary Security Group (CSG). In the course of the search, the following articles were found and taken under proper receipt: a) One (1 ) Colt M1 6A1 long rifle with defaced serial number; b) One (1) Cal. .380 ACT/9mm Model PPK 8 SN: 260577 & 2605778; c) Two (2) fragmentation hand grenades; d) Fifty-six (56) live ammunition for Cal. 5.56mm; e) Five (5) live ammunition for Cal. .380; f) One (1) ICOM VHF FM Radio Transceiver SN: 14903 g) One (1) Regulated power supply 220V AC; h) One (1) Antennae (adjustable); i) One (1 ) Speaker with cord ALEXAR; j) Voluminous Subversive documents. When confronted, Renato Constantino could not produce any permit or authority to possess the firearms, ammunition, radio and other communications equipment. Hence, he was brought to the CIS Headquarters for investigation. When questioned, he refused to give a written statement, although he admitted that he was a staff member of the executive committee of the NUFC and a ranking member of the International Department of the Communist Party of the Philippines (CPP). At about 8:00 o'clock in the evening of the same day (12 August 1988), Wilfredo Buenaobra arrived at the house of Renato Constantino in the Villaluz Compound. When accosted, he readily admitted to the military agents that he is a regular member of the CPP/NPA and that he went to the place to deliver letters to "Ka Mong", referring to Renato Constantino, and other members of the rebel group. On further questioning, he also admitted that he is known as "Ka Miller" and that he was from Barangay San Pedro, Lopez, Quezon. Among the items taken from him were the following: (1) Handwritten letter addressed to "Ka Bing & Co. from A & Co." dated August 11, 1988; (2) Handwritten letter addressed to "ROD from VIC (Schell datre)" dated August 11, 1988; (3) Handwritten letter addressed to "Suzie" from "Vic", dated August 11, 1988. Also found in Buenaobra's possession was a piece of paper containing a written but jumbled telephone number of Florida M. Roque, sister of Amelia Roque alias "Ka Nelia", at 69 Geronimo St., Caloocan City. Acting on the lead provided as to the whereabouts of Amelia Roque, the military agents went to the given address the next day (13 August 1988). They arrived at the place at about 11:00 o'clock in the morning. After identifying themselves as military agents and after seeking permission to search the place, which was granted, the military agents conducted a search in the presence of the occupants of the house and the barangay captain of the place, one Jesus D. Olba. The military agents found the place to be another safehouse of the NUFC/CPP. They found ledgers, journals, vouchers, bank deposit books, folders, computer diskettes, and subversive documents as well as live ammunition for a .38 SPL Winchester, 11 rounds of live ammunition for a cal. .45, 19 rounds of live ammunition for an M16 Rifle, and a fragmentation grenade. As a result, Amelia Roque and the other occupants of the house were brought to the PC-CIS Headquarters at Camp Crame, Quezon City, for investigation. Amelia Roque admitted to the investigators that the voluminous documents belonged to her and that the other occupants of the house had no knowledge of them. As a result, the said other occupants of the house were released from custody. On 15 August 1988, Amelia Roque was brought to the Caloocan City Fiscal for inquest after which an information charging her with violation of PD 1866 was filed with the Regional Trial Court of Caloocan City. The case is docketed therein as Criminal Case No. C- 1196. Another information for violation of the Anti-Subversion Act was filed against Amelia Roque before the Metropolitan Trial Court of Caloocan City, which is docketed therein as Criminal Case No. C- 150458. An information for violation of the Anti-Subversion Act was filed against Wilfredo Buenaobra before the Metropolitan Trial Court of Marikina, Metro Manila. The case is docketed therein as Criminal Case No. 23715. Bail was set at P4,000.00. On 24 August 1988, a petition for habeas corpus was filed before this Court on behalf of Amelia Roque and Wilfredo Buenaobra. At the hearing of the case, however, Wilfredo Buenaobra manifested his desire to stay in the PC-INP Stockade at Camp Crame, Quezon City. Accordingly, the petition for habeas corpus filed on his behalf is now moot and academic. Only the petition of Amelia Roque remains for resolution. LLjur The contention of respondents that petitioners Roque and Buenaobra are officers and or members of the National United Front Commission (NUFC) of the CPP was not controverted or traversed by said petitioners. The contention must be deemed admitted. 5 As officers and/ or members of the NUFC-CPP, their arrest, without warrant, was justified for the same reasons earlier stated vis-a-vis Rolando Dural. The arrest without warrant of Roque was additionally justified as she was, at the time of apprehension, in possession of ammunitions without license to possess them. III In G.R. Nos. 84583-84 (Anonuevo vs. Ramos), the arrest of Domingo Anonuevo and Ramon Casiple, without warrant, is also justified under the rules. Both are admittedly members of the standing committee of the NUFC and, when apprehended in the house of Renato Constantino, they had a bag containing subversive materials, and both carried firearms and ammunition for which they had no license to possess or carry. The record of these two (2) cases shows that at about 7:30 o'clock in the evening of 13 August 1988, Domingo T. Anonuevo and Ramon Casiple arrived at the house of Renato Constantino at Marikina Heights, Marikina, which was still under surveillance by military agents. The military agents noticed bulging objects on their waist lines. When frisked, the agents found them to be loaded guns. Anonuevo and Casiple were asked to show their permit or license to possess or carry firearms and ammunition, but they could not produce any. Hence, they were brought to PC Headquarters for investigation. Found in their possession were the following articles: a) Voluminous subversive documents b) One (1) Cal. 7.65 MOD 83 2C Pistol SN: 001412 with one (1) magazine for Cal. 7.65 containing ten (10) live ammunition of same caliber; c) One (1) Cal. 7.65 Pietro Barreta SN; A18868 last digit tampered with one (1) magazine containing five (5) live ammunition of same caliber. At the PC Stockade, Domingo Anonuevo was identified as "KaTed", and Ramon Casiple as "Ka Totoy" of the CPP, by their comrades who had previously surrendered to the military. On 15 August 1988, the record of the investigation and other documentary evidence were forwarded to the Provincial Fiscal at Pasig, Metro Manila, who conducted an inquest, after which Domingo Anonuevo and Ramon Casiple were charged with violation of Presidential Decree No. 1866 before the Regional Trial Court of Pasig, Metro Manila. The cases are docketed therein as Criminal Cases Nos. 74386 and 74387, respectively. No bail was recommended. On 24 August 1988, a petition for habeas corpus was filed with this Court on behalf of Domingo Anonuevo and Ramon Casiple, alleging that the said Anonuevo and Casiple were unlawfully arrested without a warrant and that the informations filed against them are null and void for having been filed without prior hearing and preliminary investigation. On 30 August 1988, the Court issued the writ of habeas corpus, and after the respondents had filed a Return of the Writ, the parties were heard. The petitioners' (Anonuevo and Casiple) claim that they were unlawfully arrested because there was no previous warrant of arrest, is without merit. The record shows that Domingo Anonuevo and Ramon Casiple were carrying unlicensed firearms and ammunition in their person when they were apprehended. There is also no merit in the contention that the informations filed against them are null and void for want of a preliminary investigation. The filing of an information, without a preliminary investigation having been first conducted, is sanctioned by the Rules. Sec. 7, Rule 112 of the Rules of Court, as amended, reads: "Sec. 7. When accused lawfully arrested without a warrant. When a person is lawfully arrested without a warrant for an offense cognizable by the Regional Trial Court the complaint or information may be filed by the offended party, peace officer or fiscal without a preliminary investigation having been first conducted, on the basis of the affidavit of the offended party or arresting officer or person. However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of non-availability of a lawyer, a responsible person of his choice. Notwithstanding such waiver, he may apply for bail as provided in the corresponding rule and the investigation must be terminated within fifteen (15) days from its inception. If the case has been filed in court without a preliminary investigation having been first conducted, the accused may within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule." The petitioners Domingo Anonuevo and Ramon Casiple, however, refused to sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended. In the informations filed against them, the prosecutor made identical certifications, as follows: "This is to certify that the accused has been charged in accordance with Sec. 7, Rule 112 of the 1985 Rules on Criminal Procedure, that no preliminary investigation was conducted because the accused has not made and signed a waiver of the provisions of Art. 125 of the Revised Penal Code, as amended; that based on the evidence presented, there is reasonable ground to believe that the crime has been committed, and that the accused is probably guilty thereof." Nor did petitioners ask for a preliminary investigation after the informations had been filed against them in court. Petitioners cannot now claim that they have been deprived of their constitutional right to due process. IV In G.R. No. 83162 (Ocaya vs. Aguirre), the arrest without warrant, of Vicky Ocaya is justified under the Rules, since she had with her an unlicensed ammunition when she was arrested. The record of this case shows that on 12 May 1988, agents of the PC Intelligence and Investigation of the Rizal PC-INP Command, armed with a search warrant issued by Judge Eutropio Migrino of the Regional Trial Court of Pasig, Metro Manila, conducted a search of a house located at Block 19, Phase II, Marikina Green Heights, Marikina, Metro Manila, believed to be occupied by Benito Tiamson, head of the CPP-NPA. In the course of the search, Vicky Ocaya armed in a car driven by Danny Rivera. Subversive documents and several rounds of ammunition for a .45 cal. pistol were found in the car of Vicky Ocaya. As a result, Vicky Ocaya and Danny Rivera were brought to the PC Headquarters for investigation. When Vicky Ocaya could not produce any permit or authorization to possess the ammunition, an information charging her with violation of PD 1866 was filed with the Regional Trial Court of Pasig, Metro Manila. The case is docketed therein as Criminal Case No. 73447. Danny Rivera, on the other hand, was released from custody. On 17 May 1988, a petition for habeas corpus was filed, with this Court on behalf of Vicky Ocaya and Danny Rivera. It was alleged therein that Vicky Ocaya was illegally arrested and detained, and denied the right to a preliminary investigation. It would appear, however, that Vicky Ocaya was arrested in flagranti delicto so that her arrest without a warrant is justified. No preliminary investigation was conducted because she was arrested without a warrant and she refused to waive the provisions of Article 125 of the Revised Penal Code, pursuant to Sec. 7, Rule 112 of the Rules of Court, as amended. V The petitioners Vicky Ocaya, Domingo Anonuevo, Ramon Casiple, and Amelia Roque claim that the firearms, ammunition and subversive documents alleged to have been found in their possession when they were arrested, did not belong to them, but were "planted" by the military agents to justify their illegal arrest. The petitioners, however, have not introduced any evidence to support their aforesaid claim. On the other hand, no evil motive or ill- will on the part of the arresting officers that would cause the said arresting officers in these cases to accuse the petitioners falsely, has been shown. Besides, the arresting officers in these cases do not appear to be seekers of glory and bounty hunters for, as counsel for the petitioners Anonuevo and Casiple say, "there is absolutely nothing in the evidence submitted during the inquest that petitioners are on the 'AFP Order of Battle with a reward of P15,000.00 on each on their heads.' " 6 On the other hand, as pointed out by the Solicitor General, the arrest of the petitioners is not a product of a witch hunt or a fishing expedition, but the result of an in-depth surveillance of NPA safehouses pointed to by no less than former comrades of the petitioners in the rebel movement. LexLib The Solicitor General, in his Consolidated Memorandum, aptly observes: ". . . To reiterate, the focal point in the case of petitioners Roque, Buenaobra, Anonuevo and Casiple, was the lawful search and seizure conducted by the military at the residence of Renato Constantino at Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro Manila. The raid at Constantino's residence, was not a witch hunting or fishing expedition on the part of the military. It was a result of an in-depth military surveillance coupled with the leads provided by former members of the underground subversive organizations. That raid produced positive results. To date, nobody has disputed the fact that the residence of Constantino when raided yielded communication equipment, firearms and ammunitions, as well as subversive documents. The military agents working on the information provided by Constantino that other members of his group were coming to his place, reasonably conducted a 'stake-out' operation whereby some members of the raiding team were left behind the place. True enough, barely two hours after the raid and Constantino's arrest, petitioner Buenaobra arrived at Constantino's residence. He acted suspiciously and when frisked and searched by the military authorities, found in his person were letters. They are no ordinary letters, as even a cursory reading would show. Not only that, Buenaobra admitted that he is a NPA courier and was there to deliver the letters to Constantino. Subsequently, less than twenty four hours after the arrest of Constantino and Buenaobra, petitioners Anonuevo and Casiple arrived at Constantino's place. Would it be unreasonable for the military agents to believe that petitioners Anonuevo and Casiple are among those expected to visit Constantino's residence considering that Constantino's information was true, in that Buenaobra did come to that place? Was it unreasonable under the circumstances, on the part of the military agents, not to frisk and search anyone who should visit the residence of Constantino, such as petitioners Anonuevo and Casiple? Must this Honorable Court yield to Anonuevo and Casiple's flimsy and bare assertion that they went to visit Constantino, who was to leave for Saudi Arabia on the day they were arrested thereat?. As to petitioner Roque, was it unreasonable for the military authorities to effect her arrest without warrant considering that it was Buenaobra who provided the leads on her identity? It cannot be denied that Buenaobra had connection with Roque. Because the former has the phone number of the latter. Why the necessity of jumbling Roque's telephone number as written on a piece of paper taken from Buenaobra's possession? Petitioners Roque and Buenaobra have not offered any plausible reason so far. In all the above incidents, respondents maintain that they acted reasonably, under the time, place and circumstances of the events in question, especially considering that at the time of petitioners' arrest, incriminatory evidence, i.e, firearms, ammunitions and/or subversive documents were found in their possession. Petitioners, when arrested, were neither taking their snacks nor innocently visiting a camp, but were arrested in such time, place and circumstances, from which one can reasonably conclude that they were up to a sinister plot, involving utmost secrecy and comprehensive conspiracy.". VI In G.R. No. 85727 (Espiritu vs. Lim), the release on habeas corpus of the petitioner Deogracias Espiritu, who is detained by virtue of an Information for Violation of Article 142 of the Revised Penal Code (Inciting to Sedition) filed with the Regional Trial Court of Manila, is similarly not warranted. The record of the case shows that the said petitioner is the General Secretary of the Pinagkaisahang Samahan ng Tsuper at Operators Nationwide (PISTON), an association of drivers and operators of public service vehicles in the Philippines, organized for their mutual aid and protection. cdll Petitioner claims that at about 5:00 o'clock in the morning of 23 November 1988, while he was sleeping in his home located at 363 Valencia St., Sta. Mesa, Manila, he was awakened by his sister Maria Paz Lalic who told him that a group of persons wanted to hire his jeepney. When he went down to talk to them, he was immediately put under arrest. When he asked for the warrant of arrest arrest, the men, headed by Col. Ricardo Reyes, bodily lifted him and placed him in their owner-type jeepney. He demanded that his sister, Maria Paz Lalic, be allowed to accompany him, but the men did not accede to his request and hurriedly sped away. He was brought to Police Station No. 8 of the Western Police District at Blumentritt, Manila where he was interrogated and detained. Then, at about 9:00 o'clock of the same morning, he was brought before the respondent Lim and, there and then, the said respondent ordered his arrest and detention. He was thereafter brought to the General Assignment Section, Investigation Division of the Western Police District under Police Capt. Cresenciano A. Cabasal where he was detained, restrained and deprived of his liberty. 7 The respondents claim however, that the detention of the petitioner is justified in view of the Information filed against him before the Regional Trial Court of Manila, docketed therein as Criminal Case No. 88-683-85, charging him with violation of Art. 142 of the Revised Penal Code (Inciting to Sedition). The respondents also claim that the petitioner was lawfully arrested without a judicial warrant of arrest since petitioner when arrested had in fact just committed an offense in that in the afternoon of 22 November 1988, during a press conference at the National Press Club. "Deogracias Espiritu through tri-media was heard urging all drivers and operators to go on nationwide strike on November 23, 1988, to force the government to give in to their demands to lower the prices of spare parts, commodities, water and the immediate release from detention of the president of the PISTON (Pinag-isang Samahan ng Tsuper Operators Nationwide). Further, we heard Deogracias Espiritu taking the place of PISTON president Medardo Roda and also announced the formation of the Alliance Drivers Association to go on nationwide strike on November 23, 1988." 8 Policemen waited for petitioner outside the National Press Club in order to investigate him, but he gave the lawmen the slip. 9 He was next seen at about 5:00 o'clock that afternoon at a gathering of drivers and sympathizers at the corner of Magsaysay Blvd. and Valencia Street, Sta. Mesa, Manila where he was heard to say: "Bukas tuloy ang welga natin, sumagot na ang Cebu at Bicol na kasali sila, at hindi tayo titigil hanggang hindi binibigay ng gobyerno ni Cory ang gusto nating pagbaba ng halaga ng spare parts, bilihin at ang pagpapalaya sa ating pinuno na si Ka Roda hanggang sa magkagulo na." 10 (emphasis supplied). The police finally caught up with the petitioner on 23 November 1988. He was invited for questioning and brought to police headquarters after which an Information for violation of Art. 142 of the Revised Penal Code was filed against him before the Regional Trial Court of Manila. 11 Since the arrest of the petitioner without a warrant was in accordance with the provisions of Rule 113, Sec. 5(b) of the Rules of Court and that the petitioner is detained by virtue of a valid information filed with the competent court, he may not be released on habeas corpus. He may, however be released upon posting bail as recommended. However, we find the amount of the recommended bail (P60,000.00) excessive and we reduce it to P10,000.00 only. VII In G.R. No. 86332 (Nazareno vs. Station Commander), we also find no merit in the submission of Narciso Nazareno that he was illegally arrested and is unlawfully detained. The record of this case shows that at about 8:30 o'clock in the morning of 14 December 1988, one Romulo Bunye II was killed by a group of men near the corner of T. Molina and Mendiola Streets in Alabang, Muntinglupa, Metro Manila. One of the suspects in the killing was Ramil Regala who was arrested by the police on 28 December 1988. Upon questioning, Regala pointed to Narciso Nazareno as one of his companions in the killing of the said Romulo Bunye II. In view thereof, the police officers, without warrant, picked up Narciso Nazareno and brought him to the police headquarters for questioning. Obviously, the evidence of petitioner's guilt is strong because on 3 January 1989, an information charging Narciso Nazareno, Ramil Regala, and two (2) others, with the killing of Romulo Bunye II was filed with the Regional Trial Court of Makati, Metro Manila. The case is docketed therein as Criminal Case No. 731. cdphil On 7 January 1989, Narciso Nazareno filed a motion to post bail, but the motion was denied by the trial court in an order dated 10 January 1989, even as the motion to post bail, earlier filed by his co-accused, Manuel Laureaga, was granted by the same trial court. On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of Narciso Nazareno and on 13 January 1989, the Court issued the writ of habeas corpus, returnable to the Presiding Judge of the Regional Trial Court of Bian, Laguna, Branch 24, ordering said court to hear the case on 30 January 1989 and thereafter resolve the petition. At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the Regional Trial Court of Bian, Laguna issued a resolution denying the petition for habeas corpus, it appearing that the said Narciso Nazareno is in the custody of the respondents by reason of an information filed against him with the Regional Trial Court of Makati, Metro Manila which had taken cognizance of said case and had, in fact, denied the motion for bail filed by said Narciso Nazareno (presumably because of the strength of the evidence against him). The findings of the Presiding Judge of the Regional Trial Court of Bian, Laguna are based upon the facts and the law. Consequently, we will not disturb the same. Evidently, the arrest of Nazareno was effected by the police without warrant pursuant to Sec. 5 (b), Rule 113, Rules of Court after he was positively implicated by his co- accused Ramil Regala in the killing of Romulo Bunye II; and after investigation by the police authorities. As held in People vs. Ancheta: 12 "The obligation of an agent of authority to make an arrest by reason of a crime, does not presuppose as a necessary requisite for the fulfillment thereof, the indubitable existence of a crime. For the detention to be perfectly legal, it is sufficient that the agent or person in authority making the arrest has reasonably sufficient grounds to believe the existence of an act having the characteristics of a crime and that the same grounds exist to believe that the person sought to be detained participated therein." VIII It is to be noted that, in all the petitions here considered, criminal charges have been filed in the proper courts against the petitioners. The rule is, that if a person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge, and that the court or judge had jurisdiction to issue the process or make the order, or if such person is charged before any court, the writ of habeas corpus will not be allowed. Section 4, Rule 102, Rules of Court, as amended is quite explicit in providing that: "Sec. 4. When writ is not allowed or discharge authorized. - If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines or of a person suffering imprisonment under lawful judgment." (emphasis supplied) At this point, we refer to petitioners' plea for the Court to re-examine and, thereafter, abandon its pronouncement in Ilagan vs. Enrile, 13 that a writ of habeas corpus is no longer available after an information is filed against the person detained and a warrant of arrest or an order of commitment is issued by the court where said information has been filed. 14 The petitioners claim that the said ruling, which was handed down during the past dictatorial regime to enforce and strengthen said regime, has no place under the present democratic dispensation and collides with the basic, fundamental, and constitutional rights of the people. Petitioners point out that the said doctrine makes possible the arrest and detention of innocent persons despite lack of evidence against them, and, most often, it is only after a petition for habeas corpus is filed before the court that the military authorities file the criminal information in the courts of law to be able to hide behind the protective mantle of the said doctrine. This, petitioners assert, stands as an obstacle to the freedom and liberty of the people and permits lawless and arbitrary State action. We find, however, no compelling reason to abandon the said doctrine. It is based upon express provision of the Rules of Court and the exigencies served by the law. The fears expressed by the petitioners are not really unremediable. As the Court sees it, re-examination or reappraisal, with a view to its abandonment, of the Ilagan case doctrine is not the answer. The answer and the better practice would be, not to limit the function of habeas corpus to a mere inquiry as to whether or not the court which issued the process, judgment or order of commitment or before whom the detained person is charged, had jurisdiction or not to issue the process, judgment or order or to take cognizance of the case, but rather, as the Court itself states in Morales, Jr. vs. Enrile, 15 "in all petitions for habeas corpus the court must inquire into every phase and aspect of petitioner's detention from the moment petitioner was taken into custody up to the moment the court passes upon the merits of the petition;" and "only after such a scrutiny can the court satisfy itself that the due process clause of our Constitution has in fact been satisfied." This is exactly what the Court has done in the petitions at bar. This is what should henceforth be done in all future cases of habeas corpus. In short, all cases involving deprivation of individual liberty should be promptly brought to the courts for their immediate scrutiny and disposition. LLpr WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No. 85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional liberty is hereby ordered reduced from P60,000.00 to P10,000.00. No costs. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Gancayco, Padilla, Bidin, Grio-Aquino, Medialdea and Regalado, JJ., concur. THIRD DIVISION [G.R. No. 93239. March 18, 1991.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDISON SUCRO, accused-appellant. The Solicitor General for plaintiff-appellee. Fidencio S. Raz accused-appellant. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT A WARRANT; WHEN LAWFUL. Section 5, Rule 113 of the Rules on Criminal Procedure provides for the instances where arrest without warrant is considered lawful. The rules states: "Arrest without warrant, when lawful. A peace officer or 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; (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." 2. ID.; ID.; ID.; AN OFFENSE COMMITTED IN THE PRESENCE OR WITHIN THE VIEW OF AN OFFICER, CONSTRUED. An offense is committed in the presence or within the view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or hears the disturbances created thereby and proceeds at once to the scene thereof (U.S. v. Fortaleza, 12 Phil. 472 [1909]; and U.S. v. Samonte, 16 Phil. 516 [1910]). 3. ID.; ID.; ID.; PERSONAL KNOWLEDGE OF ACTUAL COMMISSION OF CRIME. The court earlier indicated in the case of People v. Bati (G.R. No. 87429, August 27, 1990) that police officers have personal knowledge of the actual commission of the crime when it had earlier conducted surveillance activities of the accused. 4. ID.; ID.; SEARCHES AND SEIZURES, AS A GENERAL RULE MUST BE SUPPORTED BY A VALID WARRANT; EXCEPTION. That searches and seizures must be supported by a valid warrant is not an absolute rule (Manipon, Jr. v. Sandiganbayan, 143 SCRA 267 [1986]). Among the exceptions granted by law is a search incidental to a lawful arrest under Sec. 12, Rule 126 of the Rules on Criminal Procedure, which provides that a person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant. (People v. Castiller, G.R. No. 87783, August 6, 1990) 5. ID.; EVIDENCE; FINDINGS OF FACT OF THE TRIAL COURT, GENERALLY ENTITLED TO GREAT WEIGHT. Time and again it has been held that the findings of the trial court are entitled to great weight and should not be disturbed on appeal unless it is shown that the trial court had overlooked certain facts of weight and importance, it being acknowledged that the court below, having seen and heard the witnesses during the trial, is in a better position to evaluate their testimonies (People v. Umali, et al., G.R. No. 84450, February 4, 1991 citing People v. Alvarez, 163 SCRA 745 [1988]; People v. Dorado, 30 SCRA 53 [1969]; and People v. Espejo, 36 SCRA 400 [1970]). 6. ID.; ID.; BURDEN OF PROOF AND PRESUMPTIONS; PRESUMPTION THAT POLICE OFFICERS PERFORM THEIR DUTIES REGULARLY; APPLIED IN CASE AT BAR. There is nothing in the record to suggest that the police officers were compelled by any motive than to accomplish their mission to capture a drug pusher in the execution of the crime, the presumption being that police officers perform their duties regularly in the absence of any evidence to the contrary (Rule 131, Sec. 3(m), Revised Rules on Evidence; People v. Castiller, supra citing People v. Natipravat, 145 SCRA 483 [1986]). 7. ID.; ID.; CREDIBILITY; ALIBI; UNAVAILING IN THE FACE OF POSITIVE IDENTIFICATION. In contrast to the evidence presented by the prosecution, accused-appellant's defense is alibi which is unavailing considering that he was positively identified by Macabante to be the person from whom he bought marijuana. 8. ID.; ID.; WEIGHT AND SUFFICIENCY; MERE DENIALS CANNOT PREVAIL OVER POSITIVE IDENTIFICATION. It is well-settled that mere denials cannot prevail against the positive identification of the appellant as the seller of the prohibited substances. (People v. Khan, 161 SCRA 406 [1988]; and People v. Paco, 170 SCRA 681 [1989]). D E C I S I O N GUTIERREZ, JR., J p: Edison Sucro was charged with and convicted of violation of Section 4, Article II of the Dangerous Drugs Act, under an Information which reads: "That on or about the 21st day of March, 1989, in the evening, in the Poblacion, Municipality of Kalibo, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, acting as a pusher or broker in the business of selling, administering, delivery, giving away to another and - or distributing prohibited drugs, did then and there wilfully, unlawfully and feloniously and without authority of law have in his possession and control nineteen (19) pieces of marijuana cigarette sticks and four (4) tea bags of dried marijuana leaves which were confiscated from him by the police authorities of Kalibo, Aklan, shortly after having sold one tea bag of dried marijuana leaves to a customer." (Rollo, p. 9) Upon arraignment, the accused-appellant, assisted by counsel, entered a plea of "not guilty" to the offense charged. Trial ensued and a judgment of conviction was rendered, the pertinent portion of which reads: "WHEREFORE, judgment is rendered finding the accused Edison Sucro guilty of the sale of prohibited drug under Section 4, Article II of the Dangerous Drug Act, as amended, and sentencing him to suffer the penalty of life imprisonment, and pay a fine of P20,000, and costs. He shall be entitled to full credit in the service of his sentence with the period for which he has undergone preventive imprisonment to the date of promulgation of this judgment. All the items of marijuana confiscated in this case are declared forfeited in favor of the State." (Rollo, p. 41) From the foregoing judgment of conviction, accused-appellant interposes this appeal, assigning the following as errors allegedly committed by the court a quo, to wit: I THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE FOR THE PROSECUTION EXHIBITS "E"-"E-4", TEA BAGS OF ALLEGED MARIJUANA, TO BE THE CORPUS DELICTI; FURTHERMORE, THAT THE SAME WERE TAKEN WITHOUT THE REQUIRED WARRANT OF SEARCH AND ARREST SINCE THE ACCUSED WAS NOT IN THE ACT OF COMMITTING ANY OFFENSE AT THE TIME OF HIS ARREST. II THE LOWER COURT ERRED IN FINDING THE ACCUSED EDISON SUCRO GUILTY OF THE SALE OF PROHIBITED DRUGS UNDER SECTION 4, ARTICLE II, OF THE DANGEROUS DRUGS ACT AND SENTENCING HIM TO SUFFER A PENALTY OF LIFE IMPRISONMENT AND TO PAY A FINE OF P20,000.00. (Appellant's Brief, p. 1) The antecedent facts of the case as summarized by the Solicitor General are as follows: "On March 21, 1989, Pat. Roy Fulgencio, a member of the INP, Kalibo, Aklan, was instructed by P/Lt. Vicente Seraspi, Jr. (Station Commander of the INP Kalibo, Aklan) to monitor the activities of appellant Edison Sucro, because of information gathered by Seraspi that Sucro was selling marijuana. (p. 6, TSN, May 2, 1989). As planned, at about 5:00 P.M. on said date, Pat. Fulgencio positioned himself under the house of a certain Arlie Regalado at C. Quimpo Street. Adjacent to the house of Regalado, about 2 meters away, was a chapel. Thereafter, Pat. Fulgencio saw appellant enter the chapel, taking something which turned out later to be marijuana from the compartment of a cart found inside the chapel, and then return to the street where he handed the same to a buyer, Aldie Borromeo. After a while appellant went back to the chapel and again came out with marijuana which he gave to a group of persons. (pp. 6-8, 15-18, ibid). It was at this instance that Pat. Fulgencio radioed P/Lt. Seraspi and reported the activity going on P/Lt. Seraspi instructed Pat. Fulgencio to continue monitoring developments. At about 6:30 P.M., Pat. Fulgencio again called up Seraspi to report that a third buyer later identified as Ronnie Macabante, was transacting with appellant. (pp. 18-19, ibid) At that point, the team of P/Lt Seraspi proceeded to the area and while the police officers were at the Youth Hostel at Maagma St., Pat. Fulgencio told P/Lt. Seraspi to intercept Macabante and appellant. P/ Lt. Seraspi and his team caught up with Macabante at the crossing of Mabini and Maagma Sts. in front of the Aklan Medical Center. Upon seeing the police, Macabante threw something to the ground which turned out to be a tea bag of marijuana. (pp 6-8, TSN, June 19, 1989) When confronted, Macabante readily admitted that he bought the same from appellant (Edison Sucro) in front of the chapel. (p. 6, TSN, May 24, 1989) The police team was able to overtake and arrest appellant at the corner of C. Quimpo and Veterans Sts. The police recovered 19 sticks and 4 teabags of marijuana from the cart inside the chapel and another teabag from Macabante. The teabags of marijuana were sent to the PC-INP Crime Laboratory Service, at Camp Delgado, Iloilo City for analysis. The specimens (Exhibits "G" to "G-18", Exhibits "E" to "E-4") were all found positive of marijuana. (pp. 4-7, TSN, Sept. 4, 1989)" (Appellee's Brief, pp. 3-6) As can be seen from the facts, the issue hinges mainly on whether or not the arrest without warrant of the accused is lawful and consequently, whether or not the evidence resulting from such arrest is admissible. We rule in the affirmative. The accused-appellant contends that his arrest was illegal, being a violation of his rights granted under Section 2, Artilce III of the 1987 Constitution. He stresses that there was sufficient time for the police officers to apply for a search and arrest warrants considering that Fulgencio informed his Station Commander of the activities of the accused two days before March 21, 1989, the date of his arrest. This contention is without merit. Section 5, Rule 113 of the Rules on Criminal Procedure provides for the instances where arrest without warrant is considered lawful. The rule states: "Arrest without warrant, when lawful. A peace officer or 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; (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;" (Emphasis supplied). An offense is committed in the presence or within the view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or hears the disturbances created thereby and proceeds at once to the scene thereof (U.S. v. Fortaleza, 12 Phil. 472 [1909]; and U.S. v. Samonte, 16 Phil. 516 [1910]). The records show that Fulgencio went to Arlie Regalado's house at C. Quimpo Street to monitor the activities of the accused who was earlier reported to be selling marijuana at a chapel two (2) meters away from Regalado's house. Fulgencio, within a distance of two meters saw Sucro conduct his nefarious activity. He saw Sucro talk to some persons, go inside the chapel, and return to them and exchange some things. These, Sucro did three times during the time that he was being monitored. Fulgencio would then relay the on-going transaction to P/Lt. Seraspi. Anent the second requirement, the fact that Macabante, when intercepted by the police, was caught throwing the marijuana stick and when confronted, readily admitted that he bought the same from accused-appellant clearly indicates that Sucro had just sold the marijuana stick to Macabante, and therefore, had just committed an illegal act of which the police officers had personal knowledge, being members of the team which monitored Sucro's nefarious activity. cdphil The court earlier indicated in the case of People v. Bati (G.R. No. 87429, August 27, 1990) that police officers have personal knowledge of the actual commission of the crime when it had earlier conducted surveillance activities of the accused. Thus, it stated: "When Luciano and Caraan reached the place where the alleged transaction would take place and while positioned at a street corner, they saw appellant Regalado Bati and Warner Marquez by the side of the street about forty to fifty meters away from them (the public officers). They saw Marquez giving something to Bati, who, thereafter handed a wrapped object to Marquez who then inserted the object inside the front of his pants infront of his abdomen while Bati, on his part, placed the thing given to him inside his pocket. (p. 2) xxx xxx xxx . . . Both Patrolman Luciano and Caraan actually witnessed the same and their testimonies were based on their actual and personal knowledge of the events that took place leading to appellant's arrest. They may not have been within hearing distance, specially since conversation would expectedly be carried on hushed tones, but they were certainly near enough to observe the movements of the appellant and the buyer. Moreover, these prosecution witnesses are all law enforcers and are, therefore, presumed to have regularly performed their duties in the absence of proof to the contrary (People v. Bati, supra citing People v. Agapito, G.R. No. 73786, October 12, 1987) The accused questions the failure of the police officers to secure a warrant considering that Fulgencio himself knew of Sucro's activities even prior to the former s joining the police force. Fulgencio reported Sucro's activities only three days before the incident. As the records reveal, Fulgencio and Sucro had known each other since their childhood years and that after Fulgencio joined the police force, he told the accused-appellant not to sell drugs in their locality. Hence, it is possible that because of this friendship, Fulgencio hesitated to report his childhood friend and merely advised him not to engage in such activity. However, because of reliable information given by some informants that selling was going on everyday, he was constrained to report the matter to the Station Commander. On the other hand, the failure of the police officers to secure a warrant stems from the fact that their knowledge acquired from the surveillance was insufficient to fulfill the requirements for the issuance of a search warrant. What is paramount is that probable cause existed. Thus, it has been held in the case of People v. Lo Ho Wing, et al. (G.R. No. 88017, January 21, 1991): "In the instant case, it was firmly established from the factual findings of the trial court that the authorities had reasonable ground to believe that appellant would attempt to bring in contraband and transport it within the country. The belief was based on intelligence reports gathered from surveillance activities on the suspected syndicate, of which appellant was touted to be a member. Aside from this, they were also certain as to the expected date and time of arrival of the accused from China. But such knowledge was clearly insufficient to enable them to fulfill the requirements for the issuance of a search warrant. Still and all, the important thing is that there was probable cause to conduct the warrantless search, which must still be present in such a case." As the Solicitor General has pointed out: "There are several instances when a warrantless search and seizure can be effected without necessarily being preceded by an arrest provided the same is effected on the basis of probable cause (e.g. stop and search without warrant at checkpoints). Between warrantless searches and seizures at checkpoints and in the case at bar the latter is more reasonable considering that unlike in the former, it was effected on the basis of probable cause. Under the circumstances (monitoring of transactions) there existed probable cause for the arresting officers, to arrest appellant who was in fact selling marijuana and to seize the contraband." That searches and seizures must be supported by a valid warrant is not an absolute rule (Manipon, Jr. v. Sandiganbayan, 143 SCRA 267 [1986]). Among the exceptions granted by law is a search incidental to a lawful arrest under Sec. 12, Rule 126 of the Rules on Criminal Procedure, which provides that a person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant. (People v. Castiller, G.R. No. 87783, August 6, 1990) The accused-appellant claims that the arrest having been done without warrant, it follows that the evidence obtained therefrom is inadmissible. As earlier discussed, there is nothing unlawful about the arrest considering its compliance with the requirements of a warrantless arrest. Ergo, the fruits obtained from such lawful arrest are admissible in evidence. LLpr Edison Sucro assails the trial court's reliance on the statement of Macabante whose reason for testifying could be merely to escape prosecution. We quote the trial court's finding as to the testimony of Macabante: "The non-filing of a complaint against him for possession of marijuana may have been the reason of (sic) his willingness to testify in court against the accused. But this does not necessarily taint the evidence that proceeds from his lips. As explained by Lt. Seraspi, the best sources of information against drug pushers are usually their customers, especially if as in this case, there is no other direct evidence of the selling except the testimony of the buyer. We accept this observation as a realistic appraisal of a situation in which drug users are, and should be employed by law enforcement authorities to bolster the drive against pushers who are the real felons in our society. We have observed the demeanor of the witness in court, and found him to be straightforward, unhesitating, and spontaneous in his declarations, so that we are satisfied as to his intention and disposition to tell the truth" (Rollo, p. 40) Time and again it has been held that the findings of the trial court are entitled to great weight and should not be disturbed on appeal unless it is shown that the trial court had overlooked certain facts of weight and importance, it being acknowledged that the court below, having seen and heard the witnesses during the trial, is in a better position to evaluate their testimonies (People v. Umali, et al., G.R. No. 84450, February 4, 1991 citing People v. Alvarez, 163 SCRA 745 [1988]; People v. Dorado, 30 SCRA 53 [1969]; and People v. Espejo, 36 SCRA 400 [1970]) Furthermore, the testimony of Macabante was corroborated on material points by public officers Fulgencio and Seraspi. There is nothing in the record to suggest that the police officers were compelled by any motive than to accomplish their mission to capture a drug pusher in the execution of the crime, the presumption being that police officers perform their duties regularly in the absence of any evidence to the contrary (Rule 131, Sec. 3(m), Revised Rules on Evidence; People v. Castiller, supra citing People v. Natipravat, 145 SCRA 483 [1986]) The prosecution evidence was further bolstered by the findings of the Forensic Chemist that the items seized were all positive for marijuana. In contrast to the evidence presented by the prosecution, accused- appellant's defense is alibi which is unavailing considering that he was positively identified by Macabante to be the person from whom he bought marijuana. Sucro alleges that he could not have committed the crime since he was with his uncle and cousin distributing handbills for his Auntie's candidacy. The fact, however, remains that it does not preclude the possibility that he was present in the vicinity as established by his admission that he moved a lot and even had the occasion to meet Macabante on the street. It is well-settled that mere denials cannot prevail against the positive identification of the appellant as the seller of the prohibited substances. (People v. Khan, 161 SCRA 406 [1988]; and People v. Paco, 170 SCRA 681 [1989]) Premises considered, this Court is convinced that appellant Edison Sucro had indeed committed the offense charged. The trial court's decision must be upheld. WHEREFORE, the decision appealed from is hereby AFFIRMED. SO ORDERED. Fernan, C.J., Feliciano, Bidin and Davide, Jr., JJ., concur. FIRST DIVISION [G.R. No. 116001. March 14, 2001.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LUISITO GO y KO alias "KING LOUIE", accused-appellant. [G.R. No. 123943. March 14, 2001.] LUISITO GO y CO, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondent. The Solicitor General for plaintiff-appellee. Saguisag & Associates for accused-appellant. SYNOPSIS When the police officers saw appellant enter the Flamingo Disco house with two women and spotted a gun tucked in appellant's waist, they entered the Flamingo and informed the owner that they were searching for illegally possessed firearms. When asked to stand up, they saw the gun tucked in appellant's waist. They asked for the license of the gun but appellant was unable to produce any. They invited the appellant for questioning. The police officers accompanied appellant to his car where they found an attache case and two clutch bags which contained money, shabu and drug paraphernalia. Appellant was subsequently charged and convicted of having in his possession shabu and illegal possession of firearm. Appellant assailed the validity of his arrest and his convictions for the two crimes. The Supreme Court upheld his convictions on appeal, ruling: the gun tucked in his waist was plainly visible, and he was actually committing an offense in the presence of the police officers; that no warrant of arrest was necessary in such a situation, it being one of the exceptions under the Rule; and that as a consequence of his valid warrantless arrest, he may be lawfully searched without a search warrant and the objects found at the scene of the crime, such as the firearm, the shabu and a drug paraphernalia can be used as evidence against him. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; RIGHTS OF THE ACCUSED; WARRANTLESS ARREST, WHEN AUTHORIZED; CASE AT BAR. The constitutional proscription, that no person shall be arrested without any warrant of arrest having been issued prior thereto, is not a hard-and-fast rule. The Rules of Court and jurisprudence recognize exceptional cases where an arrest may be effected without a warrant. Among these are when, in the presence of a peace officer, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; or when an offense has in fact just been committed, and the arresting officer has personal knowledge of facts indicating that the person to be arrested has committed it. In the cases at bar, the police saw the gun tucked in appellant's waist when he stood up. The gun was plainly visible. No search was conducted as none was necessary. Accused-appellant could not show any license for the firearm, whether at the time of his arrest or thereafter. Thus, he was in effect committing a crime in the presence of the police officers. No warrant of arrest was necessary in such a situation, it being one of the recognized exceptions under the Rules. cHESAD 2. ID.; ID.; ID.; VALIDITY OF A SEARCH WITHOUT WARRANT INCIDENTAL TO A LAWFUL ARREST; CASE AT BAR. As a consequence of appellant's valid warrantless arrest, he may be lawfully searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant, as provided in Rule 126, Section 12. This is a valid search incidental to the lawful arrest. The subsequent discovery in his car of drug paraphernalia and the crystalline substance, which was later identified as shabu, though in a distant place from where the illegal possession of firearm was committed, cannot be said to have been made during an illegal search. As such, the seized items do not fall within the exclusionary clause, which states that any evidence obtained in violation of the right against warrantless arrest cannot be used for any purposes in any proceeding. Hence, not being fruits of the poisonous tree, so to speak, the objects found at the scene of the crime, such as the firearm, the shabu and the drug paraphernalia, can be used as evidence against appellant. Besides, it has been held that drugs discovered as a result of a consented search is admissible in evidence. EAcHCI 3. CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARM UNDER P.D. 1866; LACK OF LICENSE TO POSSESS FIREARM IS THE ESSENCE OF THE CRIME; CASE AT BAR. Under P.D. 1866, the essence of the crime is the accused's lack of license or permit to carry or possess firearm, ammunition, or explosive. Possession by itself is not prohibited by law. In prosecutions for illegal possession of firearm, the element of absence of license to possess the firearm may be established through the testimony of or a certification from a representative of the Firearms and Explosives Bureau of the Philippine National Police (FEB-PNP), attesting that a person is not a licensee of any firearm. In this case, a representative of the FEB-PNP testified that accused-appellant was not a holder of any gun license. Moreover, a certification to that effect was presented to corroborate his testimony. These pieces of evidence suffice to establish the second element of the offense of possession of unlicensed firearms. HTDCAS 4. REMEDIAL LAW; EVIDENCE; FACTUAL FINDINGS OF THE TRIAL COURT ARE GENERALLY BINDING ON THIS COURT; CASE AT BAR. The bulk of accused-appellant's defense revolves around the factual findings of the trial court. It should be recalled that factual findings of the trial court, if supported by evidence on record, and particularly when affirmed by the appellate court, are binding on this Court. As discussed above, the records substantiate the trial court's and the appellate court's findings as to accused-appellant's culpability. There is no reason to depart from these findings as no significant facts and circumstances were shown to have been overlooked or disregarded which, if considered, would have altered the outcome of the case. Moreover, questions as to credibility of witness are matters best left to the appreciation of the trial court because of its unique opportunity of having observed that elusive and incommunicable evidence of the witness' deportment on the stand while testifying, which opportunity is denied to the reviewing tribunal. DcaCSE D E C I S I O N YNARES-SANTIAGO, J p: On October 22, 1992, at around 10:00 o'clock in the evening, SPO1 Mauro Piamonte and SPO3 Candido Liquido, members of the Intelligence and Follow-up Unit of the Calamba Police, went to the police outpost at Crossing, Calamba, Laguna, to follow up an intelligence report that methamphetamine hydrochloride, or shabu, a regulated drug, was being supplied there. Police civilian agent Ronnie Panuringan arrived and reported to them that he saw accused- appellant Luisito Go, also known as "King Louie", enter the Flamingo Disco House with two women. Panuringan said that he spotted a gun tucked in accused-appellant's waist. Together, the three policemen proceeded to the Flamingo, which was located about a hundred meters away from the outpost. When they arrived at the Flamingo, the police officers informed the owner that they were conducting an "Operation Bakal," whereby they search for illegally possessed firearms. The owner allowed them in and told a waiter to accompany them. They went up to the second floor of the disco. The waiter turned on the lights, and the police officers saw accused-appellant and his lady companions seated at a table. They identified themselves and asked accused-appellant to stand up. When the later did so, the policemen saw the gun tucked in his waist. SPO1 Piamonte asked for the license of the gun, but accused-appellant was unable to produce any. Instead, accused- appellant brought out the driver's license of a certain Tan Antonio Lerios. SPO1 Piamonte confiscated the gun, which was later identified as a 9mm Walther P88, Serial Number 006784, with a magazine containing ten (10) rounds of live ammunition. Accused- appellant was invited to the police precinct for questioning. HEDCAS On the way out of the disco, accused-appellant asked permission to bring his car, which was parked outside. The police officers accompanied accused-appellant to his car, a Honda Civic with license plate number TCM-789. Through the windshield, SPO3 Liquido noticed a Philippine National Police identification card hanging from the rearview mirror. He asked accused-appellant if he was a member of the PNP, and he said no. The police officers asked accused- appellant for his driver's license and the registration papers of the vehicle, but he was unable to produce them. When accused-appellant opened the door, SPO3 Liquido took the ID card and found that the same belonged to SPO4 Zenaida Bagadiong. The police officers saw pieces of glass tooters and tin foils on the backseat and floor of the car. They asked accused-appellant why he had these items, but he did not say anything. Instead, accused-appellant suggested that they talk the matter over, and intimated that he had money. SPO3 Liquido replied that they should talk at the police headquarters. Accused- appellant took out an attach case from the car and opened it. There were two black clutch bags inside. Accused-appellant opened the first bag, which contained shiny white substance wrapped in cellophane. The second bag contained P120,000.00 in cash. The police officers brought accused-appellant to the police station. When they arrived at the precinct, they turned over the attach case together with the two black clutch bags to the investigator. The investigator found eight cellophane bags containing granules suspected to be shabu in one of the clutch bags. When the attach case was opened, the police officers found that it also contained three glass tooters, tin foils, an improvised burner, magazines and newspapers. 1 Consequently, two Informations were filed against accused-appellant before the Regional Trial Court of Calamba, Laguna, Branch 34. The first Information, which was docketed as Criminal Case No. 3308-92- C, charged accused-appellant with violation of Article III of R.A. 6452 (Dangerous Drugs Act), committed as follows: That on or about October 22, 1992 at Brgy. I, Crossing, Municipality of Calamba, province of Laguna, and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized/permitted by law, did then and there wilfully, unlawfully and feloniously have in his possession, control and custody 750 grams of methamphetamine hydrochloride known as "SHABU", a regulated drug, in violation of the above-stated law. 2 The other Information, docketed as Criminal Case No. 3309-92-C, charged accused-appellant with violation of P.D. 1866, committed as follows: That on or about October 22, 1992, at Flamingo Beerhouse, Crossing, Municipality of Calamba, Province of Laguna and within the jurisdiction of this Honorable Court, the accused above-named not being licensed or authorized by law, did then and there wilfully, unlawfully and feloniously have in his possession, custody and control one (1) caliber .9mm marked "WALTHER" with serial number 006784 with one (1) magazine loaded with ten (10) live ammunition of same caliber, in violation of the aforementioned law. 3 After a joint trial, the lower court rendered judgment convicting accused-appellant in the two criminal cases, to wit: HTacDS WHEREFORE, judgment is hereby rendered finding the accused in Criminal Case No. 3308-92-C, to be GUILTY beyond reasonable doubt of having in his possession of 750.39 grams of methamphetamine hydrochloride, a regulated drug. He is hereby sentenced to a penalty of imprisonment of six (6) years and one (1) day to twelve (12) years and a fine of TWELVE THOUSAND (P12,000.00) PESOS; and in Criminal Case No. 3309-92-C, the accused is also found GUILTY beyond reasonable doubt of the crime of Illegal Possession of Firearm, and is hereby sentenced to suffer an imprisonment of reclusion perpetua. Considering that the accused appears to be detained at the Makati Police Station, jailer, Makati Police Station is hereby ordered to commit the accused to the New Bilibid Prison, Bureau of Correction, Muntinlupa, Metro Manila. The bond posted by the accused in Criminal Cases No. 3308-92-C & 3309-92-C, are hereby ordered cancelled. 4 Accused-appellant appealed his conviction in Criminal Case No. 3309-92-C directly to this Court, considering that the penalty imposed was reclusion perpetua, which appeal was docketed as G.R. No. 116001. On the other hand, accused-appellant brought his appeal of the judgment in Criminal Case No. 3308-92-C before the Court of Appeals. 5 In an Amended Decision dated February 21, 1996, the Court of Appeals affirmed accused-appellant's conviction but modified the penalty imposed by the trial court by sentencing him, in addition to imprisonment of six (6) years and one (1) day to twelve (12) years, to pay a fine of six thousand pesos (P6,000.00), citing Section 8 of R.A. 6425, with subsidiary imprisonment in case of insolvency. 6 Hence, this petition for review, docketed as G.R. No. 123943. The two cases were consolidated. 7 Accused-appellant assails the validity of his arrest and his subsequent convictions for the two crimes. Both the trial court and the Court of Appeals found that the arrest and subsequent seizure were legal. A review of the records at bar shows no reason to depart therefrom. The constitutional proscription, that no person shall be arrested without any warrant of arrest having been issued prior thereto, 8 is not a hard-and-fast rule. The Rules of Court and jurisprudence recognize exceptional cases where an arrest may be effected without a warrant. 9 Among these are when, in the presence of a peace officer, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; or when an offense has in fact just been committed, and the arresting officer has personal knowledge of facts indicating that the person to be arrested has committed it. In the cases at bar, the police saw the gun tucked in appellant's waist when he stood up. The gun was plainly visible. No search was conducted as none was necessary. Accused-appellant could not show any license for the firearm, whether at the time of his arrest or thereafter. Thus, he was in effect committing a crime in the presence of the police officers. No warrant of arrest was necessary in such a situation, it being one of the recognized exceptions under the Rules. SDHITE As a consequence of appellant's valid warrantless arrest, he may be lawfully searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant, as provided in Rule 126, Section 12. This is a valid search incidental to the lawful arrest. 10 The subsequent discovery in his car of drug paraphernalia and the crystalline substance, which was later identified as shabu, though in a distant place from where the illegal possession of firearm was committed, cannot be said to have been made during an illegal search. As such, the seized items do not fall within the exclusionary clause, which states that any evidence obtained in violation of the right against warrantless arrest cannot be used for any purposes in any proceeding. 11 Hence, not being fruits of the poisonous tree, so to speak, the objects found at the scene of the crime, such as the firearm, the shabu and the drug paraphernalia, can be used as evidence against appellant. Besides, it has been held that drugs discovered as a result of a consented search is admissible in evidence. 12 Under P.D. 1866, the essence of the crime is the accused's lack of license or permit to carry or possess firearm, ammunition, or explosive. Possession by itself is not prohibited by law. 13 In prosecutions for illegal possession of firearm, the element of absence of license to possess the firearm may be established through the testimony of or a certification from representative of the Firearms and Explosives Bureau 14 of the Philippine National Police (FEB-PNP), attesting that a person is not a licensee of any firearm. 15 In this case, a representative of the FEB-PNP testified that accused-appellant was not a holder of any gun license. 16 Moreover, a certification 17 to that effect was presented to corroborate his testimony. These pieces of evidence suffice to establish the second element of the offense of possession of unlicensed firearms. 18 However, in a vain attempt to exculpate himself, accused-appellant presented for the first time an alleged firearm license, which was described as "Annex 2" of his petition. Accused-appellant's counsel admitted that said document was not presented below "for some reason." 19 Whatever those reasons are, he did not specify. The document, however, is dubious. It is too late in the day for accused-appellant to proffer this very vital piece of evidence which might exculpate him. First, the reception of evidence is best addressed to the trial court because it entails questions of fact. It should be emphasized that this Court is not a trier of facts. 20 Second, the document marked as "Annex 2" of the petition in G.R. No. 123943 is not the license referred to, but an order of the trial court resetting the date of arraignment. 21 Third, there is attached to the petition a firearm license 22 which is a mere photocopy and, as such, cannot be appreciated by this Court. Indeed, considering that this was the one piece of evidence which could spell accused-appellant's acquittal of the unlicensed firearm charge, and assuming that, as shown in the face of the license, it was issued on October 7, 1992, there should be no reason for its non-production during the trial. Fourth, and most importantly, the genuineness of the purported license becomes all the more suspect in view of the Certification issued by the FEO-PNP that accused-appellant was not a licensed firearm holder. Anent the certification issued by the FEO-PNP to the effect that Luisito Go y Ko was not a licensed gun holder, accused-appellant claims that he was not the person alluded to therein because the correct spelling of his middle name is not "Ko" but "Co." Whatever the correct spelling of his name is, the fact remains that he had no license on the day the gun was found in his possession. All that he could present then was a photocopy of his application for gun license, 23 which is not the equivalent of a license. Appellant testified that he presented a firearm license to the police, 24 but he could not produce that alleged license in court. If appellant was indeed a licensed gun holder and if that license existed on October 22, 1992, he could have easily presented it to the police when he was asked for his papers inside the disco, or if the alleged license was in his car, he could have easily shown it to them when they went to his car. Otherwise, he could have easily asked his lawyer or relative to bring the license to the police precinct when he was being investigated. Despite several opportunities to produce a license, he failed to do so. In fact, during trial, he never presented any such license. And on appeal, he could only submit for the first time and for unknown reasons an alleged photocopy of a purported license. The only plausible conclusion that can be drawn is that there was no such license in the first place. Hence, his guilt of illegal possession of firearm was duly established. Accused-appellant's guilt for illegal possession of shabu has likewise been proven beyond reasonable doubt. The white crystalline substance found in his possession, upon laboratory examination, were positively identified as methamphetamine hydrochloride or shabu, a regulated drug. 25 The bulk of accused-appellant's defense revolves around the factual findings of the trial court. It should be recalled that factual findings of the trial court, if supported by evidence on record, and particularly when affirmed by the appellate court, are binding on this Court. 26 As discussed above, the records substantiate the trial court's and the appellate court's findings as to accused-appellant's culpability. There is no reason to depart from these findings as no significant facts and circumstances were shown to have been overlooked or disregarded which, if considered, would have altered the outcome of the case. 27 Moreover, questions as to credibility of witness are matters best left to the appreciation of the trial court because of its unique opportunity of having observed that elusive and incommunicable evidence of the witness' deportment on the stand while testifying, which opportunity is denied to the reviewing tribunal. 28 In the case at bar, the trial court found: cHTCaI The narration of the incident by the police is far more worthy of belief coming as it does from law enforcers who are presumed to have regularly performed their duties and were not demonstrated to have been unduly biased against the accused. 29 Similarly, the Court of Appeals held that: (T)he findings of fact of the trial court are generally respected by the appellate court, unless they are found to be clearly biased or arbitrary. We do not find any in these cases. 30 The crime of illegal possession of firearm, committed in 1992, regardless of whether the firearm is low powered or high powered, was punished with the penalty of reclusion perpetua to death, as provided in P.D. 1866. However, under R.A. No. 8294, which took effect on July 6, 1997, 31 the penalty was lowered to prision correccional in its maximum period and a fine of P30,000.00, if the firearm 32 is classified as low powered. In this case, the unlicensed firearm found in appellant's possession was a 9mm Walther pistol, which under the amendatory law, is considered as low powered. Inasmuch as the new law imposes a reduced penalty and is, thus, more favorable to accused-appellant, the same may be given retroactive effect. 33 Therefore, accused-appellant is sentenced to an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to four (4) years, two (2) months and one (1) day of prision correccional, as maximum, and a fine of P30,000.00. IcAaEH On the other hand, the crime of illegal possession of regulated drug, under the law in force at the time of the commission of the offense in this case, was punished by imprisonment of from six (6) years and one (1) day to twelve (12) years and a fine ranging from P6,000.00 to P12,000.00, 34 regardless of the amount of drugs involved. Hence, accused-appellant is sentenced to an indeterminate penalty of six (6) years and one (1) day, as minimum, to twelve (12) years, as maximum, and to pay a fine of P12,000.00. WHEREFORE, the decision of the trial court finding accused- appellant guilty beyond reasonable doubt of illegal possession of firearm is AFFIRMED, with the MODIFICATION that he is sentenced to an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to four (4) years, two (2) months and one (1) day of prision correccional, as maximum, and a fine of P30,000.00. The decision of the trial court finding accused-appellant guilty beyond reasonable doubt of illegal possession of 750.39 grams of shabu and drug paraphernalia, is likewise AFFIRMED with the MODIFICATION that he is sentenced to an indeterminate penalty of six (6) years and one (1) day, as minimum, to twelve (12) years, as maximum, and to pay a fine of P12,000.00. The shabu and subject drug paraphernalia seized from appellant shall be destroyed as provided by law. SO ORDERED. caAICE Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur. FIRST DIVISION [G.R. Nos. 95847-48. March 10, 1993.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GABRIEL GERENTE y BULLO, accused-appellant. The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT; LAWFUL WHEN ARRESTING OFFICER HAS PERSONAL KNOWLEDGE THAT THE PERSON TO BE ARRESTED HAS COMMITTED THE CRIME; CASE AT BAR. The policemen arrested Gerente only some three (3) hours after Gerente and his companions had killed Blace. They saw Blace dead in the hospital and when they inspected the scene of the crime, they found the instruments of death: a piece of wood and a concrete hollow block which the killers had used to bludgeon him to death. The eye-witness, Edna Edwina Reyes, reported the happening to the policemen and pinpointed her neighbor, Gerente, as one of the killers. Under those circumstances, since the policemen had personal knowledge of the violent death of Blace and of facts indicating that Gerente and two others had killed him, they could lawfully arrest Gerente without a warrant. If they had postponed his arrest until they could obtain a warrant, he would have fled the law as his two companions did. 2. ID.; ID.; SEARCH AND SEIZURE; VALID EVEN WITHOUT A WARRANT WHEN MADE AS AN INCIDENT TO LAWFUL ARREST; RATIONALE. The search conducted on Gerente's person was likewise lawful because it was made as an incident to a valid arrest. This is in accordance with Section 12, Rule 126 of the Revised Rules of Court which provides: "Section 12. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant." The frisk and search of appellant's person upon his arrest was a permissible precautionary measure of arresting officers to protect themselves, for the person who is about to be arrested may be armed and might attack them unless he is first disarmed. In Adams vs. Williams, 47 U.S. 143, cited in Justice Isagani A. Cruz's Constitutional Law, 1991 Edition, p. 150, it was ruled that "the individual being arrested may be frisked for concealed weapons that may be used against the arresting officer and all unlawful articles found his person, or within his immediate control may be seized." 3. CRIMINAL LAW; CONSPIRACY; LIABILITY OF CONSPIRATORS; RULE; CASE AT BAR. There is no merit in appellant's allegation that the trial court erred in convicting him of having conspired and cooperated with Fredo and Totoy Echigoren to kill Blace despite the testimony of Dr. Valentin Bernales that the fracture on the back of the victim's skull could have been inflicted by one person only. what Dr. Bernales stated was a mere possibility that only one person dropped the concrete hollow block on the head of the victim, smashing it. That circumstance, even if true, does not absolve the other two co-conspirators in the murder of Blace for when there is a conspiracy to commit a crime, the act of one conspirator is the act of all. The conspiracy was proven by the eyewitness-testimony of Edna Edwina Reyes, that she overheard the appellant and his companions conspire to kill Blace, that acting in concert, they attacked their victim with a piece of wood and a hollow block and caused his death. "When there is no evidence indicating that the principal witness for the prosecution was moved by improper motive, the presumption is that he was not so moved and his testimony is entitled to full faith and credit" (People vs. Belibet, 199 SCRA 587, 588). Hence, the trial court did not err in giving full credit to Edna Reyes' testimony. 4. ID.; CIVIL INDEMNITY FOR DEATH; INCREASED TO P50,000.00. The Solicitor General correctly pointed out in the appellee's brief that the award of P30,000.00 as civil indemnity for the death of Clarito Blace should be increased to P50,000.00 in accordance with our ruling in People vs. Sison, 189 SCRA 643. D E C I S I O N GRIO-AQUINO, J p: This is an appeal from the decision of the Regional Trial Court of Valenzuela, Metro Manila, Branch 172, which found the appellant guilty of Violation of Section 8 of Republic Act 6425 (Dangerous Drugs Act of 1972) and sentenced him to suffer the penalty of imprisonment for a term of twelve (12) years and one (1) day, as minimum, to twenty (20) years, as maximum; and also found him guilty of Murder for which crime he was sentenced to suffer the penalty of reclusion perpetua. The dispositive portion of the appealed decision reads: "WHEREFORE, in view of the foregoing the Court finds the accused Gabriel Gerente in Criminal Case No. 10255-V-90 guilty beyond reasonable doubt of Violation of Section 8 of R.A. 6425 and hereby sentences him to suffer the penalty of imprisonment of twelve years and one day as minimum to twenty years as maximum, and a fine of twelve thousand, without subsidiary imprisonment in case of insolvency, and to pay the costs. "In Criminal Case No. 10256-V-90, the Court finds the accused Gabriel Gerente guilty beyond reasonable doubt of the crime of Murder, and there by (sic) no aggravating circumstances nor mitigating circumstances, is hereby sentenced to suffer the penalty of reclusion perpetua; to indemnify the heirs of the victim in the sum of P30,000.00, and in the amount of P17,609.00 as funeral expenses, without subsidiary imprisonment in case of insolvency, and to pay the costs. The accused Gabriel Gerente shall be credited with the full term of his preventive imprisonment." (p. 25, Rollo.) Appellant Gabriel Gerente y Bullo was charged with Violation of Section 8, Art. II of R.A. 6425, which was docketed as Criminal Case No. 10255-V-90 of the Regional Trial Court of Valenzuela, Metro Manila. The Information reads: "That on or about the 30th day of April, 1990, in the municipality of Valenzuela, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without justification, did then and there wilfully, unlawfully and feloniously have in his possession and control dried flowering tops wrapped in foil with markings and place in a transparent plastic bag which are considered prohibited drugs." (p. 2, Rollo.) The same accused, together with Totoy and Fredo Echigoren who are both at large, was charged with Murder in Criminal Case No. 10256- V-90 in an information of the same date and signed by the same Assistant Provincial Prosecutor, as follows: cdphil "That on or about the 30th day of April, 1990, in the municipality of Valenzuela, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused together with two (2) others who are still at large and against whom the preliminary investigation has not yet been terminated by the Office of the Provincial Prosecutor of Bulacan, conspiring, confederating together and mutually helping one another, armed with a piece of wood and hallow (sic) block and with intent to kill one Clarito B. Blace, did then and there wilfully, unlawfully and feloniously, with evident premeditation and treachery, attack, assault and hit with the said piece of wood and hollow block the said Clarito B. Blace, hitting the latter on the different parts of his body, thereby inflicting serious physical injuries which directly caused the death of the said victim." (p. 3, Rollo.) Edna Edwina Reyes testified that at about 7:00 a.m. of April 30, 1990, appellant Gabriel Gerente, together with Fredo Echigoren and Totoy Echigoren, started drinking liquor and smoking marijuana in the house of the appellant which is about six (6) meters away from the house of the prosecution witness who was in her house on that day. She overheard the three men talking about their intention to kill Clarito Blace. She testified that she heard Fredo Echigoren saying, "Gabriel, papatayin natin si Clarito Blace," and Totoy Echigoren allegedly seconded Fredo's suggestion saying: "Papatayin natin 'yan mamaya." Appellant allegedly agreed: "Sigue, papatayin natin mamaya." (pp. 3-4, tsn, August 24, 1990.) Fredo and Totoy Echigoren and Gerente carried out their plan to kill Clarito Blace at about 2:00 p.m. of the same day. The prosecution witness, Edna Edwina Reyes, testified that she witnessed the killing. Fredo Echigoren struck the first blow against Clarito Blace, followed by Totoy Echigoren and Gabriel Gerente who hit him twice with a piece of wood in the head and when he fell, Totoy Echigoren dropped a hollow block on the victim's head. Thereafter, the three men dragged Blace to a place behind the house of Gerente. At about 4:00 p.m. of the same day, Patrolman Jaime Urrutia of the Valenzuela Police Station received a report from the Palo Police Detachment about a mauling incident. He went to the Valenzuela District Hospital where the victim was brought. He was informed by the hospital officials that the victim died on arrival. The cause of death was massive fracture of the skull caused by a hard and heavy object. Right away, Patrolman Urrutia, together with Police Corporal Romeo Lima and Patrolman Alex Umali, proceeded to Paseo de Blas where the mauling incident took place. There they found a piece of wood with blood stains, a hollow block and two roaches of marijuana. They were informed by the prosecution witness, Edna Edwina Reyes, that she saw the killing and she pointed to Gabriel Gerente as one of the three men who killed Clarito. The policemen proceeded to the house of the appellant who was then sleeping. They told him to come out of the house and they introduced themselves as policemen. Patrolman Urrutia frisked appellant and found a coin purse in his pocket which contained dried leaves wrapped in cigarette foil. The dried leaves were sent to the National Bureau of Investigation for examination. The Forensic Chemist found them to be marijuana. LexLib Only the appellant, Gabriel Gerente, was apprehended by the police. The other suspects, Fredo and Totoy Echigoren, are still at large. On May 2, 1990, two separate informations were filed by Assistant Provincial Prosecutor Benjamin Caraig against him for Violation of Section 8, Art. II, of R.A. 6425, and for Murder. When arraigned on May 16, 1990, the appellant pleaded not guilty to both charges. A joint trial of the two cases was held. On September 24, 1990, the trial court rendered a decision convicting him of Violation of Section 8 of R.A. 6425 and of Murder. In this appeal of the appellant, the following errors are ascribed to the trial court: 1. the court a quo gravely erred in admitting the marijuana leaves adduced in evidence by the prosecution; and 2. the court a quo gravely erred in convicting the accused- appellant of the crimes charged despite the absence of evidence required to prove his guilt beyond reasonable doubt. The appellant contends that the trial court erred in admitting the marijuana leaves as evidence in violation of his constitutional right not to be subjected to illegal search and seizure, for the dried marijuana leaves were seized from him in the course of a warrantless arrest by the police officers. We do not agree. The search of appellant's person and the seizure of the marijuana leaves in his possession were valid because they were incident to a lawful warrantless arrest. Paragraphs (a) and (b), Section 5, Rule 113 of the Revised Rules of Court provide: 'SECTION 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: "(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;" "(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; . . .' The policemen arrested Gerente only some three (3) hours after Gerente and his companions had killed Blace. They saw Blace dead in the hospital and when they inspected the scene of the crime, they found the instruments of death: a piece of wood and a concrete hollow block which the killers had used to bludgeon him to death. The eye-witness, Edna Edwina Reyes, reported the happening to the policemen and pinpointed her neighbor, Gerente, as one of the killers. Under those circumstances, since the policemen had personal knowledge of the violent death of Blace and of facts indicating that Gerente and two others had killed him, they could lawfully arrest Gerente without a warrant. If they had postponed his arrest until they could obtain a warrant, he would have fled the law as his two companions did. prLL In Umil vs. Ramos, 187 SCRA 311, the arrest of the accused without a warrant was effected one (1) day after he had shot to death two Capcom soldiers. The arrest was held lawful by this Court upon the rationale stated by us in People vs. Malasugui, 63 Phil. 221, 228, thus: "To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many instances." The search conducted on Gerente's person was likewise lawful because it was made as an incident to a valid arrest. This is in accordance with Section 12, Rule 126 of the Revised Rules of Court which provides: "SECTION 12. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant." The frisk and search of appellant's person upon his arrest was a permissible precautionary measure of arresting officers to protect themselves, for the person who is about to be arrested may be armed and might attack them unless he is first disarmed. In Adams vs. Williams, 47 U.S. 143, cited in Justice Isagani A. Cruz's Constitutional Law, 1991 Edition, p. 150, it was ruled that "the individual being arrested may be frisked for concealed weapons that may be used against the arresting officer and all unlawful articles found in his person, or within his immediate control may be seized." There is no merit in appellant's allegation that the trial court erred in convicting him of having conspired and cooperated with Fredo and Totoy Echigoren to kill Blace despite the testimony of Dr. Valentin Bernales that the fracture on the back of the victim's skull could have been inflicted by one person only. What Dr. Bernales stated was a mere possibility that only one person dropped the concrete hollow block on the head of the victim, smashing it. That circumstance, even if true, does not absolve the other two co-conspirators in the murder of Blace for when there is a conspiracy to commit a crime, the act of one conspirator is the act of all. The conspiracy was proven by the eyewitness-testimony of Edna Edwina Reyes, that she overheard the appellant and his companions conspire to kill Blace, that acting in concert, they attacked their victim with a piece of wood and a hollow block and caused his death. "When there is no evidence indicating that the principal witness for the prosecution was moved by improper motive, the presumption is that he was not so moved and his testimony is entitled to full faith and credit" (People vs. Belibet, 199 SCRA 587, 588). Hence, the trial court did not err in giving full credit to Edna Reyes' testimony. prcd Appellant's failure to escape (because he was very drunk) is no indicium of his innocence. The Solicitor General correctly pointed out in the appellee's brief that the award of P30,000.00 as civil indemnity for the death of Clarito Blace should be increased to P50,000.00 in accordance with our ruling in People vs. Sison, 189 SCRA 643. WHEREFORE, the appealed decision is hereby AFFIRMED, with modification of the civil indemnity awarded to the heirs of the victim, Clarito Blace, which is hereby increased to P50,000.00. SO ORDERED. Cruz, Bellosillo and Quiason, JJ ., concur. THIRD DIVISION [G.R. Nos. 113511-12. July 11, 1997.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANILO SINOC y SUMAYLO, accused-appellant. The Solicitor General for plaintiff-appellee. Hector G. Tayapad, Jr. for accused-appellant. SYNOPSIS In the morning of September 21, 1991, Isidoro Viacrusis, manager of Taganito Mining Corporation, was on his way from the company compound to Surigao City, on a company vehicle, a Mitsubishi Pajero. As Viacrusis and his driver were approaching the public cemetery of Clarer they were stopped by several armed men who identified themselves as member of the New People's Army. Upon reaching Barobo, Surigao del Norte, Viacrusis and his driver were ordered to alight and proceed to a coconut grove with their hands bound behind their back. After the two were made to lie face down on the ground, they were shot several times. Viacrusis miraculously survived, while the driver died. In an affidavit executed by Viacrusis, he was able to identify by name only one Danilo Sinoc. In the morning of September 21, 1991, a secret informant reported to the Police Station at Montkayo, Davao del Norte that the stolen (carnapped) Pajero was parked behind the apartment of a certain Paulino Overa at Poblacion, Monkayo. A police team went to the place and posted themselves in such a manner as to keep it in view. They saw a man approach the Pajero who, on seeing them, tried to run away. They stopped him and found out that the man, identified as Danilo Sinoc, had the key of the Pajero, and was acting under instructions of some companions who were waiting for him at the Star Lodge at Tagum, Davao del Norte. The police turned over Sinoc to the 459th Mobile Force, together with the Pajero. Sinoc was brought to the Public Attorneys' Office in Butuan City where he asked one of the attorneys there, Atty. Alfredo Jalad, to assist him in making an Affidavit of Confession. Atty. Jalad told Sinoc that he had the right to choose his own counsel, and to remain silent. Sinoc said he wanted to make the affidavit nonetheless, and be assisted by Jalad in doing so. Atty. Jalad then had Sinoc narrate the occurrence. Jalad asked Sinoc if the CIS had promised him anything for the affidavit he would execute. Sinoc said no. Only then did the CIS officers commence to take Sinoc's statement. Jalad read to Sinoc the contents of his statement. The statement was thereafter signed by Sinoc and by Jalad, the latter being described as "witness to signature." Since was next brought to Prosecutor Brocoy so that he might take oath on his statement. City Fiscal Brocoy told Sinoc that the statement was very damaging. Sinoc stood by his answers, saying that they had been voluntarily given. Evidently satisfied of the voluntariness of the statement, Brocoy administered the oath to Sinoc. Sinoc's assault against the propriety of his interrogation after his warrantless arrest because it was conducted without advice to him of his constitutional rights, is pointless. It is true that the initial interrogation of Sinoc was made without his first being told of his corresponding rights. This is inconsequential, for the prosecution never attempt to prove what he might have said on that occasion. The confession made by him afterwards at the Public Attorneys' Office at Butuan City shows it to have been executed voluntarily. After carefully considering the evidence, this Court is convinced that the Trial Judge was correct in accepting the account of the execution of Sinoc's confession narrated by Atty. Jalad and City Prosecutor Brocoy, to the effect that the confession was voluntarily given after he had been duly informed of his constitutional rights. No reason whatever is discernible in the record for these Government officials to give false evidence against Sinoc, or testify otherwise than to the truth. No competent evidence exists on record to substantiate the claim that his extrajudicial confession was the result of torture and threats. He made no such claim to either Public Attorney Jalad or City Prosecutor Brocoy although there is absolutely nothing in the record to indicate any cause for him to distrust either government officer, much less believe they were in conspiracy with the police officers to concoct a case against him. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT; WHEN LAWFUL; CASE AT BAR. As regards Sinoc's claim of illegal arrest, the law provides that an arrest without warrant may be licitly effected by a peace officer, inter alia, "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." There is no question that the police officers in this case were aware that an offense had just been committed: i.e., that some twelve hours earlier, a "Pajero" belonging to a private company had been stolen ("carnapped") and its driver and passenger shot, the former having, died and the latter being on the verge of death. Nor is there any doubt that an informer ("asset") had reported that the stolen "Pajero" was at the Bliss Housing Project at Monkayo. It was precisely to recover the "Pajero" that a team composed of SPO1 Michael Aringo and "joint elements of 459 PNP MFC and Monkayo Police Stn led by Insptr Eden T. Ugale," went to that place and, on taking custody of the "Pajero," forthwith dispatched a radio message to "Higher Headquarters" advising of that fact. There is no question either that when SPO1 Aringo and his companions reached the place where the "Pajero" was parked, they were told by Paulino Overa, owner of the apartment behind which the vehicle was parked, that the man who had brought the "Pajero" would be back by 12:00 noon; that the person thus described did in fact show up at about 10:00 A.M., and was immediately identified by Overo as "the one who rode on that car 'Pajero"'; just as there is no question that when the police officers accosted him, Sinoc had the key to the stolen "Pajero" and was in the act of moving toward it admittedly to take Possession of it (after having arrived by bus from Tagum together with another suspect, "Ram"). Sinoc's link to the stolen vehicle (and hence to the kidnapping and killing accompanying its asportation) was thus palpable. The foregoing circumstances left the police officers no alternative save to arrest Sinoc and take possession of the "Pajero." His arrest without warrant was justified: indeed, it was in the premises the clear duty to apprehend him; their omission to do so would have been inexcusable. 2. ID.; EVIDENCE; CONFESSION; WHEN ADMISSIBLE; CASE AT BAR. The confession made by Sinoc some time afterwards at the Public Attorneys' office at Butuan City is altogether a different matter. The record adequately shows it to have been executed voluntarily and under applicable safeguards, apart from being confirmed by, or consistent with, other evidence. Sinoc does not dispute that he was taken to the Public Attorney's Office; that he spoke to Atty, Alfredo Jalad and it was in the latter's office that his confession was prepared by the CIS investigator. Nor does he deny that he was then brought to the home of City Prosecutor Ernesto M. Brocoy who certified that the confession had been subscribed and sworn to before him and that he was satisfied that Sinoc had voluntarily executed and understood his statement. Sinoc nonetheless claims that he was under intimidation at that time and never advised of his constitutional rights. After carefully considering the evidence, this Court is convinced that the Trial Judge was correct in accepting the account of the execution of Sinoc's confession narrated by Public Attorney Alfredo Jalad and City Prosecutor Ernesto Brocoy, to the effect that the confession was voluntarily given after he had been duly informed of his constitutional rights. No reason whatever is discernible in the record for these Government officials to give false evidence against Sinoc, or testify otherwise than to the truth. In any event, the Trial Judge appears to have carefully assessed the demeanor of the witnesses for the prosecution and those for the defense, in relation to the documents on record, and on this basis and from his vantage point, found that the prosecution 's proofs were more credible than the defense, and that their combined weight established beyond reasonable doubt the appellant's culpable participation in the crimes charged. It must additionally be pointed out that apart from Sinoc's protestations that his extrajudicial confession was the result of torture and threats, no competent evidence exists on record to substantiate that claim. He made no such claim to either Public Attorney Alfredo Jalad or City Prosecutor Ernesto Brocoy although there is absolutely nothing in the record to indicate any cause for him to distrust either government officer, much less believe they were in conspiracy with the police officers to concoct a case against him. 3. CRIMINAL LAW; ROBBERY WITH HOMICIDE; WHEN THE KIDNAPPING WAS MERELY INCIDENTAL TO THE FORCIBLE TAKING OF THE VEHICLE; CASE AT BAR. The "kidnapping" was not the principal objective; it was merely incidental to the forcible taking of the vehicle. Unfortunately, by reason or on the occasion of the seizure of the "Pajero" and (as far as the proofs demonstrate) without fore-knowledge on Sinoc's part its driver was killed, and the lone passenger seriously injured. There was thus no kidnapping as the term is understood in Article 267 of the Revised Penal Code the essential object of which is to "kidnap or detain another, or in any other manner deprive him of his liberty." The idea of "kidnapping" in this case appears to have been the result of the continuous but uninformed use of that term by the peace officers involved in the investigation, carelessly carried over into the indictments and the record of the trial, and even accepted by His Honor. The offense actually committed in Criminal Case No. 3564 where the killing of Tarcesio Guijapon accompanied the taking of the "Pajero" is that defined and penalized by Article 294 of the Criminal Code, viz.: "ART. 294. Robbery with violence against or intimidation of persons Penalties. Any person guilty of robbery with the use of violence against any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson. . . ." It is germane to observe that even if the intent to deprive of liberty were as important or primordial an objective as the asportation of the "Pajero," the kidnapping would be absorbed in the robbery with homicide; and that the term, "homicide," is used in the quoted article in the generic sense i.e., as also including murder, the nature of the offense not being altered by the treacherous character, or the number, of the killings in connection with the robbery. 4. ID.; ID.; CRIME IMPUTABLE UPON THE APPELLANT; EFFECTS THEREOF; CASE AT BAR. It is this Court's view that the crime that may properly he ascribed to Sinoc in Case No. 3564 is robbery with homicide under Article 294 of the Revised Penal Code. For unfortunately for him, there is no avoiding the fact that a homicide although not agreed to or expected by him was committed on the occasion of the robbery, of the "Pajero," and he could not but have realized or anticipated the possibility of serious harm, even death, being inflicted on the person or persons in the "Pajero" targeted for robbery, since two of his companions were armed with guns, even if in his mind, to repeat, his agreement with them did not include killing. The most that can be conceded is to credit him with the mitigating circumstance of having "no intention to commit so grave a wrong as that committed." [ART. 13(3), Revised Penal. Code] Sinoc may not be held liable in Case No. 3565 for the separate offense of frustrated murder as regards Viacrusis. In this particular case, the evidence shows that he agreed only to the plan to "carnap" the "Pajero," but not to any assault or killing. Nor is it logical to convict him twice of robbery of the same property under the same circumstances. Hence, he may not be pronounced responsible for the separate offense of robbery of the same "Pajero," in addition to being declared guilty of robbery, (of that same "Pajero") with homicide under Article 294. 5. ID.; ROBBERY; FRUSTRATED MURDER; TWO CRIMES COMMITTED WHEN THE SPECIAL COMPLEX CRIME OF ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSONS IS NOT APPLICABLE. On the other hand, the wrongful acts actually proven to have been committed by the defendants in Criminal Case No. 3565 are: (1) robbery, and (2) frustrated murder on the occasion thereof gunshot wounds having been inflicted on Isidoro Viacrusis, while bound and prostrate on the ground, utterly unable to put up any defense, the wounds being of such a nature as would have resulted in his death were it not for timely medical intervention. Obviously, these acts do not fall within the ambit of Article 294, which treats of the special complex crime of robbery with violence against or intimidation of persons, but NOT robbery with attempted or frustrated homicide (or murder), although the law does punish the crime of attempted and frustrated robbery with homicide. 6. ID.; PENALTY FOR COMPLEX CRIMES; WHEN NOT APPLICABLE; CASE AT BAR. The crimes committed do not come within the operation of Article 48 of the Criminal Code which, speaking of complex crimes, provides that when a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period." In this case, the two crimes of "carnapping" and frustrated murder did not result from "a single act." Nor was either offense a "necessary means for committing the other." The shooting of the victim was not necessary to commit the "carnapping"; indeed at the time the victim was shot, the "carnapping" had already been consummated. And, of course, the "carnapping" which, according to the evidence, was the conspirators' principal objective, was not necessary to perpetrate the shooting. It follows then that the malefactors' felonious acts in Criminal Case No. 3565 cannot be regarded as juridically fused into a "complex crime" under Article 48. They should be considered separate offenses, separately punishable. D E C I S I O N NARVASA, C.J p: In a decision handed down on October 7, 1993, by Branch 30 of the Regional Trial Court of Surigao City, Danilo Sinoc was found guilty beyond reasonable doubt in two cases jointly tried: 1 one, of the special complex crime of kidnapping with murder (under Article 267 in relation to Articles 248 2 and 48 3 of the Revised Penal Code) in Criminal Case No. 3564; and the other, of the complex crime of kidnapping with frustrated murder (under Articles 267, 248, 4 and 48 of the same Code) in Criminal Case No. 3565. In each case, the penalty of reclusion perpetua was imposed on him. 5 The amended informations under which Sinoc was tried and convicted, both dated January 23, 1992, included five (5) other accused, namely: Vicente Salon @ "Dodong," Benjamin Espinosa @ "Benji," Jaime Jornales @ "James," Victorino Delegencia @ Jun- Gren," and one Roger Doe @ "Ram" (at large). 6 However, only Sinoc and Vicente Salon were arraigned, on July 14, 1992, the other accused being then at large, as they still appear to be to this day. Assisted by their respective counsel, both Sinoc and Salon entered pleas of not guilty and were thereafter jointly tried. The joint trial resulted in Salon's acquittal in both cases. The Court agreed with him that "none of the witnesses presented by the prosecution remotely implicate . . . (him in) the crimes charged," and that "(i)ndeed, the only piece of evidence pointing to . . . (him [Salon]) as the mastermind is contained in the affidavit of confession of accused Danilo Sinoc;" hence, conspiracy not having been proved, the case against Salon "has to be dismissed." Only Sinoc, therefore, is concerned in the appeal at bar. Respecting the essential facts constituting the corpus delicti, there appears to be no serious dispute. It appears that on September 20, 1991, at about 6 o'clock in the morning, Isidoro Viacrusis, manager of Taganito Mining Corporation, was motoring from the company compound (at Taganito, Claver, Surigao del Norte) to Surigao City. He was riding on a company vehicle, a Mitsubishi Pajero (with Plate No. DFX-397), driven by Tarcisio Guijapon. As Viacrusis and Guijapon were approaching the public cemetery of Claver, they were stopped by several armed men. The latter, identifying themselves as members of the New People's Army (NPA), boarded the Pajero and ordered Guijapon to proceed. When they reached Barobo, Surigao del Norte, the armed men ordered Viacrusis and Guijapon to alight, led them, their hands bound behind their back to a coconut grove some six meters from the road, and after making them lie face down on the ground, shot them several times. Viacrusis miraculously survived. The driver, Guijapon, was not as lucky; he died on the spot. These facts are set forth in, among others, a sworn statement given to the police by Sinoc, infra and an affidavit executed and sworn to by Viacrusis on October 17, 1991, about a month later. 7 In that affidavit, Viacrusis described the armed men who had kidnapped and shot him and Guijapon. The only malefactor he was able to identify by name, however, was Danilo Sinoc who, he said, had "curly hair, (was) known as 'Colot' (Danilo Sinoc), (and was known to) driver Tarcing . . ." Two prosecution witnesses gave germane testimony at the trial of the consolidated cases: Marlyn Legaspi, a resident of San Vicente, Barobo, Surigao del Sur; and Barangay Captain Terencio Jamero, also of Barangay San Vicente. Marlyn testified that she was startled by the sound of gunshots that morning of September 20, 1991. She ran towards the direction of the gunfire and as she neared the place, heard the moaning of a man. She moved quickly to the highway and saw a blue "Pajero" parked at the barangay road, its engine idling; and moments later, she saw the same vehicle running fast towards San Francisco, Agusan del Sur. She lost no time in reporting the incident to Barangay Councilor Terencio Jamero. Jamero testified that on receiving Marlyn's report, he and another Councilor, Alberto Saliling, at once proceeded to the place indicated. There they came upon the slain driver, and Isidoro Viacrusis, lying on the ground, sorely wounded, crying out for help. With the assistance of policemen of Barobo, they brought Viacrusis to the Agusan del Sur Provincial Hospital at Patin-ay. Timely medical attention enabled Viacrusis to recover from his grievous wounds. The evidence of the prosecution further establishes that in the morning of the following day, September 21, 1991, at about 7 o'clock, a secret informant (known as a "civilian asset") named Boyet reported to the police Station at Monkayo, Davao del Norte that the stolen ("carnapped") "Pajero" was parked behind the apartment of a certain Paulino Overa at the Bliss Housing Project at Poblacion, Monkayo. On instructions of the Station Commander, a police team 8 went to the place. They saw the "Pajero" and, their initial inquiries having yielded the information that the man who had brought it there would return that morning, posted themselves in such a manner as to keep it in view. Some three hours later, at about 10:30 o'clock, they saw a man approach the "Pajero" who, on seeing them, tried to run away. They stopped him. They found out that the man, identified as Danilo Sinoc of Surigao del Norte, 9 had the key of the "Pajero," and was acting under instructions of certain companions who were waiting for him at the Star Lodge at Tagum, Davao del Norte. Riding on the recovered "Pajero," the police officers brought Sinoc to the Star Lodge only to discover that his companions were no longer there. They later turned over Sinoc to the 459(th) Mobile Force, together with the "Pajero." Four months afterwards, in the afternoon of January 21, 1993, SPO1 Roger A. Basadre and two other officers (of the CIS) brought Danilo Sinoc to the Public Attorney's Office at Curato Street, Butuan City. They asked one of the attorneys there, Atty. Alfredo Jalad, for permission to take Sinoc's statement in writing in his office. Sinoc asked Jalad to assist him because he wished to make an "affidavit of confession." Atty. Jalad told Sinoc that he had the right to choose his own counsel, and to remain silent. Sinoc said he wanted to make the affidavit nonetheless, and be assisted by Jalad in doing so. The latter then had Sinoc narrate the occurrence in question in "Cebuano/Visayan," a dialect with which Sinoc was familiar. That done, Jalad asked Sinoc if the CIS had promised him anything for the affidavit he would execute. Sinoc said no. Only then did the CIS officers commence to take Sinoc's statement, typing their questions and Sinoc's answers as well as the initial appraisal of his constitutional rights on a typewriter in Atty. Jalad's Office. LexLib In his sworn statement, 10 Sinoc declared that he knew the victims, Isidoro Viacrusis and Tarcisio Guijapon because he was "formerly working at Taganito Mining Company" (TAMICO); that in June, 1991, he learned that Benjamin Espinosa (@ Benji), Jaime Jornales (@ James), Victorino Delegencia (@ Jun-Gren), and a certain "Ram" had been monitoring the activities of TAMICO Manager Viacrusis whom they planned to kidnap and rob of his "Pajero," and make it appear to be an act of the NPA; that the criminal undertaking was planned by a certain Vicente Salon (@ Dodong), who made available the needed funds and two (2) hand guns; that in September, 1991, at a meeting of the group at the boarding house of "Jun-Gren" to which he (Sinoc) was invited was offered P20,000.00 to join in the "kidnapping and carnapping" operation; that he agreed "because of poverty;" that in the morning of September 20, 1991, at about 6:30 o'clock, he, "Ram" and Benjamin Espinosa stopped the "Pajero" driven by Tarcisio Guijapon in which Viacrusis was riding, brandishing two .38 caliber revolvers, and a piece of wood shaped like a rifle; that they boarded the vehicle, identifying themselves as NPA (soldiers of the New People's Army) and had the driver proceed towards Surigao City; that at the bridge of Tres de Mayor, they had the "Pajero" stop to pick up two other companions, "James" (Jaime Jornales) and Jun- gren" (Victor Delegencia); that "Ram" took over the wheel and drove towards Butuan City; that at San Vicente, Barobo, "Ram" turned into a feeder road and stopped about seven (7) meters from the highway; that there, Viacrusis and Guijapon, whose hands had been tied behind their back, were made to get down; that "James" Jornales shot Viacrusis four times after which "Jun-gren" Delegencia, Jr. fired at Guijapon four times, too; that when Sinoc remonstrated at the shootings, he was told it was on Dodong Salon's orders; that the malefactors then proceeded to the "Bliss" Housing Project at Monkayo where they left the "Pajero," this being the place where the mastermind, Vicente Salon, was supposed to get the vehicle and pay Sinoc the promised sum of P20,000.00; that they then all went to Tagum; that on the following day, Sinoc was instructed by Jun-gren and James to return to Monkayo with the key of the "Pajero" and deliver it to "Ram," and that when he arrived at the place at about 9 o'clock in the morning, he was apprehended by soldiers and brought to the "459(th) PNP Mobile Company." During the entire period of Sinoc's interrogation, which commenced at about 3:00 P.M., Atty. Jalad remained seated beside him; and at its conclusion, Jalad read to Sinoc the contents of his statement from beginning to end. The statement was thereafter signed by Sinoc and by Jalad, the latter being described as "witness to signature." 11 Sinoc was next brought to the home of Butuan City Prosecutor Ernesto M. Brocoy so that he might take oath on his statement. This was at about 7:00 P.M. After going over the statement, City Fiscal Brocoy told Sinoc that is was "very damaging," briefly discussing the contents thereof in Cebuano. The latter stood by his answers, however, averring that they had been voluntarily given. Evidently satisfied of the authenticity and voluntariness of the statement, Brocoy administered the oath to Sinoc, and signed the certification typed at the left hand margin of page 4 thereof, reading: "SUBSCRIBED AND SWORN to before me this 21st day of January 1992, at Butuan City, Philippines. I hereby certify that I personally examined the herein affiant and that I am satisfied that he voluntarily executed and understood his statement." He also initialed every page of the statement. 12 While under detention at the Provincial Jail, awaiting trial, Sinoc wrote two (2) letters to the Trial Judge dated June and July, 1992, in both of which he asked that he be transferred to the City Jail because he had heard that Vicente Salon, who had been arrested on the strength of his sworn statement, had made plans to kill him. He sent the Judge a third letter dated August 11, 1993, consisting of four (4) pages which is described by His Honor as "substantially a repetition of the contents of his affidavit of confession." All the letters were handwritten in block letters in the Cebuano dialect. 13 Sinoc proffered the defense of alibi. His claim, as summarized by his counsel, was that "on September 19, 1991, he was in Sibagat, Agusan del Sur together with his wife and prepared on that early morning to sell tableya (native chocolate) in Tagum, Davao del Norte. On the same day they reached Tagum and they sold tableya and on the same day there were not able to sell the tableya; on September 20, 1991 they were again selling tableya in Tagum, Davao del Norte. It was while in Tagum that . . . (they met) a certain Darves, they did not know exactly the name, he offered to them the money to accompany the said driver of Darves who is name(d) Ram. He was offered . . . money to accompany this Ram in prior (sic) to allegedly get the Pajero vehicle from Moncayo together with Ram, and while in Moncayo he was first apprehended by the police and detained at Moncayo, first . . . (by) the 459 Mobile Force of . . . Monkayo and on January 14, 1992 to January 24, 1992 he was detained by the CIS authorities in Butuan City." Elaborating, Sinoc testified that he saw Darves with three companions at "a certain restaurant in Tagum;" that Darves introduced himself, and offered to give him P1,000.00 if he would accompany his driver to get a vehicle at Moncayo; that he agreed, and at 6 o'clock in the morning of September 21, 1991 he went to the Star Lodge where Darves was staying; that there, he was introduced to the latter's driver, Ram, given P1,000.00, and told to go with Ram; and that he went out of the Star Lodge, gave his wife P800.00, and then went with Ram to Moncayo on board a bus. In Moncayo, they went to where the Pajero was parked. Sinoc went towards the vehicle. Ram lagged behind, having paused to buy some cigarettes. When Sinoc reached the Pajero, five persons suddenly pointed guns at him, searched him, and found on him the key to the "Pajero" which Darves had given to him. The five persons, who were led by Sgt. Michael Aringgo of the PNP, brought him to the Moncayo police station where they investigated him without informing him of his constitutional rights. In the afternoon of that day, September 21, 1991, he was surrendered to the 459th Mobile Force Company which detained him until January 14, 1992. On this date he was taken by CIS personnel and brought to the CIS Compound at Butuan City, at which place he was confined up to January 24, 1992, and subjected to the interrogation without being informed that he had a right to remain silent. He was told, however, that he had the right to counsel, but although he told the investigators that his lawyer was Atty. Gavino Samontina, they never called the latter. The investigators wished him to sign an affidavit. When he refused, they maltreated him by repeatedly submerging his head in a toilet bowl full of excrement, as well as by trying him on a bed, raising the bed on one end so that his feet were up and his head down, and keeping him in the position for hours. On January 20, 1992, his wife and Efren Dak-ang came to see him at the CIS Compound. He talked to them and revealed what was being done to him while under investigation. On January 21, 1992, after having been interrogated the whole night, he finally agreed to sign the affidavit because the CIS officers told him, "(W)e will kill you or salvage you." In fact, the night before, police officers had brought him to an uninhabited place near the bridge and with guns pointed at his head, commanded him to run. He refused, of course. So, in the afternoon of that day, at around 4 o'clock, he was brought to the office of Public Attorney Jalad, where the police investigators" hurriedly typed" his affidavit and made him sign it. He denied that Atty. Jalad informed him of his constitutional rights. He asserted that when he told Jalad he had his own lawyer, Jalad merely remarked, "Never mind, all attorneys are just the same as long as it is attorney." He was next brought to Fiscal Brocoy who, without talking to him, "right away signed that document" (his confession). Sinoc also explained how he had come to write the letter of August 11, 1992 to the Judge some seven months after his confession. That letter it will be recalled and as is evident from a comparison of both documents was described by the latter as "substantially a repetition of the contents of his affidavit of confession," supra. 14 He said: "(T)here were persons who visited me while at the Provincial Jail and told me to accept the crime . . . because if I will not accept the crime, my wife and children (and) my parents, they will liquidate all of them.. . . ." Sinoc's wife, Jovita, testified for the defense, and sought to corroborate his testimony. She affirmed that she had seen her husband at the CIS on September 20, 1992, at about 8:30 in the evening and he had told her then to "keep . . . silent not to tell anybody that he will be accompan(ied) by the CIS." Efren Dak-ang also gave corroborating testimony. For some undisclosed reason, the surviving victim, Isidoro Viacrusis, did not testify; this, despite the fiscal's assurances to the Trial Judge that he was "very interested" in giving evidence. Obviously because of Viacrusis' failure to testify, his affidavit of October 17, 1991 was not formally offered, being obviously hearsay, although it is attached to the record. Be this as it may, the Trial Court was satisfied that the evidence actually presented by the Government sufficed to establish Sinoc's guilt beyond reasonable doubt of the two felonies with which he stood charged. Sinoc has taken an appeal to this Court and ascribes to the Trial Court the following errors: (1) convicting him of the offenses charged although conspiracy had not been independently proven to exist among him and other persons named in the indictment; (2) not rejecting the evidence obtained after he had been "arrested without any warrant of arrest," and (3) not rejecting his confession after he had been illegally arrested and had thereafter been "under custodial investigation . . . without a counsel of choice" from September 21, 1991 to January 20, 1992, first by the Moncayo 459th Mobile Force, and later by the C.I.S., Butuan City. As regards Sinoc's claim of illegal arrest, the law provides that an arrest without warrant may be licitly effected by a peace officer, inter alia. "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." 15 There is no question that the police officers in this case were aware that an offense had just been committed; i.e., that some twelve hours earlier, a "Pajero" belonging to a private company had been stolen ("carnapped") and its driver and passenger shot, the former having died and the latter being on the verge of death. Nor is there any doubt that an informer ("asset") had reported that the stolen "Pajero" was at the Bliss Housing Project at Monkayo. It was precisely to recover the "Pajero" that a team composed of SPO1 Michael Aringo and "joint elements of 459 PNP MFC and Moncayo Police Stn led by Insptr Eden T. Ugale," went to that place and, on taking custody of the "Pajero," forthwith dispatched a radio message to "Higher Headquarters" advising of that fact. 16 There is no question either that when SPO1 Aringo and his companions reached the place where the "Pajero" was parked, they were told by Paulino Overa, owner of the apartment behind which the vehicle was parked, that the man who had brought the "Pajero" would be back by 12:00 noon; that the person thus described did in fact show up at about 10:00 A.M., and was immediately identified by Overa as "the one who rode on that car 'Pajero;'" 17 just as there is no question that when the police officers accosted him, Sinoc had the key to the stolen "Pajero" and was in the act of moving toward it admittedly to take possession of it (after having arrived by bus from Tagum together with another suspect, "Ram"). Sinoc's link to the stolen vehicle (and hence to the kidnapping and killing accompanying its asportation) was thus palpable. The foregoing circumstances left the police officers no alternative save to arrest Sinoc and take possession of the "Pajero." His arrest without warrant was justified; indeed, it was in the premises the officers' clear duty to apprehend him; their omission to do so would have been inexcusable. Sinoc's assault against the propriety of his interrogation after his warrantless arrest, because conducted without advice to him of his constitutional rights, is pointless. It is true that, as candidly admitted by the arresting officers, their initial interrogation of Sinoc was made without his first being told of his corresponding rights. This is inconsequential for the prosecution never attempted to prove what he might have said on that occasion. The confession made by him some time afterwards at the Public Attorneys' Office at Butuan City is altogether a different matter, however. The record adequately shows it to have been executed voluntarily and under applicable safeguards, apart from being confirmed by, consistent with, other evidence. Sinoc does not dispute that he was taken to the Public Attorney's Office; that he spoke to Atty. Alfredo Jalad and it was in the latter's office that his confession was prepared by the CIS investigator. Nor does he deny that he was then brought to the home of City Prosecutor Ernesto M. Brocoy who certified that the confession had been subscribed and sworn to before him and that he was satisfied that Sinoc had voluntarily executed and understood his statement. Sinoc nonetheless claims that he was under intimidation at that time and never advised of his constitutional rights. After carefully considering the evidence, this Court is convinced that the Trial Judge was correct in accepting the account of the execution of Sinoc's confession (Exhs. K, K-1 to K-5) narrated by Public Atty. Alfredo Jalad and City Prosecutor Ernesto Brocoy, to the effect that the confession was voluntarily given after he had been duly informed of his constitutional rights. No reason whatever is discernible in the record for these Government officials to give false evidence against Sinoc, or testify otherwise than to the truth. Sinoc's confession of January 21, 1992 is confirmed by the letter he admittedly wrote to the Trial Judge more than a year later, on August 11, 1993, 18 the contents of which are, as observed by the Trial Judge, substantially identical with those of the confession. In said letter, in which he narrates in no little detail the same story contained in his confession, he apologizes for "bothering you again at this time" (obviously referring to his prior letters to the Judge of June and July 1992), and gives his reasons for writing the latest letter; to ask for the Judge's assistance and take account of his allegation that his agreement with his co-accused was only to stop the "Pajero," that it was poverty that impelled him to join the plotters (Vicente Salon, et al.); to see that Tarcisio Guijapon and Viacrusis be given justice; and to plead that the Judge take pity on him, and not give him too heavy a penalty. The confession is also consistent with Sinoc's testimony at his trial in which he admitted that he had indeed traveled from Tagum to Moncayo where he was arrested; and that he has made the trip, together with his co-accused, "Ram," precisely to get the stolen "Pajero" the key of which he had on his person at the time. It contains details (e.g., the use of two (2) hand guns and a wooden rifle, the bringing of the Pajero from the scene of the killing to Monkayo, the identities of the individual malefactors who shot the victims) which it is improbable to think were conjured out of thin air by the police investigators or deduced from other evidence. The confession is consistent too, with the other proofs, particularly the testimony of Marlyn Legaspi and Barangay Councilor Jamero as regards the time and place of the shooting of the hapless victims. lexlib In any event, the Trial Judge appears to have carefully assessed the demeanor of the witnesses for the prosecution and those for the defense, in relation to the documents on record, and on this basis and from his vantage point, found that the prosecution's proofs were more credible than the defense, and that their combined weight established beyond reasonable doubt the appellant's culpable participation in the crimes charged. It must additionally be pointed out that apart from Sinoc's protestations that his extrajudicial confession was the result of torture and threats, no competent evidence exists on record to substantiate that claim. He made no such claim to either Public Attorney Alfredo Jalad or City Prosecutor Ernesto Brocoy although there is absolutely nothing in the record to indicate any cause for him to distrust either government officer, much less believe they were in conspiracy with the police officers to concoct a case against him. In fact, although he professes to have disclosed his supposed maltreatment to his wife when she visited him at the place of his detention, the latter made no mention of it in her testimony, nor did she ever attempt to have him medically examined to confirm such a revelation, if it had been made. Moreover, the counsel he said, who wanted to represent him during his interrogation at Public Attorney Jalad's office, Atty. Gavino Samontina, was never presented to confirm his statement. While the evidence does show that Sinoc became embroiled in a criminal conspiracy 19 he agreed (out of poverty, he says) to join in an crime being planned by certain men named by him and decided to commit it with them the agreement, as far as he was concerned, was to waylay Viacrusis, the Manager of the Tagum Mining Company, and rob him of his "Pajero," for which his share would be P20,000.00; but it did not include the shooting of Viacrusis or any one else. In fact, he raised a protest when Viacrusis and Guijapon were shot. In other words, as far as Sinoc understood it, and as far as may in fact be deduced from the evidence, the plan was not much to capture Viacrusis and deprive him of liberty, even less to assassinate him, but to steal his "Pajero" by violent means. The "kidnapping" was not the principal objective; it was merely incidental to the forcible taking of the vehicle. Unfortunately, by reason or on the occasion of the seizure of the "Pajero" and (as far as the proofs demonstrate) without fore-knowledge on Sinoc's part its driver was killed, and the lone passenger seriously injured. cda There was thus no kidnapping as the term is understood in Article 267 of the Revised Penal Code the essential object of which is to "kidnap or detain another, or in any other manner deprive him of his liberty." The idea of "kidnapping" in this case appears to have been the result of the continuous but uninformed use of that term by the peace officers involved in the investigation, carelessly carried over into the indictments and the record of the trial, and even accepted by His Honor. 20 The offense actually committed in Criminal Case No. 3564 where the killing of Tarcesio Guijapon accompanied the taking of the "Pajero" is that defined and penalized by Article 294 of the Criminal Code, 21 viz.: "ART. 294. Robbery with violence against or intimidation of persons Penalties. Any person guilty of robbery with the use of violence against any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson. xxx xxx xxx It is germane to observe that even if the intent to deprive of liberty were as important or primordial an objective as the asportation of the "Pajero," the kidnapping would be absorbed in the robbery with homicide; 22 and that the term, "homicide," is used in the quoted article in the generic sense i.e., as also including murder, the nature of the offense not being altered by the treacherous character, or the number, of the killings in connection with the robbery. 23 On the other hand, the wrongful acts actually proven to have been committed by the defendants in Criminal Case No. 3565 are: (1) robbery, of course, as above described, and (2) frustrated murder on the occasion thereof gunshot wounds having been inflicted on Isidoro Viacrusis, while bound and prostrate on the ground, utterly unable to put up any defense, the wounds being of such a nature as would have resulted in his death were it not for timely medical intervention. Obviously, these acts do not fall within the ambit of Article 294, which treats of the special complex crime of robbery with violence against or intimidation of persons, but NOT robbery with attempted or frustrated homicide (or murder), although the law does not punish the crime of attempted and frustrated robbery with homicide. 24 Neither do the crimes come within the operation of Article 48 of the Criminal Code which, speaking of complex crimes, provides that when "a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period." In this case, the two crimes of "carnapping" and frustrated murder did not result from "a single act." Nor was either offense a "necessary means for committing the other." The shooting of the victim was not necessary to commit the "carnapping;" indeed at the time the victim was shot, the "carnapping" had already been consummated. And, of course, the "carnapping" which, according to the evidence, was the conspirators' principal objective, was not necessary to perpetrate the shooting. It follows then that the malefactors' felonious acts in Criminal Case No. 3565 cannot be regarded as juridically fused into a "complex crime" under Article 48. They should be considered separate offenses, separately punishable. Now Sinoc admittedly entered into a conspiracy with his co-accused; but he insists that as far as he was concerned, the conspiracy was to "carnap" the "Pajero," and did not include any killing or assault against persons. His theory is that the slaying of the driver and passenger might conceivably have been contemplated from the outset by one or some or all his co-conspirators; but Sinoc himself never had that intention. Indeed, he says he had no inkling that the shooting would take place; had no opportunity to prevent it, and could only remonstrate about it after it was done; and he invokes the doctrine that conspirators may only be held accountable for the acts embraced in the criminal agreement; and as regards felonious acts not included, only the author thereof would be liable. 25 Sinoc's disclaimers notwithstanding, it is this Court's view that the crime that may properly be ascribed to him in Case No. 3564 is robbery with homicide under Article 294 of the Revised Penal Code. For unfortunately for him, there is no avoiding the fact that a homicide although not agreed to or expected by him was committed on the occasion of the robbery of the "Pajero," and he could not but have realized or anticipated the possibility of serious harm, even death, being inflicted on the person or persons in the "Pajero" targeted for robbery, since two of his companions were armed with guns, even if in his mind, to repeat, his agreement did not include killing. 26 The most that can be conceded is to credit him with the mitigating circumstance of having "no intention to commit so grave a wrong as that committed." 27 Sinoc may not be held liable in Case No. 3565 for the separate offense of frustrated murder as regards Viacrusis, for the reasons already mentioned; in this particular case, the evidence shows that he agreed only to the plan to "carnap" the "Pajero," but not to any assault or killing. 28 Nor it is logical to convict him twice of robbery of the same property under the same circumstances. Hence, he may not be pronounced responsible for the separate offense of robbery of the same "Pajero," in addition to being declared guilty of robbery ( of that same "Pajero") with homicide under Article 294. cdtai The penalty imposable on Sinoc is that provided in Article 294 of the Penal Code, which is reclusion perpetua to death. Appreciating in his favor the mitigating circumstance of lack of intention to commit so grave a wrong as that done, the penalty that should be applied to him is reclusion perpetua. WHEREFORE, in Criminal Case No. 3564, appellant Danilo Sinoc, being guilty beyond reasonable doubt of the offense of robbery with homicide defined and punished by Article 294 of the Revised Penal Code, is sentenced to reclusion perpetua. Criminal Case No. 3565 is DISMISSED as to him. SO ORDERED. Davide, Jr., Melo, Francisco and Panganiban, JJ., concur. THIRD DIVISION [G.R. No. 132671. November 15, 2000.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CRISANTO BAULA, RUBEN BAULA, ROBERT BAULA and DANILO DACUCOS, accused-appellants. The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellants. SYNOPSIS Appellants were found guilty of murder for hacking to death one Patrocinia Caburao. Allegedly, the son of the victim saw the crime and the criminals, but failed to immediately reveal the same because of fear. Investigation, on the other hand, revealed that before the victim was killed, she has been at a store where appellants were also having a drinking spree; and after the victim left the store, appellants also left the store. That after discovery of the crime, the policemen went to the houses of the appellants and there recovered bloodstained clothings and bolo which after laboratory examination thereof were found to be type "O" as that of the victim. The Court reversed the conviction of appellants. As the case was heard by one judge and the decision penned by another, assessment on the credibility of witnesses would have to be received with caution on appeal. The Court noted the delay of the criminal accusation by the son of the victim which is highly suspect. Then, appellants took exception to the admissibility of evidence consisting of the bloodstained clothing and bolo, arguing that the seizure was made without warrant. Admittedly, they were taken at a time when the police were questioning appellants about the killing, thus violating their constitutional right against illegal search and seizure. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; FINDINGS OF TRIAL COURT, GENERALLY RESPECTED; EXCEPTION IS WHERE ONE JUDGE HEARS THE TESTIMONY OF THE WITNESSES AND ANOTHER JUDGE PENS THE DECISION. True, the rule has generally been that where the culpability or innocence of an accused hinges on the issue of credibility of witnesses and the veracity of their testimony, the assessment made by the trial court thereover is entitled to a great degree of respect and, absent strong justifications to the contrary, it will not be disturbed on appeal. The reason is simple. A trial court gets an opportunity, not equally open to an appellate court, to observe the expression of witnesses at the stand, including their demeanor under questioning, that makes up a most significant factor in the proper evaluation of testimonial evidence. Obviously, however, this rule will not apply where one judge hears the testimony of the witnesses and another judge pens the decision for, in such a case, the thesis for the rule is not in the least extant. . . Here, it was Judge Antonio M. Belen who heard the testimony given at the trial, but it was Judge Emilio V. Angeles who wrote the decision. . . solely on the basis of the records of the case. Having neither personally heard the testimony of the witnesses nor observed their deportment and manner of testifying, his assessment on the credibility of witnesses would have to be received with caution on appeal. 2. ID.; ID.; ID.; AFFECTED BY DELAY IN REPORTING THE CRIME BY THE VICTIM'S OWN SON. Verily, it is not uncommon for a witness to show some reluctance about being immersed in a criminal case. The natural reticence of most people to "get involved" is, in fact, of judicial notice. Thus, it is recognized that the delay or vacillation in making a criminal accusation does not necessarily impair the credibility of witnesses for, more often than not, such a delay can be satisfactorily explained. In this instance, however, the Court cannot help but doubt as being highly suspect, the belated revelation of Jupiter on the identity of the assailants. His claim that he did not immediately report the matter to the police relying on a supposition that the crime could anyway be solved even without his own disclosure appears to be a bit flimsy. Unlike previous cases where we have ruled otherwise, Jupiter is not just an innocent bystander but the son of the victim. The raging passion and anger of a son who has just lost a mother in such a brutal manner would have impelled him to immediately report the crime to the authorities even with an alleged threat upon his life. It can be accepted that there is yet no real test or a hard and fast rule in ascertaining the truth of the testimony of a witness to an accurate degree. Nevertheless, testimony that conforms to human knowledge, observation, and experience is often deemed reliable and that which is repugnant to such standards belongs to the miraculous and outside of judicial cognizance. The Court finds that Jupiter's response to the events is far from the natural reaction of a son who has just witnessed the grisly murder of his own mother. What he has said to have done is simply not in accord with human nature. With all the bitterness and indignation expected of a person similarly situated, it is quite odd that he would keep the matter to himself and fail to disclose his knowledge of the crime to the police authorities, or even to any of his relatives, despite his presence during their investigation of the case. His belated declaration of the identity of his mother's assailants, some two months after the killing, can but accentuate the difficulty that the Court would have to face if it were to rely almost completely on his testimony. . . Testimonial evidence to be believed must not only proceed from the mouth of a credible witness but must be credible in itself which, by common experience and observation, could lead to the inference of at least its probability under the circumstances. In a criminal prosecution the accused is confronted with the full might of state authority. The evidence of the prosecution must thus be strong to pierce the shield of presumptive innocence. 3. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST ILLEGAL SEARCH AND SEIZURE; VIOLATED IN CASE AT BAR. Accused-appellants also take exception to the admissibility of the evidence consisting of the bloodstained bolo, polo shirt and short pants arguing that, even on the assumption that these articles did belong to accused-appellants, their seizure without a valid warrant has violated their constitutional rights. Admittedly, the bloodstained bolo, polo shirt and short pants were taken, sans any search warrant, from accused-appellants. . . at a time when the police started to question them about the killing of Patrocinia Caburao. . . The plain import of the fundamental law is to say that between the State and the people stands the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants or warrants of arrest. The protection means that the State cannot simply intrude indiscriminately into houses, or conduct search and seizure thereat or on the person of an individual, and it puts up an almost impenetrable shield to protect privacy and accord sanctity against this unlawful form of restraint. The proscription against unreasonable searches and seizures is not absolute, of course, and the Court has had occasions to rule that a warrantless search and seizure of property is valid under certain circumstances. There can, for instance, be a lawful warrantless search incidental to a lawful arrest recognized under Section 12, Rules 126 of the Rules of Court and by prevailing jurisprudence; or seizure of evidence in "plain view," its elements being extant; or search of a moving vehicle; or consented search, or customs search. The situation here in question, however, can hardly come within the purview of any of the established exceptions. ITAaCc 4. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS SEARCH INCIDENTAL TO A LAWFUL ARREST; NOT PRESENT. In a warrantless search incidental to a lawful arrest, the arrest itself must have to be effected under the circumstances enumerated by law. One such case is when an offense has in fact just been committed, and the peace officer has personal knowledge of facts indicating that the person to be arrested has committed it. Accused-appellants were not being arrested at the time that the subject articles were allegedly taken from them but were just being questioned by the police officers conducting the investigation about the death of Patrocinia Caburao. The investigating officers had no personal knowledge of facts indicating that the accused had committed the crime. Being in no position to effect a warrantless arrest, the police officers were thus likewise barred from effecting a warrantless search and seizure. . . Mere suspicion cannot satisfy the requirement of probable cause which signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person accused is guilty of the offense with which he can be charged. An illegal search cannot be undertaken and then an arrest effected on the strength of the evidence yielded by that search. The Court finds it less than credible the stance of the prosecution that the polo shirt and short pants have been voluntarily given. An alleged consent to a warrantless search and seizure cannot be based merely on the presumption of regularity in the performance of duty. This presumption, by itself, cannot prevail against the constitutionally protected rights of an individual, and zeal in the pursuit of criminals cannot ennoble the use of arbitrary methods that the Constitution itself abhors. D E C I S I O N VITUG, J p: In an Information, dated 07 August 1996, accused-appellants were charged with murder before the Regional Trial Court, Branch 38, of Lingayen, Pangasinan. The accusatory portions of the Information against the indictees read: cIECTH "That on or about the 13th day of December 1995, in the evening, in barangay Sioasio West, Municipality of Sual, Province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, armed with a bolo (tabas), with abuse of superior strength, treachery and evident premeditation and intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and stab Patrocenia Caburao, inflicting upon her the following: "1. Hacking wound 3 inches in length; 2 inches deep Rt. Occipital region (nape area) exposing brain tissue; "2. Hacking wound 4 inches in length; 2 inches deep at mid occipital area exposing damage brain tissue; "3. Hacking wound 4 inches in length; 1/2 inch deep facial area running across the Rt. Cheek and left cheek including the nasal area; "4. Hacking wound 2 inches in height; 1 inch deep at the vertex (top of the head); "5. Abrasion; confluent at the back area. "Cause of death Brain tissue injury secondary to mortal wounds above which injuries directly caused her death, to the damage and prejudice of the heirs of the said Patrocenia Caburao. "Contrary to Art. 248 of the Revised Penal Code." 1 When arraigned, the accused all entered a plea of not guilty to the offense charged. Trial shortly thereafter ensued. The relevant facts and events that transpired, according to the prosecution, were briefly narrated in the People's Brief. On 13 December 1995, at around eight o'clock in the evening, Jupiter Caburao, decided to follow his mother, Patrocinia Caburao, who had earlier left their house at Barangay Siwasiw West, Sual, Pangasinan, to settle her due obligations at a store, about one-and-a-half kilometers away, owned by a certain Brigida Tumamang. While traversing the road towards the store, Jupiter noticed a commotion near the creek about ten meters away from him. He focused his flashlight towards the direction where he heard the commotion and saw accused-appellants Crisanto Baula and Danilo Dacucos in the act of hacking a person who was lying on the ground, while accused- appellants Robert Baula and Ruben Baula stood as lookouts. The assault lasted for about four minutes. Accused-appellants fled but not before they had threatened Jupiter with death if he were to divulge the incident to anyone. Jupiter went near the lifeless body of the victim who turned out to be his own mother. Her head and face sustained four hacking wounds, two of which damaged her brain tissues. Jupiter rushed home and brought his niece and nephew to the house of a neighbor for their safety. For fear of reprisal from accused-appellants and believing that the police would be able to solve the gory killing on their own, Jupiter did not reveal the damage to either his relatives or the police. AacCHD About two o'clock in the morning of 14 December 1995, the police authorities, led by SPO4 Fermin Mirande, went to the locus criminis, and took pictures of the body of the victim. 2 The investigation revealed that before the victim was killed, she had been to Brigida Tumamang's store; that accused-appellants were also at the store having a drinking spree; that the victim left the store between seven o'clock and eight o'clock in the evening, and that, fifteen minutes later, accused-appellants also left. SPO4 Mirande, with several policemen, repaired to the respective houses of accused-appellants. The policemen asked Ruben Baula and Crisanto Baula for the clothing they wore on the night of the murder. Ruben Baula gave his bloodstained pair of short pants, and Crisanto Baula turned over his bloodstained polo shirt. The policemen next went to the hut of Danilo Dacucos. Inside the hut, the group found hanging on the wall a bloodstained bolo. The bloodstained pair of short pants, polo shirt and bolo, together with the victim's dried blood samples, 3 were sent on the same day to the National Bureau of Investigation, Dagupan City Branch Office, 4 for forensic examination. The results of the examination 5 disclosed that the bloodstains 6 found in the bolo, 7 the bloodstains 8 on the polo shirt 9 and the bloodstains 10 on the pair of short pants 11 had the same type "O" blood as that of the victim. The defense had another version of the incident. Wilson Radovan, the barangay captain of Siwasiw, Sual, Pangasinan, testified that on 13 December 1995, at around eight o'clock in the evening, while he and the other barangay officials were at their outpost, they heard the cry of a woman asking for help. Rushing out, they saw Teofila Uson, a barangay mate, who told them that she and Patrocinia Caburao were being pelted with stones. Teofila Uson said that it was too dark to be able to identify the person who had attacked them. When the group proceeded to the place of the incident, they saw the lifeless body of Patrocinia Caburao, beside the road, near the creek. Radovan testified that he did not notice any other person in the place where the incident occurred. He requested Gene Macatiao, the son-in-law of the victim and one of those who first arrived in the scene, to inform their relatives and the police. Ruben Baula testified that in the morning of 13 December 1995, he, together with his co-accused and other companions, namely, Pepito Ramos, Amber Pagudpod, Francis Amistad and Reny, were harvesting palay, at Sitio Binabalian, Siwasiw West, Sual, Pangasinan, on the land being tenanted by Crisanto Baula. He recounted that they were there until 4:55 in the afternoon at about which time Crisanto Baula invited the group to eat "merienda" in the nearby canteen of Brigida Tumamang. He noticed that when they arrived at the store, there were three other persons partaking of drinks. At about twilight, they left the store of Brigida Tumamang and proceeded to their respective residences, leaving behind the three persons who continued with their drinking spree. At about three o'clock in the morning of 14 December 1995, while he was asleep, four policemen and several barangay officials arrived and asked him if he knew who had killed Patrocinia Caburao. Although he denied any knowledge about the killing, the policemen, nevertheless, invited him to accompany them to the house of Robert Baula. Arriving thereat, the policemen likewise questioned the latter about the killing of Patrocinia Caburao. Robert Baula, like his co-accused Ruben Baula, denied any knowledge of the killing. After the interrogation, the police authorities allowed them to go. Ruben and Robert Baula both vehemently denied that the police ever took any clothing from them. caCEDA Accused-appellants, Crisanto Baula and Danilo Dacucos, corroborated the testimony of their co-accused, Ruben and Robert Baula, in its material points, claiming that in the morning of 13 December 1995, they went to Sitio Binabalian to harvest palay; that in the afternoon, they took their merienda at the store of Brigida Tumamang; and that, thereafter, they went home leaving behind the three persons still indulging in drinks at the store of Brigida Tumamang. The trial over, the court a quo rendered its judgment on 17 November 1997, convicting accused-appellants of the crime charged; thus: "WHEREFORE, in view of the foregoing premises, judgment is hereby rendered finding the accused Danilo Dacucos, Crisanto Baula, Ruben Baula and Robert Baula, guilty beyond reasonable doubt of the crime of Murder defined and penalized under Article 248 of the Revised Penal Code as amended. "Pursuant thereto and in relation to Article 63, paragraph 2, No. 2 of the same code, all the aforenamed accused are hereby sentenced to suffer the penalty of Reclusion Perpetua and to pay, jointly and severally, the heirs of Patrocinia Caburao the following: "a. P50,000.00 for the death of Patrocinia Caburao; "b. P15,000.00 for funeral expenses; "c. moral damages of P75,000.00; "d. to pay proportionally the costs. "SO ORDERED." 12 Accused-appellants contend in the instant appeal that the trial court has erred (1) in giving full credence to the belated eyewitness account of Jupiter Caburao ascribing to herein accused-appellants authorship of the crime, and (2) in admitting in evidence the bolo, polo shirt, and short pants taken by the policemen from accused-appellants in violation of their constitutional rights. In convicting accused-appellants, the trial court found the explanation of Jupiter for his delay in reporting what he knew of the gruesome killing not to be without valid reasons. After all, the court said, he was threatened and he felt that the authorities could solve the crime even without revealing what he knew. DHSEcI True, the rule has generally been that where the culpability or innocence of an accused hinges on the issue of credibility of witnesses and the veracity of their testimony, the assessment made by the trial court thereover is entitled to a great degree of respect and, absent strong justifications to the contrary, it will not be disturbed on appeal. 13 The reason is simple. A trial court gets an opportunity, not equally open to an appellate court, to observe the expression of witnesses at the stand, including their demeanor under questioning, that makes up a most significant factor in the proper evaluation of testimonial evidence. Obviously, however, this rule will not apply where one judge hears the testimony of the witnesses and another judge pens the decision for, in such a case, the thesis for the rule is not in the least extant. 14 In the case under review, such as in People vs. Capilitan 15 and People vs. Villapana, 16 the decision was rendered by the judge who did not conduct the trial and hear the evidence. The Court in acquitting Capilitan of rape, quoted with approval its previous pronouncement in Villapana similarly acquitting the accused therein, viz: "Additionally, we have to take note that in this case, the judge who heard the evidence for the prosecution is not the same judge who decided the case. It was Judge Serafin Salvador who heard the testimonies of complainant and her witness before his retirement. Whereas, it was Judge Romulo Quimbo who decided the case relying solely on the transcripts of stenographic notes in appreciating Macaranas' and her witness' testimonies. Even as this Court has consistently been guided by the precept that findings of trial courts on credibility of witnesses are accorded great weight and must not be disturbed as it was the trial judge who had the opportunity to observe the demeanor of the witnesses while they were testifying, this case should be an exception in view of the fact that the Judge who decided the case is NOT the same judge who heard the evidence (see People vs. Escalante, et al., G.R. No. L-371457, August 22, 1984, 131 SCRA 237). Thus, the Court should all the more exercise utmost care in evaluating the evidence presented in the instant case so as to render justice not only to the accused, but also to the complainant and the State as well. 17 Here, it was Judge Antonio M. Belen who heard the testimony given at the trial, but it was Judge Emilio V. Angeles who wrote the decision, dated 17 November 1997, solely on the basis of the records of the case. Having neither personally heard the testimony of the witnesses nor observed their deportment and manner of testifying, his assessment on the credibility of witnesses would have to be received with caution on appeal. 18 Verily, it is not uncommon for a witness to show some reluctance about being immersed in a criminal case. The natural reticence of most people to "get involved" is, in fact, of judicial notice. 19 Thus, it is recognized that the delay or vacillation in making a criminal accusation does not necessarily impair the credibility of witnesses for, more often than not, such a delay can be satisfactorily explained. 20 In this instance, however, the Court cannot help but doubt as being highly suspect, the belated revelation of Jupiter on the identity of the assailants. His claim that he did not immediately report the matter to the police relying on a supposition that the crime could anyway be solved even without his own disclosure appears to be a bit flimsy. Unlike previous cases where we have ruled otherwise, Jupiter is not just an innocent bystander but the son of the victim. The raging passion and anger of a son who has just lost a mother in such a brutal manner would have impelled him to immediately report the crime to the authorities even with an alleged threat upon his life. It can be accepted that there is yet no real test or a hard and fast rule in ascertaining the truth of the testimony of a witness to an accurate degree. Nevertheless, testimony that conforms to human knowledge, observation, and experience is often deemed reliable and that which is repugnant to such standards belongs to the miraculous and outside of judicial cognizance. 21 The Court finds that Jupiter's response to the events is far from the natural reaction of a son who has just witnessed the grisly murder of his own mother. What he has said to have done is simply not in accord with human nature. With all the bitterness and indignation expected of a person similarly situated, it is quite odd that he would keep the matter to himself and fail to disclose his knowledge of the crime to the police authorities, or even to any of his relatives, despite his presence during their investigation of the case. His belated declaration of the identity of his mother's assailants, some two months after the killing, can but accentuate the difficulty that the Court would have to face if it were to rely almost completely on his testimony. DaTHAc A careful reading of the records of this case additionally would reveal significant flaws in the testimony of Jupiter. Jupiter testified that he was able to recognize all the accused being barangaymates but failed to recognize the victim because he was quite distant from the place where the assault took place. He remembered well the number of times the accused Crisanto and Danilo had allegedly hacked the victim, yet, on further questioning by the trial court, he could not tell which part of the body of the victim was struck. On direct examination, Jupiter would insist that he approached the victim after the accused had fled. When asked by the court whether he went close to the "place of the incident," he answered in the negative, stating that he was shocked and frightened. Jupiter testified that the incident had lasted for four minutes and that he focused his flashlight on the commotion four times, at intervals of five seconds each, but, again, when queried by the court why he had waited for four minutes before focusing his flashlight, Jupiter kept silent and did not answer the question. It would seem unlikely that after Jupiter focused his flashlight on them, accused-appellants would continue hacking the victim and for the two lookouts, who were supposed to precisely warn their co- accused of the presence of witnesses, to simply do nothing about it. The most common response of persons committing a crime would be to flee upon being discovered. Indeed, there should be greater reason for them to do so when that witness happened to be the son of their victim. Testimonial evidence to be believed must not only proceed from the mouth of a credible witness but must be credible in itself which, by common experience and observation, could lead to the inference of at least its probability under the circumstances. 22 In a criminal prosecution the accused is confronted with the full might of state authority. The evidence of the prosecution must thus be strong to pierce the shield of presumptive innocence. 23 Accused-appellants also take exception to the admissibility of the evidence consisting of the bloodstained bolo, polo shirt and short pants arguing that, even on the assumption that these articles did belong to accused-appellants, their seizure without a valid warrant has violated their constitutional rights. Admittedly, the bloodstained bolo, polo shirt and short pants were taken, sans any search warrant, from accused-appellants Danilo Dacucos, Crisanto Baula and Ruben Baula, respectively, at a time when the police started to question them about the killing of Patrocinia Caburao. Section 2, Article III, of the 1987 Constitution provides: "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." The above constitutional mandate is complemented by Article III, Section 3(2), of the Constitution providing that "Sec. 3(2). Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding" a rule pronounced by the Court in Stonehill vs. Diokno. 24 The plain import of the fundamental law is thus to say that between the State and the people stands the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants or warrants of arrest. 25 The protection means that the State cannot simply intrude indiscriminately into houses, or conduct search and seizure thereat or on the person of an individual, and it puts up an almost impenetrable shield to protect privacy and accord sanctity against this unlawful form of restraint. 26 The above proscription against unreasonable searches and seizures is not absolute, of course, and the Court has had occasions to rule that a warrantless search and seizure of property is valid under certain circumstances. There can, for instance, be a lawful warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence; or seizure of evidence in "plain view," its elements being extant; 27 or search of a moving vehicle; 28 or consented search; or customs search. 29 The situation here in question, however, can hardly come within the purview of any of the established exceptions. ICAcHE In a warrantless search incidental to a lawful arrest, the arrest itself must have to be effected under the circumstances enumerated by law. One such case is when an offense has in fact just been committed, and the peace officer has personal knowledge of facts indicating that the person to be arrested has committed it. 30 Accused-appellants were not being arrested at the time that the subject articles were allegedly taken from them but were just being questioned by the police officers conducting the investigation about the death of Patrocinia Caburao. The investigating officers had no personal knowledge of facts indicating that the accused had committed the crime. Being in no position to effect a warrantless arrest, the police officers were thus likewise barred from effecting a warrantless search and seizure. SPO4 Fermin Mirande testified: "Fiscal: "Q. What have you found in the scene of the incident? "Witness: "A. We were able to see the bloodied body of Patrocinia Caburao, sir. "Court: "Q. Dead already? "Witness: "A. Yes, sir, due to multiple hack wounds. "Fiscal: "Q. What have you and your companions done there? "Witness: "A. Since at the time we arrived at the place, we did not immediately gather such evidence to pin point any suspect. We tried our very best to conduct further investigation as to the place where this victim came from and we were able to establish that she came at the place where at the place of one store, sir. "Court: "Q. Store of? "Witness: "A. I could no longer . . . . "Q. In Siwasiw? "A. Yes, sir. From that place, according to the information given by the owner of the store, nobody had seen what is really happened to the victim, sir. xxx xxx xxx "Fiscal: "Q. After you proceeded to the store and you have gathered that information, what transpired next in that store? "Witness: "A. Since there is an information that there were persons who were drinking at the said store, sir. cDTHIE "Court: "Q. Drinking wine you mean? "Witness: "A. Yes, sir. We exerted our efforts to look for these people, sir. "Fiscal: "Q. Have you ascertain the identities of the persons who were drinking at the store? "Witness: "A. The four (4) suspects were the four (4) accused now, Crisanto Baula, Danilo Dacocos, Ruben Baula and Robert Baula and they were the one engaged in this drinking spree at the said place, sir. "Court: "Q. All the accused? "Witness: "A. And some other unidentified persons, sir. "Fiscal: "Q. After you ascertain the four (4) accused and some other which were not identified were the one have drunk at the said store, what transpired next in your investigation? "Witness: "A. We tried to look for these persons, identified persons, sir. "Court: "Q. What happened? "Witness: "A. And we were able to locate them at their respective houses, sir. "Fiscal: "Q. Now, what transpired when you located the four (4) accused at their respective houses? "Witness: "A. We examined their persons if they are really drank at that time but the same no sign that they were drank but we made on suspicion that one of the accused to where we requested to present his clothes during the night that he wore during their engagement at the drinking spree in the store, sir. DHITcS "Court: "Q. Who is this accused? "Witness: "A. I have not bring with me the record, sir. "Fiscal: "Q. Can you identify that suspect, if you can see him again? "Witness: "A. One of the Baulas, sir. "Q. How many Baulas? "A. Three (3), sir. "Q. Can you identify by his face? "Atty. Palma: Already testified, he cannot. "Court: "Q. You look at the accused? "Witness: "A. So far, as of now, I could not exactly identify him, sir, but the moment I could see on my records, I have to consult my record. "Q. What record? "A. The one presented our transmittal to the NBI, sir. "Q. NBI, Dagupan City? "A. Yes, sir. "Q. Regarding what? "A. To determine as to whether the suspected bloodstains of the clothing that is of the victim, sir. xxx xxx xxx "Fiscal: "Q. Now, you said the clothing which you have requested from one of the accused Baula to give to you which he wore that evening when there was drinking spree in the store, now, what part of the clothing was stained with blood? "Witness: "A. I could no longer remember, sir. "Q. Now, what else have you done after you had requested this one of the accused Baula to present his clothes wore at the night of the drinking spree? "A. One of the persons who were engaged in the drinking spree was Danilo Dacocos, sir. We tried to look for him and we were able to see him at his hut almost one (1) kilometer away from the store, sir, and we were able to see one (1) bolo which was hang on the wall of the hut. "Court: "Q. Was the bolo has bloodstained? "Witness: "A. There is again a suspected bloodstain, sir, and that cause us to turn over for examination to the NBI, sir. "Q. And this is one of the specimen you sent? "A. Yes, sir. xxx xxx xxx "Fiscal: "Q. Now, tell us if there was occupants of this hut of Danilo Dacocos when you saw this bloodstain on that bolo? "Witness: "A. At the time we discovered the bolo there is no occupant but he was the one living at the said hut, sir. HAEIac "Q. Why do you know that it was Danilo Dacocos was the one living in that hut? "A. During the interview he admitted that he is living there, sir. "Q. Now, what transpired next after going to this hut of Danilo Dacocos? "A. We took the bolo and sent to the NBI, sir." 31 (Italics supplied.) Clearly, the police officers acted on a mere suspicion that accused- appellants could be responsible for the commission of the crime and only because of their being at the store where the victim was last seen. Mere suspicion cannot satisfy the requirement of probable cause which signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person accused is guilty of the offense with which he can be charged. 32 An illegal search cannot be undertaken and then an arrest effected on the strength of the evidence yielded by that search. 33 The Court finds it less than credible the stance of the prosecution that the polo shirt and short pants have been voluntarily given. An alleged consent to a warrantless search and seizure cannot be based merely on the presumption of regularity in the performance of duty. 34 This presumption, by itself, cannot prevail against the constitutionally protected rights of an individual, and zeal in the pursuit of criminals cannot ennoble the use of arbitrary methods that the Constitution itself abhors. 35 CaEATI WHEREFORE, the assailed Decision is REVERSED and SET ASIDE and all the accused-appellants are hereby ACQUITTED of the crime charged and ordered to be immediately released from custody unless detained for some other lawful reason. Costs de oficio. SO ORDERED. Melo, Panganiban and Gonzaga-Reyes, JJ., concur. EN BANC [G.R. No. 136267. July 10, 2001.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FIDEL ABRENICA CUBCUBIN, JR., accused-appellant. The Solicitor General for plaintiff-appellee. Rolando F. Baybay for accused-appellant. SYNOPSIS Henry P. Piamonte was found dead on his tricycle. He was earlier seen with appellant inside the Sting Cafe drinking beer. Charged with murder, appellant pleaded not guilty and interposed the defense of denial. Prosecution witness, Danet Garcellano, a waitress testified that appellant was the companion of the deceased on that fateful night, but she did not see them leave together as she was serving other customers. Police officers Malinao, Jr. and Rosal testified that they were dispatched to the crime scene after a report of the incident was made to their station, and that they proceeded to appellant's residence when informed that appellant was with the deceased on that date and they seized a "bloodied" Hanes T-shirt and 2 spent .38 caliber slugs in appellant's house. They said that the search was made with the consent of the accused. They then brought appellant to the Sting Cafe for identification. When they returned to appellant's residence and made another search, they found a homemade .38 caliber revolver on top of a plastic water container. The defense raised the illegality of the arrest, of the search and the seizure made. The trial court convicted appellant. Under Section 5 (b) of the 1985 Rules of Criminal Procedure, an arrest may be made without a warrant where an offense has in fact just been committed and the person making the arrest have "personal knowledge of facts" indicating that the person to be arrested has committed it. It has been held that "personal knowledge of facts" must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion. The condition is not met where the arresting persons merely relied on information given by others. However, the irregularity may be waived by entering a plea without objecting to the illegality of the arrest or failing to move for the quashal of the information. aIcDCT The right against unreasonable searches and seizure may be waived expressly or impliedly. But the mere failure to object to the search is not considered a waiver. A search incidental to an arrest may be made where the same is made in the person of the one arrested or within the area of his immediate control. It does not apply where the search was purposely made as in the case at bar. The decision of the trial court was reversed and appellant was acquitted of the crime charged. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; AFFIDAVIT NOT FORMALLY OFFERED, WITH NO PROBATIVE VALUE. On April 18, 2000, the Court received a letter, dated April 5, 2000, from Victoria Abrenica Dulce, mother of accused-appellant, with an attached affidavit of desistance entitled "Sinumpaang Salaysay ng Pag-Uurong," dated November 14, 1997, executed by Marilou B. Piamonte, widow of the victim, stating that accused-appellant had been mistakenly identified as the assailant, and, by reason thereof, sought the dismissal of the criminal case against him. In her letter, Dulce said that the affidavit of desistance was supposed to be submitted to the trial court prior to the presentation of the evidence for the prosecution, but, for unknown reasons, the same was not done by accused-appellant's counsel. This affidavit of desistance, however, not being formally offered before the trial court, has no probative value. 2. ID.; CRIMINAL PROCEDURE; LAWFUL ARREST WITHOUT WARRANT; WHEN AN OFFENSE HAS BEEN COMMITTED AND ARRESTING PERSON HAS PERSONAL KNOWLEDGE THAT THE PERSON TO BE ARRESTED HAS COMMITTED IT. Under 5(b), Rule 113 of the 1985 Rules on Criminal Procedure as amended, two conditions must concur for a warrantless arrest to be valid: first, the offender has just committed an offense and, second, the arresting peace officer or private person has personal knowledge of facts indicating that the person to be arrested has committed it. It has been held that "personal knowledge of facts' in arrests without a warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion." ITESAc 3. ID.; ID.; ID.; ID.; "PERSONAL KNOWLEDGE" NEGATED WHERE POLICE OFFICERS RELIED ON INFORMATION GIVEN TO THEM BY OTHERS; CASE AT BAR. In this case, the arrest of accused-appellant was effected shortly after the victim was killed. The question, therefore, is whether there was "probable cause" for PO3 Rosal and SPO1 Malinao, Jr., the arresting officers, to believe that accused-appellant committed the crime. We hold that there was none. The two did not have "personal knowledge of facts" indicating that accused-appellant had committed the crime. Their knowledge of the circumstances from which they allegedly inferred that accused-appellant was probably guilty was based entirely on what they had been told by others; to wit: by someone who called the PNP station in San Antonio, Cavite City at about 3:30 in the morning of August 26, 1997 and reported that a man had been killed along Julian Felipe Boulevard of the said city; by an alleged witness who saw accused-appellant and the victim coming out of the Sting Cafe; by Danet Garcellano, waitress at the Sting Cafe, who said that the man last seen with the victim was lean, mustachioed, dark- complexioned and was wearing a white t-shirt and a pair of brown short pants; by a tricycle driver named Armando Plata who told them that the physical description given by Garcellano fitted accused- appellant, alias "Jun Dulce" and who said he knew where accused- appellant lived and accompanied them to accused-appellant's house. Thus, PO3 Rosal and SPO1 Malinao, Jr. merely relied on information given to them by others. 4. ID.; ID.; ID.; IRREGULARITY ON CONDUCT OF ARREST WAIVED IN CASE AT BAR. Be that as it may, accused-appellant cannot now question the validity of his arrest without a warrant. The records show that he pleaded not guilty to the charge when arraigned on November 11, 1997. It is true that on August 28, 1997, he filed a petition for reinvestigation in which he alleged that he had been illegally detained without the benefit of a warrant of arrest. In its order, dated September 9, 1997, the trial court granted his motion and ordered the City Prosecutor to conduct a preliminary investigation and submit his findings within thirty (30) days thereof. On October 7, 1997, City Prosecutor Agapito S. Lu moved for the resetting of accused-appellant's arraignment from October 8, 1997 to the first week of November, 1997 on the ground that the findings on the laboratory and ballistics examinations had not yet been received from the NBI. Accused appellant did not object to the arraignment. The City Prosecutor's request was, therefore, granted and the arraignment was reset to November 11, 1997. Nor did accused-appellant move to quash the information on the ground that his arrest was illegal and, therefore, the trial court had no jurisdiction over his person. Instead, on November 11, 1997, at the scheduled arraignment, accused-appellant, with the assistance of counsel, pleaded not guilty to the charge. On the same day, the trial court issued an order stating that, as a result of accused-appellant's arraignment, his motion for preliminary investigation had become moot and academic and, accordingly, set the case for trial. Accused- appellant thus waived the right to object to the legality of his arrest. 5. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE; MAY BE WAIVED EXPRESSLY OR IMPLIEDLY; MERE FAILURE TO OBJECT TO SEARCH, NOT A WAIVER. The right against unreasonable searches and seizures is a personal right which may be waived expressly or impliedly. But a waiver by implication cannot be presumed. There must be persuasive evidence of an actual intention to relinquish the right. A mere failure on the part of the accused to object to a search cannot be construed as a waiver of this privilege. For as Justice Laurel explained in Pasion Vda de Garcia v. Locsin, "As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not consent or an invitation thereto, but is merely a demonstration or regard for the supremacy of the law." 6. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST; SEARCH INCIDENTAL TO ARREST; SEARCH IS MADE IN THE PERSON OF THE ONE ARRESTED OR WITHIN THE AREA OF HIS IMMEDIATE CONTROL; CASE AT BAR. The prosecution says the search can be justified as incidental to a valid arrest. Even assuming the warrantless arrest to be valid, the search cannot be considered an incident thereto. A valid arrest allows only the seizure of evidence or dangerous weapons either in the person of the one arrested or within the area of his immediate control. The rationale for such search and seizure is to prevent the person arrested either from destroying evidence or from using the weapon against his captor. It is clear that the warrantless search in this case cannot be justified on this ground. For neither the t-shirt nor the gun was within the area of accused-appellant's immediate control. In fact, according to the prosecution, the police found the gun only after going back to the house of accused-appellant. SEACTH 7. ID.; ID.; WARRANTLESS ARREST; "PLAIN VIEW" DOCTRINE, CONSTRUED. Nor can the warrantless search in this case be justified under the "plain view" doctrine. As this Court held in People v. Musa: The "plain view" doctrine may not, however, be used to launch unbridled searches and indiscriminate seizures nor to extend a general exploratory search made solely to find evidence of defendant's guilt, The "plain view" doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. [Coolidge v. New Hampshire. 403 U.S. 443, 29 L. Ed. 2d 564 (1971)] 8. ID.; ID.; ID.; ID.; NOT APPLICABLE WHERE EVIDENCE WAS PURPOSELY SOUGHT BY POLICE OFFICERS. Here, the search of accused-appellant's house was illegal and, consequently, the things obtained as a result of the illegal search; i.e., the white "Hanes" t-shirt, two spent shells, and the .38 caliber gun, are inadmissible in evidence against him. It cannot be said that the .38 caliber gun was discovered through inadvertence. After bringing accused-appellant to the Sting Cafe where he was positively identified by a waitress named Danet Garcellano as the victim's companion, the arresting officers allegedly asked accused-appellant where he hid the gun used in killing the victim. According to SPO1 Malinao, Jr., when accused-appellant refused to answer, he sought accused-appellant's permission to go back to his house and there found the .38 caliber revolver on top of a plastic water container outside the bathroom. Thus, the gun was purposely sought by the police officers and they did not merely stumble upon it. Nor were the police officers justified in seizing the white "Hanes" t-shirt placed on top of the divider "in plain view" as such is not contraband nor is it incriminating in nature which would lead SPO1 Malinao, Jr. to conclude that it would constitute evidence of a crime. Contrary to what SPO1 Malinao, Jr. said, the t-shirt was not "bloodied" which could have directed his attention to take a closer look at it. From the photograph of the t-shirt (Exh. B-2), it is not visible that there were bloodstains. The actual t-shirt (Exh. H) merely had some small specks of blood at its lower portion. 9. ID.; EVIDENCE, POSITIVE IDENTIFICATION; TYPES. In People v. Gallarde, it was explained that positive identification refers essentially to proof of identity and not per se to that of being an eyewitness to the very act of commission of the crime. A witness may identify a suspect or accused in a criminal case as the perpetrator of the crime. This constitutes direct evidence. Or, he may not have actually seen the crime committed, but is nevertheless able to identify a suspect or accused as the perpetrator of the crime, as when the latter is the person or one of the persons last seen with the victim immediately before and right after the commission of the crime. This is the second type of positive identification, which, when taken together with other pieces of evidence constituting an unbroken chain, leads to a fair and reasonable conclusion that the accused is the author of the crime to the exclusion of all others. 10. ID.; ID.; ID.; CASE AT BAR. This rule, however, cannot be applied in the present case because Danet Garcellano did not actually see accused-appellant and the victim leave the Sting Cafe together. There is thus serious doubt as to whether accused-appellant was really the last person seen with the victim. Her testimony is insufficient to place accused-appellant in the scene of the crime so as to form part of the chain of circumstantial evidence to show that accused-appellant committed the crime. Suspicion alone is insufficient, the required quantum of evidence being proof beyond reasonable doubt. 11. CRIMINAL LAW; MOTIVE; CASE AT BAR. Nor is there adequate evidence to prove any ill motive on the part of accused-appellant. Accused-appellant testified that he could not have killed the victim because the latter was his friend whom he considered his "kuya" or elder brother. There is no showing that the killing of the victim was by reason of a supposed altercation they had as to who would pay for the two bottles of beer ordered while they were at the Sting Cafe. The beer was later paid for by the victim. Motive is proved by the acts or statements of the accused before or immediately after the commission of the offense, i.e., by deeds or words that may express the motive or from which his reason for committing the offense may be inferred. 12. REMEDIAL LAW; EVIDENCE; CIRCUMSTANTIAL EVIDENCE; REQUISITE FOR CONVICTION. Rule 133, 4 of the Revised Rules on Evidence requires the concurrence of the following in order to sustain a conviction based on circumstantial evidence: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 13. ID.; ID.; ID.; ID.; CASE AT BAR. In the case at bar, there are serious doubts as to whether the crime was committed by accused-appellant in view of the following: (1) As already stated, Danet Garcellano, a waitress at the Sting Cafe, did not actually see accused-appellant and the victim leaving the cafe together at about 3:30 a.m. of August 26, 1997; (2) PO3 Rosal and SPO1 Malinao, Jr. testified that when they arrived at the scene of the crime, they were informed by a tricycle driver that the victim and the accused-appellant had earlier left the Sting Cafe together, but the tricycle driver was not presented to confirm this fact; (3) SPO1 Malinao, Jr. testified that the white "Hanes" t-shirt was "bloodied," but the evidence shows that it had some bloodstains only on its lower portion (Exh. H), while the photograph of the t-shirt (Exhs. B-2, B-2-A, B-2-B), supposedly taken at the time of the search, shows that it had no bloodstains and this discrepancy was not explained by SPO1 Malinao, Jr.; (4) The fact that the t-shirt was tested positive for type "O" blood does not necessarily mean that the bloodstains came from the victim who also had a type "O" blood; (5) Accused-appellant was never given a paraffin test to determine if he was positive for gunpowder nitrates; (8) The .38 caliber gun allegedly found in his house was not examined for the possible presence of accused-appellant's fingerprints; and (9) The allegation that the gun was placed on top of a water container in accused-appellant's house is unbelievable as it is improbable that accused-appellant could be so careless as to leave the fatal weapon there when he could have hidden it or thrown it away. TaEIAS D E C I S I O N MENDOZA, J p: This case is here on automatic review of the decision, 1 dated October 5, 1998, of the Regional Trial Court, Branch 88, Cavite City, finding accused-appellant Fidel Abrenica Cubcubin, Jr. guilty of murder and sentencing him to suffer the penalty of death. HcSCED The information against accused-appellant alleged: That on or about August 26, 1997, in the City of Cavite, Republic of the Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, armed with an unlicensed homemade (paltik) Smith and Wesson caliber .38 revolver, with no serial number, with intent to kill, acting with treachery and evident premeditation and taking advantage of the darkness of [the] night, did, then and there, willfully, unlawfully, and feloniously, assault, attack and shoot with the aforesaid unlicensed firearm a certain HENRY PECHO PIAMONTE, hitting and inflicting upon the latter gunshot wounds in the head which caused the latter's instantaneous death. CONTRARY TO LAW. 2 Accused-appellant pleaded not guilty to the charge, whereupon trial on the merits ensued. Eight witnesses were presented by the prosecution: police officers Florentino M. Malinao, Jr., Enrico A. Rosal, Raymundo D. Estoy, Jr., and Virgilio L. Pilapil, all of whom belong to the Cavite City Police Department; National Bureau of Investigation ballistician Isabelo D. Silvestre, Jr.; NBI Forensic Chemist II Juliet Gelacio-Mahilum; Dr. Regalado D. Sosa, City Health Officer II and City Medico-Legal Officer of the Department of Health (DOH) in Cavite City; and Danet D. Garcellano, a food server at the Sting Cafe in San Antonio, Cavite City. The testimony of Police Chief Inspector Edwin G. Nemenzo, Chief of the Records, Firearms and Explosives Division of the Philippine National Police (PNP) in Camp Crame, Quezon City, was dispensed with in view of his certification, dated October 7, 1997 (Exh. N), 3 that accused-appellant is not a licensed/registered holder of firearm of any kind and caliber. The prosecution evidence is to the following effect: At about 3:30 in the morning of August 26, 1997, Sgt. Rogel, desk officer of the Cavite City police station, received a telephone call that a person had been shot near the cemetery along Julian Felipe Boulevard in San Antonio, Cavite City. For this reason, a police team, composed of SPO1 Malinao, Jr., PO3 Rosal, PO3 Estoy, Jr., PO3 Manicio, and SPO3 Manalo, responded to the call and found Henry P. Piamonte slumped dead on his tricycle which was then parked on the road. Police photographer Fred Agana took pictures of the crime scene (Exhs. A, A-1, A-2, and A-3) 4 showing the victim slumped on the handle of the tricycle. 5 PO3 Rosal testified that a tricycle driver, who refused to divulge his name, told him that accused-appellant and the victim were last seen together coming out of the Sting Cafe, located in San Antonio near the gate of Sangley Point, Cavite City, about a kilometer and a half away from the crime scene. Forthwith, PO3 Rosal and SPO1 Malinao, Jr. went to the cafe and talked to Danet Garcellano, a food server/waitress in Sting Cafe. 6 The other policemen at the police station called up City Prosecutor Agapito Lu who also proceeded to Sting Cafe. Garcellano told the police investigators that she had seen accused-appellant arrive at Sting Cafe at about 12:00 midnight and drink beer; that at about 2:30 a.m., the victim arrived and joined accused-appellant; that the two stayed in the cafe until 3:30 a.m.; and that she did not know if they left together as she was serving other customers. Garcellano described accused- appellant as a lean, dark-complexioned, and mustachioed man who had on a white t-shirt and brown short pants. 7 Armando Plata, another tricycle driver, told PO3 Rosal and SPO1 Malinao, Jr. that Garcellano's description fitted a person known as alias "Jun Dulce." Armando Plata, who knew where accused- appellant lived, led PO3 Rosal, SPO1 Malinao, Jr., and Prosecutor Lu to accused-appellant's house in Garcia Extension, Cavite City. The policemen knocked on the door for about three minutes before it was opened by a man who answered the description given by Danet Garcellano and who turned out to be accused-appellant. The police operatives identified themselves and informed him that he was being sought in connection with the shooting near the cemetery. Accused- appellant denied involvement in the incident. PO3 Rosal and SPO1 Malinao, Jr. then asked permission to enter and look around the house. 8 SPO1 Malinao, Jr. said that upon entering the house, he noticed a white t-shirt, bearing the brand name "Hanes" (Exh. H) 9 and the name "Dhenvher" written in the inner portion of the shirt's hemline, placed over a divider near the kitchen. Upon close examination, he said that he found it to be "bloodied." When he picked up the t-shirt, two spent .38 caliber shells fell from it. PO3 Rosal stayed with accused-appellant while he conducted a search. They then took the t- shirt and the two bullet shells. SPO1 Malinao, Jr. then asked accused- appellant to go with them to Sting Cafe for purposes of identification. There, accused-appellant was positively identified by Danet Garcellano as the victim's companion. The police investigators asked accused-appellant where the fatal gun was. SPO1 Malinao, Jr. said accused-appellant refused to tell him where he hid the gun so he sought his (accused-appellant's) permission to go back to his house to conduct a further search. Thereupon, SPO1 Malinao, Jr., accompanied by Prosecutor Lu, PO3 Estoy, Jr., PO3 Manicio, SPO3 Manalo, and PO3 Rosal, proceeded thereto. 10 Inside the house, they saw accused-appellant's 11-year old son Jhumar. PO3 Estoy, Jr. found on top of a plastic water container (drum) outside the bathroom a homemade Smith and Wesson caliber .38 revolver (six shooter), without a serial number (Exh. F). He found the gun loaded with five live bullets (Exhs. M, M-1, M-2, M-3, and M-4). PO3 Estoy, Jr. said that he inscribed his initials "RDE" (for Raymundo D. Estoy) on the cylinder of the gun with the use of a sharp object. While PO3 Estoy, Jr. was conducting the search, SPO1 Malinao, Jr. and PO3 Rosal stayed with accused-appellant in the sala. 11 The .38 caliber gun (Exhs. B, B-1), 12 the white "Hanes" t-shirt (Exhs. B-2, B-2-A, B-2- B), 13 and the two spent .38 caliber shells (Exhs. B-2, B-2-B) 14 were all photographed. Accused-appellant was then taken to the police station, where he was photographed (Exh. B-3) 15 along with the things seized from him. SPO4 Virgilio Pilapil, Chief Investigator of the Criminal Investigation Division, testified that on August 26, 1997, the case involving the killing of Henry Pecho Piamonte was forwarded to him by PO3 Rosal together with the evidence consisting of a bloodstained white "Hanes" t-shirt, a .38 revolver with five live ammunition, and two deformed slugs. After an evaluation of the evidence, he formally filed a criminal complaint for murder against accused-appellant. He took blood samples of the victim and submitted the same to the NBI for laboratory examination. 16 Dr. Regalado Sosa, City Health Officer II and City Medico-Legal Officer of the Department of Health in Cavite City, conducted a postmortem examination of the cadaver and prepared an autopsy report (Exh. O) 17 which showed the following findings: HcSaAD AUTOPSY REPORT EXTERNAL FINDINGS: A medium built fair complexioned male adult human body in its cadaveric state with gunshot wounds . . . described as follows: = Gunshot wound, 1.5 cm. x 0.5 cm., oval in shape with powder burns more on top of the wound to 2.5 cms. elevation/height located at the angle of the right jaw and/or 5 cms. below the inferior level of the right ear. The wound has irregular and inverted borders. It is directed inwards fracturing the lower edge of the angle of the right mandible and the lead slug is embedded at the right lateral portion of the first (1st) cervical vertebrae hence extracted. = Gunshot wound, 1 cm. in d[iameter] with inverted irregular borders located at the left frontal region 5 cms. above the temporal end of the left eyebrow. It is directed inwards and downwards fracturing the bone (frontal) underneath into [the] intracranial cavity. INTERNAL FINDINGS: = Presence of circular complete fracture, 0.8 cm. in d[iameter] at the left frontal region. = The left frontal lobe of the brain is perforated and the frontal lobe is enveloped with liquid and clotted blood. = The lead slug is found at the inner surface of the left frontal lobe. = The right mandibular region was incised near the gunshot wound and the area is severely hematomatous and explored until a lead slug [was] found at the 1st cervical vertebrae at the right side. = Stomach contains liquid and little rice and with alcoholic (beer) smell. = Other internal organs are significantly normal. Slugs extracted: 1. 0.6 cm. in d[iameter] lead slug with one end is markedly deformed. The length of the slug is 1.6 cms. Note: One diagonal incised line was marked on the slug. 2. A 0.7 cm. in d[iameter] lead slug . . . roundly/ovally deformed [on] one end. The length of the slug is 1.8 cm. Note: Two diagonal incised lines [were] marked on the said slug. Dr. Sosa testified that the victim sustained two gunshot wounds (Exh. R), 18 the first one located on the right jaw below the ear while the second wound located at the left temporal side above the left eyebrow. The slug from the first gunshot wound remained at the base of the neck, near the spinal column. There were powder burns, called tattooing," surrounding the first wound which showed that the victim was shot point-blank. The second slug was also embedded at the front lobe of the brain. 19 Dr. Sosa indicated in the Certificate of Death (Exh. Q) that the victim died of "shock secondary to severe intracranial hemorrhage due to multiple gunshot wounds." 20 Upon written request (Exh. C) 21 of Prosecutor Lu, the NBI conducted a ballistics examination to determine whether the two slugs taken from the body of the victim were fired from the firearm recovered from accused-appellant. Isabelo D. Silvestre, Jr., an NBI ballistician, conducted on September 10, 1997 a comparative examination of the two "evidence bullets," marked as "HPP-1" (Exh. E) and "HPP-2" (Exh. E-1), which had been recovered from the victim's head and the three "test bullets" (Exhs. G, G-1, G-2) fired from the seized .38 caliber firearm. The tests showed that the "evidence bullets" were fired from the subject firearm. 22 The empty shells from the three "test bullets" fired were duly marked (Exhs. G-3, G-4, G-5). No photographs were taken. Silvestre's findings were confirmed by four other NBI ballisticians: Chief Ballistician Rogelio Munar, Supervising Ballistician Ernie Magtibay, Senior Ballistician Elmer Pieded, and, Flor Landicho, another ballistician. The two .38 caliber empty shells recovered from accused-appellant were no longer examined. 23 Prosecutor Lu also made a written request (Exh. J) 24 for a laboratory examination of the bloodstains on the white "Hanes" t-shirt of accused-appellant to determine whether such were identical to the blood of the victim. Juliet Gelacio-Mahilum, NBI Forensic Chemist II, testified that on September 26, 1997, she conducted three kinds of laboratory examinations, namely, (a) benzidine test, to determine the presence of blood; (b) precipitin test, to determine if the bloodstains came from human or animal blood; and (c) ABO grouping test, to determine the blood group. When tested and matched together, the bloodstained white "Hanes" t-shirt and the blood sample of the victim yielded positive results for human blood belonging to blood type "O" (Exh. K). 25 For its part, the defense presented accused-appellant himself, his son Jhumar, and his sister Yolanda Cubcubin Padua. Accused-appellant Fidel Abrenica Cubcubin, Jr. testified that he enlisted in the Philippine Constabulary as a soldier in 1974 but was discharged in 1977 for being AWOL. He said he left for Saudi Arabia where he worked as a driver and came back in 1979. He was later employed as a driver by a friend, who owned a junk shop in Cavite City. He admitted knowing the victim whom he addressed as "Kuya." Accused-appellant testified that from 10:00 in the evening to 12:00 midnight of August 25, 1997, he and some friends played a card game called "tong-its" on Molina Street, Cavite City. Afterwards, he proceeded to the Sting Cafe where he had some drinks while waiting for food to be served. Henry Piamonte, a tricycle driver, arrived and had drinks with him. After a while, the victim left as a passenger was waiting to be given a ride. The victim came back to the restaurant before 1:00 a.m. and had another bottle of beer with accused- appellant. At about 1:30 a.m., the victim again left to transport another passenger. After that, the victim did not come back anymore. 26 Accused-appellant said he left Sting Cafe at about 2:00 a.m. and took a tricycle home to 1151 Garcia Extension, San Antonio, Cavite City. He was sleeping on the sofa in his bedroom when he was awakened by the arrival of three policemen, two of them he recognized as SPO1 Malinao, Jr. and PO3 Estoy, Jr., who pointed their guns at him and told him to lie face down. He said he was handcuffed while the policemen searched his room, turning the sala set upside down and opening the cabinets. His son, Jhumar, stood beside him. Before leaving, the policemen took from the clothes stand a white t-shirt belonging to his son Denver. Accused-appellant said that he did not ask them why they were searching the place as he was afraid they would maltreat him. He denied the claim of the policemen that the white t-shirt had blood stains. He claimed that the policemen did not have any search warrant nor a warrant of arrest when they took him into custody. Nor did they inform him of his constitutional right to remain silent and to be assisted by counsel. He also said that he was made to stay in a police patrol car for almost two hours before he was brought inside the police station. He denied owning the .38 caliber revolver presented to him by Prosecutor Lu and SPO4 Pilapil or that the same had been recovered from his house. He also denied the prosecution's claim that he was taken to the Sting Cafe where he was allegedly identified by Danet Garcellano as the person last seen with the victim before the latter was killed. 27 Jhumar Cubcubin, son of accused-appellant, testified that at about 4:00 in the morning of August 26, 1997, he was sleeping on the second floor of the house-when he was roused from his sleep by loud knocks on the door. When he opened the door, he saw three policemen who were looking for his father. He told them that his father was not around, but he was shoved away. They proceeded upstairs to the room of his father where they took from the clothes stand a white "Hanes" t-shirt belonging to his brother Denver. They put his father in a police patrol car waiting outside. Jhumar immediately went to his aunt, Yolanda Cubcubin Padua, and reported to her what had happened. He went back to the house and saw some policemen still conducting a search. As the policemen were about to leave, a van with some other policemen on board arrived. They asked him where the water container was located. They went inside the house and, when they came out, one of them announced that he had found a gun, which was then photographed. Jhumar said that while his father was inside the police patrol car, his aunt was arguing with the policemen. At that instance, SPO1 Malinao, Jr. spread the t-shirt and told Jhumar's aunt "Eto, puro dugo damit niya," although the t- shirt had no bloodstains. He said that he and his father never gave permission to the policemen to search their house. 28 Yolanda Cubcubin Padua, accused-appellant's sister, testified that at about 5:30 in the morning of August 26, 1997, she was told by her nephew, Jhumar, that accused-appellant had been apprehended by some policemen. She and Jhumar then went to the police patrol car where she saw her brother in handcuffs. She said she protested to the policemen that there was no evidence that accused-appellant had killed the victim. Yolanda said she saw the confiscated white Hanes t- shirt, but she claimed the same did not have any bloodstain on it. She went back to her house to call up her mother in Gen. Trias, Cavite to let her know what had happened. She then went out to see accused- appellant and saw Jhumar, who told her that some policemen were searching accused-appellant's house and found a gun. 29 On October 5, 1998, the trial court rendered its decision finding accused-appellant guilty of murder. It based its finding on circumstantial evidence, to wit: (1) That Danet Garcellano, a waitress at the Sting Cafe, saw accused-appellant arrive at about 12:00 midnight of August 25, 1997 and drink beer, while the victim arrived at about 2:30 a.m. of August 26, 1997 and joined accused-appellant in drinking beer at the bar. She said that she served them beer and they stayed for about an hour, that the two later had an argument as accused-appellant wanted to have two more bottles of beer which the victim paid for, and that at about 3:30 a.m., the victim and accused- appellant left and boarded the victim's tricycle; (2) That PO3 Rosal and SPO1 Malinao, Jr. testified that they saw the lifeless body of the victim, with bullet wounds on his head, slumped on the handle of his tricycle, that the crime scene was about 50 meters away from the house of accused-appellant, and that when they were told by an unidentified tricycle driver that the victim and accused-appellant were seen leaving the Sting Cafe together, they went to Sting Cafe and interviewed Danet Garcellano who described the appearance of the victim's companion. Armando Plata, another tricycle driver who knew accused-appellant as the person being described by Garcellano, accompanied the policemen to the house of accused-appellant; (3) That after SPO1 Malinao, Jr. was allowed to enter the house, he found a white "Hanes" t-shirt with bloodstains on it and also recovered two spent .38 caliber shells; (4) That when accused- appellant was taken to the Sting Cafe, he was positively identified by Danet Garcellano as the victim's companion moments prior to his death; (5) That when the investigators returned to the house of accused-appellant, PO3 Estoy, Jr. found a .38 caliber revolver placed on top of a plastic water container located outside the bathroom; (6) That laboratory examination conducted by the forensic chemist, Juliet Gelacio-Mahilum, showed that the bloodstains on the white "Hanes" t-shirt were human blood, type "O," which matched the blood type of the victim; and (7) That per ballistic examination of NBI ballistician, Isabelo D. Silvestre, Jr., the two slugs recovered from the head of the victim were fired from the .38 caliber revolver seized from accused- appellant's house. AHDTIE The trial court rejected accused-appellant's alibi, giving full credence to the testimonies of Danet Garcellano and the police investigators whom it found to have no motive to falsely implicate accused- appellant. It admitted the prosecution evidence consisting of the white "Hanes" t-shirt, two spent shells, and the .38 caliber revolver, on the ground that these items had been seized as incident to a lawful arrest. It ruled that since Dr. Sosa testified that the victim was shot point- blank while on his tricycle and was not in a position to see the assailant, the qualifying circumstance of treachery was present, not to mention that the victim was unarmed and thus totally defenseless. The trial court theorized that while the victim was on his tricycle, the assailant went around and shot him on the left temple. It held that the use of an unlicensed firearm in killing the victim constituted an aggravating circumstance. Hence, the trial court found accused- appellant guilty of murder and accordingly imposed on him the penalty of death. Hence, this appeal. On April 18, 2000, the Court received a letter, dated April 5, 2000, 30 from Victoria Abrenica Dulce, mother of accused-appellant, with an attached affidavit of desistance entitled "Sinumpaang Salaysay ng Pag-Uurong," dated November 14, 1997, 31 executed by Marilou B. Piamonte, widow of the victim, stating that accused-appellant had been mistakenly identified as the assailant, and, by reason thereof, sought the dismissal of the criminal case against him. In her letter, Dulce said that the affidavit of desistance was supposed to be submitted to the trial court prior to the presentation of the evidence for the prosecution, but, for unknown reasons, the same was not done by accused-appellant's counsel. This affidavit of desistance, however, not being formally offered before the trial court, has no probative value. We now consider accused-appellant's assignment of errors. First. Accused-appellant contends that his arrest, effected on August 26, 1997 without a warrant, was illegal. On this point, Rule 113, 5(b) of the 1985 Rules on Criminal Procedure, as amended, provides: SECTION 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another." Under 5(b), two conditions must concur for a warrantless arrest to be valid: first, the offender has just committed an offense and, second, the arresting peace officer or private person has personal knowledge of facts indicating that the person to be arrested has committed it. It has been held that "personal knowledge of facts' in arrests without a warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion." 32 In this case, the arrest of accused-appellant was effected shortly after the victim was killed. The question, therefore, is whether there was "probable cause" for PO3 Rosal and SPO1 Malinao, Jr., the arresting officers, to believe that accused-appellant committed the crime. We hold that there was none. The two did not have "personal knowledge of facts" indicating that accused-appellant had committed the crime. Their knowledge of the circumstances from which they allegedly inferred that accused-appellant was probably guilty was based entirely on what they had been told by others, to wit: by someone who called the PNP station in San Antonio, Cavite City at about 3:30 in the morning of August 26, 1997 and reported that a man had been killed along Julian Felipe Boulevard of the said city; by an alleged witness who saw accused-appellant and the victim coming out of the Sting Cafe; by Danet Garcellano, waitress at the Sting Cafe, who said that the man last seen with the victim was lean, mustachioed, dark- complexioned and was wearing a white t-shirt and a pair of brown short pants; by a tricycle driver named Armando Plata who told them that the physical description given by Garcellano fitted accused- appellant, alias "Jun Dulce" and who said he knew where accused- appellant lived and accompanied them to accused-appellant's house. Thus, PO3 Rosal and SPO1 Malinao, Jr. merely relied on information given to them by others. In an analogous case, 33 the police was informed that the accused was involved in subversive activities. On the basis of this information, the police arrested the accused and, in the course of the arrest, allegedly recovered an unlicensed firearm and some subversive materials from the latter. This Court held that the arresting officers had no personal knowledge since their information came entirely from an informant. It was pointed out that at the time of his arrest, the accused was not in possession of the firearm nor engaged in subversive activities. His arrest without a warrant could not be justified under 5(b). In another case, 34 the accused, in a case of robbery with rape, were arrested solely on the basis of the identification given by one of the victims. This Court held the arrest to be illegal for lack of personal knowledge of the arresting officers. More recently, in Posadas v. Ombudsman, 35 this Court, in declaring the arrest without warrant of two University of the Philippines students to be illegal, held: There is no question that this case does not fall under paragraphs (a) and (c). The arresting officers in this case did not witness the crime being committed. Neither are the students fugitives from justice nor prisoners who had escaped from confinement. The question is whether paragraph (b) applies because a crime had just been committed and the NBI agents had personal knowledge of facts indicating that [the students] were probably guilty. xxx xxx xxx [T]he NBI agents in the case at bar tried to arrest [the students] four days after the commission of the crime. They had no personal knowledge of any fact which might indicate that the two students were probably guilty of the crime. What they had were the supposed positive identification of two alleged eyewitnesses, which is insufficient to justify the arrest without a warrant by the NBI. Indeed, at the time [the victim] was killed, these [NBI] agents were nowhere near the scene of the crime. When [the NBI agents] attempted to arrest [the students], the latter were not committing a crime nor were they doing anything that would create the suspicion that they were doing anything illegal. On the contrary, [they], under the supervision of the U.P. police, were taking part in a peace talk called to put an end to the violence on the campus. Nor can it be argued that the arresting officers had probable cause to believe accused-appellant to be guilty of the killing of the victim because they found a bloodstained t-shirt, a .38 caliber revolver, and two spent .38 caliber shells in his house. At the time accused- appellant was arrested, he was not doing anything overtly criminal. The alleged discovery of the gun came after his arrest. Moreover, as will presently be explained, the objects allegedly seized from accused-appellant were illegally obtained without a search warrant. Be that as it may, accused-appellant cannot now question the validity of his arrest without a warrant. The records show that he pleaded not guilty to the charge when arraigned on November 11, 1997. It is true that on August 28, 1997, he filed a petition for reinvestigation in which he alleged that he had been illegally detained without the benefit of a warrant of arrest. In its order, dated September 9, 1997, the trial court granted his motion and ordered the City Prosecutor to conduct a preliminary investigation and submit his findings within thirty (30) days thereof. 36 On October 7, 1997, City Prosecutor Agapito S. Lu moved for the resetting of accused-appellant's arraignment from October 8, 1997 to the first week of November, 1997 on the ground that the findings on the laboratory and ballistics examinations had not yet been received from the NBI. 37 Accused- appellant did not object to the arraignment. The City Prosecutor's request was, therefore, granted and the arraignment was reset to November 11, 1997. 38 Nor did accused-appellant move to quash the information on the ground that his arrest was illegal and, therefore, the trial court had no jurisdiction over his person. Instead, on November 11, 1997, at the scheduled arraignment, accused-appellant, with the assistance of counsel, pleaded not guilty to the charge. 39 On the same day, the trial court issued an order stating that, as a result of accused-appellant's arraignment, his motion for preliminary investigation had become moot and academic and, accordingly, set the case for trial. 40 Accused-appellant thus waived the right to object to the legality of his arrest. 41 Second. Accused-appellant contends that neither he nor his son gave permission to the arresting police officers to search his house and, therefore, the "Hanes" t-shirt, the two spent slugs, and the .38 caliber revolver allegedly found in his house are inadmissible in evidence. The prosecution, on the other hand, insists that accused-appellant consented to the search of his house. SCEHaD To be sure, the right against unreasonable searches and seizures is a personal right which may be waived expressly or impliedly. But a waiver by implication cannot be presumed. There must be persuasive evidence of an actual intention to relinquish the right. A mere failure on the part of the accused to object to a search cannot be construed as a waiver of this privilege. For as Justice Laurel explained in Pasion Vda de Garcia v. Locsin, 42 "As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not consent or an invitation thereto, but is merely a demonstration or regard for the supremacy of the law." Because a warrantless search is in derogation of a constitutional right, peace officers who conduct it cannot invoke regularity in the performance of official functions and shift to the accused the burden of proving that the search was unconsented. It is noteworthy that the testimonies of the two prosecution witnesses, SPO1 Malinao, Jr. and PO3 Rosal, on the search show laborious effort to emphasize that accused-appellant gave them permission to search his house. At every turn, even when they were not being asked, they said the search was made with the consent of the accused. As Shakespeare would put it, "the lady doth protest too much, methinks." Indeed, not only does accused-appellant stoutly deny that he ever consented to the search of his dwelling but the prosecution has not shown any good reason why accused-appellant might have agreed to the search. The prosecution says the search can be justified as incidental to a valid arrest. Even assuming the warrantless arrest to be valid, the search cannot be considered an incident thereto. A valid arrest allows only the seizure of evidence or dangerous weapons either in the person of the one arrested or within the area of his immediate control. The rationale for such search and seizure is to prevent the person arrested either from destroying evidence or from using the weapon against his captor. It is clear that the warrantless search in this case cannot be justified on this ground. For neither the t-shirt nor the gun was within the area of accused-appellant's immediate control. In fact, according to the prosecution, the police found the gun only after going back to the house of accused-appellant. Nor can the warrantless search in this case be justified under the "plain view" doctrine. As this Court held in People v. Musa: 43 The "plain view" doctrine may not, however, be used to launch unbridled searches and indiscriminate seizures nor to extend a general exploratory search made solely to find evidence of defendant's guilt. The "plain view" doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. [Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed. 2d 564 (1971)] Furthermore, the U.S. Supreme Court stated the following limitations on the application of the doctrine: What the "plain view" cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the "plain view" doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. [Id., 29 L.Ed. 2d 583. See also Texas v. Brown, 460 U.S. 730, 75 L. Ed. 2d 502 (1983)] Here, the search of accused-appellant's house was illegal and, consequently, the things obtained as a result of the illegal search, i.e., the white "Hanes" t-shirt, two spent shells, and the .38 caliber gun, are inadmissible in evidence against him. It cannot be said that the .38 caliber gun was discovered through inadvertence. After bringing accused-appellant to the Sting Cafe where he was positively identified by a waitress named Danet Garcellano as the victim's companion, the arresting officers allegedly asked accused-appellant where he hid the gun used in killing the victim. According to SPO1 Malinao, Jr., when accused-appellant refused to answer, he sought accused-appellant's permission to go back to his house and there found the .38 caliber revolver on top of a plastic water container outside the bathroom. Thus, the gun was purposely sought by the police officers and they did not merely stumble upon it. Nor were the police officers justified in seizing the white "Hanes" t- shirt placed on top of the divider "in plain view" as such is not contraband nor is it incriminating in nature which would lead SPO1 Malinao, Jr. to conclude that it would constitute evidence of a crime. Contrary to what SPO1 Malinao, Jr. said, the t-shirt was not "bloodied" which could have directed his attention to take a closer look at it. From the photograph of the t-shirt (Exh. B-2), it is not visible that there were bloodstains. The actual t-shirt (Exh. H) merely had some small specks of blood at its lower portion. Third. There is no evidence to link accused-appellant directly to the crime. Danet Garcellano said that accused-appellant arrived at about midnight of August 25, 1997; that the victim joined him at about 2:30 a.m.; and that although both left the Sting Cafe at about 3:30 a.m., she really did not know if they left together. Thus, Danet testified: PROSECUTOR LU: xxx xxx xxx Q Were they together when they left Sting Cafe or they left one after the other? A When they were already bringing along with them the two bottles of beer, they talked and afterwards, I already left them and I served the other customers. Q Did you actually see Henry Piamonte leave the Sting Cafe? A They were about to leave already at that time because they were already bringing with them the two bottles of beer, Sir. Q But did you see Henry Piamonte actually leave the Sting Cafe? A When Henry Piamonte left the Sting Cafe, Henry boarded a tricycle, Sir. Q How about Cubcubin, how did he leave the Sting Cafe? A He followed Henry, Sir. Q How did he follow Henry, on foot, on board a vehicle or what? A I do not know anymore, Sir, because I already served the other customers inside. 44 xxx xxx xxx On cross-examination, Danet said: ATTY. BAYBAY: Q When he left, he left alone? A I do not know anymore, Sir, because I already served inside. Q Are you saving to us that you did not see him when, he left? A No, Sir, what I know is that he and Cubcubin were together because of the two bottles of beer which were paid by Piamonte inside, Sir. xxx xxx xxx ATTY. BAYBAY: Q The accused Fidel Cubcubin left Sting Cafe at 3:30? A Yes, Sir. Q Now, how could you be sure of the time when you were serving other people at that time? A That is only my estimation, Sir. Q You only estimated? A Yes, Sir. Q And, what was the basis of your estimation? A Because at that time there were only few customers in that place, Sir. Q So, you are not really sure what time Fidel Cubcubin left? A Yes, Sir. SIDEaA Q. You also did not see him leave? A No, Sir. 45 In People v. Gallarde, 46 it was explained that positive identification refers essentially to proof of identity and not per se to that of being an eyewitness to the very act of commission of the crime. A witness may identify a suspect or accused in a criminal case as the perpetrator of the crime. This constitutes direct evidence. Or, he may not have actually seen the crime committed, but is nevertheless able to identify a suspect or accused as the perpetrator of the crime, as when the latter is the person or one of the persons last seen with the victim immediately before and right after the commission of the crime. This is the second type of positive identification, which, when taken together with other pieces of evidence constituting an unbroken chain, leads to a fair and reasonable conclusion that the accused is the author of the crime to the exclusion of all others. This rule, however, cannot be applied in the present case because Danet Garcellano did not actually see accused-appellant and the victim leave the Sting Cafe together. There is thus serious doubt as to whether accused-appellant was really the last person seen with the victim. Her testimony is insufficient to place accused-appellant in the scene of the crime so as to form part of the chain of circumstantial evidence to show that accused-appellant committed the crime. Suspicion alone is insufficient, the required quantum of evidence being proof beyond reasonable doubt. 47 Nor is there adequate evidence to prove any ill motive on the part of accused-appellant. Accused-appellant testified that he could not have killed the victim because the latter was his friend whom he considered his "kuya" or elder brother. 48 There is no showing that the killing of the victim was by reason of a supposed altercation they had as to who would pay for the two bottles of beer ordered while they were at the Sting Cafe. The beer was later paid for by the victim. Motive is proved by the acts or statements of the accused before or immediately after the commission of the offense, i.e., by deeds or words that may express the motive or from which his reason for committing the offense may be inferred. 49 Rule 133, 4 of the Revised Rules on Evidence requires the concurrence of the following in order to sustain a conviction based on circumstantial evidence: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. In the case at bar, there are serious doubts as to whether the crime was committed by accused-appellant in view of the following: (1) As already stated, Danet Garcellano, a waitress at the Sting Cafe, did not actually see accused-appellant and the victim leaving the cafe together at about 3:30 a.m. of August 26, 1997; (2) PO3 Rosal and SPO1 Malinao, Jr. testified that when they arrived at the scene of the crime, they were informed by a tricycle driver that the victim and the accused-appellant had earlier left the Sting Cafe together, but the tricycle driver was not presented to confirm this fact; (3) SPO1 Malinao, Jr. testified that the white "Hanes" t-shirt was "bloodied," but the evidence shows that it had some bloodstains only on its lower portion (Exh. H), while the photograph of the t-shirt (Exhs. B-2, B-2- A, B-2-B), supposedly taken at the time of the search, shows that it had no bloodstains and this discrepancy was not explained by SPO1 Malinao, Jr.; (4) The fact that the t-shirt was tested positive for type "O" blood does not necessarily mean that the bloodstains came from the victim who also had a type "O" blood; (5) Accused-appellant was never given a paraffin test to determine if he was positive for gunpowder nitrates; (8) The .38 caliber gun allegedly found in his house was not examined for the possible presence of accused- appellant's fingerprints; and (9) The allegation that the gun was placed on top of a water container in accused-appellant's house is unbelievable as it is improbable that accused-appellant could be so careless as to leave the fatal weapon there when he could have hidden it or thrown it away. Nor can we rest easy on the prosecution's claim as to where the two empty shells and the t-shirt were allegedly found. SPO1 Malinao, Jr. testified that these were placed beside the white "Hanes" t-shirt and fell when he took the shirt. On direct examination, SPO1 Malinao, Jr. said: cSIACD PROSECUTOR LU: Q What else did you tell Cubcubin at that time? A We asked him to allow us to go inside the house and he let us go inside the house, then after entering the same, while we were in the sala near the kitchen we saw the white Hanes t-shirt there, Sir, that was near the kitchen. Q Where exactly was the white t-shirt placed at that time when you saw the same? A Because after entering the house you will see the entire portion of that house and there is a table there and that t-shirt was placed on the table. Q Was that t-shirt visible from the front door of the house? A Yes, Sir. Q Can you describe to us the t-shirt that you saw? A Before I got the t-shirt, I even asked his permission for me to be able to get the t-shirt, Sir, and he even gave me the permission to get the same, after getting the t-shirt there were even 2 empty shells which fell, and I saw the t-shirt was with blood stains. Q This white t-shirt, can you tell us the brand of the t-shirt? A Hanes, Sir. Q How about the blood spot or blood stains, can you tell us how many, if you can remember? A We were in a hurry, I did not count the blood stains anymore but there were blood stains on the t-shirt, Sir. Q How about these 2 empty shells that fell when you lifted the t- shirt, can you describe to us these 2 empty shells? A Empty shells of .38 cal. bullets, Sir. Q What did you do with the empty shells? A I got the t-shirt as well as the 2 empty shells and I showed them to him, Sir. 50 However, on cross-examination, he said he found the empty shells on top of a cabinet (tokador) in the bedroom on the second floor of the house. Thus, he testified: ATTY. BAYBAY: Q Where was this t-shirt again when you first saw it? A In the kitchen area, Sir. Q Where in the kitchen area, on the floor or on the wall? A It was immediately in front of the door because the house has no divider anymore, Sir. Q And that t-shirt was immediately near the door, on the floor? A Yes, Sir. Q What did you do after that, when you saw the t-shirt there? A I asked his permission so that I could take a look at the t-shirt, Sir. Q And you said, you looked at it? A Yes, Sir. Q When you said, you looked at it, how did you look at it? A I spread it out in front of him, Sir. Q And when you spread it out in front of him, did you ask him whose t-shirt is it? A I asked him if that t-shirt belongs to him, Sir. Q What did he say? A According to him, the t-shirt does not belong to him, Sir. ICDSca Q You also testified that you found empty shells? A Yes, Sir. Q Where did you find these two empty shells? A From the bedroom upstairs, Sir. Q Bedroom upstairs? A Yes, Sir. Q You mean, it is a two-storey house? A Yes, Sir, there is a bedroom upstairs. Q You found it when you went up? A I first asked his permission to look around inside the house, Sir, because I was asking him also about the whereabouts of the firearm he had. Q And he allowed you? A He allowed me, sir. Q And when you went upstairs, you found the two empty shells? A Yes, Sir, they were placed on their tokador on a place where there is a curtain. Q In your previous testimony and this is found on page 41 of the TSN, you stated that you got the t-shirt and when you lifted the t- shirt, two empty shells fell off? A After finding the two empty shells for a .38 caliber, Sir, I placed them together with the t-shirt. Q What you are telling us now is that you went upstairs, you found two empty shells and you put them together with the t-shirt, that is what you are telling us now? A After finding and taking a look at the t-shirt, I put it on the original place where it was, Sir, and after finding the two empty shells, it so happened that the investigator was behind me so after that, I showed to him the t-shirt as well as the empty shells. 51 xxx xxx xxx Q Also in your previous testimony, you got the t-shirt and you asked the permission to get the t-shirt, after getting the t-shirt, there were 2 empty shells which fell. The question is, do you remember that this happened? A These two empty shells which I recovered upstairs, sir, I placed them on top of the t-shirts. Q You said, when you got the t-shirt, something fell, in your direct testimony? A While Fidel Cubcubin was just beside me, Sir, I got the t-shirt, I spread it out and nothing fell yet at that time, then I asked him about the firearm that he used. xxx xxx xxx Q Do you remember having been asked this particular question: "Q Can you describe to us the t-shirt that you saw? A Before I got the t-shirt I even asked his permission for me to be able to get the t-shirt, Sir, and he even gave me the permission to get the same, after getting the t-shirt there were even 2 empty shells which fell, and I saw the t-shirt was with blood stains." A Yes, Sir, I remember it. Q I am just referring to two empty shells that fell, which you said, is that true? A Yes, Sir, there were empty shells that fell, but I first placed them on top of the t-shirt because I was planning to wrap these empty shells in the t-shirt. Q You also testified here on page 40 that the t-shirt was visible from the front door of the house, is that true? A Yes, Sir. Q And you were referring to the time that you entered the house? A Yes, Sir. Q And that was the time that you lift[ed] the t-shirt when you saw it and you got it? A What I said before was that, I got the t-shirt, I lifted it, after that, I placed it on its original place, Sir, and I asked him about the firearm but he was not commenting anything on that, so I asked permission from him to go upstairs to look around. Q When you said you placed that from the place where you found it, how did you put it on the place where you found it? A I placed it there the way I saw it before, the way it was previously placed there, Sir, because I was planning to bring the t- shirt. 52 Thus, caught in his own contradiction, SPO1 Malinao, Jr. prevaricated but in the process committed more contradictions. He said he found the empty shells on top of the tokador on the second floor of the house, brought them downstairs, and then placed them on the t-shirt. When he got the t-shirt, the empty shells fell on the floor. But how could he have gotten the shells from the second floor if, according to him, he found them by accident when they fell from the t-shirt which he found immediately after entering accused-appellant's house and before going up to the second storey? It is also noteworthy that whereas at first SPO1 Malinao, Jr. said he found the t-shirt placed on the table near the kitchen, he later said he found it on the floor. WHEREFORE, the decision of the Regional Trial Court, Branch 88, Cavite City, finding accused-appellant Fidel Abrenica Cubcubin, Jr. guilty of the crime of murder, is REVERSED and accused-appellant is hereby ACQUITTED on the ground of reasonable doubt. Accused-appellant is ordered immediately released from custody unless he is being held for some other lawful cause. The Director of Prisons is directed to implement this Decision and to report to the Court the action taken hereon within five (5) days from receipt hereof. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Pardo, Buena, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur. Quisumbing, J., is abroad on official business. aATHES Gonzaga-Reyes, J., is on leave. SECOND DIVISION [G.R. No. 95902. February 4, 1992.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DON RODRIGUEZA, accused-appellant. The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant. SYLLABUS 1. CRIMINAL LAW; DANGEROUS DRUGS ACT OF 1972 (RA No. 6425); ENTRAPMENT; BUY-BUST OPERATION; REQUISITE THEREOF; NOT COMPLIED WITH IN CASE AT BAR. A buy-bust operation is a form of entrapment employed by peace officers to trap and catch a malefactor in flagrante delicto. Applied to the case at bar, the term in flagrante delicto requires that the suspected drug dealer must be caught redhanded in the act of selling marijuana or any prohibited drug to a person acting or posing as a buyer. In the instant case, however, the procedure adopted by the NARCOM agents failed to meet this qualification. Based on the very evidence of the prosecution, after the alleged consummation of the sale of dried marijuana leaves, CIC Taduran immediately released appellant Rodrigueza instead of arresting and taking him into his custody. This act of CIC Taduran, assuming arguendo that the supposed sale of marijuana did take place, is decidedly contrary to the natural course of things and inconsistent with the aforestated purpose of a buy-bust operation. It is rather absurd on his part to let appellant escape without having been subjected to the sanctions imposed by law. It is, in fact, a dereliction of duty by an agent of the law. 2. ID.; ID.; CONFISCATED MARIJUANA LEAVES AND OTHER PROHIBITED DRUG PARAPHERNALIA CONSTITUTES THE CORPUS DELICTI OF THE CRIME; PROOF OF THEIR EXISTENCE NECESSARY. In People vs. Rubio (142 SCRA 329 [1986]), this Court had the occasion to rule that the plastic bag and the dried marijuana leaves contained therein constitutes the corpus delicti of the crime. As such, the existence thereof must be proved with certainty and conclusiveness. Failure to do so would be fatal to the cause of the prosecution. 3. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF A PERSON UNDER CUSTODIAL INVESTIGATION; WAIVER THEREOF MUST BE MADE WITH ASSISTANCE AND IN THE PRESENCE OF COUNSEL. The admissibility of the sworn statement allegedly executed by appellant was squarely placed in issue and, as correctly pointed out by the defense, said sworn statement is inadmissible in evidence against appellant. We have once again to reiterate and emphasize that Article III of the 1987 Constitution provides: "Sec. 12 (1). Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have a 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. . . . (3) Any confession or admission obtained in violation of this or section 17 hereof shall be inadmissible in evidence against him." An examination of said sworn statement shows that appellant was informed of his constitutional right to remain silent and to be assisted by counsel during custodial examination. He was also asked if he was waiving his right to be assisted by counsel and he answered in the affirmative. However, while the rights of a person under custodial investigation may be waived, such waiver must be made not only voluntarily, knowingly and intelligently but also in the presence and with the assistance of counsel (People vs. Olaes, 188 SCRA 91 [1990]; People vs. Hernandez, et al., 162 SCRA 422 [1988]). In the present case, the waiver made by appellant being without the assistance of counsel, this omission alone is sufficient to invalidate said sworn statement (People vs. Nolasco, 163 SCRA 623 [1988]). 4. ID.; ID.; SEARCH AND SEIZURE; SEARCH WARRANT REQUIRED; EXCEPTIONS; CASE AT BAR. As provided in the present Constitution, a search, to be valid, must generally be authorized by a search warrant duly issued by the proper government authority (Section 2, Article III, 1987 Constitution). True, in some instances, this Court has allowed government authorities to conduct searches and seizures even without a search warrant. Thus, when the owner of the premises waives his right against such incursion; when the search is incidental to a lawful arrest; when it is made on vessels and aircraft for violation of customs laws; when it is made on automobiles for the purpose of preventing violations of smuggling or immigration laws; when it involves prohibited articles in plain view; or in cases of inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations, a search may be validly made even without a search warrant. In the case at bar, however, the raid conducted by the NARCOM agents in the house of Jovencio Rodrigueza was not authorized by any search warrant. It does not appear, either, that the situation falls under any of the aforementioned cases. Hence, appellant's right against unreasonable search and seizure was clearly violated. The NARCOM agents could not have justified their act by invoking the urgency and necessity of the situation because the testimonies of the prosecution witnesses reveal that the place had already been put under surveillance for quite some time. Had it been their intention to conduct the raid, then they should, because they easily could, have first secured a search warrant during that time. 5. REMEDIAL LAW; EVIDENCE; TESTIMONY OF WITNESSES; CREDIBILITY THEREOF AFFECTED BY MATERIAL INCONSISTENCIES. It is accepted that, as a rule, minor inconsistencies in the testimony of a witness will not affect his credibility. It even enhances such credibility because it only shows that he has not been rehearsed. However, when the inconsistencies pertain to material and crucial points, the same detract from his overall credibility. 6. ID.; ID.; TESTIMONY OF ACCUSED; GIVEN CREDENCE. We are constrained to give more credibility to the testimony of appellant Rodrigueza. While it is true that appellant's defense amounts to an alibi, and as such is the weakest defense in a criminal prosecution, there are, nonetheless, some evidentiary aspects pointing to the truth in his testimony. Firstly, the Joint Affidavit of Arrest corroborates his testimony that he was not among those who were arrested on the night of July 1, 1987. His co-accused Segovia also testified that appellant Rodrigueza was not with them when they were apprehended by the NARCOM agents. Secondly, the apparent motive of the NARCOM agents in prosecuting the accused was also revealed during the trial of the case. Rebuttal witnesses Gracita Bahillo, sister of appellant, and Hospicio Segovia, father of Samuel Segovia, testified that Sgt. Moliawe, who has since been reportedly dismissed from the service, asked for P10,000.00 from each of them in exchange for the liberty of the accused. This allegation was never refuted by the prosecution. 7. ID.; ID.; PROOF REQUIRED IN CRIMINAL CASES; BEYOND REASONABLE DOUBT NOT ESTABLISHED IN CASE AT BAR. The Court has repeatedly ruled that to sustain the conviction of the accused, the prosecution must rely on the strength of its own evidence and not on the weakness of the defense. As clearly shown by the evidence, the prosecution has failed to establish its cause. It has not overcome the presumption of innocence accorded to appellant. This being the case, appellant should not be allowed to suffer for unwarranted and imaginary imputations against him. D E C I S I O N REGALADO, J p: On appeal before us is the decision of the Regional Trial Court of Legaspi City, Branch 10, finding accused-appellant Don Rodrigueza guilty beyond reasonable doubt of violating Section 4, Article II of the Dangerous Drugs Act of 1972 (Republic Act No. 6425, as amended) and sentencing him to suffer the penalty of life imprisonment and to pay a fine of P20,000.00 and costs. 1 However, the Solicitor General, deviating from his conventional stance in the prosecution of criminal cases, recommends the acquittal of appellant for the reasons stated in his Manifestation for Acquittal (In Lieu of Appellee's Brief) filed with the Court. We have reviewed and analyzed the testimonial and documentary evidence in this case and we find said recommendation to be well taken. cdrep The information, dated July 10, 1987, charges Don Rodrigueza and his co-accused, Samuel Segovia and Antonio Lonceras, with allegedly having in their custody and possession 100 grams of marijuana leaves and for selling, in a buy-bust operation, said 100 grams of dried marijuana leaves for a consideration of P200.00. 2 During the arraignment, all the accused pleaded not guilty to the charge against them. At the trial, the prosecution and the defense presented several witnesses after which the court a quo rendered judgment acquitting Samuel Segovia and Antonio Lonceras but convicting and penalizing herein appellant as hereinbefore stated. The following facts are culled from the decision of the trial court and the evidence presented by the prosecution. At around 5:00 o'clock in the afternoon of July 1, 1987, CIC Ciriaco Taduran was in their headquarters at the Office of the Narcotics Regional Unit at Camp Bagong Ibalon, Legaspi City, together with S/Sgt. Elpidio Moliawe, CIC Leonardo B. Galutan and their commanding officer, Major Crisostomo M. Zeidem, when a confidential informer arrived and told them that there was an ongoing illegal traffic of prohibited drugs in Tagas, Daraga, Albay. Major Zeidem formed a team to conduct a buybust operation, which team was given P200.00 in different denominations to buy marijuana. These bills were treated with ultraviolet powder at the Philippine Constabulary Crime Laboratory (PCCL). Sgt. Moliawe gave the money to Taduran who acted as the poseur buyer. He was told to look for a certain Don, the alleged seller of prohibited drugs. Taduran went to Tagas alone and, while along the road, he met Samuel Segovia. He asked Segovia where he could find Don and where he could buy marijuana. Segovia left for a while and when he returned, he was accompanied by a man who was later on introduced to him as Don, herein appellant. 3 After agreeing on the price of P200.00 for 100 grams of marijuana, Don halted a passing tricycle driven by Antonio Lonceras. He boarded it and left Taduran and Segovia. When he came back, Don gave Taduran "a certain object wrapped in a plastic" which was later identified as marijuana, and received payment therefor. Thereafter, Taduran returned to the headquarters and made a report regarding his said purchase of marijuana. 4 Based on that information, Major Zeidem ordered a team to conduct an operation to apprehend the suspects. In the evening of the same date, CIC Galutan and S/Sgt. Moliawe proceeded to Regidor Street, Daraga, Albay and arrested appellant, Antonio Lonceras and Samuel Segovia. The constables were not, however, armed with a warrant of arrest when they apprehended the three accused. The arrestees were brought to the headquarters for investigation. 5 Thereafter, agents of the Narcotics Command (NARCOM) conducted a raid in the house of Jovencio Rodrigueza, father of appellant. Taduran did not go with them. During the raid, they were able to confiscate dried marijuana leaves and a plastic syringe, among others. The search, however, was not authorized by any search warrant. 6 The next day, July 2, 1987, Jovencio Rodrigueza was released from detention but appellant was detained. An affidavit, allegedly taken from and executed by him, was sworn to by him before the assistant city prosecutor. Appellant had no counsel when his sworn statement was taken during that custodial investigation. The arrestees were also examined by personnel of the PCCL and were found positive for ultraviolet powder. 7 The three accused presented different versions of their alleged participations. Samuel Segovia testified that he was in their house in the evening of July 1, 1987 listening to the radio. Later, he ate his merienda and then went out to buy cigarettes from the store. While he was at the store, a jeep stopped behind him. Several armed men alighted therefrom and ordered him to get inside the jeep. He refused but he was forced to board the vehicle. He was even hit by the butt of a gun. 8 He was thereafter brought to Camp Bagong Ibalon where he was investigated and was repeatedly asked regarding the whereabouts of Rodrigueza. He was manhandled by the NARCOM agents and was detained while inside the camp. He was then made to hold a P10.00 bill treated with ultraviolet powder. When he was taken to the PCCL and examined, he was found positive of the ultraviolet powder. He was also made to sign some papers but he did not know what they were all about. 9 Appellant, on the other hand, testified that on said date he was in the house of his aunt in San Roque, Legaspi City. He stayed there overnight and did not leave the place until the next day when his brother arrived and told him that their father was taken by some military men the preceding night. Appellant went to Camp Bagong Ibalon and arrived there at around 8:00 o'clock in the morning of July 2, 1987. When he arrived, he was asked if he knew anything about the marijuana incident, to which question he answered in the negative. Like Segovia, he was made to hold a P10.00 bill and was brought to the crime laboratory for examination. From that time on, he was not allowed to go home and was detained inside the camp. He was also tortured in order to make him admit his complicity in the alleged sale of marijuana. 10 In the assignment of errors in his brief, appellant contends that the trial court erred in (1) admitting in evidence the sworn statement of appellant which was obtained in violation of his constitutional rights; (2) convicting appellant of the crime charged despite the fact that the 100 grams of dried marijuana leaves allegedly bought from him were not properly identified; (3) convicting appellant of the crime charged despite the fact that the evidence for the prosecution is weak and not convincing; and (4) finding appellant guilty beyond reasonable doubt of selling or at least acting as broker in the sale of the 100 grams of marijuana to CIC Taduran late in the afternoon of July 1, 1987, despite the failure of the prosecution to prove his guilt beyond reasonable doubt. 11 We rule for the appellant and approve the recommendation for his acquittal. In disposing of this case, however, we feel that the issues raised by appellant should properly be discussed seriatim. 1. A buy-bust operation is a form of entrapment employed by peace officers to trap and catch a malefactor in flagrante delicto. 12 Applied to the case at bar, the term in flagrante delicto requires that the suspected drug dealer must be caught redhanded in the act of selling marijuana or any prohibited drug to a person acting or posing as a buyer. In the instant case, however, the procedure adopted by the NARCOM agents failed to meet this qualification. Based on the very evidence of the prosecution, after the alleged consummation of the sale of dried marijuana leaves, CIC Taduran immediately released appellant Rodrigueza instead of arresting and taking him into his custody. This act of CIC Taduran, assuming arguendo that the supposed sale of marijuana did take place, is decidedly contrary to the natural course of things and inconsistent with the aforestated purpose of a buy-bust operation. It is rather absurd on his part to let appellant escape without having been subjected to the sanctions imposed by law. It is, in fact, a dereliction of duty by an agent of the law. 2. The admissibility of the sworn statement allegedly executed by appellant was squarely placed in issue and, as correctly pointed out by the defense, said sworn statement is inadmissible in evidence against appellant. We have once again to reiterate and emphasize that Article III of the 1987 Constitution provides: "Sec. 12 (1). Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have a 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. xxx xxx xxx (3) Any confession or admission obtained in violation of this or section 17 hereof shall be inadmissible in evidence against him." An examination of said sworn statement shows that appellant was informed of his constitutional right to remain silent and to be assisted by counsel during custodial examination. He was also asked if he was waiving his right to be assisted by counsel and he answered in the affirmative. However, while the rights of a person under custodial investigation may be waived, such waiver must be made not only voluntarily, knowingly and intelligently but also in the presence and with the assistance of counsel. 13 In the present case, the waiver made by appellant being without the assistance of counsel, this omission alone is sufficient to invalidate said sworn statement. 14 3. Corollary to this, we take cognizance of the error of the trial court in admitting in evidence against appellant the articles allegedly confiscated during the raid conducted in the house of Jovencio Rodrigueza. cdll As provided in the present Constitution, a search, to be valid, must generally be authorized by a search warrant duly issued by the proper government authority. 15 True, in some instances, this Court has allowed government authorities to conduct searches and seizures even without a search warrant. Thus, when the owner of the premises waives his right against such incursion; 16 when the search is incidental to a lawful arrest; 17 when it is made on vessels and aircraft for violation of customs laws; 18 when it is made on automobiles for the purpose of preventing violations of smuggling or immigration laws; 19 when it involves prohibited articles in plain view; 20 or in cases of inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations, 21 a search may be validly made even without a search warrant. In the case at bar, however, the raid conducted by the NARCOM agents in the house of Jovencio Rodrigueza was not authorized by any search warrant. It does not appear, either, that the situation falls under any of the aforementioned cases. Hence, appellant's right against unreasonable search and seizure was clearly violated. The NARCOM agents could not have justified their act by invoking the urgency and necessity of the situation because the testimonies of the prosecution witnesses reveal that the place had already been put under surveillance for quite some time. Had it been their intention to conduct the raid, then they should, because they easily could, have first secured a search warrant during that time. 4. The Court further notes the confusion and ambiguity in the identification of the confiscated marijuana leaves and other prohibited drug paraphernalia presented as evidence against appellant. CIC Taduran, who acted as the poseur buyer, testified that appellant sold him 100 grams of dried marijuana leaves wrapped in a plastic bag. Surprisingly, and no plausible explanation has been advanced therefor, what were submitted to and examined by the PCCL and thereafter utilized as evidence against the appellant were the following items: "One (1) red and white colored plastic bag containing the following: Exh. 'A' Thirty (30) grams of suspected dried marijuana fruiting tops contained inside a transparent plastic bag. Exh. 'B' Fifty (50) grams of suspected dried marijuana leaves and seeds contained inside a white colored plastic labelled 'Robertson'. Exh. 'C' Four (4) aluminum foils each containing suspected dried marijuana fruiting tops having a total weight of seven grams then further wrapped with a piece of aluminum foil. Exh. 'D' Five (5) small transparent plastic bags each containing suspected dried marijuana fruiting tops having a total weight of seventeen grams. Exh. 'E' One plastic syringe." 22 Evidently, these prohibited articles were among those confiscated during the so-called follow-up raid in the house of Jovencio Rodrigueza. The unanswered question then arises as to the identity of the marijuana leaves that became the basis of appellant's conviction. 23 In People vs. Rubio, 24 this Court had the occasion to rule that the plastic bag and the dried marijuana leaves contained therein constitutes the corpus delicti of the crime. As such, the existence thereof must be proved with certainty and conclusiveness. Failure to do so would be fatal to the cause of the prosecution. cdphil 5. It is accepted that, as a rule, minor inconsistencies in the testimony of a witness will not affect his credibility. It even enhances such credibility because it only shows that he has not been rehearsed. 25 However, when the inconsistencies pertain to material and crucial points, the same detract from his overall credibility. The exception, rather than the rule, applies in the case at bar. As correctly pointed out by the Solicitor General, the testimonies of the prosecution witnesses are tainted with serious flaws and material inconsistencies rendering the same incredible. 26 CIC Taduran, in his testimony, said that they had already been conducting surveillance of the place where the buy-bust operation was to take place. It turned out, however, that he did not even know the exact place and the identity of the person from whom he was to buy marijuana leaves. Thus: "FISCAL TOLOSA: Q What place in Tagas were you able to go (to)? WITNESS. A I am not actually familiar in (sic) that place, in Tagas, although we occasionally passed there. Q Now, upon your arrival in Tagas, what did you do that afternoon? A I waited for the suspect because previously, we have already been conducted (sic) surveylance (sic) in the vicinity. Q Upon arrival in Tagas, were you able to see the suspect? A By the road, sir. Q Who was the first person did you see (sic) when you arrived at Tagas? A The first person whom I saw is Samuel Segovia. Q Were you able to talk with this Samuel Segovia? A According to him, we could get some." 27 The same findings go for the testimony of witness Galutan. In his direct examination, he declared that they arrested the three accused all at the same time on the fateful night of July 1, 1987. But, in his cross- examination and as corroborated by the Joint Affidavit of Arrest 28 submitted by him and Moliawe, it appeared that Lonceras and Segovia were arrested on different times and that appellant Don Rodrigueza was not among those who were arrested. Instead, it was Jovencio Rodrigueza, Don's father, who was picked up at a much later time. With said inconsistencies in sharp focus, we are constrained to give more credibility to the testimony of appellant Rodrigueza. While it is true that appellant's defense amounts to an alibi, and as such is the weakest defense in a criminal prosecution, there are, nonetheless, some evidentiary aspects pointing to the truth in his testimony. Firstly, the Joint Affidavit of Arrest corroborates his testimony that he was not among those who were arrested on the night of July 1, 1987. His co-accused Segovia also testified that appellant Rodrigueza was not with them when they were apprehended by the NARCOM agents. Secondly, the apparent motive of the NARCOM agents in prosecuting the accused was also revealed during the trial of the case. Rebuttal witnesses Gracita Bahillo, sister of appellant, and Hospicio Segovia, father of Samuel Segovia, testified that Sgt. Moliawe, who has since been reportedly dismissed from the service, asked for P10,000.00 from each of them in exchange for the liberty of the accused. 29 This allegation was never refuted by the prosecution. Hence, the rule laid down by this Court that the statements of prosecution witnesses are entitled to full faith and credit 30 has no application in the case at bar. Finally, the Court has repeatedly ruled that to sustain the conviction of the accused, the prosecution must rely on the strength of its own evidence and not on the weakness of the defense. 31 As clearly shown by the evidence, the prosecution has failed to establish its cause. It has not overcome the presumption of innocence accorded to appellant. This being the case, appellant should not be allowed to suffer for unwarranted and imaginary imputations against him. WHEREFORE, the judgment of conviction of the court below is hereby REVERSED and SET ASIDE and accused-appellant Don Rodrigueza is hereby ACQUITTED of the crime charged. It is hereby ordered that he be immediately released from custody unless he is otherwise detained for some other lawful cause. SO ORDERED. Melencio-Herrera, Paras, Padilla and Nocon, JJ., concur. EN BANC [G.R. No. 101837. February 11, 1992.] ROLITO GO y TAMBUNTING, petitioner, vs. THE COURT OF APPEALS; THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168, Regional Trial Court, NCJR Pasig, M.M.; and PEOPLE OF THE PHILIPPINES, respondents. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARREST UNDER SEC. 5, RULE 113, NOT APPLICABLE IN CASE AT BAR. We do not believe that the warrantless "arrest" or detention of petitioner in the instant case falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which provides as follows: "Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. 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." Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The arresting officers obviously were not present, within the meaning of Section 5(a), at the time petitioner had allegedly shot Maguan. Neither could the "arrest" effected six (6) days after the shooting be reasonably regarded as effected "when [the shooting had] in fact just been committed" within the meaning of Section 5 (b). Moreover, none of the "arresting" officers had any "personal knowledge" of facts indicating that petitioner was the gunman who had shot Maguan. The information upon which the police acted had been derived from statements made by alleged eyewitnesses to the shooting -- one stated that petitioner was the gunman; another was able to take down the alleged gunman's car's plate number which turned out to be registered in petitioner's wife's name. That information did not, however, constitute "personal knowledge." It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the meaning of Section 5 of Rule 113. 2. ID.; ID.; ID.; ACCUSED ENTITLED TO A PRELIMINARY INVESTIGATION WITHOUT ANY CONDITIONS. Petitioner was not arrested at all. When he walked into the San Juan Police Station, accompanied by two (2) lawyers, he in fact placed himself at the disposal of the police authorities. He did not state that he was "surrendering" himself, in all probability to avoid the implication he was admitting that he had slain Eldon Maguan or that he was otherwise guilty of a crime. When the police filed a complaint for frustrated homicide with the Prosecutor, the latter should have immediately scheduled a preliminary investigation to determine whether there was probable cause for charging petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the Prosecutor proceeded under the erroneous supposition that Section 7 of Rule 112 was applicable and required petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition for carrying out a preliminary investigation. This was substantive error, for petitioner was entitled to a preliminary investigation and that right should have been accorded him without any conditions. Moreover, since petitioner had not been arrested, with or without a warrant, he was also entitled to be released forthwith subject only to his appearing at the preliminary investigation. 3. ID.; ID.; ID.; RIGHT TO PRELIMINARY INVESTIGATION; NO WAIVER THEREOF MADE IN CASE AT BAR. Turning to the second issue of whether or not petitioner had waived his right to preliminary investigation, we note that petitioner had from the very beginning demanded that a preliminary investigation be conducted. As earlier pointed out, on the same day that the information for murder was filed with the Regional Trial Court, petitioner filed with the Prosecutor an omnibus motion for immediate release and preliminary investigation. The Solicitor General contends that that omnibus motion should have been filed with the trial court and not with the Prosecutor, and that petitioner should accordingly be held to have waived his right to preliminary investigation. We do not believe that waiver of petitioner's statutory right to preliminary investigation may be predicated on such a slim basis. The preliminary investigation was to be conducted by the Prosecutor, not by the Regional Trial Court. It is true that at the time of filing of petitioner's omnibus motion, the information for murder had already been filed with the Regional Trial Court: it is not clear from the record whether petitioner was aware of this fact at the time his omnibus motion was actually filed with the Prosecutor. Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation and not for a re-investigation and since the Prosecutor himself did file with the trial court, on the 5th day after filing the information for murder, a motion for leave to conduct preliminary investigation (attaching to his motion a copy of petitioner's omnibus motion), we conclude that petitioner's omnibus motion was in effect filed with the trial court. What was crystal clear was that petitioner did ask for a preliminary investigation on the very day that the information was filed without such preliminary investigation, and that the trial court was five (5) days later apprised of the desire of the petitioner for such preliminary investigation. Finally, the trial court did in fact grant the Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even on the (mistaken) supposition apparently made by the Prosecutor that Section 7 of Rule 112 of the Revised Court was applicable, the 5-day reglementary period in Section 7, Rule 112 must be held to have been substantially complied with. We believe and so hold that petitioner did not waive his right to a preliminary investigation. The rule is that the right to preliminary investigation is waived when the accused fails to invoke it before or at the time of entering a plea at arraignment. In the instant case, petitioner Go had vigorously insisted on his right to preliminary investigation before his arraignment. We do not believe that by posting bail, petitioner had waived his right to preliminary investigation. Petitioner Go asked for release on recognizance or on bail and for preliminary investigation in one omnibus motion. He had thus claimed his right to preliminary investigation before respondent Judge approved the cash bond posted by petitioner and ordered his release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary investigation on the part of petitioner. In fact, when the Prosecutor filed a motion in court asking for leave to conduct preliminary investigation, he clearly if impliedly recognized that petitioner's claim to preliminary investigation was a legitimate one. 4. ID.; ID.; ID.; ID.; A SUBSTANTIVE RIGHT AND A COMPONENT PART OF DUE PROCESS. While the right to a preliminary investigation is statutory rather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of due process in criminal justice. The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. The accused in a criminal trial is inevitably exposed to prolonged anxiety, aggravation, humiliation, not to speak of expense; the right to an opportunity to avoid a process painful to any one save, perhaps, to hardened criminals, is a valuable right. To deny petitioner's claim to a preliminary investigation would be to deprive him of the full measure of his right to due process. 5. ID.; ID.; FAILURE TO ACCORD PRELIMINARY INVESTIGATION DOES NOT IMPAIR VALIDITY OF INFORMATION FILED. Contrary to petitioner's contention the failure to accord preliminary investigation, while constituting a denial of the appropriate and full measure of the statutory process of criminal justice, did not impair the validity of the information for murder nor affect the jurisdiction of the trial court. 6. ID.; ID.; ACCUSED ENTITLED TO PRELIMINARY INVESTIGATION EVEN THOUGH TRIAL ON THE MERITS HAS ALREADY BEGAN. We consider that petitioner remains entitled to a preliminary investigation although trial on the merits has already began. Trial on the merits should be suspended or held in abeyance and a preliminary investigation forthwith accorded to petitioner. The constitutional point is that petitioner was not accorded what he was entitled to by way of procedural due process. Petitioner was forced to undergo arraignment and literally pushed to trial without preliminary investigation, with extraordinary haste, to the applause from the audience that filled the courtroom. If he submitted to arraignment and trial, petitioner did so "kicking and screaming," in a manner of speaking. During the proceedings held before the trial court on 23 August 1991, the date set for arraignment of petitioner, and just before arraignment, counsel made very clear petitioner's vigorous protest and objection to the arraignment precisely because of the denial of preliminary investigation. 7. ID.; ID.; ACCUSED ENTITLED TO BE RELEASED ON BAIL AS A MATTER OF RIGHT. In respect of the matter of bail, petitioner remains entitled to be released on bail as a matter of right. Should the evidence already of record concerning petitioner's guilt be, in the reasonable belief of the Prosecutor, strong, the Prosecutor may move in the trial court for cancellation of petitioner's bail. It would then be up to the trial court, after a careful and objective assessment of the evidence on record, to grant or deny the motion for cancellation of bail. It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail. This was equivalent to an acknowledgment on the part of the Prosecutor that the evidence of guilt then in his hands was not strong. Accordingly, we consider that the 17 July 1991 order of respondent Judge recalling his own order granting bail and requiring petitioner to surrender himself within forty-eight (48) hours from notice, was plainly arbitrary considering that no evidence at all and certainly no new or additional evidence had been submitted to respondent Judge that could have justified the recall of his order issued just five (5) days before. 8. ID.; ID.; RELIANCE ON THE CASE OF UMIL v. RAMOS, MISPLACED; OFFENSE COMMITTED NOT CONSIDERED A "CONTINUING CRIME." The reliance of both petitioner and the Solicitor General upon Umil v. Ramos (G.R. No. 81567, promulgated 3 October 1991) is, in the circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the legality of the warrantless arrests of petitioners made from one (1) to fourteen (14) days after the actual commission of the offenses, upon the ground that such offenses constituted "continuing crimes." Those offenses were subversion, membership in an outlawed organization like the New Peoples Army, etc. In the instant case, the offense for which petitioner was arrested was murder, an offense which was obviously commenced and completed at one definite location in time and space. No one had pretended that the fatal shooting of Maguan was a "continuing crime." 9. CONSTITUTIONAL LAW; STATE SHOULD REAFFIRM ITS OBLIGATION TO RESPECT THE RIGHTS AND LIBERTIES OF ITS CONSTITUENTS; TO ACCORD AN ACCUSED HIS RIGHT TO A PRELIMINARY INVESTIGATION AND TO BAIL IN CASE AT BAR, NOT AN IDLE CEREMONY. To reach any other conclusion here, that is, to hold that petitioner's rights to a preliminary investigation and to bail were effectively obliterated by evidence subsequently admitted into the record would be to legitimize the deprivation of due process and to permit the Government to benefit from its own wrong or culpable omission and effectively to dilute important rights of accused persons well-nigh to the vanishing point. It may be that to require the State to accord petitioner his rights to a preliminary investigation and to bail at this point, could turn out ultimately to be largely a ceremonial exercise. But the Court is not compelled to speculate. And, in any case, it would not be idle ceremony; rather it would be a celebration by the State of the rights and liberties of its own people and a re-affirmation of its obligation and determination to respect those rights and liberties. CRUZ, J., concurring: 1. REMEDIAL LAW; CRIMINAL PROCEDURE; STATUTORY RIGHTS OF ACCUSED TO PROCEDURAL DUE PROCESS VITIATED IN CASE AT BAR. Petitioner had from the start demanded a preliminary investigation and that his counsel has reluctantly participated in the trial only because the court threatened to replace him with a counsel de oficio if he did not. Under these circumstances, I am convinced that there was no waiver. The petitioner was virtually compelled to go to trial. Such compulsion and the unjustified denial of a clear statutory right of the petitioner vitiated the proceedings as violative of procedural due process. GUTIERREZ, JR., J., concurring: 1. JUDICIAL ETHICS; COURTS; IMPORTANCE OF FOLLOWING THE RULES EMPHASIZED. The need for a trial court to follow the Rules and to be fair, impartial, and persistent in getting the true facts of a case is present in all cases but it is particularly important if the accused is indigent; more so, if he is one of those unfortunates who seem to spend more time behind bars than outside. Unlike the accused in this case who enjoys the assistance of competent counsel, a poor defendant convicted by wide and unfavorable media coverage may be presumed guilty before trial and be unable to defend himself properly. Hence, the importance of the court always following the Rules. GRIO-AQUINO, J., dissenting: 1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION, NO LONGER NEEDED; RETURN OF CASE TO THE PROSECUTOR, SUPEREROGATORY. I do not believe that there is still need to conduct a preliminary investigation the sole purpose of which would be to ascertain if there is sufficient ground to believe that a crime was committed (which the petitioner does not dispute) and that he (the petitioner) is probably guilty thereof (which the prosecutor, by filing the information against him, presumably believed to be so). In the present stage of the presentation of the prosecution's evidence, to return the case to the Prosecutor to conduct a preliminary investigation under Rule 112 of the 1985 Rules on Criminal Procedure would be supererogatory. 2. ID.; ID.; RIGHT TO PRELIMINARY INVESTIGATION, NOT A CONSTITUTIONAL RIGHT. It should be remembered that as important as is the right of the accused to a preliminary investigation, it is not a constitutional right. Its absence is not a ground to quash the information (Doromal vs. Sandiganbayan, 177 SCRA 354). It does not affect the court's jurisdiction, nor impair the validity of the information (Rodis vs. Sandiganbayan, 166 SCRA 618), nor constitute an infringement of the right of the accused to confront witnesses (Bustos vs. Lucero, 81 Phil. 640). 3. ID.; ID.; HEARING OF APPLICATION FOR BAIL; SHOULD NOT BE SUSPENDED AND SHOULD NOT BE SUBORDINATED TO THE PRELIMINARY INVESTIGATION OF THE CHARGE. The court's hearing of the application for bail should not be subordinated to the preliminary investigation of the charge. The hearing should not be suspended, but should be allowed to proceed for it will accomplish a double purpose. The parties will have an opportunity to show not only: (a) whether or not there is probable cause to believe that the petitioner killed Eldon Maguan, but more importantly (b) whether or not the evidence of his guilt is strong. The judge's determination that the evidence of his guilt is strong would naturally foreclose the need for a preliminary investigation to ascertain the probability of his guilt. The bail hearing may not be suspended because upon the filing of an application for bail by one accused of a capital offense, "the judge is under a legal obligation to receive evidence with the view of determining whether evidence of guilt is so strong as to warrant denial of bond." 4. ID.; ID.; ABOLITION OF DEATH PENALTY DID NOT MAKE THE RIGHT TO BAIL ABSOLUTE; ACCUSED MAY NOT BE RELEASED PENDING HEARING OF PETITION FOR BAIL. The abolition of the death penalty did not make the right to bail absolute, for persons charged with offenses punishable by reclusion perpetua, when evidence of guilt is strong, are not bailable (Sec. 3, Art. III, 1987 Constitution). In People vs. Dacudao, 170 SCRA 489, we called down the trial court for having granted the motion for bail in a murder case without any hearing and without giving the prosecution an opportunity to comment or file objections thereto. Similarly, this Court held in People vs. Bocar, 27 SCRA 512: ". . . due process also demands that in the matter of bail the prosecution should be afforded full opportunity to present proof of the guilt of the accused. Thus, if it were true that the prosecution in this case was deprived of the right to present its evidence against the bail petition, or that the order granting such petition was issued upon incomplete evidence, then the issuance of the order would really constitute abuse of discretion that would call for the remedy of certiorari." The petitioner may not be released pending the hearing of his petition for bail for it would be incongruous to grant bail to one who is not in the custody of the law (Feliciano vs. Pasicolan, 2 SCRA 888). 5. ID.; ID.; TERM "ARREST," CONSTRUED. Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense (Sec. 1, Rule 113, Rules of Court). An arrest is made by an actual restraint of the person to be arrested, or by his submission to the custody of the person making the arrest (Sec. 2, Rule 113, Rules of Court). When Go walked into the San Juan Police Station on July 8, 1991, and placed himself at the disposal of the police authorities who clamped him in jail after he was identified by an eyewitness as the person who shot Maguan, he was actually and effectively arrested. His filing of a petition to be released on bail was a waiver of any irregularity attending his arrest and estops him from questioning its validity (Callanta vs. Villanueva, 77 SCRA 377; Bagcal vs. Villaraza, 120 SCRA 525). D E C I S I O N FELICIANO, J p: According to the findings of the San Juan Police in their Investigation Report, 1 on 2 July 1991, Eldon Maguan was driving his car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra St. Petitioner entered Wilson St., where it is a one-way street and started travelling in the opposite or "wrong" direction. At the corner of Wilson and J. Abad Santos Sts., petitioner's and Maguan's cars nearly bumped each other. Petitioner alighted from his car, walked over and shot Maguan inside his car. Petitioner then boarded his car and left the scene. A security guard at a nearby restaurant was able to take down petitioner's car plate number. The police arrived shortly thereafter at the scene of the shooting and there retrieved an empty shell and one round of live ammunition for a 9mm caliber pistol. Verification at the Land Transportation Office showed that the car was registered to one Elsa Ang Go. The following day, the police returned to the scene of the shooting to find out where the suspect had come from; they were informed that petitioner had dined at Cravings Bake Shop shortly before the shooting. The police obtained a facsimile or impression of the credit card used by petitioner from the cashier of the bake shop. The security guard of the bake shop was shown a picture of petitioner and he positively identified him as the same person who had shot Maguan. Having established that the assailant was probably the petitioner, the police launched a manhunt for petitioner. On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify news reports that he was being hunted by the police; he was accompanied by two (2) lawyers. The police forthwith detained him. An eyewitness to the shooting, who was at the police station at that time, positively identified petitioner as the gunman. That same day, the police promptly filed a complaint for frustrated homicide 2 against petitioner with the Office of the Provincial Prosecutor of Rizal. First Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed petitioner, in the Presence of his lawyers, that he could avail himself of his right to preliminary investigation but that he must first sign a waiver of the provisions of Article 125 of the Revised Penal Code. Petitioner refused to execute any such waiver. On 9 July 1991, while the complaint was still with the Prosecutor, and before an information could be filed in court, the victim, Eldon Maguan, died of his gunshot wound(s). prcd Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide, filed an information for murder 3 before the Regional Trial Court. No bail was recommended. At the bottom of the information, the Prosecutor certified that no preliminary investigation had been conducted because the accused did not execute and sign a waiver of the provisions of Article 125 of the Revised Penal Code. In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the prosecutor an omnibus motion for immediate release and proper preliminary investigation, 4 alleging that the warrantless arrest of petitioner was unlawful and that no preliminary investigation had been conducted before the information was filed. Petitioner also prayed that he be released on recognizance or on bail. Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the last page of the motion itself that he interposed no objection to petitioner being granted provisional liberty on a cash bond of P100,000.00. On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in order to expedite action on the Prosecutor's bail recommendation. The case was raffled to the sala of respondent Judge, who, on the same date, approved the cash bond 6 posted by petitioner and ordered his release. 7 Petitioner was in fact released that same day. On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct preliminary investigation 8 and prayed that in the meantime all proceedings in the court be suspended. He stated that petitioner had filed before the Office of the Provincial Prosecutor of Rizal an omnibus motion for immediate release and preliminary investigation, which motion had been granted by Provincial Prosecutor Mauro Castro, who also agreed to recommend cash bail of P100,000.00. The Prosecutor attached to the motion for leave a copy of petitioner's omnibus motion of 11 July 1991. Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct preliminary investigation and cancelling the arraignment set for 15 August 1991 until after the prosecution shall have concluded its preliminary investigation. On 17 July 1991, however, respondent Judge motu proprio issued an Order, 10 embodying the following: (1) the 12 July 1991 Order which granted bail was recalled; petitioner was given 48 hours from receipt of the Order to surrender himself; (2) the 16 July 1991 Order which granted leave to the prosecutor to conduct preliminary investigation was recalled and cancelled; (3) petitioner's omnibus motion for immediate release and preliminary investigation dated 11 July 1991 was treated as a petition for bail and set for hearing on 23 July 1991. On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the Supreme Court assailing the 17 July 1991 Order, contending that the information was null and void because no preliminary investigation had been previously conducted, in violation of his right to due process. Petitioner also moved for suspension of all proceedings in the case pending resolution by the Supreme Court of his petition; this motion was, however, denied by respondent Judge. LLphil On 23 July 1991, petitioner surrendered to the police. By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari, prohibition and mandamus to the Court of Appeals. On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of petitioner on 23 August 1991. On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his arraignment. On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial Warden of Rizal to admit petitioner into his custody at the Rizal Provincial Jail. On the same date, petitioner was arraigned. In view, however, of his refusal to enter a plea, the trial court entered for him a plea of not guilty. The trial court then set the criminal case for continuous hearings on 19, 24 and 26 September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November 1991. 11 On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of Appeals. He alleged that in view of public respondents' failure to join issues in the petition for certiorari earlier filed by him, after the lapse of more than a month, thus prolonging his detention, he was entitled to be released on habeas corpus. On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. 13 The petition for certiorari, prohibition and mandamus, on the one hand, and the petition for habeas corpus, upon the other, were subsequently consolidated in the Court of Appeals. The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to restrain his arraignment on the ground that motion had become moot and academic. On 19 September 1991, trial of the criminal case commenced and the prosecution presented its first witness. On 23 September 1991, the Court of Appeals rendered a consolidated decision 14 dismissing the two (2) petitions, on the following grounds: a. Petitioner's warrantless arrest was valid because the offense for which he was arrested and charged had been "freshly committed." His identity had been established through investigation. At the time he showed up at the police station, there had been an existing manhunt for him. During the confrontation at the San Juan Police Station, one witness positively identified petitioner as the culprit. b. Petitioner's act of posting bail constituted waiver of any irregularity attending his arrest. He waived his right to preliminary investigation by not invoking it properly and seasonably under the Rules. c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order because the trial court had the inherent power to amend and control its processes so as to make them conformable to law and justice. d. Since there was a valid information for murder against petitioner and a valid commitment order (issued by the trial judge after petitioner surrendered to the authorities whereby petitioner was given to the custody of the Provincial Warden), the petition for habeas corpus could not be granted. On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Counsel for petitioner also filed a "Withdrawal of Appearance" 15 with the trial court, with petitioner's conformity. On 4 October 1991, the present petition for Review on Certiorari was filed. On 14 October 1991, the Court issued a Resolution directing respondent Judge to held in abeyance the hearing of the criminal case below until further orders from this Court. In this Petition for Review, two (2) principal issues need to be addressed: first, whether or not a lawful warrantless arrest had been effected by the San Juan Police in respect of petitioner Go; and second, whether petitioner had effectively waived his right to preliminary investigation. We consider these issues seriatim. LLphil In respect of the first issue, the Solicitor General argues that under the facts of the case, petitioner had been validly arrested without warrant. Since petitioner's identity as the gunman who had shot Eldon Maguan on 2 July 1991 had been sufficiently established by police work, petitioner was validly arrested six (6) days later at the San Juan Police Station. The Solicitor General invokes Nazareno v. Station Commander, etc., et al., 16 one of the seven (7) cases consolidated with In the Matter of the Petition for Habeas Corpus of Roberto Umil, etc. v. Ramos et al., 17 where a majority of the Court upheld a warrantless arrest as valid although effected fourteen (14) days after the killing in connection with which Nazareno had been arrested. Accordingly, in the view of the Solicitor General, the provisions of Section 7, Rule 112 of the Rules of Court were applicable and because petitioner had declined to waive the provisions of Article 125 of the Revised Penal Code, the Prosecutor was legally justified in filing the information for murder even without preliminary investigation. On the other hand, petitioner argues that he was not lawfully arrested without warrant because he went to the police station six (6) days after the shooting which he had allegedly perpetrated. Thus, petitioner argues, the crime had not been "just committed" at the time that he was arrested. Moreover, none of the police officers who arrested him had been an eyewitness to the shooting of Maguan and accordingly none had the "personal knowledge" required for the lawfulness of a warrantless arrest. Since there had been no lawful warrantless arrest, Section 7, Rule 112 of the Rules of Court which establishes the only exception to the right to preliminary investigation, could not apply in respect of petitioner. The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the legality of the warrantless arrests of petitioners made from one (1) to fourteen (14) days after the actual commission of the offenses, upon the ground that such offenses constituted "continuing crimes." Those offenses were subversion, membership in an outlawed organization like the New Peoples Army, etc. In the instant case, the offense for which petitioner was arrested was murder, an offense which was obviously commenced and completed at one definite location in time and space. No one had pretended that the fatal shooting of Maguan was a "continuing crime." Secondly, we do not believe that the warrantless "arrest" or detention of petitioner in the instant case falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which provides 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 created has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7." Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting" officers obviously were not present, within the meaning of Section 5(a), at the time petitioner had allegedly shot Maguan. Neither could the "arrest" effected six (6) days after the shooting be reasonably regarded as effected "when [the shooting had] in fact just been committed" within the meaning of Section 5 (b). Moreover, none of the "arresting" officers had any "personal knowledge" of facts indicating that petitioner was the gunman who had shot Maguan. The information upon which the police acted had been derived from statements made by alleged eyewitnesses to the shooting one stated that petitioner was the gunman; another was able to take down the alleged gunman's car's plate number which turned out to be registered in petitioner's wife's name. That information did not, however, constitute "personal knowledge." 18 It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the meaning of Section 5 of Rule 113. It is clear too that Section 7 of Rule 112, which provides: "Sec. 7. When accused lawfully arrested without warrant. When a person is lawfully arrested without a warrant for an offense cognizable by the Regional Trial Court the complaint or information may be filed by the offended party, peace officer or fiscal without a preliminary investigation having been first conducted, on the basis of the affidavit of the offended party or arresting office or person. However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of non-availability of a lawyer, a responsible person of his choice. Notwithstanding such waiver, he may apply for bail as provided in the corresponding rule and the investigation must be terminated within fifteen (15) days from its inception. Cdpr If the case has been filed in court without a preliminary investigation having been first conducted, the accused may within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule." (Underscoring supplied). is also not applicable. Indeed, petitioner was not arrested at all. When he walked into the San Juan Police Station, accompanied by two (2) lawyers, he in fact placed himself at the disposal of the police authorities. He did not state that he was "surrendering" himself, in all probability to avoid the implication he was admitting that he had slain Eldon Maguan or that he was otherwise guilty of a crime. When the police filed a complaint for frustrated homicide with the Prosecutor, the latter should have immediately scheduled a preliminary investigation to determine whether there was probable cause for charging petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the Prosecutor proceeded under the erroneous supposition that Section 7 of Rule 112 was applicable and required petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition for carrying out a preliminary investigation. This was substantive error, for petitioner was entitled to a preliminary investigation and that right should have been accorded him without any conditions. Moreover, since petitioner had not been arrested; with or without a warrant, he was also entitled to be released forthwith subject only to his appearing at the preliminary investigation. Turning to the second issue of whether or not petitioner had waived his right to preliminary investigation, we note that petitioner had from the very beginning demanded that a preliminary investigation be conducted. As earlier pointed out, on the same day that the information for murder was filed with the Regional Trial Court. Petitioner filed with the prosecutor an omnibus motion for immediate release and preliminary investigation. The Solicitor General contends that omnibus motion should have been filed with the trial court and not with the Prosecutor, and that petitioner should accordingly be held to have waived his right to preliminary investigation. We do not believe that waiver of petitioner's statutory right to preliminary investigation may be predicated on such a slim basis. The preliminary investigation was to be conducted by the Prosecutor, not by the Regional Trial Court. It is true that at the time of filing of petitioner's omnibus motion, the information for murder had already been filed with the Regional Trial Court; it is not clear from the record whether petitioner was aware of this fact at the time his omnibus motion was actually filed with the Prosecutor. In Crespo v. Mogul, 19 this Court held: "The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. While it is true that the fiscal has the quasi judicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of the Court. The only qualification is that the action of the Court must not impair the substantial rights of the accused, or the right of the People to due process of law. xxx xxx xxx The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case [such] as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. . . ." 20 (Citations omitted, underscoring supplied). Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation and not for a reinvestigation (Crespo v. Mogul involved a re-investigation), and since the Prosecutor himself did file with the trial court, on the 5th day after filing the information for murder, a motion for leave to conduct preliminary investigation (attaching to his motion a copy of petitioner's omnibus motion), we conclude that petitioner's omnibus motion was in effect filed with the trial court. What was crystal clear was that petitioner did ask for a preliminary investigation on the very day that the information was filed without such preliminary investigation, and that the trial court was five (5) days later apprised of the desire of the petitioner for such preliminary investigation. Finally, the trial court did in fact grant the Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even on the (mistaken) supposition apparently made by the Prosecutor that Section 7 of Rule 112 of the Revised Court was applicable, the 5-day reglementary period in Section 7, Rule 112 must be held to have been substantially complied with. LexLib We believe and so hold that petitioner did not waive his right to a preliminary investigation. While that right is statutory rather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of due process in criminal justice. 20 The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. The accused in a criminal trial is inevitably exposed to prolonged anxiety, aggravation, humiliation, not to speak of expense; the right to an opportunity to avoid a process painful to any one save, perhaps, to hardened criminals, is a valuable right. To deny petitioner's claim to a preliminary investigation would be to deprive him of the full measure of his right to due process. The question may be raised whether petitioner still retains his right to a preliminary investigation in the instant case considering that he was already arraigned on 23 August 1991. The rule is that the right to preliminary investigation is waived when the accused fails to invoke it before or at the time of entering a plea at arraignment. 21 In the instant case, petitioner Go had vigorously insisted on his right to preliminary investigation before his arraignment. At the time of his arraignment, petitioner was already before the Court of Appeals on certiorari, prohibition and mandamus precisely asking for a preliminary investigation before being forced to stand trial. Again, in the circumstances of this case, we do not believe that by posting bail, petitioner had waived his right to preliminary investigation. In People v. Selfaison, 22 we did hold that appellants there had waived their right to preliminary investigation because immediately after their arrest, they filed bail and proceeded to trial "without previously claiming that they did not have the benefit of a preliminary investigation." 23 In the instant case, petitioner Go asked for release on recognizance or on bail and for preliminary investigation in one omnibus motion. He had thus claimed his right to preliminary investigation before respondent Judge approved the cash bond posted by petitioner and ordered his release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary investigation on the part of petitioner. In fact, when the Prosecutor filed a motion in court asking for leave to conduct preliminary investigation, he clearly if impliedly recognized that petitioner's claim to preliminary investigation was a legitimate one. We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary investigation, while constituting a denial of the appropriate and full measure of the statutory process of criminal justice, did not impair the validity of the information for murder nor affect the jurisdiction of the trial court. 24 It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail. This was equivalent to an acknowledgment on the part of the prosecutor that the evidence of guilt then in his hands was not strong. Accordingly, we consider that the 17 July 1991 order of respondent Judge recalling his own order granting bail and requiring petitioner to surrender himself within forty-eight (48) hours from notice, was plainly arbitrary considering that no evidence at all and certainly no new or additional evidence had been submitted to respondent Judge that could have justified the recall of his order issued just five (5) days before. It follows that petitioner was entitled to be released on bail as a matter of right. The final question which the Court must face is this: how does the fact that, in the instant case, trial on the merits has already commenced, the Prosecutor having already presented four (4) witnesses, impact upon, firstly, petitioner's right to a preliminary investigation and secondly, petitioner's right to be released on bail? Does he continue to be entitled to have a preliminary investigation conducted in respect of the charge against him? Does petitioner remain entitled to be released on bail? Turning first to the matter of preliminary investigation, we consider that petitioner remains entitled to a preliminary investigation although trial on the merits has already began. Trial on the merits should be suspended or held in abeyance and a preliminary investigation forthwith accorded to petitioner. 25 It is true that the prosecutor might, in view of the evidence that he may at this time have on hand, conclude that probable cause exists; upon the other hand, the Prosecutor conceivably could reach the conclusion that the evidence on hand does not warrant a finding of probable cause. In any event, the constitutional point is that petitioner was not accorded what he was entitled to by way of procedural due process. 26 Petitioner was forced to undergo arraignment and literally pushed to trial without preliminary investigation, with extraordinary haste, to the applause from the audience that filled the courtroom. If he submitted to arraignment and trial, petitioner did so "kicking and screaming," in a manner of speaking. During the proceedings held before the trial court on 23 August 1991, the date set for arraignment of petitioner, and just before arraignment, counsel made very clear petitioner's vigorous protest and objection to the arraignment precisely because of the denial of preliminary investigation. 27 So energetic and determined were petitioner's counsel's protest and objection that an obviously angered court and prosecutor dared him to withdraw or walkout, promising to replace him with counsel de oficio. During the trial, just before the prosecution called its first witness, petitioner through counsel once again reiterated his objection to going to trial without preliminary investigation; petitioner's counsel made or record his "continuing objection." 28 Petitioner had promptly gone to the appellate court on certiorari and prohibition to challenge the lawfulness of the procedure he was being forced to undergo and the lawfulness of his detention. 29 If he did not walkout on the trial, and if he cross-examined the Prosecution's witnesses, it was because he was extremely loath to be represented by counsel de oficio selected by the trial judge, and to run the risk of being held to have waived also his right to use what is frequently the only test of truth in the judicial process. In respect of the matter of bail, we similarly believe and so hold that petitioner remains entitled to be released on bail as a matter of right. Should the evidence already of record concerning petitioner's guilt be, in the reasonable belief of the Prosecutor, strong, the Prosecutor may move in the trial court for cancellation of petitioner's bail. It would then be up to the trial court, after a careful and objective assessment of the evidence on record, to grant or deny the motion for cancellation of bail. To reach any other conclusion here, that is, to hold that petitioner's rights to a preliminary investigation and to bail were effectively obliterated by evidence subsequently admitted into the record would be to legitimize the deprivation of due process and to permit the Government to benefit from its own wrong or culpable omission and effectively to dilute important rights of accused persons well-nigh to the vanishing point. It may be that to require the State to accord petitioner his rights to a preliminary investigation and to bail at this point, could turn out ultimately to be largely a ceremonial exercise. But the Court is not compelled to speculate. And, in any case, it would not be idle ceremony; rather it would be a celebration by the State of the rights and liberties of its own people and a re-affirmation of its obligation and determination to respect those rights and liberties. ACCORDINGLY, the Court Resolved to GRANT the Petition for Review on Certiorari. The Order of the trial court dated 17 July 1991 is hereby SET ASIDE and NULLIFIED, and the Decision of the Court of Appeals dated 23 September 1991 hereby REVERSED. The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a preliminary investigation of the charge of murder against petitioner Go, and to complete such preliminary investigation within a period of fifteen (15) days from commencement thereof. The trial on the merits of the criminal case in the Regional Trial Court shall be SUSPENDED to await the conclusion of the preliminary investigation. Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of One Hundred Thousand Pesos (P100,000.00). This release shall be without prejudice to any lawful order that the trial court may issue, should the Office of the Provincial Prosecutor move for cancellation of bail at the conclusion of the preliminary investigation. No pronouncement as to costs. This Decision is immediately executory. SO ORDERED. Narvasa, C.J., Bidin, Medialdea, Romero and Nocon, JJ., concur. EN BANC [G.R. No. 123980. August 30, 2001.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MANUEL CALIMLIM y MUYANO, accused-appellant. The Solicitor General for plaintiff-appellee. Ramon J. Veloria for accused-appellant. SYNOPSIS In four (4) separate but similarly worded informations, appellant was charged with rape committed against 14-year old Lanie. He pleaded not guilty and interposed the defense of denial and alibi, claiming that he was in his house sleeping during the commission of the offense and that he was charged on the prodding of her relatives whom he did not vote for during the last election. His defense was corroborated by his wife and his daughter. At the trial, Lanie positively identified appellant, then armed with a knife as the person who raped her in different places: in the pig pen, in her room, in her cousin's room and in the kitchen. She declared that she did not struggle nor shout because she was afraid that appellant might kill her. A joint decision was rendered by the trial court finding appellant guilty as charged. He was sentenced to death for each count of rape. This case is before this Court on automatic review. ACTISE It was held that an accused may be convicted of rape solely on the credible, natural and convincing testimony of the victim; that findings of the trial court on credibility of witnesses are generally not disturbed on appeal; that a young girl would not concoct a rape charge, allow the examination of her private parts and then publicly disclosed that she has been sexually abused if her motive was other than to bring to justice the person who defiled her; that alibi cannot prevail over positive identification; that any irregularity in the conduct of arrest is deemed waived when not seasonably raised during arraignment; and that death penalty cannot be imposed where no aggravating circumstance in the crime of rape was not alleged in the information. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; APPEAL; GUIDING PRINCIPLES IN REVIEWING RAPE CASES. In reviewing rape cases, this Court has three guiding principles: (1) an accusation for rape can be made with facility; it is difficult to prove but even more difficult for the person accused, though innocent, to disprove it; (2) in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merit, and the prosecution cannot be allowed to draw strength from the weakness of the evidence for the defense. 2. ID.; EVIDENCE; CREDIBILITY OF WITNESSES; ACCUSED MAY BE CONVICTED OF RAPE SOLELY ON CREDIBLE, NATURAL AND CONVINCING TESTIMONY OF VICTIM. [T]he Court has ruled that in rape cases, the accused may be convicted solely on the testimony of the victim, provided, that such testimony is credible, natural, convincing and consistent with human nature and the normal course of things. 3. ID.; ID.; ID.; FINDINGS OF TRIAL COURT THEREON, GENERALLY NOT DISTURBED ON APPEAL. In evaluating the credibility of witnesses, much weight and great respect is given to the findings made by the trial court since it has the unique opportunity to observe the demeanor of the witnesses first-hand under grilling cross-examination. Hence, findings of the trial court on the credibility of witnesses will not be disturbed on appeal unless some facts or circumstances of weight have been overlooked, misapprehended or misinterpreted so as to materially affect the disposition of the case. 4. ID.; ID.; ID.; A YOUNG GIRL WOULD NOT CONCOCT A RAPE CHARGE, ALLOW EXAMINATION OF HER PRIVATE PARTS THEN PUBLICLY DISCLOSE THAT SHE HAS BEEN SEXUALLY ABUSED, IF HER MOTIVE WERE OTHER THAN TO BRING TO JUSTICE THE PERSON WHO DEFILED HER. A young girl would not concoct a rape charge, allow the examination of her private parts, then publicly disclose that she has been sexually abused, if her motive were other than to fight for her honor and bring to justice the person who defiled her. That she was prevailed upon by the Ferrers to fabricate the rape charge, just to get even with appellant because he did not vote for Ferrer, is too inane a tale to inspire belief. Complainant's testimony on record is too candid and straightforward to be mere fabrication. She bared details which could not be concocted easily even by an ingenious or imaginative narrator. She cried for several minutes, while she testified, enhancing her testimony's credibility. Absent any ill motive to falsely accuse appellant, we hold that complainant's testimony deserves full faith and credence. EIDATc 5. CRIMINAL LAW; RAPE; PHYSICAL RESISTANCE NEED NOT BE ESTABLISHED WHERE THE VICTIM WAS INTIMIDATED TO SUBMISSION; CASE AT BAR. Physical resistance, however, need not be established in rape when the victim is intimidated, threatened by a knife. Intimidation must be viewed in the light of the victim's perception and judgment at the time of the commission of the crime of rape and not by any hard and fast rule. In this case, the victim was a minor while her attacker was an armed man boasting he had just killed his wife. Indeed a rape victim need not show that she would fight unto death, resisting a brutal crime. What is essential in this prosecution of her ravisher, is evidence showing that she did not consent to the sexual act, while he had used force and intimidation in achieving his evil desire. 6. REMEDIAL LAW; EVIDENCE; TESTIMONY OF WITNESSES; NEGATIVE TESTIMONY CANNOT OUTWEIGH POSITIVE DECLARATION. Further, the defense wants to make us believe that it was not possible for appellant to consummate four (4) acts of rape in just one night. This proposition deserves scant consideration. Rape is an act of depravity and lust. There is no rhyme nor reason for beastly acts. But negative testimony on mere possibilities cannot outweigh positive testimony of complainant on the number of sexual violations she endured. 7. ID.; ID.; ALIBI; NOT CREDIBLE ESPECIALLY WHEN CORROBORATED BY CLOSE RELATIVES. Now we come to the defense of alibi which appellant offers coupled with outright denial. Corroborated mainly by his close relatives, this defense is less than persuasive and piteously dubious. It is not credible because it is tainted with bias, especially in this case where the witnesses are the wife and the daughter of appellant. 8. ID.; ID.; ID.; CANNOT PREVAIL OVER POSITIVE IDENTIFICATION. Ranged against complainant's positive identification of her rapist and her candid, straightforward and convincing testimony, the defense of alibi raised by appellant must surely fall for lack of merit. 9. ID.; CRIMINAL PROCEDURE; MOTION TO QUASH; PLEA OF NOT GUILTY CONSTITUTES WAIVER OF ANY IRREGULARITY IN ARREST. More substantially, appellant avers that his arrest violated Section 5 of Rule 113, since his arrest was made one day after the crime was committed, but without any judicial warrant, although the police had ample time to get one. This he claims is also in violation of Article III, Sec. 2 of the Constitution. But here it will be noted that appellant entered a plea of not guilty to each of the informations charging him of rape Thus, he had effectively waived his right to question any irregularity which might have accompanied his arrest and the unlawful restraint of his liberty. This is clear from a reading of Section 9 of Rule 117 of the Revised Rules of Criminal Procedure. Given the circumstances of his case now, the exceptions do not apply here and we are constrained to rule that appellant is estopped from raising the issue of the legality of his arrest. DECcAS 10. ID.; ID.; ARREST; ILLEGAL ARREST NOT SUFFICIENT CAUSE FOR SETTING ASIDE VALID JUDGMENT. Moreover, the illegal arrest of an accused is not sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after a trial free from error. The defense's claim of warrantless arrest which is illegal cannot render void all other proceedings including those leading to the conviction of the appellant, nor can the state be deprived of its right to convict the guilty when all the facts on record point to his culpability. 11. CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; MUST BE ALLEGED IN INFORMATION TO AFFECT PENALTY; CASE AT BAR. However, we find one point in appellant's favor. As recommended by the Office of the Solicitor General, the penalty imposable on the appellant for the rapes committed should not be capital punishment. The qualifying circumstance, concerning "use of deadly weapon," was not alleged in the four informations against the appellant. Even if proved during trial, still that circumstance could not be used to aggravate appellant's crime, not having been included in the information. To do so would violate appellant's right to be informed of the nature and cause of accusation against him. See People vs. Motos, 317 SCRA 96, 119 (1999), which held that where neither the complaint nor the evidence introduced show any qualifying circumstance that would make the offense fall within the category of rape punishable by death, the only penalty that can be properly decreed is the lower indivisible penalty of reclusion perpetua. 12. CIVIL LAW; DAMAGES; DAMAGES AWARDED TO MINOR RAPE VICTIM. Finally, in line with current jurisprudence and considering the need to deter commission of a bestial offense against a minor, aside from the civil indemnity of P50,000.00 for each rape, appellant should be made to pay the additional amounts of P50,000.00 as moral damages and P25,000.00 as exemplary damages for every count of rape. D E C I S I O N QUISUMBING, J p: Before us on automatic review is the joint decision 1 of the Regional Trial Court, First Judicial Region, Branch 46, Urdaneta, Pangasinan finding accused-appellant Manuel Calimlim guilty of four (4) counts of rape based on similarly-worded informations in the following criminal cases: ISDHcT Criminal Case No. U-8525: That on or about the 2nd day of April, 1995, at the Poblacion of the municipality of Manaoag, province of Pangasinan and within the jurisdiction of this Honorable Court, the said accused, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge with the undersigned complainant, a minor, against her will. CONTRARY TO LAW. 2 Criminal Case No. U-8638: That on or about the 2nd day of April, 1995, at the Poblacion of the municipality of Manaoag, province of Pangasinan and within the jurisdiction of this Honorable Court, the said accused, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge with the undersigned complainant, a minor, against her will. CONTRARY TO LAW. 3 Criminal Case No. U-8639: That on or about the 2nd day of April, 1995, at the Poblacion of the municipality of Manaoag, province of Pangasinan and within the jurisdiction of this Honorable Court, the said accused, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge with the undersigned complainant, a minor, against her will. CONTRARY TO LAW. 4 Criminal Case No. U-8640: That on or about the 2nd day of April, 1995, at the Poblacion of the municipality of Manaoag, province of Pangasinan and within the jurisdiction of this Honorable Court, the said accused, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge with the undersigned complainant, a minor, against her will. CONTRARY TO LAW. 5 Appellant pleaded not guilty to the charges. Thereafter, trial on the merits followed. The prosecution's case was mainly based on the testimony of private complainant, LANIE S. LIMIN. According to her, she was fourteen (14) years old and had been living with the family of Kagawad Manny Ferrer and Cresencia Ferrer (Ferrers) for the past three years. The night of April 2, 1995, she was left alone in one of the two houses of the Ferrers since her usual companions, the sons of Manny and Cresencia, were out for the night. The Ferrers were in the other house about 15 meters away. At around 11:30 P.M., she was awakened when she heard somebody, later identified as appellant, enter her room. Appellant immediately poked a knife at the left side of her neck and said "Accompany me because I killed my wife." 6 She was then dragged to the pig pen, about 8-9 meters away from the place where she slept. Afterwards, she was again forcibly taken back to her room, then to her cousin's room and to the kitchen. In each of these places, appellant forcibly had sexual intercourse with her while he poked a knife against her neck. According to her, she first recognized appellant while they were in the kitchen when she was able to remove the cloth covering his face. She stated that she knew appellant because she had seen him always following her whenever she went to school. After the fourth intercourse, appellant threatened that he would kill her if she reported the incidents. Despite the threat, she told her cousin, Manicris Ferrer, 7 who then reported the matter to Dr. Nancy Quinto who lived nearby. 8 On cross-examination, complainant stated that she did not struggle nor shout nor resist because she was afraid that appellant might kill her. 9 The second witness was CRESENCIA FERRER, who testified that the victim was her niece. Lanie's grandmother was the sister of her mother. Cresencia testified that Lanie was born in Sexmoan, Pampanga, on June 13, 1981, and became her ward starting October 25, 1993. On the evening of April 2, 1995, Cresencia said she was in her shop in front of their house. Lanie was left alone in the other house because her usual companions, the children of the Ferrers, all went to a disco. The other children, Christian and Manicris, were inside their shop with her and her husband. Cresencia recalled that she was still awake at 11:30 P.M. working on some clothing materials. She did not see or notice anything unusual that night. The following morning, she tried to get Lanie to rise but the latter did not want to. Lanie was crying so she decided to leave Lanie alone. At around 8:00 A.M., Cresencia's daughter Manicris called her from outside the shop to inform her that Dr. Quinto was there to talk to her. Dr. Quinto and Manicris told Cresencia that Lanie had been raped. Cresencia said that when she confronted Lanie about it, Lanie narrated her ordeal and pointed to appellant as her rapist. The women brought Lanie to the Community Hospital in Baritao where she was medically examined. Then they reported the matter to the police. 10 On cross-examination, Cresencia recalled that around 3:00 A.M., April 3, 1995, the wee hours after the alleged rape, she heard their gate opening because of the arrival of her three sons from the disco. 11 SPO1 MARIO SURATOS testified that he was the duty officer when the rapes were reported to their station by Kagawad Ferrer. 12 It was not the victim herself who reported the rapes. 13 DR. RICARDO FERRER, who conducted the physical examination on Lanie, testified that there was minimal vaginal bleeding and there were lacerations in the hymen, the positions of which were at 9:00 o'clock, 6:00 o'clock and 3:00 o'clock, all fresh, indicating that there were insertions within the past 24 hours. There was also a whitish vaginal discharge which was found positive for spermatozoa. 14 During cross-examination, Dr. Ferrer stated that the lacerations found inside the complainant's vagina could have been caused by hard objects other than a penis. He said the lacerations could have also been caused by fingers or a thumb, but would unlikely be the victim's since she would have stopped once she felt the pain. The doctor also stated that it was possible that the spermatozoa was artificially placed inside the vagina, but that it was not possible to determine the identity of the person who emitted it. 15 Appellant MANUEL CALIMLIM denied the accusations. He claimed that he was in his house on the evening of April 2, 1995, and that he went to sleep at 10:00 P.M. He recalled that he even had sex with his wife in the early morning of April 3, 1995. He averred that he was just being used as a scapegoat by the Ferrers who hated him since he did not vote for Ferrer who was a candidate during the last elections. He also surmised that the Ferrers could have been irked when appellant allowed the construction of a waiting shed in front of his house. He asserted that as a hollow blocks maker, a physically draining job, he was often tired and weak and had little strength to engage in sex for more than once a month. 16 ERLINDA PIMENTEL CALIMLIM, wife of accused, testified that on the night of April 2, 1995, she was with the accused, who slept from 10:00 P.M. until 5:00 A.M. the following morning. 17 MARLENE P. CALIMLIM, daughter of appellant, testified that her father was with them on the evening of April 2, 1995 until the following morning. She remembered that her parents slept at 10:00 P.M. that night and she sensed they even engaged in sexual intercourse at around 2:00 A.M. of April 3, 1995. She added that it was possible the Ferrers were angry at her father because her father did not vote for Ferrer during the last elections and also because of their disagreement about the waiting shed. 18 On November 17, 1995, the trial court rendered its joint decision finding appellant guilty of all charges. Appellant was sentenced to death for each count of rape. The similarly-worded dispositive portions of said decision reads as follows: WHEREFORE, this Court finds the accused MANUEL CALIMLIM y Muyano: WITH RESPECT TO CRIMINAL CASE NO. U-8525: GUILTY beyond reasonable doubt of the crime of RAPE defined and penalized under Republic Act No. 7659, the offense having been committed with the attendant circumstance of "with the use of a deadly weapon" and with the generic aggravating circumstances of nocturnity and disguise, hereby sentences him to suffer the supreme penalty of DEATH, to pay the complainant LANIE S. LIMIN the sum of P50,000.00 as damages, and to pay the costs. IN CONNECTION WITH CRIMINAL CASE NO. U-8638: GUILTY beyond reasonable doubt of the crime of RAPE defined and penalized under Republic Act No. 7659, the offense having been committed with the attendant circumstance of "with the use of a deadly weapon" and with the generic aggravating circumstances of dwelling, nighttime and disguise, hereby sentences him to suffer the supreme penalty of DEATH, to pay the offended party LANIE S. LIMIN the amount of P50,000.00 as damages, and to pay the costs. WITH REGARDS TO CRIMINAL CASE NO. U-8639: GUILTY beyond reasonable doubt of the crime of RAPE defined and penalized under Republic Act No. 7659, the offense having been committed with the attendant circumstance of "with the use of a deadly weapon" and with the generic aggravating circumstances of dwelling, nighttime and disguise, hereby sentences him to suffer the supreme penalty of death, to pay the victim the sum of P50,000.00 as damages, and to pay the costs. AS TO CRIMINAL CASE NO. U-8640: GUILTY beyond reasonable doubt of the crime of RAPE defined and penalized under Republic Act No. 7659, the offense having been committed with the attendant circumstance of "with the use of a deadly weapon" and with the generic aggravating circumstances of dwelling, nighttime and disguise, hereby sentences him to suffer the supreme penalty of DEATH, to pay the complainant the amount of P50,000.00 as damages, and to pay the costs. "The law is harsh, but that is the law." "Dura lex, sed lex, it is said." SO ORDERED. 19 In his brief, appellant assigns the following errors allegedly committed by the trial court: I THAT THE SAID HONORABLE REGIONAL TRIAL COURT GRAVELY ERRED IN NOT FINDING THE ACCUSED NOT GUILTY OF THE CRIME AS CHARGED II THAT THE HONORABLE REGIONAL TRIAL COURT MISCONVICTED SAID ACCUSED-APPELLANT FOR FOUR (4) COUNTS OF RAPE CONTRARY TO THE FINDINGS OF THE ATTENDING PHYSICIAN WHO PHYSICALLY EXAMINED THE ALLEGED VICTIM THAT IF EVER THERE WAS A CRIME OF RAPE COMMITTED IT COULD ONLY BE ONCE III THAT THE HONORABLE REGIONAL TRIAL COURT WAS GROSSLY MISTAKEN IN NOT APPRECIATING THE MAIN DEFENSE OF SAID ACCUSED-APPELLANT THAT THE NARRATION OF FACTS AS ORCHESTRATED AND TESTIFIED TO BY ALLEGED VICTIM DEFIES IMAGINATION IV AND THE FOREMOST, THE HONORABLE COURT OVERLOOKED THE CONSTITUTIONAL RIGHTS OF THE ACCUSED-APPELLANT, SUCH AS THE REQUIREMENT OF GIVING A CHANCE TO ACCUSED-APPELLANT TO FILE COUNTER-AFFIDAVITS AND THAT OF HIS WITNESSES; HIS BEING IMMEDIATELY ARRESTED WITHOUT THE REQUIRED WARRANT OF ARREST; AND WHEN ARRESTED, WAS NOT ACCORDED THE RIGHT TO COUNSEL WHEN BROUGHT TO THE PNP INVESTIGATIVE BODY 20 In sum, the issues here involve the credibility of witnesses, the denial of appellant's constitutional rights, the sufficiency of the evidence for his conviction, and the propriety of the death sentence imposed on him. Appellant raises the defense of denial and alibi while he challenges complainant's credibility. He insists that he was at home during the time the alleged crimes were perpetrated. He also argues that complainant's story is unlikely because a man like him would not be able to consummate four (4) rapes in just one night and within a short time. He asserts that he is just being made a fall guy by complainant's guardians who hold a grudge against him. Appellant also points out that the testimony of complainant shows that she did not exert any tenacious resistance, implying that if there was intercourse, she had consented to it. Appellant also claims he was denied his right against warrantless arrests, his right to remain silent, and his right to due process. For example, he was not allowed to submit any counter- affidavit during the investigation of his case. 21 The Office of the Solicitor General, for the State, stresses that the testimony of complainant deserves full faith and credit. There is no showing that she was impelled by any improper motive in filing her complaint. A young barrio lass would not fabricate a charge of sexual abuse and subject herself to the humiliation of a public trial unless she was motivated by a strong desire to bring her abuser to justice. The victim did not show tenacious resistance since, being a young girl, she was easily awed and overpowered by appellant. Her lack of resistance could also be attributed to paralyzing fear she felt at the time of her rape. Contrary to appellant's claim, there was no impossibility nor improbability about complainant's story. The findings and evaluation of the trial court regarding the credibility of the prosecution witnesses should be given great respect since the trial court was in the best position to observe the demeanor, attitude and manner of the witnesses. Finally, said the OSG, the defense of denial and alibi presented by the appellant cannot prevail over the positive identification made by the complainant that appellant was the rapist. The OSG recommends, however, that the imposable penalty should be reclusion perpetua, and not death, because the informations charging appellant of rape did not allege the qualifying circumstance of "use of a deadly weapon". The OSG also recommends an increase in the damages to be awarded to the complainant. 22 In reviewing rape cases, this Court has three guiding principles: (1) an accusation for rape can be made with facility; it is difficult to prove but even more difficult for the person accused, though innocent, to disprove it; (2) in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merit, and the prosecution cannot be allowed to draw strength from the weakness of the evidence for the defense. 23 Nevertheless, the Court has ruled that in rape cases, the accused may be convicted solely on the testimony of the victim, provided that such testimony is credible, natural, convincing and consistent with human nature and the normal course of things. 24 In evaluating the credibility of witnesses, much weight and great respect is given to the findings made by the trial court 25 since it has the unique opportunity to observe the demeanor of the witnesses first-hand under grilling cross-examination. Hence, findings of the trial court on the credibility of witnesses will not be disturbed on appeal unless some facts or circumstances of weight have been overlooked, misapprehended or misinterpreted so as to materially affect the disposition of the case. 26 In this case, we find that complainant has no reason to falsely accuse appellant. Appellant avers that complainant was influenced by the Ferrers to falsely accuse him. He also insinuates that complainant was protecting the real offenders, the children of the Ferrers, out of blind loyalty to them. However, both averment and insinuation are not sufficiently backed up by persuasive proof. They are mere darts in the dark, pathetic ploys that remain preposterous propositions offered up by the defense. It is rather unseemly as well as unnatural for complainant to subject herself to public ridicule, exonerate her real ravishers, and vent her fury only against appellant. It would have been easier for her to endure her shame in silence rather than invent a sordid story if it were not true. As we have consistently held, a young girl would not concoct a rape charge, allow the examination of her private parts, then publicly disclose that she has been sexually abused, if her motive were other than to fight for her honor and bring to justice the person who defiled her. 27 That she was prevailed upon by the Ferrers to fabricate the rape charge, just to get even with appellant because he did not vote for Ferrer, is too inane a tale to inspire belief. Complainant's testimony on record is too candid and straightforward to be mere fabrication. She bared details which could not be concocted easily even by an ingenious or imaginative narrator. She cried for several minutes, 28 while she testified, enhancing her testimony's credibility. 29 Absent any ill-motive to falsely accuse appellant, we hold that complainant's testimony deserves full faith and credence. 30 The defense capitalizes on the fact that complainant did not tenaciously resist the assault on her. Physical resistance, however, need not be established in rape when the victim is intimidated, threatened by a knife. 31 Intimidation must be viewed in the light of the victim's perception and judgment at the time of the commission of the crime of rape and not by any hard and fast rule. 32 In this case, the victim was a minor while her attacker was an armed man boasting he had just killed his wife. Indeed a rape victim need not show that she would fight unto death, 33 resisting a brutal crime. What is essential in this prosecution of her ravisher, is evidence showing that she did not consent to the sexual act, while he had used force and intimidation in achieving his evil desire. 34 Further, the defense wants to make us believe that it was not possible for appellant to consummate four (4) acts of rape in just one night. This proposition deserves scant consideration. Rape is an act of depravity and lust. There is no rhyme not reason for beastly acts. But negative testimony on mere possibilities cannot outweigh positive testimony of complainant on the number of sexual violations she endured. CAIaDT Now we come to the defense of alibi which appellant offers coupled with outright denial. Corroborated mainly by his close relatives, this defense is less than persuasive and piteously dubious. 35 It is not credible because it is tainted with bias, especially in this case where the witnesses are the wife and the daughter of appellant. 36 Worse, the testimonies of said witnesses were not even consistent with one another. Note that the wife, Erlinda, testified that the appellant slept from 10:00 P.M. of April 2, 1995 until 5:00 A.M. the following morning. 37 But the daughter, Marlene, testified that her parents were awake and perhaps made love at around 2:00 A.M. of April 3, 1995. 38 Erlinda said she did not know if her husband woke up during the night, after she mentioned she has a light sleep and would have noticed if he did. 39 Inconsistency in the statements of the defense witnesses, while not necessarily an indication that they were lying, suggests that both mother and daughter could not recall with precision what happened during the crucial hours of the night of April 2 to early morning of April 3, 1995, but merely included the events that normally happen at around those hours in their household. Ranged against complainant's positive identification of her rapist and her candid, straightforward and convincing testimony, the defense of alibi raised by appellant must surely fall for lack of merit. More substantially, appellant avers that his arrest violated Section 5 of Rule 113, 40 since his arrest was made one day after the crime was committed, but without any judicial warrant, although the police had ample time to get one. This he claims is also in violation of Article III, Sec. 2 of the Constitution. 41 But here it will be noted that appellant entered a plea of not guilty to each of the informations charging him of rape. Thus, he had effectively waived his right to question any irregularity which might have accompanied his arrest and the unlawful restraint of his liberty. 42 This is clear from a reading of Section 9 of Rule 117 of the Revised Rules of Criminal Procedure: 43 Sec. 9. Failure to move to quash or to allege any ground therefor. The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of any objections except those based on the grounds provided for in paragraphs (a), (b), (g) and (i) of section 3 of this Rule. (Italics supplied) Given the circumstances of his case now, the exceptions do not apply here and we are constrained to rule that appellant is estopped from raising the issue of the legality of his arrest. Moreover, the illegal arrest of an accused is not sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after a trial free from error. 44 The defense's claim of warrantless arrest which is illegal cannot render void all other proceedings including those leading to the conviction of the appellant, nor can the state be deprived of its right to convict the guilty when all the facts on record point to his culpability. 45 However, we find one point in appellant's favor. As recommended by the Office of the Solicitor General, the penalty imposable on the appellant for the rapes committed should not be capital punishment. The qualifying circumstance, concerning "use of deadly weapon," was not alleged in the four informations against the appellant. Even if proved during trial, still that circumstance could not be used to aggravate appellant's crime, not having been included in the informations. To do so would violate appellant's right to be informed of the nature and cause of accusation against him. See People vs. Motos, 317 SCRA 96, 119 (1999), which held that where neither the complaint nor the evidence introduced show any qualifying circumstance that would make the offense fall within the category of rape punishable by death, the only penalty that can be properly decreed is the lower indivisible penalty of reclusion perpetua. Further, in People vs. Pailanco, 322 SCRA 790, 804 (2000), we also held that: . . . neither can we impose the death penalty for the second incident of rape when complainant was threatened with a bolo by accused- appellant. Although under Article 355 of the Revised Penal Code, as amended by R.A. No. 7659, the penalty of reclusion perpetua to death is imposable when the rape is committed with the use of a deadly weapon, however, in the case at bar, the use of a deadly weapon during the second incident of rape was not alleged in the information . . . [A] qualifying circumstance may only be taken into account as an ordinary aggravating circumstance when it is not alleged in the information (citing People vs. Entes, 103 SCRA 162). The next lower penalty to death being the single indivisible penalty of reclusion perpetua, only the same may be imposed regardless of the presence of ordinary aggravating circumstances. Conformably to law and jurisprudence, appellant herein can only be convicted of simple rapes committed by using force and intimidation, punishable by reclusion perpetua for each count of rape. Finally, in line with current jurisprudence and considering the need to deter commission of a bestial offense against a minor, aside from the civil indemnity of P50,000.00 for each rape, appellant should be made to pay the additional amounts of P50,000.00 as moral damages and P25,000.00 as exemplary damages for every count of rape. 46 WHEREFORE, the decision of the trial court finding the appellant Manuel Calimlim y Muyano GUILTY beyond reasonable doubt of four (4) counts of rape, in Criminal Case Nos. U-8525, U-8638, U- 8639, and U-8640 is AFFIRMED, with the MODIFICATION that the penalty imposed upon the appellant is only reclusion perpetua for each count of rape. Further, he is ORDERED to pay private complainant Lanie S. Limin the amount of P50,000.00 as civil indemnity, another P50,000.00 as moral damages, and P25,000.00 as exemplary damages for each count of rape. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr. and Sandoval-Gutierrez, JJ., concur. FIRST DIVISION [G.R. No. 74189. May 26, 1993.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO ENRILE Y VILLAROMAN and ROGELIO ABUGATAL Y MARQUEZ, accused-appellants. The Solicitor General for plaintiff-appellee. Felix O. Lodero, Jr. for accused Antonio Enrile. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF THE ACCUSED DURING CUSTODIAL INVESTIGATION. At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means by telephone if possible or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence. (Morales vs. Enrile, 121 SCRA 538) 2. ID.; ID.; ID.; THE COURT MUST ASCERTAIN THAT THE ACCUSED CLEARLY UNDERSTOOD THE IMPORT AND CONSEQUENCES OF HIS CONFESSION. Even under the old doctrine, in fact, it is doubtful if Abugatal's confession without the assistance of counsel could have been sustained. It was not enough then to inform the suspect of his constitutional rights. The trial court had to ascertain for itself that the accused clearly understood the import and consequences of his confession and had the intelligence and mental capacity to do so. There is no showing in the record that this was done, short of the statement in the decision that Abugatal had been informed of his rights and had validly waived the assistance of counsel. 3. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST; WARRANTLESS ARREST AND SEARCH ILLEGAL WHERE POLICEMEN WHO ARRESTED SUSPECT AT HIS HOUSE HAD NO PERSONAL KNOWLEDGE THAT HE WAS THE SOURCE OF THE MARIJUANA; CASE AT BAR. It was Abugatal who was allegedly caught red-handed by the policemen as he sold the marijuana to Polines. Enrile was not even at the scene of the entrapment at that time. Abugatal said he did lead the policemen to Enrile's house where he pointed to Enrile as the source of the marijuana. Even assuming this to be true, that circumstance alone did not justify Enrile's warrantless arrest and search. Paragraphs (a) and (b) are clearly inapplicable. Paragraph (b) is also not in point because the policemen who later arrested Enrile at his house had no personal knowledge that he was the source of the marijuana. According to the policemen themselves, what happened was that they asked Abugatal who gave him the marijuana and were told it was Enrile. It was for this reason that they proceeded to Enrile's house and immediately arrested him. 4. ID.; ID.; ID.; CIRCUMSTANCES ALLOWING ARREST WITHOUT WARRANT. Under Rule 113, Section 5, of the Rules of Court, a peace officer or a private person may make a warrantless arrest only under any of the following circumstances: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. D E C I S I O N CRUZ, J p: Sentenced to life imprisonment and a fine of P30,000.00 for violation of the Dangerous Drugs Act, Antonio Enrile faults the Regional Trial Court of Quezon City for convicting him. 1 His co-accused, Rogelio Abugatal, was killed in an attempted jailbreak and this appeal is dismissed as to him. 2 We deal here only with Enrile. The evidence for the prosecution showed that at about half past six in the evening of October 25, 1985, a buy-bust team composed of Pat. Jaime Flores and Pat. Wilson Rances of the Quezon City Police Anti- Narcotics Unit was dispatched to entrap Rogelio Abugatal at Roosevelt Avenue in San Francisco del Monte, Quezon City. The plan was made on the strength of a tip given by Renato Polines, a police informer, who was himself to pose as the buyer. 3 In their separate testimonies, 4 both policemen said that on that occasion they saw Polines hand over to Abugatal the marked money representing payment for the mock transaction. Abugatal left with the money and returned ten minutes later with a wrapped object which he gave Polines. The two policemen then approached Abugatal and placed him under arrest, at the same time confiscating the wrapped object. Subsequent laboratory examination revealed this to be marijuana with flowering tops weighing 22 grams. 5 The prosecution also showed that, upon prodding, Abugatal led the policemen to a house at 20 De Vera Street, also in San Francisco del Monte, Quezon City, where he called out for Antonio Enrile. Enrile came out and met them at the gate. Abugatal pointed to Enrile as the source of the marijuana, whereupon the policemen immediately arrested and frisked him. They found in the right front pocket of his trousers the marked money earlier delivered to Abugatal, with Serial No. PJ966425. 6 At the police headquarters, Abugatal signed a sworn confession affirming the above narration. 7 Enrile refused to make any statement pending consultation with a lawyer. LLpr In his defense, Enrile testified that the marked money was "planted" on him by the police officers, who he said simply barged into his house without a warrant and arrested him. He stoutly denied any knowledge of the marijuana. He claimed that at the time of the alleged incident, he was attending, as a dental technician, to a patient whom he was fitting for dentures. 8 The supposed patient, Alicia Tiempo, corroborated him. 9 Enrile admitted that he had earlier been convicted of selling marijuana and that he had a pending application for probation. He suggested that this could be the reason for probation. He suggested that this could be the reason the policemen sought to implicate him in the new charge and thus weaken his application. 10 Abugatal contradicted his earlier sworn statement and declared on the stand that he had not sold any marijuana to Polines. What really happened, he said, was that two male teenagers approached him that evening and told him to buy marijuana, giving him P50.00 for the purpose. When he said he did not have any marijuana and did not know where to buy it, they forced him to go to Enrile's house and to give him the marked money. He did so because they had a knife. Enrile handed him a plastic bag which was later found to contain dried marijuana fruiting tops. 11 Judge Willelmo C. Fortun erred when he gave credence to the sworn statement of Abugatal, considering that it was made without compliance with the requisites of a custodial investigation, including the right to the assistance of counsel. The confession was clearly inadmissible. It did not follow the ruling of this Court in Morales v. Enrile, 12 promulgated on April 26, 1983, as reiterated in People v. Galit, 13 promulgated on March 20, 1985, where Justice Hermogenes Concepcion laid down the correct procedure, thus: "7. At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means by telephone if possible or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence." The challenged decision of the trial court was promulgated on February 14, 1986, long after the above-cited decisions had become effective. Even under the old doctrine, in fact, it is doubtful if Abugatal's confession without the assistance of counsel could have been sustained. It was not enough then to inform the suspect of his constitutional rights. The trial court had to ascertain for itself that the accused clearly understood the import and consequences of his confession and had the intelligence and mental capacity to do so. 14 There is no showing in the record that this was done, short of the statement in the decision that Abugatal had been informed of his rights and had validly waived the assistance of counsel. prcd If the sworn statement of Abugatal was inadmissible against him, much less was it admissible against Enrile. The prosecution rejected Abugatal's testimony that he was forced to go to Enrile's house and buy marijuana from him, insisting instead on the extrajudicial confession. With that confession outlawed and the testimony disowned by the prosecution itself, there is no evidence at all against Enrile to tie him with Abugatal. It was Abugatal who was allegedly caught red-handed by the policemen as he sold the marijuana to Polines. Enrile was not even at the scene of the entrapment at that time. Abugatal said he did lead the policemen to Enrile's house where he pointed to Enrile as the source of the marijuana. Even assuming this to be true, that circumstance alone did not justify Enrile's warrantless arrest and search. Under Rule 113, Section 5, of the Rules of Court, a peace officer or a private person may make a warrantless arrest only under any of the following circumstances: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. Paragraphs (a) and (b) are clearly inapplicable. Paragraph (b) is also not in point because the policemen who later arrested Enrile at his house had no personal knowledge that he was the source of the marijuana. According to the policemen themselves, what happened was that they asked Abugatal who gave him the marijuana and were told it was Enrile. It was for this reason that they proceeded to Enrile's house and immediately arrested him. 15 What the policemen should have done was secure a search warrant on the basis of the information supplied by Abugatal and then, with such authority, proceeded to search and, if the search was fruitful, arrest Enrile. They had no right to simply force themselves into his house on the bare (and subsequently disallowed) allegations of Abugatal and bundle Enrile off to the police station as if he had been caught in flagrante delicto. cdll The discovery of the marked money on him did not mean he was caught in the act of selling marijuana. The marked money was not prohibited per se. Even if it were, that fact alone would not retroactively validate the warrantless search and seizure. The principle has been honored through the ages in all liberty-loving regimes that a man's house is his castle that not even the mighty monarch, with all his forces, may violate. There were measures available under the law to enable the authorities to search Enrile's house and to arrest him if he was found in possession of prohibited articles. The police did not employ these measures. What they did was simply intrude into Enrile's house and arrest him without the slightest heed to the injunctions of the Bill of Rights. By so doing, they were using the tactics of the police state, where the minions of the government place little value on human rights and individual liberties and are obsessed only with the maintenance of peace and the punishment of crime. These are laudable objectives in any well-ordered society. But it should never be pursued at the cost of dismantling the intricate apparatus for the protection of the individual from overzealous law- enforcers who mistakenly believe that suspected criminal have forfeited the safeguards afforded them by the Constitution. Law- enforcers are not licensed to themselves break the law to apprehend and punish law-breakers. Such a practice only leads to further defiance of the law by those who have been denied its protection. In light of the proven circumstances of this case, the Court is not convinced that there is enough evidence to establish Enrile's guilt beyond the shadow of a doubt. The paucity of such evidence only strengthens the suspicion that the marked money was really "planted" on Enrile by the police officers who were probably worried that their earlier efforts in securing Enrile's conviction as a drug pusher would be thwarted by his application for probation. LLphil Whatever their motives, the fact is that Abugatal's sworn statement implicating Enrile is inadmissible against Enrile, and so is the marked money allegedly found on him as a result of the illegal search. The only remaining evidence against the appellant is Abugatal's testimony, but this has been questioned and discredited by the prosecution itself. Its case against Enrile is thus left without a leg to stand on and must therefore be dismissed. Law-enforcement authorities are admonished that mere enthusiasm in the discharge of their duties is not enough to build a case against a person charged with a crime. They should build it with painstaking care, stone by stone of provable fact, and with constant regard for the rights of the accused, before they can hope to secure a conviction that can be sustained in a court of justice. WHEREFORE, the conviction of Antonio Enrile in the challenged decision is hereby SET ASIDE and REVERSED. The accused- appellant is ACQUITTED and shall be released immediately. It is so ordered. Grio-Aquino, Bellosillo and Quiason, JJ ., concur. FIRST DIVISION [G.R. No. 128822. May 4, 2001.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALBERTO PASUDAG y BOKANG @ "BERTING", accused- appellant. The Solicitor General for plaintiff-appellee. Arturo B. Cefra for accused-appellant. SYNOPSIS Appellant was charged with and convicted of illegal cultivation of marijuana under Section 9 of Republic Act No. 6425. Evidence disclosed that the plantation of about 70 sq.m. was discovered in the course of the conduct of the anti-jueteng operations in the vicinity. The marijuana plants, about three (3) months, were uprooted without a search warrant and appellant was brought to the police station where he, in the presence of the Chief of Police, signed a confiscation report wherein he admitted being the owner of the plants uprooted and confiscated. The trial court convicted appellant. Hence, the present recourse, assailing the admissibility of the confiscation report and seizure of the evidence without a lawful warrant. DcAEIS The Court reiterated its ruling that search and seizure conducted without the requisite judicial warrant is illegal and void ab initio. The police officers had sufficient time to obtain a search warrant but failed to secure one. There was also no urgency or necessity for the warrantless search or the immediate seizure of the marijuana plants. Thus, their seizure was illegal and inadmissible in evidence. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH WARRANT; GENERAL RULE REQUIRES PROCUREMENT OF WARRANT BEFORE SEARCH OR SEIZURE. As a general rule, the procurement of a search warrant is required before a law enforcer may validly search or seize the person, house, papers or effects of any individual. The Constitution provides 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, . . . ." Any evidence obtained in violation of this provision is inadmissible. 2. ID.; ID.; ID.; ID.; CASE AT BAR, NOT AN EXCEPTION. In the case at bar, the police authorities had ample opportunity to secure from the court a search warrant. SPO2 Pepito Calip inquired as to who owned the house. He was acquainted with marijuana plants and immediately recognized that some plants in the backyard of the house were marijuana plants. Time was not of the essence to uproot and confiscate the plant. They were three months old and there was no sufficient reason to believe that they would be uprooted on that same day. 3. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES; RIGHT AVAILABLE TO BOTH INNOCENT AND GUILTY ALIKE. "Lawmen cannot be allowed to violate the very law they are expected to enforce." "The Court is not unmindful of the difficulties of law enforcement agencies in suppressing the illegal traffic of dangerous drugs. However, quick solutions of crimes and apprehension of malefactors do not justify a callous disregard of the Bill of Rights." We need not underscore that the protection against illegal search and seizure is constitutionally mandated and only under specific instances are searches allowed without warrants." "The mantle of protection extended by the Bill of Rights covers both innocent and guilty alike against any form of high-handedness of law enforcers, regardless of the praise worthiness of their intentions." DISEaC 4. REMEDIAL LAW; EVIDENCE; ADMISSIBILITY; ILLEGALLY SEIZED EVIDENCE, INADMISSIBLE. With the illegal seizure of the marijuana plants subject of this case, the seized plants are inadmissible in evidence against accused-appellant. 5. ID.; CRIMINAL PROCEDURE; CUSTODIAL INVESTIGATION; WHEN DOES IT COMMENCE. It has been held repeatedly that custodial investigation commences when a person is taken into custody and is singled out as a suspect in the commission of a crime under investigation and the police officers begin to ask questions on the suspect's participation therein and which tend to elicit an admission. Obviously, accused-appellant was a suspect from the moment the police team went to his house and ordered the uprooting of the marijuana plants in his backyard garden. 6. ID.; EVIDENCE; CONFESSION WITHOUT ASSISTANCE OF COUNSEL AND VALID WAIVER, INADMISSIBLE. "The implied acquiescence to the search, if there was any, could not have been more than mere passive conformity given under intimidating or coercive circumstances and is thus considered no consent at all within the purview of the constitutional guarantee." Even if the confession or admission were "gospel truth," if it was made without assistance of counsel and without a valid waiver of such assistance, the confession is inadmissible in evidence. DcTSHa D E C I S I O N PARDO, J p: The case is an appeal from the decision 1 of the Regional Trial Court, Pangasinan, Branch 46, Urdaneta finding accused Alberto Pasudag y Bokang guilty beyond reasonable doubt of illegal cultivation of marijuana 2 and sentencing him to reclusion perpetua and to pay a fine of P500,000.00, without subsidiary penalty and other accessories of the law. CSDcTH On December 17, 1996, 4th Assistant Provincial Prosecutor of Pangasinan Emiliano M. Matro filed with the Regional Trial Court, Pangasinan, Urdaneta an Information 3 charging accused Alberto Pasudag y Bokang with violation of R.A. No. 6425, Sec. 9, reading as follows: "That on or about September 26, 1995 and prior dates thereto at barangay Artacho, municipality of Sison, province of Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused, did, then and there willfully, unlawfully and feloniously plant, cultivate, and culture seven (7) hills of marijuana in the land tilled by him and situated beside the house of the accused, without authority or permit to do so. "Contrary to Sec. 9 of R.A. 6425 as amended." On February 10, 1997, the trial court arraigned the accused. He pleaded not guilty. 4 Trial ensued. ASHaTc On September 26, 1995, at around 1:30 in the afternoon, SPO2 Pepito Calip of the PNP Sison, Pangasinan, went to Brgy. Artacho to conduct anti-jueteng operations. He urinated at a bushy bamboo fence behind the public school. About five (5) meters away, he saw a garden of about 70 square meters. There were marijuana plants in between corn plants and camote tops. He inquired from a storekeeper nearby as to who owned the house with the garden. The storeowner told him that Alberto Pasudag owned it. 5 SPO2 Calip went to the Police Station and reported to Chief of Police Romeo C. Astrero. The latter dispatched a team (composed of SPO2 Calip, SPO3 Fajarito, SPO3 Alcantara and PO3 Rasca) to conduct an investigation. At around 2:30 in that same afternoon, the team arrived at Brgy. Artacho and went straight to the house of accused Pasudag. SPO3 Fajarito looked for accused Pasudag and asked him to bring the team to his backyard garden which was about five (5) meters away. 6 Upon seeing the marijuana plants, the policemen called for a photographer, who took pictures of accused Pasudag standing beside one of the marijuana plants. 7 They uprooted seven (7) marijuana plants. The team brought accused Pasudag and the marijuana plants to the police station. 8 At the police station, accused Pasudag admitted, in the presence of Chief of Police Astrero, that he owned the marijuana plants. 9 SPO3 Fajarito prepared a confiscation report 10 which accused Pasudag signed. 11 He kept the six marijuana plants inside the cabinet in the office of the Chief of Police and brought the tallest plant 12 to the PNP Crime Laboratory for examination. 13 Major Theresa Ann Bugayong Cid, a forensic chemist at the PNP Crime Laboratory, received the specimen 14 on October 11, 1995. She testified that she took some leaves from the marijuana plant because the leaves had the most concentration of tetrahydrocannabinol. As per her Chemistry Report No. D-087-95, 15 the examination was positive for marijuana (tetrahydrocannabinol). 16 On March 18, 1997, the trial court rendered a decision finding the accused guilty as charged and, taking into consideration his educational attainment (he reached only grade IV), imposed the minimum of the imposable penalty, thus: aESIDH "WHEREFORE, JUDGMENT is rendered CONVICTING ALBERTO PASUDAG of the crime charged in the information and he is hereby sentenced to suffer the penalty of Reclusion Perpetua and to pay a fine of P500,000.00 without subsidiary penalty and other accessories of the law. "The 7 fully grown marijuana plants are confiscated in favor of the government. "The Warden of Urdaneta, Bureau of Jail Management and Penology, is hereby ordered to commit the body of Alberto Pasudag to the National Bilibid Prison immediately upon receipt hereof. "SO ORDERED. "Done this 17th day of March, 1997, at Urdaneta, Pangasinan. (Sgd.) MODESTO C. JUANSON Judge" 17 Hence, this appeal. 18 In his brief, accused-appellant contended that the trial court erred in finding that the marijuana plant submitted for laboratory examination was one of the seven (7) marijuana plants confiscated from his garden; that the trial court erred in concluding that the confiscation report was not an extrajudicial admission which required the intervention of his counsel; and in convicting him on the basis of inference that he planted, cultivated and cultured the seven (7) plants, owned the same or that he permitted others to cultivate the same. 19 The Solicitor General contended that accused-appellant admitted before the lower court that the specimen 20 was one of the plants confiscated in his backyard; that appellant was not under custodial investigation when he signed the confiscation report; and that the inferences deduced by the lower court strengthened the conviction of accused-appellant. 21 We find the appeal meritorious. As a general rule, the procurement of a search warrant is required before a law enforcer may validly search or seize the person, house, papers or effects of any individual. 22 The Constitution provides 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, . . . ." 23 Any evidence obtained in violation of this provision is inadmissible. 24 In the case at bar, the police authorities had ample opportunity to secure from the court a search warrant. SPO2 Pepito Calip inquired as to who owned the house. 25 He was acquainted with marijuana plants and immediately recognized that some plants in the backyard of the house were marijuana plants. 26 Time was not of the essence to uproot and confiscate the plants. They were three months old 27 and there was no sufficient reason to believe that they would be uprooted on that same day. In People vs. Valdez, 28 the Court ruled that search and seizure conducted without the requisite judicial warrant is illegal and void ab initio. The prosecution's evidence clearly established that the police conducted a search of accused's backyard garden without a warrant; they had sufficient time to obtain a search warrant; they failed to secure one. There was no showing of urgency or necessity for the warrantless search, or the immediate seizure of the marijuana plants. ETHCDS "Lawmen cannot be allowed to violate the very law they are expected to enforce." 29 "The Court is not unmindful of the difficulties of law enforcement agencies in suppressing the illegal traffic of dangerous drugs. However, quick solutions of crimes and apprehension of malefactors do not justify a callous disregard of the Bill of Rights." 30 We need not underscore that the protection against illegal search and seizure is constitutionally mandated and only under specific instances are searches allowed without warrants. 31 "The mantle of protection extended by the Bill of Rights covers both innocent and guilty alike against any form of high-handedness of law enforcers, regardless of the praiseworthiness of their intentions." 32 With the illegal seizure of the marijuana plants subject of this case, the seized plants are inadmissible in evidence against accused- appellant. 33 The arrest of accused-appellant was tainted with constitutional infirmity. The testimony of SPO3 Jovencio Fajarito 34 reveals that appellant was not duly informed of his constitutional rights, thus: "ATTY. ESTRADA: Q: In fact, you went to the house of Alberto Pasudag? A: Yes sir. Q: And in fact you invited him to the place where marijuana plants were planted? A: Yes sir. Q: Then and there, you started asking question from him? A: Yes sir. Q: In fact you started asking questions to elucidate from him information of admission regarding the ownership of the plants in question? A: I only asked who really planted and cultivated the plants sir. Q: Before you propounded questions to Alberto Pasudag, as according to you, you were already informed that he was the cultivator by some persons whose name until now you do not know? A: Yes sir. Q: Did you not inform Alberto Pasudag his constitutional rights? A: I did not inform him because only when I will took (sic) his statement in the presence of his counsel and to be reduced in writing, sir. Q: What you want to impress, you will inform only a person of his constitutional rights if you take his statement in writing? STECDc A: Yes sir. Q: Is that your method? A: I informed the accused if I have to place his statement into writing, sir. Q: According to you, you invited Alberto Pasudag to the alleged place where the marijuana were planted, then and there, you asked him who planted the same, and according to you, he said he planted the same? A: Yes sir. xxx xxx xxx Q: According to you, you brought Alberto Pasudag to the Office of the Chief of Police of Sison, Pangasinan? A: Yes sir. Q: In fact the Chief of Police was there? A: Yes sir. Q: Romeo Astrero was the Senior Inspector? A: Yes sir. Q: In other words, SPO2 Calip, Alcantara, Romeo Rasca and Alberto Pasudag were inside the office of the Chief of Police? A: Yes sir. Q: And according to you, Alberto Pasudag was interrogated by the Chief of Police? A: Yes sir. Q: In fact the Chief of Police was asking Alberto Pasudag in your presence? who planted the marijuana plants and according to you, Alberto Pasudag admitted in your presence that he planted the alleged marijuana plants? HDIaET A: Yes sir. Q: Before Chief Inspector Romeo Astrero interrogated Alberto Pasudag, he did not also inform Alberto Pasudag his constitutional rights, particularly the rights of a person under custodial interrogation? A: What I know, he just asked Alberto Pasudag the veracity whether or not he planted the said plants. Q: In other words, your answer is, your Chief of Police did not inform Alberto Pasudag his constitutional rights? A: No sir." (emphasis supplied) After the interrogation, SPO3 Fajarito prepared a confiscation report, 35 which was part of the investigation. 36 Accused-appellant signed the confiscation report. 37 In both the interrogation and the signing of the confiscation receipt, no counsel assisted accused-appellant. He was the only civilian present in the Office of the Chief of Police. 38 We do not agree with the Solicitor General that accused-appellant was not under custodial investigation when he signed the confiscation receipt. It has been held repeatedly that custodial investigation commences when a person is taken into custody and is singled out as a suspect in the commission of a crime under investigation and the police officers begin to ask questions on the suspect's participation therein and which tend to elicit an admission. 39 Obviously, accused- appellant was a suspect from the moment the police team went to his house and ordered the uprooting of the marijuana plants in his backyard garden. "The implied acquiescence to the search, if there was any, could not have been more than mere passive conformity given under intimidating or coercive circumstances and is thus considered no consent at all within the purview of the constitutional guarantee." 40 Even if the confession or admission were "gospel truth", if it was made without assistance of counsel and without a valid waiver of such assistance, the confession is inadmissible in evidence. 41 In light of the foregoing, we uphold the constitutional right of accused-appellant to a presumption of innocence. The prosecution failed to establish his guilt beyond reasonable doubt. STcHEI WHEREFORE, the decision of the trial court is hereby REVERSED and SET ASIDE. Accused-appellant ALBERTO PASUDAG y BOKANG is ACQUITTED of the crime charged for lack of proof beyond reasonable doubt. The Director of Corrections is hereby directed to forthwith release accused-appellant unless he is held for another case, and to inform the Court of the action taken hereon within ten (10) days from notice. Costs de oficio. SO ORDERED. Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ., concur. FIRST DIVISION [G.R. No. 74869. July 6, 1988.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. IDEL AMINNUDIN y AHNI, defendant-appellant. The Solicitor General, for plaintiff-appellee. Herminio T. Llariza counsel de-officio, for defendant-appellant. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS AGAINST UNREASONABLE SEARCHES AND SEIZURES; WARRANTLESS ARREST AND SEIZURE BASED ON AN INFORMER'S TIP, AT A TIME WHEN ACCUSED WAS NOT COMMITTING A CRIME, ILLEGAL; EVIDENCE OBTAINED, INADMISSIBLE. Where it is not disputed that the PC officers had no warrant when they arrested Aminnudin while he was descending the gangplank of the M/V Wilcon 9 and seized the bag he was carrying, and that their only justification was the tip they had earlier received from a reliable and regular informer who reported to them that Aminnudin was arriving in Iloilo by boat with marijuana, the search was not an incident of a lawful arrest because there was no warrant of arrest and warrantless arrest did not come under the exceptions allowed by the Rules of Court. Hence, the warrantless search was also illegal and the evidence obtained was inadmissible. 2. ID.; ID.; ID.; ID.; NO URGENCY COULD BE INVOKED IN PRESENT CASE TO DISPENSE WITH OBTENTION OF ARREST AND SEARCH WARRANT. The present case presented no such urgency. From the conflicting declarations of the PC witnesses, it is clear that they had at least two days within which they could have obtained a warrant to arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was identified. The date of its arrival was certain. And from the information they had received, they could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of Rights was ignored altogether because the PC lieutenant who was the head of the arresting team, had determined on his own authority that a "search warrant was not necessary." 3. ID.; ID.; ID.; ID.; ACCUSED IN CASE AT BAR WAS NOT COMMITTING A CRIME WHEN HE WAS ARRESTED. In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his arrest. The identification by the informer was the probable cause as determined by the officers (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him. AQUINO, J., Dissenting: 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES; ARREST AT TIME OF COMMISSION OF CRIME IS LAWFUL; SEARCH LIKEWISE LAWFUL. I hold that the accused was caught in flagrante, for he was carrying marijuana leaves in his bag at the moment of his arrest. He was not "innocently disembarking from the vessel." The unauthorized transportation of marijuana (Indian hemp), which is a prohibited drug, is a crime. (Sec. 4, Rep. Act No. 6425). Since he was committing a crime, his arrest could be lawfully effected without a warrant (Sec. 6-a, Rule 113, Rules of Court), and the search of his bag (which yielded the marijuana leaves) without a search warrant was also lawful (Sec. 12, Rule 126, Rules of Court). D E C I S I O N CRUZ, J p: The accused-appellant claimed his business was selling watches but he was nonetheless arrested, tried and found guilty of illegally transporting marijuana. The trial court, disbelieving him, held it was high time to put him away and sentenced him to life imprisonment plus a fine of P20,000.00. 1 Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the M/V Wilcon 9 at about 8:30 in the evening, in Iloilo City. The PC officers who were in fact waiting for him simply accosted him, inspected his bag and finding what looked liked marijuana leaves took him to their headquarters for investigation. The two bundles of suspect articles were confiscated from him and later taken to the NBI laboratory for examination. When they were verified as marijuana leaves, an information for violation of the Dangerous Drugs Act was filed against him. 2 Later, the information was amended to include Farida Ali y Hassen, who had also been arrested with him that same evening and likewise investigated. 3 Both were arraigned and pleaded not guilty. 4 Subsequently, the fiscal filed a motion to dismiss the charge against Ali on the basis of a sworn statement of the arresting officers absolving her after a "thorough investigation." 5 The motion was granted, and trial proceeded only against the accused-appellant, who was eventually convicted. 6 According to the prosecution, the PC officers had earlier received a tip from one of their informers that the accused-appellant was on board a vessel bound for Iloilo City and was carrying marijuana. 7 He was identified by name. 8 Acting on this tip, they waited for him in the evening of June 25, 1984, and approached him as he descended from the gangplank after the informer had pointed to him. 9 They detained him and inspected the bag he was carrying. It was found to contain three kilos of what were later analyzed as marijuana leaves by an NBI forensic examiner, 10 who testified that she conducted microscopic, chemical and chromatographic tests on them. On the basis of this finding, the corresponding charge was then filed against Aminnudin. In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag was his clothing consisting of a jacket, two shirts and two pairs of pants. 11 He alleged that he was arbitrarily arrested and immediately handcuffed. His bag was confiscated without a search warrant. At the PC headquarters, he was manhandled to force him to admit he was carrying the marijuana, the investigator hitting him with a piece of wood in the chest and arms even as he parried the blows while he was still handcuffed. 12 He insisted he did not even know what marijuana looked like and that his business was selling watches and sometimes cigarettes. 13 He also argued that the marijuana he was alleged to have been carrying was not properly identified and could have been any of several bundles kept in the stock room of the PC headquarters. 14 The trial court was unconvinced, noting from its own examination of the accused that he claimed to have come to Iloilo City to sell watches but carried only two watches at the time, traveling from Jolo for that purpose and spending P107.00 for fare, not to mention his other expenses. 15 Aminnudin testified that he kept the two watches in a secret pocket below his belt but, strangely, they were not discovered when he was bodily searched by the arresting officers nor were they damaged as a result of his manhandling. 16 He also said he sold one of the watches for P400.00 and gave away the other, although the watches belonged not to him but to his cousin, 17 to a friend whose full name he said did not even know. 18 The trial court also rejected his allegations of maltreatment, observing that he had not sufficiently proved the injuries sustained by him. 19 There is no justification to reverse these factual findings, considering that it was the trial judge who had immediate access to the testimony of the witnesses and had the opportunity to weigh their credibility on the stand. Nuances of tone or voice, meaningful pauses and hesitation, flush of face and dart of eyes, which may reveal the truth or expose the lie, are not described in the impersonal record. But the trial judge sees all of this, discovering for himself the truant fact amidst the falsities. The only exception we may make in this case is the trial court's conclusion that the accused-appellant was not really beaten up because he did not complain about it later nor did he submit to a medical examination. That is hardly fair or realistic. It is possible Aminnudin never had that opportunity as he was at that time under detention by the PC authorities and in fact has never been set free since he was arrested in 1984 and up to the present. No bail has been allowed for his release. There is one point that deserves closer examination, however, and it is Aminnudin's claim that he was arrested and searched without warrant, making the marijuana allegedly found in his possession inadmissible in evidence against him under the Bill of Rights. The decision did not even discuss this point. For his part, the Solicitor General dismissed this after an all-too-short argument that the arrest of Aminnudin was valid because it came under Rule 113, Section 6(b) of the Rules of Court on warrantless arrests. This made the search also valid as incidental to a lawful arrest. It is not disputed, and in fact it is admitted by the PC officers who testified for the prosecution, that they had no warrant when they arrested Aminnudin and seized the bag he was carrying. Their only justification was the tip they had earlier received from a reliable and regular informer who reported to them that Aminnudin was arriving in Iloilo by boat with marijuana. Their testimony varies as to the time they received the tip, one saying it was two days before the arrest, 20 another two weeks 21 and a third "weeks before June 25." 22 On this matter, we may prefer the declaration of the chief of the arresting team, Lt. Cipriano Querol, Jr., who testified as follow: "Q You mentioned an intelligence report, you mean with respect to the coming of Idel Aminnudin on June 25, 1984? "A Yes, sir. "Q When did you receive this intelligence report? "A Two days before June 25, 1984 and it was supported by reliable sources. "Q Were you informed of the coming of the Wilcon 9 and the possible trafficking of marijuana leaves on that date? "A Yes, sir, two days before June 25, 1984 when we received this information from that particular informer, prior to June 25, 1984 we have already reports of the particular operation which was being participated by Idel Aminnudin. "Q You said you received an intelligence report two days before June 25, 1984 with respect to the coming of Wilcon 9? "A Yes, sir. "Q Did you receive any other report aside from this intelligence report? "A Well, I have received also other reports but not pertaining to the coming of Wilcon 9. For instance, report of illegal gambling operation. "COURT: "Q Previous to that particular information which you said two days before June 25, 1984, did you also receive any report regarding the activities of Idel Aminnudin? "A Previous to June 25, 1984 we received reports on the activities of Idel Aminnudin. "Q What were those activities? "A Purely marijuana trafficking. "Q From whom did you get that information? "A It came to my hand which was written in a required sheet of information, maybe for security reason and we cannot identify the person. "Q But you received it from your regular informer? "A Yes, sir. "ATTY. LLARIZA: "Q Previous to June 25, 1984, you were more or less sure that Idel Aminnudin is coming with drugs? "A Marijuana, sir. "Q And this information respecting Idel Aminnudin's coming to Iloilo with marijuana was received by you many days before you received the intelligence report in writing? "A Not a report of the particular coming of Aminnudin but his activities. "Q You only knew that he was coming on June 25, 1984 two days before? "A Yes, sir. "Q You mean that before June 23, 1984 you did not know that Aminnudin was coming? "A Before June 23, 1984, I, in my capacity, did not know that he was coming but on June 23, 1984 that was the time when I received the information that he was coming. Regarding the reports on his activities, we have reports that he has already consummated the act of selling and shipping marijuana stuff. "COURT: "Q And as a result of that report, you put him under surveillance? "A Yes, sir. "Q In the intelligence report, only the name of Idel Aminnudin was mentioned? "A Yes, sir. "Q Are you sure of that? "A On the 23rd he will be coming with the woman. "Q So that even before you received the official report on June 23, 1984, you had already gathered information to the effect that Idel Aminnudin was coming to Iloilo on June 25, 1984? "A Only on the 23rd of June. "Q You did not try to secure a search warrant for the seizure or search of the subject mentioned in your intelligence report? "A No, more. "Q Why not? "A Because we were very very sure that our operation will yield positive result. "Q Is that your procedure that whenever it will yield positive result you do not need a search warrant anymore? "A Search warrant is not necessary." 23 That last answer is a cavalier pronouncement, especially as it comes from a mere lieutenant of the PC. The Supreme Court cannot countenance such a statement. This is still a government of laws and not of men. The mandate of the Bill of Rights is clear: "Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized." In the case at bar, there was no warrant of arrest or search warrant issued by a judge after personal determination by him of the existence of probable cause. Contrary to the averments of the government, the accused-appellant was not caught in flagrante nor was a crime about to be committed or had just been committed to justify the warrantless arrest allowed under Rule 113 of the Rules of Court. Even expediency could not be invoked to dispense with the obtention of the warrant as in the case of Roldan v. Arca, 24 for example. Here it was held that vessels and aircraft are subject to warrantless searches and seizures for violation of the customs law because these vehicles may be quickly moved out of the locality or jurisdiction before the warrant can be secured. The present case presented no such urgency. From the conflicting declarations of the PC witnesses, it is clear that they had at least two days within which they could have obtained a warrant to arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was identified. The date of its arrival was certain. And from the information they had received, they could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of Rights was ignored altogether because the PC lieutenant who was the head of the arresting team, had determined on his own authority that "search warrant was not necessary." In the many cases where this Court has sustained the warrantless arrest of violators of the Dangerous Drugs Act, it has always been shown that they were caught red-handed, as result of what are popularly called "buy-bust" operations of the narcotics agents. 25 Rule 113 was clearly applicable because at the precise time of arrest the accused was in the act of selling the prohibited drug. In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his arrest. The identification by the informer was the probable cause as determined by the officers (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him. Now that we have succeeded in restoring democracy in our country after fourteen years of the despised dictatorship, when any one could be picked up at will, detained without charges and punished without trial, we will have only ourselves to blame if that kind of arbitrariness is allowed to return, to once more flaunt its disdain of the Constitution and the individual liberties its Bill of Rights guarantees. While this is not to say that the accused-appellant is innocent, for indeed his very own words suggest that he is lying, that fact alone does not justify a finding that he is guilty. The constitutional presumption is that he is innocent, and he will be so declared even if his defense is weak as long as the prosecution is not strong enough to convict him. Without the evidence of the marijuana allegedly seized from Aminnudin, the case of the prosecution must fall. That evidence cannot be admitted, and should never have been considered by the trial court for the simple fact is that the marijuana was seized illegally. It is the fruit of the poisonous tree, to use Justice Holmes' felicitous phrase. The search was not an incident of a lawful arrest because there was no warrant of arrest and the warrantless arrest did not come under the exceptions allowed by the Rules of Court. Hence, the warrantless search was also illegal and the evidence obtained thereby was inadmissible. The Court strongly supports the campaign of the government against drug addiction and commends the efforts of our law-enforcement officers against those who would inflict this malediction upon our people, especially the susceptible youth. But as demanding as this campaign may be, it cannot be more so than the compulsions of the Bill of Rights for the protection of the liberty of every individual in the realm, including the basest of criminals. The Constitution covers with the mantle of its protection the innocent and the guilty alike against any manner of high-handedness from the authorities, however praiseworthy their intentions. Those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said, "I think it a less evil that some criminal should escape than that the government should play an ignoble part." It is simply not allowed in the free society to violate a law to enforce another, especially if the law violated is the Constitution itself. We find that with the exclusion of the illegally seized marijuana as evidence against the accused-appellant, his guilt has not been proved beyond reasonable doubt and he must therefore be discharged on the presumption that he is innocent. ACCORDINGLY, the decision of the trial court is REVERSED and the accused-appellant is ACQUITTED. It is so ordered. Narvasa, Gancayco and Medialdea JJ. concur.