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THIRD DIVISION

[G.R. No. 99050. September 2, 1992.]


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.

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