Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-19550 June 19, 1967

HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL BECK,

petitioners,
vs.
HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE
LUKBAN, in his capacity as Acting Director, National Bureau of Investigation;
SPECIAL PROSECUTORS PEDRO D. CENZON, EFREN I. PLANA and MANUEL
VILLAREAL, JR. and ASST. FISCAL MANASES G. REYES; JUDGE AMADO ROAN,
Municipal Court of Manila; JUDGE ROMAN CANSINO, Municipal Court of Manila;
JUDGE HERMOGENES CALUAG, Court of First Instance of Rizal-Quezon City
Branch, and JUDGE DAMIAN JIMENEZ, Municipal Court of Quezon City,
respondents.

Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan T. David
for petitioners.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de
Castro, Assistant Solicitor General Frine C. Zaballero, Solicitor Camilo D. Quiason and
Solicitor C. Padua for respondents.
CONCEPCION, C.J.:

Upon application of the officers of the government named on the margin1 hereinafter
referred to as Respondents-Prosecutors several judges 2 hereinafter referred to as
Respondents-Judges issued, on different dates,3 a total of 42 search warrants
against petitioners herein4 and/or the corporations of which they were officers,5 directed
to the any peace officer, to search the persons above-named and/or the premises of
their offices, warehouses and/or residences, and to seize and take possession of the
following personal property to wit:
Books of accounts, financial records, vouchers, correspondence, receipts,
ledgers, journals, portfolios, credit journals, typewriters, and other documents
and/or papers showing all business transactions including disbursements
receipts, balance sheets and profit and loss statements and Bobbins (cigarette
wrappers).
as "the subject of the offense; stolen or embezzled and proceeds or fruits of the
offense," or "used or intended to be used as the means of committing the offense,"
which is described in the applications adverted to above as "violation of Central Bank
Laws, Tariff and Customs Laws, Internal Revenue (Code) and the Revised Penal Code."

Alleging that the aforementioned search warrants are null and void, as contravening the
Constitution and the Rules of Court because, inter alia: (1) they do not describe with
particularity the documents, books and things to be seized; (2) cash money, not
mentioned in the warrants, were actually seized; (3) the warrants were issued to fish
evidence against the aforementioned petitioners in deportation cases filed against them;
(4) the searches and seizures were made in an illegal manner; and (5) the documents,
papers and cash money seized were not delivered to the courts that issued the
warrants, to be disposed of in accordance with law on March 20, 1962, said
petitioners filed with the Supreme Court this original action for certiorari, prohibition,
mandamus and injunction, and prayed that, pending final disposition of the present
case, a writ of preliminary injunction be issued restraining Respondents-Prosecutors,
their agents and /or representatives from using the effects seized as aforementioned or
any copies thereof, in the deportation cases already adverted to, and that, in due
course, thereafter, decision be rendered quashing the contested search warrants and
declaring the same null and void, and commanding the respondents, their agents or
representatives to return to petitioners herein, in accordance with Section 3, Rule 67, of
the Rules of Court, the documents, papers, things and cash moneys seized or
confiscated under the search warrants in question.

In their answer, respondents-prosecutors alleged, 6 (1) that the contested search

warrants are valid and have been issued in accordance with law; (2) that the defects of
said warrants, if any, were cured by petitioners' consent; and (3) that, in any event, the
effects seized are admissible in evidence against herein petitioners, regardless of the
alleged illegality of the aforementioned searches and seizures.

On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in the
petition. However, by resolution dated June 29, 1962, the writ was partially lifted or
dissolved, insofar as the papers, documents and things seized from the offices of the
corporations above mentioned are concerned; but, the injunction was maintained as
regards the papers, documents and things found and seized in the residences of
petitioners herein.7

Thus, the documents, papers, and things seized under the alleged authority of the
warrants in question may be split into two (2) major groups, namely: (a) those found and
seized in the offices of the aforementioned corporations, and (b) those found and seized
in the residences of petitioners herein.
As regards the first group, we hold that petitioners herein have no cause of action to
assail the legality of the contested warrants and of the seizures made in pursuance
thereof, for the simple reason that said corporations have their respective personalities,
separate and distinct from the personality of herein petitioners, regardless of the amount
of shares of stock or of the interest of each of them in said corporations, and whatever
the offices they hold therein may be.8 Indeed, it is well settled that the legality of a
seizure can be contested only by the party whose rights have been impaired thereby,9
and that the objection to an unlawful search and seizure is purely personal and cannot
be availed of by third parties. 10 Consequently, petitioners herein may not validly object
to the use in evidence against them of the documents, papers and things seized from
the offices and premises of the corporations adverted to above, since the right to object
to the admission of said papers in evidence belongs exclusively to the corporations, to
whom the seized effects belong, and may not be invoked by the corporate officers in
proceedings against them in their individual capacity. 11 Indeed, it has been held:

. . . that the Government's action in gaining possession of papers belonging to

the corporation did not relate to nor did it affect the personal defendants. If these
papers were unlawfully seized and thereby the constitutional rights of or any one
were invaded, they were the rights of the corporation and not the rights of the
other defendants. Next, it is clear that a question of the lawfulness of a seizure
can be raised only by one whose rights have been invaded. Certainly, such a
seizure, if unlawful, could not affect the constitutional rights of defendants whose
property had not been seized or the privacy of whose homes had not been
disturbed; nor could they claim for themselves the benefits of the Fourth
Amendment, when its violation, if any, was with reference to the rights of another.
Remus vs. United States (C.C.A.)291 F. 501, 511. It follows, therefore, that the
question of the admissibility of the evidence based on an alleged unlawful search
and seizure does not extend to the personal defendants but embraces only the
corporation whose property was taken. . . . (A Guckenheimer & Bros. Co. vs.
United States, [1925] 3 F. 2d. 786, 789, Emphasis supplied.)

With respect to the documents, papers and things seized in the residences of
petitioners herein, the aforementioned resolution of June 29, 1962, lifted the writ of
preliminary injunction previously issued by this Court, 12 thereby, in effect, restraining
herein Respondents-Prosecutors from using them in evidence against petitioners
herein.

In connection with said documents, papers and things, two (2) important questions need
be settled, namely: (1) whether the search warrants in question, and the searches and
seizures made under the authority thereof, are valid or not, and (2) if the answer to the
preceding question is in the negative, whether said documents, papers and things may
be used in evidence against petitioners herein.1wph1.t

Petitioners maintain that the aforementioned search warrants are in the nature of
general warrants and that accordingly, the seizures effected upon the authority there of
are null and void. In this connection, the Constitution 13 provides:

The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures shall not be violated, and no
warrants shall issue but upon probable cause, to be determined 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.

Two points must be stressed in connection with this constitutional mandate, namely: (1)
that no warrant shall issue but upon probable cause, to be determined by the judge in
the manner set forth in said provision; and (2) that the warrant shall particularly describe
the things to be seized.

None of these requirements has been complied with in the contested warrants. Indeed,
the same were issued upon applications stating that the natural and juridical person
therein named had committed a "violation of Central Ban Laws, Tariff and Customs
Laws, Internal Revenue (Code) and Revised Penal Code." In other words, no specific
offense had been alleged in said applications. The averments thereof with respect to the
offense committed were abstract. As a consequence, it was impossible for the judges
who issued the warrants to have found the existence of probable cause, for the same
presupposes the introduction of competent proof that the party against whom it is
sought has performed particular acts, or committed specific omissions, violating a given
provision of our criminal laws. As a matter of fact, the applications involved in this case
do not allege any specific acts performed by herein petitioners. It would be the legal
heresy, of the highest order, to convict anybody of a "violation of Central Bank Laws,
Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code," as
alleged in the aforementioned applications without reference to any determinate
provision of said laws or

To uphold the validity of the warrants in question would be to wipe out completely one of
the most fundamental rights guaranteed in our Constitution, for it would place the
sanctity of the domicile and the privacy of communication and correspondence at the
mercy of the whims caprice or passion of peace officers. This is precisely the evil sought
to be remedied by the constitutional provision above quoted to outlaw the so-called
general warrants. It is not difficult to imagine what would happen, in times of keen
political strife, when the party in power feels that the minority is likely to wrest it, even
though by legal means.

Such is the seriousness of the irregularities committed in connection with the disputed
search warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the
former Rules of Court 14 by providing in its counterpart, under the Revised Rules of
Court 15 that "a search warrant shall not issue but upon probable cause in connection
with one specific offense." Not satisfied with this qualification, the Court added thereto a
paragraph, directing that "no search warrant shall issue for more than one specific
offense."

The grave violation of the Constitution made in the application for the contested search
warrants was compounded by the description therein made of the effects to be
searched for and seized, to wit:

Books of accounts, financial records, vouchers, journals, correspondence,

receipts, ledgers, portfolios, credit journals, typewriters, and other documents
and/or papers showing all business transactions including disbursement receipts,
balance sheets and related profit and loss statements.

Thus, the warrants authorized the search for and seizure of records pertaining to all
business transactions of petitioners herein, regardless of whether the transactions were
legal or illegal. The warrants sanctioned the seizure of all records of the petitioners and
the aforementioned corporations, whatever their nature, thus openly contravening the
explicit command of our Bill of Rights that the things to be seized be particularly
described as well as tending to defeat its major objective: the elimination of general
warrants.

Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors
maintain that, even if the searches and seizures under consideration were
unconstitutional, the documents, papers and things thus seized are admissible in
evidence against petitioners herein. Upon mature deliberation, however, we are
unanimously of the opinion that the position taken in the Moncado case must be
abandoned. Said position was in line with the American common law rule, that the
criminal should not be allowed to go free merely "because the constable has
blundered," 16 upon the theory that the constitutional prohibition against unreasonable
searches and seizures is protected by means other than the exclusion of evidence
unlawfully obtained, 17 such as the common-law action for damages against the
searching officer, against the party who procured the issuance of the search warrant
and against those assisting in the execution of an illegal search, their criminal
punishment, resistance, without liability to an unlawful seizure, and such other legal
remedies as may be provided by other laws.

However, most common law jurisdictions have already given up this approach and
eventually adopted the exclusionary rule, realizing that this is the only practical means
of enforcing the constitutional injunction against unreasonable searches and seizures.
In the language of Judge Learned Hand:

As we understand it, the reason for the exclusion of evidence competent as such,
which has been unlawfully acquired, is that exclusion is the only practical way of
enforcing the constitutional privilege. In earlier times the action of trespass
against the offending official may have been protection enough; but that is true
no longer. Only in case the prosecution which itself controls the seizing officials,
knows that it cannot profit by their wrong will that wrong be repressed.18

In fact, over thirty (30) years before, the Federal Supreme Court had already declared:

If letters and private documents can thus be seized and held and used in
evidence against a citizen accused of an offense, the protection of the 4th
Amendment, declaring his rights to be secure against such searches and
seizures, is of no value, and, so far as those thus placed are concerned, might as
well be stricken from the Constitution. The efforts of the courts and their officials
to bring the guilty to punishment, praiseworthy as they are, are not to be aided by
the sacrifice of those great principles established by years of endeavor and
suffering which have resulted in their embodiment in the fundamental law of the
land.19

This view was, not only reiterated, but, also, broadened in subsequent decisions on the
same Federal Court. 20 After reviewing previous decisions thereon, said Court held, in
Mapp vs. Ohio (supra.):

. . . Today we once again examine the Wolf's constitutional documentation of the

right of privacy free from unreasonable state intrusion, and after its dozen years
on our books, are led by it to close the only courtroom door remaining open to
evidence secured by official lawlessness in flagrant abuse of that basic right,
reserved to all persons as a specific guarantee against that very same unlawful
conduct. We hold that all evidence obtained by searches and seizures in violation
of the Constitution is, by that same authority, inadmissible in a State.

Since the Fourth Amendment's right of privacy has been declared enforceable
against the States through the Due Process Clause of the Fourteenth, it is
enforceable against them by the same sanction of exclusion as it used against
the Federal Government. Were it otherwise, then just as without the Weeks rule
the assurance against unreasonable federal searches and seizures would be "a
form of words," valueless and underserving of mention in a perpetual charter of
inestimable human liberties, so too, without that rule the freedom from state
invasions of privacy would be so ephemeral and so neatly severed from its
conceptual nexus with the freedom from all brutish means of coercing evidence
as not to permit this Court's high regard as a freedom "implicit in the concept of
ordered liberty." At the time that the Court held in Wolf that the amendment was
applicable to the States through the Due Process Clause, the cases of this Court
as we have seen, had steadfastly held that as to federal officers the Fourth
Amendment included the exclusion of the evidence seized in violation of its
provisions. Even Wolf "stoutly adhered" to that proposition. The right to when
conceded operatively enforceable against the States, was not susceptible of
destruction by avulsion of the sanction upon which its protection and enjoyment
had always been deemed dependent under the Boyd, Weeks and Silverthorne
Cases. Therefore, in extending the substantive protections of due process to all
constitutionally unreasonable searches state or federal it was logically and
constitutionally necessarily that the exclusion doctrine an essential part of the
right to privacy be also insisted upon as an essential ingredient of the right
newly recognized by the Wolf Case. In short, the admission of the new
constitutional Right by Wolf could not tolerate denial of its most important
constitutional privilege, namely, the exclusion of the evidence which an accused
had been forced to give by reason of the unlawful seizure. To hold otherwise is to
grant the right but in reality to withhold its privilege and enjoyment. Only last year
the Court itself recognized that the purpose of the exclusionary rule to "is to deter
to compel respect for the constitutional guaranty in the only effectively
available way by removing the incentive to disregard it" . . . .

The ignoble shortcut to conviction left open to the State tends to destroy the
entire system of constitutional restraints on which the liberties of the people rest.
Having once recognized that the right to privacy embodied in the Fourth
Amendment is enforceable against the States, and that the right to be secure
against rude invasions of privacy by state officers is, therefore constitutional in
origin, we can no longer permit that right to remain an empty promise. Because it
is enforceable in the same manner and to like effect as other basic rights secured
by its Due Process Clause, we can no longer permit it to be revocable at the
whim of any police officer who, in the name of law enforcement itself, chooses to
suspend its enjoyment. Our decision, founded on reason and truth, gives to the
individual no more than that which the Constitution guarantees him to the police
officer no less than that to which honest law enforcement is entitled, and, to the
 courts, that judicial integrity so necessary in the true administration of justice.
(emphasis ours.)

Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the spirit
of the constitutional injunction against unreasonable searches and seizures. To be sure,
if the applicant for a search warrant has competent evidence to establish probable
cause of the commission of a given crime by the party against whom the warrant is
intended, then there is no reason why the applicant should not comply with the
requirements of the fundamental law. Upon the other hand, if he has no such competent
evidence, then it is not possible for the Judge to find that there is probable cause, and,
hence, no justification for the issuance of the warrant. The only possible explanation
(not justification) for its issuance is the necessity of fishing evidence of the commission
of a crime. But, then, this fishing expedition is indicative of the absence of evidence to
establish a probable cause.

Moreover, the theory that the criminal prosecution of those who secure an illegal search
warrant and/or make unreasonable searches or seizures would suffice to protect the
constitutional guarantee under consideration, overlooks the fact that violations thereof
are, in general, committed By agents of the party in power, for, certainly, those
belonging to the minority could not possibly abuse a power they do not have.
Regardless of the handicap under which the minority usually but, understandably
finds itself in prosecuting agents of the majority, one must not lose sight of the fact that
the psychological and moral effect of the possibility 21 of securing their conviction, is
watered down by the pardoning power of the party for whose benefit the illegality had
been committed.

In their Motion for Reconsideration and Amendment of the Resolution of this Court
dated June 29, 1962, petitioners allege that Rooms Nos. 81 and 91 of Carmen
Apartments, House No. 2008, Dewey Boulevard, House No. 1436, Colorado Street, and
Room No. 304 of the Army-Navy Club, should be included among the premises
considered in said Resolution as residences of herein petitioners, Harry S. Stonehill,
Robert P. Brook, John J. Brooks and Karl Beck, respectively, and that, furthermore, the
records, papers and other effects seized in the offices of the corporations above
referred to include personal belongings of said petitioners and other effects under their
exclusive possession and control, for the exclusion of which they have a standing under
the latest rulings of the federal courts of federal courts of the United States. 22

We note, however, that petitioners' theory, regarding their alleged possession of and
control over the aforementioned records, papers and effects, and the alleged "personal"
nature thereof, has Been Advanced, not in their petition or amended petition herein, but
in the Motion for Reconsideration and Amendment of the Resolution of June 29, 1962.
In other words, said theory would appear to be readjustment of that followed in said
petitions, to suit the approach intimated in the Resolution sought to be reconsidered and
amended. Then, too, some of the affidavits or copies of alleged affidavits attached to
said motion for reconsideration, or submitted in support thereof, contain either
inconsistent allegations, or allegations inconsistent with the theory now advanced by
petitioners herein.

Upon the other hand, we are not satisfied that the allegations of said petitions said
motion for reconsideration, and the contents of the aforementioned affidavits and other
papers submitted in support of said motion, have sufficiently established the facts or
conditions contemplated in the cases relied upon by the petitioners; to warrant
application of the views therein expressed, should we agree thereto. At any rate, we do
not deem it necessary to express our opinion thereon, it being best to leave the matter
open for determination in appropriate cases in the future.

We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is
hereby, abandoned; that the warrants for the search of three (3) residences of herein
petitioners, as specified in the Resolution of June 29, 1962, are null and void; that the
searches and seizures therein made are illegal; that the writ of preliminary injunction
heretofore issued, in connection with the documents, papers and other effects thus
seized in said residences of herein petitioners is hereby made permanent; that the writs
prayed for are granted, insofar as the documents, papers and other effects so seized in
the aforementioned residences are concerned; that the aforementioned motion for
Reconsideration and Amendment should be, as it is hereby, denied; and that the petition
herein is dismissed and the writs prayed for denied, as regards the documents, papers
and other effects seized in the twenty-nine (29) places, offices and other premises
enumerated in the same Resolution, without special pronouncement as to costs.

It is so ordered.

Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.

CASTRO, J., concurring and dissenting:

From my analysis of the opinion written by Chief Justice Roberto Concepcion and from
the import of the deliberations of the Court on this case, I gather the following distinct
conclusions:

1. All the search warrants served by the National Bureau of Investigation in this
case are general warrants and are therefore proscribed by, and in violation of,
paragraph 3 of section 1 of Article III (Bill of Rights) of the Constitution;
 2. All the searches and seizures conducted under the authority of the said search
warrants were consequently illegal;

3. The non-exclusionary rule enunciated in Moncado vs. People, 80 Phil. 1,

should be, and is declared, abandoned;

4. The search warrants served at the three residences of the petitioners are
expressly declared null and void the searches and seizures therein made are
expressly declared illegal; and the writ of preliminary injunction heretofore issued
against the use of the documents, papers and effect seized in the said
residences is made permanent; and

5. Reasoning that the petitioners have not in their pleadings satisfactorily

demonstrated that they have legal standing to move for the suppression of the
documents, papers and effects seized in the places other than the three
residences adverted to above, the opinion written by the Chief Justice refrains
from expressly declaring as null and void the such warrants served at such other
places and as illegal the searches and seizures made therein, and leaves "the
matter open for determination in appropriate cases in the future."

It is precisely the position taken by the Chief Justice summarized in the immediately
preceding paragraph (numbered 5) with which I am not in accord.

I do not share his reluctance or unwillingness to expressly declare, at this time, the
nullity of the search warrants served at places other than the three residences, and the
illegibility of the searches and seizures conducted under the authority thereof. In my
view even the exacerbating passions and prejudices inordinately generated by the
environmental political and moral developments of this case should not deter this Court
from forthrightly laying down the law not only for this case but as well for future cases
and future generations. All the search warrants, without exception, in this case are
admittedly general, blanket and roving warrants and are therefore admittedly and
indisputably outlawed by the Constitution; and the searches and seizures made were
therefore unlawful. That the petitioners, let us assume in gratia argumente, have no
legal standing to ask for the suppression of the papers, things and effects seized from
places other than their residences, to my mind, cannot in any manner affect, alter or
otherwise modify the intrinsic nullity of the search warrants and the intrinsic illegality of
the searches and seizures made thereunder. Whether or not the petitioners possess
legal standing the said warrants are void and remain void, and the searches and
seizures were illegal and remain illegal. No inference can be drawn from the words of
the Constitution that "legal standing" or the lack of it is a determinant of the nullity or
validity of a search warrant or of the lawfulness or illegality of a search or seizure.
On the question of legal standing, I am of the conviction that, upon the pleadings
submitted to this Court the petitioners have the requisite legal standing to move for the
suppression and return of the documents, papers and effects that were seized from
places other than their family residences.

Our constitutional provision on searches and seizures was derived almost verbatim from
the Fourth Amendment to the United States Constitution. In the many years of judicial
construction and interpretation of the said constitutional provision, our courts have
invariably regarded as doctrinal the pronouncement made on the Fourth Amendment by
federal courts, especially the Federal Supreme Court and the Federal Circuit Courts of
Appeals.

The U.S. doctrines and pertinent cases on standing to move for the suppression or
return of documents, papers and effects which are the fruits of an unlawful search and
seizure, may be summarized as follows; (a) ownership of documents, papers and
effects gives "standing;" (b) ownership and/or control or possession actual or
constructive of premises searched gives "standing"; and (c) the "aggrieved person"
doctrine where the search warrant and the sworn application for search warrant are
"primarily" directed solely and exclusively against the "aggrieved person," gives
"standing."

An examination of the search warrants in this case will readily show that, excepting
three, all were directed against the petitioners personally. In some of them, the
petitioners were named personally, followed by the designation, "the President and/or
General Manager" of the particular corporation. The three warrants excepted named
three corporate defendants. But the "office/house/warehouse/premises" mentioned in
the said three warrants were also the same "office/house/warehouse/premises"
declared to be owned by or under the control of the petitioners in all the other search
warrants directed against the petitioners and/or "the President and/or General Manager"
of the particular corporation. (see pages 5-24 of Petitioners' Reply of April 2, 1962). The
searches and seizures were to be made, and were actually made, in the
"office/house/warehouse/premises" owned by or under the control of the petitioners.

Ownership of matters seized gives "standing."

Ownership of the properties seized alone entitles the petitioners to bring a motion to
return and suppress, and gives them standing as persons aggrieved by an unlawful
search and seizure regardless of their location at the time of seizure. Jones vs. United
States, 362 U.S. 257, 261 (1960) (narcotics stored in the apartment of a friend of the
defendant); Henzel vs. United States, 296 F. 2d. 650, 652-53 (5th Cir. 1961), (personal
and corporate papers of corporation of which the defendant was president), United
States vs. Jeffers, 342 U.S. 48 (1951) (narcotics seized in an apartment not belonging
to the defendant); Pielow vs. United States, 8 F. 2d 492, 493 (9th Cir. 1925) (books
seized from the defendant's sister but belonging to the defendant); Cf. Villano vs. United
States, 310 F. 2d 680, 683 (10th Cir. 1962) (papers seized in desk neither owned by nor
in exclusive possession of the defendant).

In a very recent case (decided by the U.S. Supreme Court on December 12, 1966), it
was held that under the constitutional provision against unlawful searches and seizures,
a person places himself or his property within a constitutionally protected area, be it his
home or his office, his hotel room or his automobile:

Where the argument falls is in its misapprehension of the fundamental nature

and scope of Fourth Amendment protection. What the Fourth Amendment
protects is the security a man relies upon when he places himself or his property
within a constitutionally protected area, be it his home or his office, his hotel
room or his automobile. There he is protected from unwarranted governmental
intrusion. And when he puts some thing in his filing cabinet, in his desk drawer, or
in his pocket, he has the right to know it will be secure from an unreasonable
search or an unreasonable seizure. So it was that the Fourth Amendment could
not tolerate the warrantless search of the hotel room in Jeffers, the purloining of
the petitioner's private papers in Gouled, or the surreptitious electronic
surveilance in Silverman. Countless other cases which have come to this Court
over the years have involved a myriad of differing factual contexts in which the
protections of the Fourth Amendment have been appropriately invoked. No
doubt, the future will bring countless others. By nothing we say here do we either
foresee or foreclose factual situations to which the Fourth Amendment may be
applicable. (Hoffa vs. U.S., 87 S. Ct. 408 (December 12, 1966). See also U.S.
vs. Jeffers, 342 U.S. 48, 72 S. Ct. 93 (November 13, 1951). (Emphasis supplied).

Control of premises searched gives "standing."

Independent of ownership or other personal interest in the records and documents

seized, the petitioners have standing to move for return and suppression by virtue of
their proprietary or leasehold interest in many of the premises searched. These
proprietary and leasehold interests have been sufficiently set forth in their motion for
reconsideration and need not be recounted here, except to emphasize that the
petitioners paid rent, directly or indirectly, for practically all the premises searched
(Room 91, 84 Carmen Apts; Room 304, Army & Navy Club; Premises 2008, Dewey
Boulevard; 1436 Colorado Street); maintained personal offices within the corporate
offices (IBMC, USTC); had made improvements or furnished such offices; or had paid
for the filing cabinets in which the papers were stored (Room 204, Army & Navy Club);
and individually, or through their respective spouses, owned the controlling stock of the
corporations involved. The petitioners' proprietary interest in most, if not all, of the
premises searched therefore independently gives them standing to move for the return
and suppression of the books, papers and affects seized therefrom.

In Jones vs. United States, supra, the U.S. Supreme Court delineated the nature and
extent of the interest in the searched premises necessary to maintain a motion to
suppress. After reviewing what it considered to be the unduly technical standard of the
then prevailing circuit court decisions, the Supreme Court said (362 U.S. 266):

We do not lightly depart from this course of decisions by the lower courts. We are
persuaded, however, that it is unnecessarily and ill-advised to import into the law
surrounding the constitutional right to be free from unreasonable searches and
seizures subtle distinctions, developed and refined by the common law in
evolving the body of private property law which, more than almost any other
branch of law, has been shaped by distinctions whose validity is largely historical.
Even in the area from which they derive, due consideration has led to the
discarding of those distinctions in the homeland of the common law. See
Occupiers' Liability Act, 1957, 5 and 6 Eliz. 2, c. 31, carrying out Law Reform
Committee, Third Report, Cmd. 9305. Distinctions such as those between
"lessee", "licensee," "invitee," "guest," often only of gossamer strength, ought not
be determinative in fashioning procedures ultimately referable to constitutional
safeguards. See also Chapman vs. United States, 354 U.S. 610, 616-17 (1961).

It has never been held that a person with requisite interest in the premises searched
must own the property seized in order to have standing in a motion to return and
suppress. In Alioto vs. United States, 216 F. Supp. 48 (1963), a Bookkeeper for several
corporations from whose apartment the corporate records were seized successfully
moved for their return. In United States vs. Antonelli, Fireworks Co., 53 F. Supp. 870,
873 (W D. N. Y. 1943), the corporation's president successfully moved for the return and
suppression is to him of both personal and corporate documents seized from his home
during the course of an illegal search:

The lawful possession by Antonelli of documents and property, "either his own or
the corporation's was entitled to protection against unreasonable search and
seizure. Under the circumstances in the case at bar, the search and seizure were
unreasonable and unlawful. The motion for the return of seized article and the
suppression of the evidence so obtained should be granted. (Emphasis
supplied).
Time was when only a person who had property in interest in either the place searched
or the articles seize had the necessary standing to invoke the protection of the
exclusionary rule. But in MacDonald vs. Unite States, 335 U.S. 461 (1948), Justice
Robert Jackson joined by Justice Felix Frankfurter, advanced the view that "even a
guest may expect the shelter of the rooftree he is under against criminal intrusion." This
view finally became the official view of the U.S. Supreme Court and was articulated in
United States vs. Jeffers, 432 U.S 48 (1951). Nine years later, in 1960, in Jones vs.
Unite States, 362 U.S. 257, 267, the U.S. Supreme Court went a step further. Jones
was a mere guest in the apartment unlawfully searched but the Court nonetheless
declared that the exclusionary rule protected him as well. The concept of "person
aggrieved by an unlawful search and seizure" was enlarged to include "anyone
legitimately on premise where the search occurs."

Shortly after the U.S. Supreme Court's Jones decision the U.S. Court of Appeals for the
Fifth Circuit held that the defendant organizer, sole stockholder and president of a
corporation had standing in a mail fraud prosecution against him to demand the return
and suppression of corporate property. Henzel vs. United States, 296 F 2d 650, 652
(5th Cir. 1961), supra. The court conclude that the defendant had standing on two
independent grounds: First he had a sufficient interest in the property seized, and
second he had an adequate interest in the premises searched (just like in the case at
bar). A postal inspector had unlawfully searched the corporation' premises and had
seized most of the corporation's book and records. Looking to Jones, the court
observed:

Jones clearly tells us, therefore, what is not required qualify one as a "person
aggrieved by an unlawful search and seizure." It tells us that appellant should not
have been precluded from objecting to the Postal Inspector's search and seizure
of the corporation's books and records merely because the appellant did not
show ownership or possession of the books and records or a substantial
possessory interest in the invade premises . . . (Henzel vs. United States, 296 F.
2d at 651). .

Henzel was soon followed by Villano vs. United States, 310 F. 2d 680, 683, (10th Cir.
1962). In Villano, police officers seized two notebooks from a desk in the defendant's
place of employment; the defendant did not claim ownership of either; he asserted that
several employees (including himself) used the notebooks. The Court held that the
employee had a protected interest and that there also was an invasion of privacy. Both
Henzel and Villano considered also the fact that the search and seizure were "directed
at" the moving defendant. Henzel vs. United States, 296 F. 2d at 682; Villano vs. United
States, 310 F. 2d at 683.
In a case in which an attorney closed his law office, placed his files in storage and went
to Puerto Rico, the Court of Appeals for the Eighth Circuit recognized his standing to
move to quash as unreasonable search and seizure under the Fourth Amendment of
the U.S. Constitution a grand jury subpoena duces tecum directed to the custodian of
his files. The Government contended that the petitioner had no standing because the
books and papers were physically in the possession of the custodian, and because the
subpoena was directed against the custodian. The court rejected the contention, holding
that

Schwimmer legally had such possession, control and unrelinquished personal

rights in the books and papers as not to enable the question of unreasonable
search and seizure to be escaped through the mere procedural device of
compelling a third-party naked possessor to produce and deliver them.
Schwimmer vs. United States, 232 F. 2d 855, 861 (8th Cir. 1956).

Aggrieved person doctrine where the search warrant s primarily directed against said
person gives "standing."

The latest United States decision squarely in point is United States vs. Birrell, 242 F.
Supp. 191 (1965, U.S.D.C. S.D.N.Y.). The defendant had stored with an attorney certain
files and papers, which attorney, by the name of Dunn, was not, at the time of the
seizing of the records, Birrell's attorney. * Dunn, in turn, had stored most of the records
at his home in the country and on a farm which, according to Dunn's affidavit, was under
his (Dunn's) "control and management." The papers turned out to be private, personal
and business papers together with corporate books and records of certain unnamed
corporations in which Birrell did not even claim ownership. (All of these type records
were seized in the case at bar). Nevertheless, the search in Birrell was held invalid by
the court which held that even though Birrell did not own the premises where the
records were stored, he had "standing" to move for the return of all the papers and
properties seized. The court, relying on Jones vs. U.S., supra; U.S. vs. Antonelli
Fireworks Co., 53 F. Supp. 870, Aff'd 155 F. 2d 631: Henzel vs. U.S., supra; and
Schwimmer vs. U.S., supra, pointed out that

It is overwhelmingly established that the searches here in question were directed

solely and exclusively against Birrell. The only person suggested in the papers as
having violated the law was Birrell. The first search warrant described the records
as having been used "in committing a violation of Title 18, United States Code,
Section 1341, by the use of the mails by one Lowell M. Birrell, . . ." The second
search warrant was captioned: "United States of America vs. Lowell M. Birrell. (p.
198)
 Possession (actual or constructive), no less than ownership, gives standing to
move to suppress. Such was the rule even before Jones. (p. 199)

If, as thus indicated Birrell had at least constructive possession of the records
stored with Dunn, it matters not whether he had any interest in the premises
searched. See also Jeffers v. United States, 88 U.S. Appl. D.C. 58, 187 F. 2d 498
(1950), affirmed 432 U.S. 48, 72 S. Ct. 93, 96 L. Ed. 459 (1951).

The ruling in the Birrell case was reaffirmed on motion for reargument; the United States
did not appeal from this decision. The factual situation in Birrell is strikingly similar to the
case of the present petitioners; as in Birrell, many personal and corporate papers were
seized from premises not petitioners' family residences; as in Birrell, the searches were
"PRIMARILY DIRECTED SOLETY AND EXCLUSIVELY" against the petitioners. Still
both types of documents were suppressed in Birrell because of the illegal search. In the
case at bar, the petitioners connection with the premises raided is much closer than in
Birrell.

Thus, the petitioners have full standing to move for the quashing of all the warrants
regardless whether these were directed against residences in the narrow sense of the
word, as long as the documents were personal papers of the petitioners or (to the extent
that they were corporate papers) were held by them in a personal capacity or under
their personal control.

Prescinding a from the foregoing, this Court, at all events, should order the return to the
petitioners all personal and private papers and effects seized, no matter where these
were seized, whether from their residences or corporate offices or any other place or
places. The uncontradicted sworn statements of the petitioners in their, various
pleadings submitted to this Court indisputably show that amongst the things seized from
the corporate offices and other places were personal and private papers and effects
belonging to the petitioners.

If there should be any categorization of the documents, papers and things which where
the objects of the unlawful searches and seizures, I submit that the grouping should be:
(a) personal or private papers of the petitioners were they were unlawfully seized, be it
their family residences offices, warehouses and/or premises owned and/or possessed
(actually or constructively) by them as shown in all the search and in the sworn
applications filed in securing the void search warrants and (b) purely corporate papers
belonging to corporations. Under such categorization or grouping, the determination of
which unlawfully seized papers, documents and things are personal/private of the
petitioners or purely corporate papers will have to be left to the lower courts which
issued the void search warrants in ultimately effecting the suppression and/or return of
the said documents.

And as unequivocally indicated by the authorities above cited, the petitioners likewise
have clear legal standing to move for the suppression of purely corporate papers as
"President and/or General Manager" of the corporations involved as specifically
mentioned in the void search warrants.

Finally, I must articulate my persuasion that although the cases cited in my disquisition
were criminal prosecutions, the great clauses of the constitutional proscription on illegal
searches and seizures do not withhold the mantle of their protection from cases not
criminal in origin or nature.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-64261 December 26, 1984

JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS
MEDIA SERVICES, INC., petitioners,
vs.
THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF,
PHILIPPINE CONSTABULARY, THE CHIEF LEGAL OFFICER, PRESIDENTIAL
SECURITY COMMAND, THE JUDGE ADVOCATE GENERAL, ET AL., respondents.

Lorenzo M. Taada, Wigberto E. Taada, Martiniano Vivo, Augusto Sanchez, Joker P.

Arroyo, Jejomar Binay and Rene Saguisag for petitioners.

The Solicitor General for respondents.

ESCOLIN, J.:

Assailed in this petition for certiorari prohibition and mandamus with preliminary
mandatory and prohibitory injunction is the validity of two [2] search warrants issued on
December 7, 1982 by respondent Judge Ernani Cruz-Pano, Executive Judge of the then
Court of First Instance of Rizal [Quezon City], under which the premises known as No.
19, Road 3, Project 6, Quezon City, and 784 Units C & D, RMS Building, Quezon
Avenue, Quezon City, business addresses of the "Metropolitan Mail" and "We Forum"
newspapers, respectively, were searched, and office and printing machines, equipment,
paraphernalia, motor vehicles and other articles used in the printing, publication and
distribution of the said newspapers, as well as numerous papers, documents, books
and other written literature alleged to be in the possession and control of petitioner Jose
Burgos, Jr. publisher-editor of the "We Forum" newspaper, were seized.
Petitioners further pray that a writ of preliminary mandatory and prohibitory injunction be
issued for the return of the seized articles, and that respondents, "particularly the Chief
Legal Officer, Presidential Security Command, the Judge Advocate General, AFP, the
City Fiscal of Quezon City, their representatives, assistants, subalterns, subordinates,
substitute or successors" be enjoined from using the articles thus seized as evidence
against petitioner Jose Burgos, Jr. and the other accused in Criminal Case No. Q-
022782 of the Regional Trial Court of Quezon City, entitled People v. Jose Burgos, Jr. et
al. 1

In our Resolution dated June 21, 1983, respondents were required to answer the
petition. The plea for preliminary mandatory and prohibitory injunction was set for
hearing on June 28, 1983, later reset to July 7, 1983, on motion of the Solicitor General
in behalf of respondents.

At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners' prayer
for a writ of preliminary mandatory injunction, manifested that respondents "will not use
the aforementioned articles as evidence in the aforementioned case until final resolution
of the legality of the seizure of the aforementioned articles. ..." 2 With this manifestation,
the prayer for preliminary prohibitory injunction was rendered moot and academic.

Respondents would have this Court dismiss the petition on the ground that petitioners
had come to this Court without having previously sought the quashal of the search
warrants before respondent judge. Indeed, petitioners, before impugning the validity of
the warrants before this Court, should have filed a motion to quash said warrants in the
court that issued them. 3 But this procedural flaw notwithstanding, we take cognizance
of this petition in view of the seriousness and urgency of the constitutional issues raised
not to mention the public interest generated by the search of the "We Forum" offices,
which was televised in Channel 7 and widely publicized in all metropolitan dailies. The
existence of this special circumstance justifies this Court to exercise its inherent power
to suspend its rules. In the words of the revered Mr. Justice Abad Santos in the case of
C. Vda. de Ordoveza v. Raymundo, 4 "it is always in the power of the court [Supreme
Court] to suspend its rules or to except a particular case from its operation, whenever
the purposes of justice require it...".

Respondents likewise urge dismissal of the petition on ground of laches. Considerable

stress is laid on the fact that while said search warrants were issued on December 7,
1982, the instant petition impugning the same was filed only on June 16, 1983 or after
the lapse of a period of more than six [6] months.

Laches is failure or negligence for an unreasonable and unexplained length of time to

do that which, by exercising due diligence, could or should have been done earlier. It is
negligence or omission to assert a right within a reasonable time, warranting a
presumption that the party entitled to assert it either has abandoned it or declined to
assert it. 5

Petitioners, in their Consolidated Reply, explained the reason for the delay in the filing of
the petition thus:
 Respondents should not find fault, as they now do [p. 1, Answer, p. 3,
Manifestation] with the fact that the Petition was filed on June 16, 1983,
more than half a year after the petitioners' premises had been raided.

The climate of the times has given petitioners no other choice. If they had
waited this long to bring their case to court, it was because they tried at
first to exhaust other remedies. The events of the past eleven fill years
had taught them that everything in this country, from release of public
funds to release of detained persons from custody, has become a matter
of executive benevolence or largesse

Hence, as soon as they could, petitioners, upon suggestion of persons

close to the President, like Fiscal Flaminiano, sent a letter to President
Marcos, through counsel Antonio Coronet asking the return at least of the
printing equipment and vehicles. And after such a letter had been sent,
through Col. Balbino V. Diego, Chief Intelligence and Legal Officer of the
Presidential Security Command, they were further encouraged to hope
that the latter would yield the desired results.

After waiting in vain for five [5] months, petitioners finally decided to come
to Court. [pp. 123-124, Rollo]

Although the reason given by petitioners may not be flattering to our judicial system, We
find no ground to punish or chastise them for an error in judgment. On the contrary, the
extrajudicial efforts exerted by petitioners quite evidently negate the presumption that
they had abandoned their right to the possession of the seized property, thereby refuting
the charge of laches against them.

Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used and
marked as evidence some of the seized documents in Criminal Case No. Q- 022872, he
is now estopped from challenging the validity of the search warrants. We do not follow
the logic of respondents. These documents lawfully belong to petitioner Jose Burgos, Jr.
and he can do whatever he pleases with them, within legal bounds. The fact that he has
used them as evidence does not and cannot in any way affect the validity or invalidity of
the search warrants assailed in this petition.

Several and diverse reasons have been advanced by petitioners to nullify the search
warrants in question.

1. Petitioners fault respondent judge for his alleged failure to conduct an examination
under oath or affirmation of the applicant and his witnesses, as mandated by the above-
quoted constitutional provision as wen as Sec. 4, Rule 126 of the Rules of Court . 6 This
objection, however, may properly be considered moot and academic, as petitioners
themselves conceded during the hearing on August 9, 1983, that an examination had
indeed been conducted by respondent judge of Col. Abadilla and his witnesses.

2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two distinct
places: No. 19, Road 3, Project 6, Quezon City and 784 Units C & D, RMS Building,
Quezon Avenue, Quezon City, respectively. Objection is interposed to the execution of
Search Warrant No. 20-82[b] at the latter address on the ground that the two search
warrants pinpointed only one place where petitioner Jose Burgos, Jr. was allegedly
keeping and concealing the articles listed therein, i.e., No. 19, Road 3, Project 6,
Quezon City. This assertion is based on that portion of Search Warrant No. 20- 82[b]
which states:

Which have been used, and are being used as instruments and means of
committing the crime of subversion penalized under P.D. 885 as amended
and he is keeping and concealing the same at 19 Road 3, Project 6,
Quezon City.

The defect pointed out is obviously a typographical error. Precisely, two search warrants
were applied for and issued because the purpose and intent were to search two distinct
premises. It would be quite absurd and illogical for respondent judge to have issued two
warrants intended for one and the same place. Besides, the addresses of the places
sought to be searched were specifically set forth in the application, and since it was Col.
Abadilla himself who headed the team which executed the search warrants, the
ambiguity that might have arisen by reason of the typographical error is more apparent
than real. The fact is that the place for which Search Warrant No. 20- 82[b] was applied
for was 728 Units C & D, RMS Building, Quezon Avenue, Quezon City, which address
appeared in the opening paragraph of the said warrant. 7 Obviously this is the same
place that respondent judge had in mind when he issued Warrant No. 20-82 [b].

In the determination of whether a search warrant describes the premises to be searched

with sufficient particularity, it has been held "that the executing officer's prior knowledge
as to the place intended in the warrant is relevant. This would seem to be especially
true where the executing officer is the affiant on whose affidavit the warrant had issued,
and when he knows that the judge who issued the warrant intended the building
described in the affidavit, And it has also been said that the executing officer may look to
the affidavit in the official court file to resolve an ambiguity in the warrant as to the place
to be searched." 8
3. Another ground relied upon to annul the search warrants is the fact that although the
warrants were directed against Jose Burgos, Jr. alone, articles b belonging to his co-
petitioners Jose Burgos, Sr., Bayani Soriano and the J. Burgos Media Services, Inc.
were seized.

Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may
be seized under a search warrant, to wit:

Sec. 2. Personal Property to be seized. A search warrant may be

issued for the search and seizure of the following personal property:

[a] Property subject of the offense;

[b] Property stolen or embezzled and other proceeds or fruits

of the offense; and

[c] Property used or intended to be used as the means of

committing an offense.

The above rule does not require that the property to be seized should be owned by the
person against whom the search warrant is directed. It may or may not be owned by
him. In fact, under subsection [b] of the above-quoted Section 2, one of the properties
that may be seized is stolen property. Necessarily, stolen property must be owned by
one other than the person in whose possession it may be at the time of the search and
seizure. Ownership, therefore, is of no consequence, and it is sufficient that the person
against whom the warrant is directed has control or possession of the property sought
to be seized, as petitioner Jose Burgos, Jr. was alleged to have in relation to the articles
and property seized under the warrants.

4. Neither is there merit in petitioners' assertion that real properties were seized under
the disputed warrants. Under Article 415[5] of the Civil Code of the Philippines,
"machinery, receptables, instruments or implements intended by the owner of the
tenement for an industry or works which may be carried on in a building or on a piece of
land and which tend directly to meet the needs of the said industry or works" are
considered immovable property. In Davao Sawmill Co. v. Castillo 9 where this legal
provision was invoked, this Court ruled that machinery which is movable by nature
becomes immobilized when placed by the owner of the tenement, property or plant, but
not so when placed by a tenant, usufructuary, or any other person having only a
temporary right, unless such person acted as the agent of the owner.
In the case at bar, petitioners do not claim to be the owners of the land and/or building
on which the machineries were placed. This being the case, the machineries in
question, while in fact bolted to the ground remain movable property susceptible to
seizure under a search warrant.

5. The questioned search warrants were issued by respondent judge upon application
of Col. Rolando N. Abadilla Intelligence Officer of the P.C. Metrocom. 10 The application
was accompanied by the Joint Affidavit of Alejandro M. Gutierrez and Pedro U. Tango,
11 members of the Metrocom Intelligence and Security Group under Col. Abadilla which
conducted a surveillance of the premises prior to the filing of the application for the
search warrants on December 7, 1982.

It is contended by petitioners, however, that the abovementioned documents could not

have provided sufficient basis for the finding of a probable cause upon which a warrant
may validly issue in accordance with Section 3, Article IV of the 1973 Constitution which
provides:

SEC. 3. ... and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined by the judge, or such other
responsible officer as may be authorized by law, after examination under
oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the persons or
things to be seized.

We find petitioners' thesis impressed with merit. Probable cause for a search is defined
as such facts and circumstances which would lead a reasonably 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. And when the
search warrant applied for is directed against a newspaper publisher or editor in
connection with the publication of subversive materials, as in the case at bar, the
application and/or its supporting affidavits must contain a specification, stating with
particularity the alleged subversive material he has published or is intending to publish.
Mere generalization will not suffice. Thus, the broad statement in Col. Abadilla's
application that petitioner "is in possession or has in his control printing equipment and
other paraphernalia, news publications and other documents which were used and are
all continuously being used as a means of committing the offense of subversion
punishable under Presidential Decree 885, as amended ..." 12 is a mere conclusion of
law and does not satisfy the requirements of probable cause. Bereft of such particulars
as would justify a finding of the existence of probable cause, said allegation cannot
serve as basis for the issuance of a search warrant and it was a grave error for
respondent judge to have done so.
Equally insufficient as basis for the determination of probable cause is the statement
contained in the joint affidavit of Alejandro M. Gutierrez and Pedro U. Tango, "that the
evidence gathered and collated by our unit clearly shows that the premises above-
mentioned and the articles and things above-described were used and are continuously
being used for subversive activities in conspiracy with, and to promote the objective of,
illegal organizations such as the Light-a-Fire Movement, Movement for Free Philippines,
and April 6 Movement." 13

In mandating that "no warrant shall issue except upon probable cause to be determined
by the judge, ... after examination under oath or affirmation of the complainant and the
witnesses he may produce; 14 the Constitution requires no less than personal
knowledge by the complainant or his witnesses of the facts upon which the issuance of
a search warrant may be justified. In Alvarez v. Court of First Instance, 15 this Court
ruled that "the oath required must refer to the truth of the facts within the personal
knowledge of the petitioner or his witnesses, because the purpose thereof is to convince
the committing magistrate, not the individual making the affidavit and seeking the
issuance of the warrant, of the existence of probable cause." As couched, the quoted
averment in said joint affidavit filed before respondent judge hardly meets the test of
sufficiency established by this Court in Alvarez case.

Another factor which makes the search warrants under consideration constitutionally
objectionable is that they are in the nature of general warrants. The search warrants
describe the articles sought to be seized in this wise:

1] All printing equipment, paraphernalia, paper, ink, photo (equipment,

typewriters, cabinets, tables, communications/recording equipment, tape
recorders, dictaphone and the like used and/or connected in the printing of
the "WE FORUM" newspaper and any and all documents communication,
letters and facsimile of prints related to the "WE FORUM" newspaper.

2] Subversive documents, pamphlets, leaflets, books, and other

publication to promote the objectives and piurposes of the subversive
organization known as Movement for Free Philippines, Light-a-Fire
Movement and April 6 Movement; and,

3] Motor vehicles used in the distribution/circulation of the "WE FORUM"

and other subversive materials and propaganda, more particularly,

1] Toyota-Corolla, colored yellow with Plate No. NKA 892;

2] DATSUN pick-up colored white with Plate No. NKV 969

 3] A delivery truck with Plate No. NBS 524;

4] TOYOTA-TAMARAW, colored white with Plate No. PBP

665; and,

5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427

with marking "Bagong Silang."

In Stanford v. State of Texas 16 the search warrant which authorized the search for
"books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and
other written instruments concerning the Communist Party in Texas," was declared void
by the U.S. Supreme Court for being too general. In like manner, directions to "seize
any evidence in connectionwith the violation of SDC 13-3703 or otherwise" have been
held too general, and that portion of a search warrant which authorized the seizure of
any "paraphernalia which could be used to violate Sec. 54-197 of the Connecticut
General Statutes [the statute dealing with the crime of conspiracy]" was held to be a
general warrant, and therefore invalid. 17 The description of the articles sought to be
seized under the search warrants in question cannot be characterized differently.

In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in
English history: the era of disaccord between the Tudor Government and the English
Press, when "Officers of the Crown were given roving commissions to search where
they pleased in order to suppress and destroy the literature of dissent both Catholic and
Puritan Reference herein to such historical episode would not be relevant for it is not the
policy of our government to suppress any newspaper or publication that speaks with
"the voice of non-conformity" but poses no clear and imminent danger to state security.

As heretofore stated, the premises searched were the business and printing offices of
the "Metropolitan Mail" and the "We Forum newspapers. As a consequence of the
search and seizure, these premises were padlocked and sealed, with the further result
that the printing and publication of said newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the

freedom of the press guaranteed under the fundamental law, 18 and constitutes a virtual
denial of petitioners' freedom to express themselves in print. This state of being is
patently anathematic to a democratic framework where a free, alert and even militant
press is essential for the political enlightenment and growth of the citizenry.

Respondents would justify the continued sealing of the printing machines on the ground
that they have been sequestered under Section 8 of Presidential Decree No. 885, as
amended, which authorizes "the sequestration of the property of any person, natural or
artificial, engaged in subversive activities against the government and its duly
constituted authorities ... in accordance with implementing rules and regulations as may
be issued by the Secretary of National Defense." It is doubtful however, if sequestration
could validly be effected in view of the absence of any implementing rules and
regulations promulgated by the Minister of National Defense.

Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no
less than President Marcos himself denied the request of the military authorities to
sequester the property seized from petitioners on December 7, 1982. Thus:

The President denied a request flied by government prosecutors for

sequestration of the WE FORUM newspaper and its printing presses,
according to Information Minister Gregorio S. Cendana.

On the basis of court orders, government agents went to the We Forum

offices in Quezon City and took a detailed inventory of the equipment and
all materials in the premises.

Cendaa said that because of the denial the newspaper and its equipment
remain at the disposal of the owners, subject to the discretion of the court.
19

That the property seized on December 7, 1982 had not been sequestered is further
confirmed by the reply of then Foreign Minister Carlos P. Romulo to the letter dated
February 10, 1983 of U.S. Congressman Tony P. Hall addressed to President Marcos,
expressing alarm over the "WE FORUM " case. 20 In this reply dated February 11, 1983,
Minister Romulo stated:

2. Contrary to reports, President Marcos turned down the recommendation

of our authorities to close the paper's printing facilities and confiscate the
equipment and materials it uses. 21

IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b] issued by
respondent judge on December 7, 1982 are hereby declared null and void and are
accordingly set aside. The prayer for a writ of mandatory injunction for the return of the
seized articles is hereby granted and all articles seized thereunder are hereby ordered
released to petitioners. No costs.

SO ORDERED.

Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana,

Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur.
Aquino, J., took no part.

Separate Opinions

ABAD SANTOS, J., concurring

I am glad to give my concurrence to the ponencia of Mr. Justice Escolin At the same
time I wish to state my own reasons for holding that the search warrants which are the
subject of the petition are utterly void.

The action against "WE FORUM" was a naked suppression of press freedom for the
search warrants were issued in gross violation of the Constitution.

The Constitutional requirement which is expressed in Section 3, Article IV, stresses two
points, namely: "(1) that no warrant shall issue but upon probable cause, to be
determined by the judge in the manner set forth in said provision; and (2) that the
warrant shall particularly describe the things to be seized." (Stonehill vs. Diokno, 126
Phil. 738, 747: 20 SCRA 383 [1967].)

Any search warrant is conducted in disregard of the points mentioned above will result
in wiping "out completely one of the most fundamental rights guaranteed in our
Constitution, for it would place the sanctity of the domicile and the privacy of
communication and correspondence at the mercy of the whims caprice or passion of
peace officers." (Ibid, p. 748.)

The two search warrants were issued without probable cause. To satisfy the
requirement of probable cause a specific offense must be alleged in the application;
abstract averments will not suffice. In the case at bar nothing specifically subversive has
been alleged; stated only is the claim that certain objects were being used as
instruments and means of committing the offense of subversion punishable under P.D.
No. 885, as amended. There is no mention of any specific provision of the decree. I n
the words of Chief Justice C Concepcion, " It would be legal heresy of the highest order,
to convict anybody" of violating the decree without reference to any determinate
provision thereof.
The search warrants are also void for lack of particularity. Both search warrants
authorize Col. Rolando Abadilla to seize and take possession, among other things, of
the following:

Subversive documents, pamphlets, leaflets, books and other publication to

promote the objectives and purposes of the subversive organizations
known as Movement for Free Philippines, Light-a-Fire Movement and April
6 Movement.

The obvious question is: Why were the documents, pamphlets, leaflets, books, etc.
subversive? What did they contain to make them subversive? There is nothing in the
applications nor in the warrants which answers the questions. I must, therefore,
conclude that the warrants are general warrants which are obnoxious to the
Constitution.

In point of fact, there was nothing subversive published in the WE FORUM just as there
is nothing subversive which has been published in MALAYA which has replaced the
former and has the same content but against which no action has been taken.

Conformably with existing jurisprudence everything seized pursuant to the warrants

should be returned to the owners and all of the items are subject to the exclusionary
rule of evidence.

Teehankee, J., concur.

Separate Opinions

ABAD SANTOS, J., concurring

I am glad to give my concurrence to the ponencia of Mr. Justice Escolin At the same
time I wish to state my own reasons for holding that the search warrants which are the
subject of the petition are utterly void.

The action against "WE FORUM" was a naked suppression of press freedom for the
search warrants were issued in gross violation of the Constitution.

The Constitutional requirement which is expressed in Section 3, Article IV, stresses two
points, namely: "(1) that no warrant shall issue but upon probable cause, to be
determined by the judge in the manner set forth in said provision; and (2) that the
warrant shall particularly describe the things to be seized." (Stonehill vs. Diokno, 126
Phil. 738, 747: 20 SCRA 383 [1967].)

Any search warrant is conducted in disregard of the points mentioned above will result
in wiping "out completely one of the most fundamental rights guaranteed in our
Constitution, for it would place the sanctity of the domicile and the privacy of
communication and correspondence at the mercy of the whims caprice or passion of
peace officers." (Ibid, p. 748.)

The two search warrants were issued without probable cause. To satisfy the
requirement of probable cause a specific offense must be alleged in the application;
abstract averments will not suffice. In the case at bar nothing specifically subversive has
been alleged; stated only is the claim that certain objects were being used as
instruments and means of committing the offense of subversion punishable under P.D.
No. 885, as amended. There is no mention of any specific provision of the decree. I n
the words of Chief Justice C Concepcion, " It would be legal heresy of the highest order,
to convict anybody" of violating the decree without reference to any determinate
provision thereof.

The search warrants are also void for lack of particularity. Both search warrants
authorize Col. Rolando Abadilla to seize and take possession, among other things, of
the following:

Subversive documents, pamphlets, leaflets, books and other publication to

promote the objectives and purposes of the subversive organizations
known as Movement for Free Philippines, Light-a-Fire Movement and April
6 Movement.

The obvious question is: Why were the documents, pamphlets, leaflets, books, etc.
subversive? What did they contain to make them subversive? There is nothing in the
applications nor in the warrants which answers the questions. I must, therefore,
conclude that the warrants are general warrants which are obnoxious to the
Constitution.

In point of fact, there was nothing subversive published in the WE FORUM just as there
is nothing subversive which has been published in MALAYA which has replaced the
former and has the same content but against which no action has been taken.
Conformably with existing jurisprudence everything seized pursuant to the warrants
should be returned to the owners and all of the items are subject to the exclusionary
rule of evidence.

Teehankee, J., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-69401 June 23, 1987

RIZAL ALIH, NASIM ALIH, AISAN ALIH, MIJAL ALIH, OMAR ALIH, EDRIS MUKSAN,
MULSIDI WARADIL, BILLY ASMAD RAMSID ASALI, BANDING USMAN, ANGGANG
HADANI, WARMIKHAN HAPA, GABRAL JIKIRI, ALLAN TAN, MUJAHIRIN
MARAJUKI, KENNEDY GONZALES, URDUJA ALIH, MERLA ALIH, and NURAISA
ALIH VDA DE FEROLINO, petitioners,
vs.
MAJOR GENERAL DELFIN C. CASTRO, IN HIS CAPACITY AS COMMANDER
SOUTHCOM AND REGIONAL UNIFIED COMMAND, REGION IX, ZAMBOANGA
CITY, COLONEL ERNESTO CALUPIG, IN HIS CAPACITY AS COMMANDING
OFFICER OF THE SPECIAL FORCES GROUP (AIRBORNE) AND INTERNAL
DEFENSE COMMAND, OTHERWISE KNOWN AS IdC MAJOR ARNOLD BLANCO IN
HIS CAPACITY AS COMMANDING OFFICER OF THE PHILIPPINE MARINES AND
1ST LIEUTENANT DARWIN GUERRA IN HIS CAPACITY AS ACTS SUPERVISOR,
INTERNAL DEFENSE COMMAND, ARMED FORCES OF THE PHILIPPINES,
respondents.

CRUZ, J.:

On November 25, 1984, a contingent of more than two hundred Philippine marines and
elements of the home defense forces raided the compound occupied by the petitioners
at Gov. Alvarez street, Zamboanga City, in search of loose firearms, ammunition and
other explosives. 1
The military operation was commonly known and dreaded as a "zona," which was not
unlike the feared practice of the kempeitai during the Japanese Occupation of rounding
up the people in a locality, arresting the persons fingered by a hooded informer, and
executing them outright (although the last part is not included in the modern
refinement).
The initial reaction of the people inside the compound was to resist the invasion with a
burst of gunfire. No one was hurt as presumably the purpose was merely to warn the
intruders and deter them from entering. Unfortunately, as might be expected in incidents
like this, the situation aggravated soon enough. The soldiers returned fire and a bloody
shoot-out ensued, resulting in a number of casualties. 2

The besieged compound surrendered the following morning, and sixteen male
occupants were arrested, later to be finger-printed, paraffin-tested and photographed
over their objection. The military also inventoried and confiscated nine M16 rifles, one
3
M14 rifle, nine rifle grenades, and several rounds of ammunition found in the premises.
On December 21, 1984, the petitioners came to this Court in a petition for prohibition
and mandamus with preliminary injunction and restraining order. Their purpose was to
recover the articles seized from them, to prevent these from being used as evidence
against them, and to challenge their finger-printing, photographing and paraffin-testing
as violative of their right against self-incrimination. 4

The Court, treating the petition as an injunction suit with a prayer for the return of the
articles alleged to have been illegally seized, referred it for hearing to Judge Omar U.
Amin of the regional trial court, Zamboanga City. 5 After receiving the testimonial and
documentary evidence of the parties, he submitted the report and recommendations on
which this opinion is based. 6

The petitioners demand the return of the arms and ammunition on the ground that they
were taken without a search warrant as required by the Bill of Rights. This is confirmed
by the said report and in fact admitted by the respondents, "but with avoidance. 7

Article IV, Section 3, of the 1973 Constitution, which was in force at the time of the
incident in question, provided as follows:

Sec. 3. The right of the people to be secure in their persons, houses,

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

It was also declared in Article IV, Section 4(2) that-

Sec. 4(2) Any evidence obtained in violation of this or the preceding

section shall be inadmissible for any purpose in any proceeding.
The respondents, while admitting the absence of the required such warrant, sought to
justify their act on the ground that they were acting under superior orders. 8 There was
also the suggestion that the measure was necessary because of the aggravation of the
peace and order problem generated by the assassination of Mayor Cesar Climaco. 9

Superior orders" cannot, of course, countermand the Constitution. The fact

that the petitioners were suspected of the Climaco killing did not excuse
the constitutional short-cuts the respondents took. As eloquently affirmed
by the U.S. Supreme Court in Ex parte Milligan: 10

The Constitution is a law for rulers and people, equally in war and in
peace, and covers with the shield of its protection all classes of men, at all
times and under all circumstances. No doctrine, involving more pernicious
consequences, was ever invented by the wit of man than that any of its
provisions can be suspended during any of the great exigencies of
government.

The precarious state of lawlessness in Zamboanga City at the time in question certainly
did not excuse the non-observance of the constitutional guaranty against unreasonable
searches and seizures. There was no state of hostilities in the area to justify, assuming
it could, the repressions committed therein against the petitioners.

It is so easy to say that the petitioners were outlaws and deserved the arbitrary
treatment they received to take them into custody; but that is a criminal argument. It is
also fallacious. Its obvious flaw lies in the conclusion that the petitioners were
unquestionably guilty on the strength alone of unsubstantiated reports that they were
stockpiling weapons.

The record does not disclose that the petitioners were wanted criminals or fugitives from
justice. At the time of the "zona," they were merely suspected of the mayor's slaying and
had not in fact even been investigated for it. As mere suspects, they were presumed
innocent and not guilty as summarily pronounced by the military.

Indeed, even if were assumed for the sake of argument that they were guilty, they would
not have been any less entitled to the protection of the Constitution, which covers both
the innocent and the guilty. This is not to say, of course, that the Constitution coddles
criminals. What it does simply signify is that, lacking the shield of innocence, the guilty
need the armor of the Constitution, to protect them, not from a deserved sentence, but
from arbitrary punishment. Every person is entitled to due process. It is no exaggeration
that the basest criminal, ranged against the rest of the people who would condemn him
outright, is still, under the Bill of Rights, a majority of one.
If the respondents did not actually disdain the Constitution when they made their illegal
raid, they certainly gave every appearance of doing so. This is truly regrettable for it was
incumbent on them, especially during those tense and tindery times, to encourage
rather than undermine respect for the law, which it was their duty to uphold.

In acting as they did, they also defied the precept that "civilian authority is at all times
supreme over the military" so clearly proclaimed in the 1973 Constitution. 11 In the
instant case, the respondents simply by-passed the civil courts, which had the authority
to determine whether or not there was probable cause to search the petitioner's
premises. Instead, they proceeded to make the raid without a search warrant on their
own unauthorized determination of the petitioner's guilt.

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.

Conceding that the search was truly warrantless, might not the search and seizure be
nonetheless considered valid because it was incidental to a legal arrest? Surely not. If
all the law enforcement authorities have to do is force their way into any house and then
pick up anything they see there on the ground that the occupants are resisting arrest,
then we might as well delete the Bill of Rights as a fussy redundancy.

When the respondents could have easily obtained a search warrant from any of the
TEN civil courts then open and functioning in Zamboanga City, 12 they instead simply
barged into the beleaguered premises on the verbal order of their superior officers. One
cannot just force his way into any man's house on the illegal orders of a superior,
however lofty his rank. Indeed, even the humblest hovel is protected from official
intrusion because of the ancient rule, revered in all free regimes, that a man's house is
his castle.

It may be frail; its roof may shake; the wind may enter; the rain may enter.
But the King of England may not enter. All the forces of the Crown dare
not cross the threshold of the ruined tenement. 13

If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection
with a crime about to be committed, being committed, or just committed, what was that
crime? There is no allegation in the record of such a justification. Parenthetically, it may
be observed that under the Revised Rule 113, Section 5(b), the officer making the arrest
must have personal knowledge of the ground therefor as stressed in the recent case of
People v. Burgos. 14

If follows that as the search of the petitioners' premises was violative of the Constitution,
all the firearms and ammunition taken from the raided compound are inadmissible in
evidence in any of the proceedings against the petitioners. These articles are "fruits of
the poisonous tree. 15 As Judge Learned Hand observed, "Only in case the prosecution
which itself controls the seizing officials, knows that it cannot profit by their wrong, will
the wrong be repressed. 16 Pending determination of the legality of such articles,
however, they shall remain in custodia legis, subject to such appropriate disposition as
the corresponding courts may decide. 17

The objection to the photographing, fingerprinting and paraffin-testing of the petitioners

deserves slight comment. The prohibition against self-incrimination applies to
testimonial compulsion only. As Justice Holmes put it in Holt v. United States, 18 "The
prohibition of compelling a man in a criminal court to be a witness against himself is a
prohibition of the use of physical or moral compulsion to extort communications from
him, not an exclusion of his body as evidence when it may be material."

The fearful days of hamleting salvaging, "zona" and other dreaded operations should
remain in the past, banished with the secret marshals and their covert license to kill
without trial. We must be done with lawlessness in the name of law enforcement. Those
who are supposed to uphold the law must not be the first to violate it. As Chief Justice
Claudio Teehankee stressed in his concurring opinion in Lacanilao v. De Leon, 19 "It is
time that the martial law regime's legacy of the law of force be discarded and that there
be a return to the force and rule of law."

All of us must exert efforts to make our country truly free and democratic, where every
individual is entitled to the full protection of the Constitution and the Bill of Rights can
stand as a stolid sentinel for all, the innocent as well as the guilty, including the basest
of criminals.

WHEREFORE, the search of the petitioners' premises on November 25, 1984, is hereby
declared ILLEGAL and all the articles seized as a result thereof are inadmissible in
evidence against the petitioners in any proceedings. However, the said articles shall
remain in custodia legis pending the outcome of the criminal cases that have been or
may later be filed against the petitioners.

SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras,
Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 81567 October 3, 1991

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 October 3, 1991

AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners,

vs.
GEN. RENATO DE VILLA and GEN, RAMON MONTANO, respondents.

G.R. Nos. 84583-84 October 3, 1991

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 CARIO, 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 October 3, 1991

IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A.

OCAYA AND DANNY RIVERA: VIRGILIO A. OCAYA, petitioners,
vs.
BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL. NESTOR
MARIANO, respondents.

G.R. No. 85727 October 3, 1991

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 October 3, 1991

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. MALTRO AROJADO, respondents.

Efren H. Mercado for petitioners in G.R. No. 81567 and G. R. No. 83162.

Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82

Josefina G. Campbell-Castillo for petitioners in G.R. Nos. 84583-84.

Potenciano A. Flores, Jr. for petitioner in G.R. No. 85727.

The Solicitor General for the respondents.

RESOLUTION

PER CURIAM:p

Before the Court are separate motions filed by the petitioners in the above-entitled
petitions, seeking reconsideration of the Court's decision promulgated on 9 July 1990
(the decision, for brevity) which dismissed the petitions, with the following dispositive
part:

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.
The Court avails of this opportunity to clarify its ruling a begins with the statement that
the decision did not rule as many misunderstood it to do that mere suspicion that
one is Communist Party or New People's Army member is a valid ground for his arrest
without warrant. Moreover, the decision merely applied long existing laws to the factual
situations obtaining in the several petitions. Among these laws are th outlawing the
Communist Party of the Philippines (CPP) similar organizations and penalizing
membership therein be dealt with shortly). It is elementary, in this connection, if these
laws no longer reflect the thinking or sentiment of the people, it is Congress as the
elected representative of the people not the Court that should repeal, change or
modify them.

In their separate motions for reconsideration, petitioners, in sum, maintain:

1. That the assailed decision, in upholding the validity of the questioned

arrests made without warrant, and in relying on the provisions of the Rules
of Court, particularly Section 5 of Rule 113 (Arrest), disregards the fact
that such arrests violated the constitutional rights of the persons arrested;

2. That the doctrine laid down in Garcia vs. Enrile 1 and Ilagan vs. Enrile 2
should be abandoned;

3. That the decision erred in considering the admissions made by the

persons arrested as to their membership in the Communist Party of the
Philippines/New People's Army, and their ownership of the unlicensed
firearms, ammunitions and subversive documents found in their
possession at the time of arrest, inasmuch as those confessions do not
comply with the requirements on admissibility of extrajudicial admissions;

4. That the assailed decision is based on a misappreciation of facts;

5. That G.R. No. 81567 (the Umil case) should not be deemed moot and
academic.

We find no merit in the motions for reconsideration.

It can not be overlooked that these are petitions for the issuance of the writ of habeas
corpus, filed by petitioners under the Rules of Court. 3 The writ of habeas corpus exists
as a speedy and effective remedy to relieve persons from unlawful restraint. 4
Therefore, the function of the special proceedings of habeas corpus is to inquire into the
legality of one's detention, 5 so that if detention is illegal, the detainee may be ordered
forthwit released.
In the petitions at bar, to ascertain whether the detention petitioners was illegal or not,
the Court before rendering decision dated 9 July 1990, looked into whether their
questioned arrests without warrant were made in accordance with law. For, if the arrests
were made in accordance with law, would follow that the detention resulting from such
arrests also in accordance with law.

There can be no dispute that, as a general rule, no peace officer or person has the
power or authority to arrest anyo without a warrant of arrest, except in those cases
express authorized by law. 6 The law expressly allowing arrests witho warrant is found
in Section 5, Rule 113 of the Rules of Court which states the grounds upon which a
valid arrest, without warrant, can be conducted.

In the present cases, the focus is understandably on Section 5, paragraphs (a) and (b)
of the said Rule 113, which read:

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 he 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 arrest has committed it;
and

. . . (Emphasis supplied).

The Court's decision of 9 July 1990 rules that the arrest Rolando Dural (G.R. No.
81567) without warrant is justified it can be said that, within the contemplation of
Section 5 Rule 113, he (Dural) was committing an offense, when arrested because
Dural was arrested for being a member of the New People's Army, an outlawed
organization, where membership penalized, 7 and for subversion which, like rebellion is,
under the doctrine of Garcia vs. Enrile, 8 a continuing offense, thus:

The crimes of insurrection or rebellion, subversion, conspiracy or proposal

to commit such crimes, and other crimes and offenses committed in the
furtherance (sic) 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. . . .

Given the ideological content of membership in the CPP/NPA which includes armed
struggle for the overthrow of organized government, Dural did not cease to be, or
became less of a subversive, FOR PURPOSES OF ARREST, simply because he was,
at the time of arrest, confined in the St. Agnes Hospital. Dural was identified as one of
several persons who the day before his arrest, without warrant, at the St. Agnes
Hospital, had shot two (2) CAPCOM policemen in their patrol car. That Dural had shot
the two (2) policemen in Caloocan City as part of his mission as a "sparrow" (NPA
member) did not end there and then. Dural, given another opportunity, would have shot
or would shoot other policemen anywhere as agents or representatives of organized
government. It is in this sense that subversion like rebellion (or insurrection) is
perceived here as a continuing offense. Unlike other so-called "common" offenses, i.e.
adultery, murder, arson, etc., which generally end upon their commission, subversion
and rebellion are anchored on an ideological base which compels the repetition of the
same acts of lawlessness and violence until the overriding objective of overthrowing
organized government is attained.

Nor can it be said that Dural's arrest was grounded on mere suspicion by the arresting
officers of his membership in the CPP/NPA. His arrest was based on "probable cause,"
as supported by actual facts that will be shown hereafter.

Viewed from another but related perspective, it may also be said, under the facts of the
Umil case, that the arrest of Dural falls under Section 5, paragraph (b), Rule 113 of the
Rules of Court, which requires two (2) conditions for a valid arrestt without warrant: first,
that the person to be arrested has just committed an offense, and second, that the
arresting peace officer or private person has personal knowledge of facts indicating that
the person to be arrested is the one who committed the offense. Section 5(b), Rule 113,
it will be noted, refers to arrests without warrant, based on "personal knowledge of
facts" acquired by the arresting officer or private person.

It has been ruled that "personal knowledge of facts," in arrests without warrant must be
based upon probable cause, which means an actual belief or reasonable grounds of
suspicion 9

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. 10 A reasonable suspicion therefore must be founded on probable cause,
coupled with good faith on the part of the peace officers making the arrest. 11

These requisites were complied with in the Umil case and in the other cases at bar.

In G.R. No. 81567 (Umil case), military agents, on 1 February 1988, were dispatched to
the St. Agnes Hospital, Roosevelt Avenue, Quezon City, to verify a confidential
information which was received by their office, about a "sparrow man" (NPA member)
who had been admitted to the said hospital with a gunshot wound; that the information
further disclosed that the wounded man in the said hospital was among the five (5) male
"sparrows" who murdered two (2) Capcom mobile patrols the day before, or on 31
January 1988 at about 12:00 o'clock noon, before a road hump along Macanining St.,
Bagong Barrio, Caloocan City; that based on the same information, the wounded man's
name was listed by the hospital management as "Ronnie Javellon," twenty-two (22)
years old of Block 10, Lot 4, South City Homes, Bian, Laguna. 12
Said confidential information received by the arresting officers, to the effect that an NPA
member ("sparrow unit") was being treated for a gunshot wound in the named hospital,
is deemed reasonable and with cause as it was based on actual facts and supported by
circumstances sufficient to engender a belief that an NPA member was truly in the said
hospital. The actual facts supported by circumstances are: first the day before, or on
31 January 1988, two (2) CAPCOM soldiers were actually killed in Bagong Bario,
Caloocan City by five (5) "sparrows" including Dural; second a wounded person
listed in the hospital records as "Ronnie Javellon" was actually then being treated in St.
Agnes Hospital for a gunshot wound; third as the records of this case disclosed later,
"Ronnie Javellon" and his address entered in the hospital records were fictitious and the
wounded man was in reality Rolando Dural.

In fine, the confidential information received by the arresting officers merited their
immediate attention and action and, in fact, it was found to be true. Even the petitioners
in their motion for reconsideration, 13 believe that the confidential information of the
arresting officers to the effect that Dural was then being treated in St. Agnes Hospital
was actually received from the attending doctor and hospital management in
compliance with the directives of the law, 14 and, therefore, came from reliable sources.

As to the condition that "probable cause" must also be coupled with acts done in good
faith by the officers who make the arrest, the Court notes that the peace officers wno
arrested Dural are deemed to have conducted the same in good faith, considering that
law enforcers are presumed to regularly perform their official duties. The records show
that the arresting officers did not appear to have been ill-motivated in arresting Dural. 15
It is therefore clear that the arrest, without warrant, of Dural was made in compliance
with the requirements of paragraphs (a) and (b) of Section 5, Rule 113.

Parenthetically, it should be mentioned here that a few day after Dural's arrest, without
warrant, an information charging double murder with assault against agents of persons
in authority was filed against Dural in the Regional Trial Court of Caloocan City (Criminal
Case No. C-30112). He was thus promptly placed under judicial custody (as
distinguished fro custody of the arresting officers). On 31 August 1988, he wa convicted
of the crime charged and sentenced to reclusion perpetua. The judgment of conviction
is now on appeal before this Court in G.R. No. 84921.

As to Amelia Roque and Wilfredo Buenaobra (G.R. Nos. 84581-82), Domingo

Anonuevo and Ramon Casiple (G.R. Nos. 84583-84) and Vicky Ocaya (G.R. No.
83162), their arrests, without warrant, are also justified. They were searched pursuant to
search warrants issued by a court of law and were found wit unlicensed firearms,
explosives and/or ammunition in their persons. They were, therefore, caught in flagrante
delicto which justified their outright arrests without warrant, under Sec 5(a), Rule 113,
Rules of Court. Parenthetically, it should be mentioned here that a few davs after their
arrests without warrant, informations were filed in court against said petitioners, thereby
placing them within judicial custody and disposition. Furthermore, Buenaobra mooted
his own petition fo habeas corpus by announcing to this Court during the hearing of
these petitions that he had chosen to remain in detention in the custody of the
authorities.

More specifically, the antecedent facts in the "in flagrante" cases are:

1. On 27 June 1988, the military agents received information imparted by

a former NPA about the operations of the CPP and NPA in Metro Manila
and that a certain house occupied by one Renato Constantine, located in
the Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro
Manila was being used as their safehouse; that in view of this information,
the said house was placed under military surveillance and on 12 August
1988, pursuant to a search warrant duly issued by court, a search of the
house was conducted; that when Renato Constantine was then confronted
he could not produce any permit to possess the firearms, ammunitions,
radio and other communications equipment, and he admitted that he was
a ranking member of the CPP. 16

2. In the case of Wilfredo Buenaobra, he arrived at the house of Renato

Constantino in the evening of 12 August 1988, and admitted that he was
an NPA courier and he had with him letters to Renato Constantine and
other members of the rebel group.

3. On the other hand, the arrest of Amelia Roque was a consequence of

the arrest of Buenaobra who had in his possession papers leading to the
whereabouts of Roque; 17 that, at the time of her arrest, the military
agents found subversive documents and live ammunitions, and she
admitted then that the documents belonged to her. 18
 4. As regards Domingo Anonuevo and Ramon Casiple they were arrested
without warrant on 13 August 1988, when they arrived at the said house of
Renato Constantine in the evening of said date; that when the agents
frisked them, subversive documents, and loaded guns were found in the
latter's possession but failing to show a permit to possess them. 19

5. With regard to Vicky Ocaya, she was arrested, without warrant when
she arrived (on 12 May 1988) at the premises ofthe house of one Benito
Tiamzon who was believed to be the head of the CPP/NPA, and whose
house was subject of a search warrant duly issued by the court. At the
time of her arrest without warrant the agents of the PC-Intelligence and
Investigation found ammunitions and subversive documents in the car of
Ocaya. 20

It is to be noted in the above cases (Roque, Buenaobra, Anonuevo, Casiple and Ocaya)
that the reason which compelled the military agents to make the arrests without warrant
was the information given to the military authorities that two (2) safehouses (one
occupied by Renato Constantine and the other by Benito Tiamzon) were being used by
the CPP/NPA for their operations, with information as to their exact location and the
names of Renato Constantine and Benito Tiamzon as residents or occupants thereof.

And at the time of the actual arrests, the following circumstances surrounded said
arrests (of Roque, Buenaobra, Anonuevo and Casiple), which confirmed the belief of the
military agents that the information they had received was true and the persons to be
arrested were probably guilty of the commission of certain crimes: first: search warrant
was duly issued to effect the search of the Constantine safehouse; second: found in the
safehouse was a person named Renato Constantine, who admitted that he was a
ranking member of the CPP, and found in his possession were unlicensed firearms and
communications equipment; third: at the time of their arrests, in their possession were
unlicensed firearms, ammunitions and/or subversive documents, and they admitted
ownership thereof as well as their membership in the CPP/NPA. And then, shortly after
their arrests, they were positively identified by their former comrades in the organization
as CPP/NPA members. In view of these circumstances, the corresponding informations
were filed in court against said arrested persons. The records also show that, as in the
case of Dural, the arrests without warrant made by the military agents in the
Constantino safehouse and later in the Amelia Roque house, do not appear to have
been ill-motivated or irregularly performed.

With all these facts and circumstances existing before, during and after the arrest of the
afore-named persons (Dural, Buenaobra, Roque, Anonuevo, Casiple and Ocaya), no
prudent an can say that it would have been better for the military agents not to have
acted at all and made any arrest. That would have been an unpardonable neglect of
official duty and a cause for disciplinary action against the peace officers involved.

For, one of the duties of law enforcers is to arrest lawbreakers in order to place them in
the hands of executive and judicial authorities upon whom devolves the duty to
investigate the acts constituting the alleged violation of law and to prosecute and secure
the punishment therefor. 21 An arrest is therefore in the nature of an administrative
measure. The power to arrest without warrant is without limitation as long as the
requirements of Section 5, Rule 113 are met. This rule is founded on an overwhelming
public interest in peace and order in our communities.

In ascertaining whether the arrest without warrant is conducted in accordance with the
conditions set forth in Section 5, Rule 113, this Court determines not whether the
persons arrested are indeed guilty of committing the crime for which they were arrested.
22 Not evidence of guilt, but "probable cause" is the reason that can validly compel the
peace officers, in the performance of their duties and in the interest of public order, to
conduct an arrest without warrant. 23

The courts should not expect of law-enforcers more than what the law requires of them.
Under the conditions set forth in Section 5, Rule 113, particularly paragraph (b) thereof,
even if the arrested persons are later found to be innocent and acquitted, the arresting
officers are not liable. 24 But if they do not strictly comply with the said conditions, the
arresting officers can be held liable for the crime of arbitrary detention, 25 for damages
under Article 32 of the Civil Code 26 and/or for other administrative sanctions.

In G.R. No. 85727, Espiritu, on 23 November 1988, was arrested without warrant, on
the basis of the attestation of certain witnesses: that about 5:00 o'clock in the afternoon
of 22 November 1988, at the corner of Magsaysay Boulevard and Velencia St., Sta.
Mesa, Manila, Espiritu spoke at a gathering of drivers and sympathizers, where he said,
among other things:

Bukas tuloy ang welga natin . . . hanggang sa magkagulona. 27

(Emphasis supplied)

and that the police authorities were present during the press conference held at the
National Press Club (NPC) on 22 November 1988 where Espiritu called for a nationwide
strike (of jeepney and bus drivers) on 23 November 1988. 28 Espiritu was arrested
without warrant, not for subversion or any "continuing offense," but for uttering the
above-quoted language which, in the perception of the arresting officers, was inciting to
sedition.
Many persons may differ as to the validity of such perception and regard the language
as falling within free speech guaranteed by the Constitution. But, then, Espiritu had not
lost the right to insist, during the pre-trial or trial on the merits, that he was just
exercising his right to free speech regardless of the charged atmosphere in which it was
uttered. But, the authority of the peace officers to make the arrest, without warrant, at
the time the words were uttered, or soon thereafter, is still another thing. In the
balancing of authority and freedom, which obviously becomes difficult at times, the
Court has, in this case, tilted the scale in favor of authority but only for purposes of the
arrest (not conviction). Let it be noted that the Court has ordered the bail for Espiritu's
release to be reduced from P60,000.00 to P10,000.00.

Let it also be noted that supervening events have made the Espiritu case moot and
academic. For Espiritu had before arraignment asked the court a quo for re-
investigation, the peace officers did not appear. Because of this development, the
defense asked the court a quo at the resumption of the hearings to dismiss the case.
Case against Espiritu (Criminal Case No. 88-68385) has been provisionally dismissed
and his bail bond cancelled.

In G.R. No. 86332 (Nazareno), the records show that in the morning of 14 December
1988, Romulo Bunye II was killed by a group of men in Alabang, Muntinlupa, Metro
Manila; that at about 5:00 o'clock in the morning of 28 December 1988, Ramil Regala,
one of the suspects in the said killing, was arrested and he pointed to Narciso Nazareno
as one of his companions during the killing of Bunye II; that at 7:20 of the same morning
(28 December 1988), the police agents arrested Nazareno, without warrant, for
investigation. 29

Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest
without warrant was made only on 28 December 1988, or 14 days later, the arrest fans
under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the police
authorities came to know that Nazareno was probably one of those guilty in the killing of
Bunye II and the arrest had to be made promptly, even without warrant, (after the police
were alerted) and despite the lapse of fourteen (14) days to prevent possible flight.

As shown in the decision under consideration, this Court, in upholding the arrest without
warrant of Nazareno noted several facts and events surrounding his arrest and
detention, as follows:

. . . on 3 January 1989 (or six (6) days after his arrest without warrant), an
information charging Narciso Nazareno, Ramil Regala and two (2) others,
with the killing of Romulo Bunye II was filed wit the Regional Trial Court of
 Makati, Metro Manila. The case is dock eted therein as Criminal Case No.
731.

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, retumable to the Presiding Judge of the
Regional Trial Court of Bifian, 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 liad 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).

This Court reiterates that shortly after the arrests of Espiritu and Nazareno, the
corresponding informations against them were filed in court. The arrests of Espiritu and
Nazareno were based on probable cause and supported by factual circumstances. They
complied with conditions set forth in Section 5(b) of Rule 113. They were not arbitrary or
whimsical arrests.

Parenthetically, it should be here stated that Nazareno has since been convicted by the
court a quo for murder and sentenced to reclusion perpetua. He has appealed the
judgment of conviction to the Court of Appeals where it is pending as of this date ( CA-
G.R. No. still undocketed).

Petitioners contend that the decision of 9 July 1990 ignored the contitution requisiteds
for admissibility of an extrajudicial admission.

In the case of Buenaobra (G.R. Nos. 84581-82), he admitted 30 that he was an NPA
courier. On the other hand, in the case of Amelia Roque, she admitted 31 that the
unlicensed firearms, ammunition and subversive documents found in her possession
during her arrest, belonged to her.
The Court, it is true, took into account the admissions of the arrested persons of their
membership in the CPP/NPA, as well as their ownership of the unlicensed firearms,
ammunitions and documents in their possession. But again, these admissions, as
revealed by the records, strengthen the Court's perception that truly the grounds upon
which the arresting officers based their arrests without warrant, are supported by
probable cause, i.e. that the persons arrested were probably guilty of the commission of
certain offenses, in compliance with Section 5, Rule 113 of the Rules of Court. To note
these admissions, on the other hand, is not to rule that the persons arrested are already
guilty of the offenses upon which their warrantless arrests were predicated. The task of
determining the guilt or innocence of persons arrested without warrant is not proper in a
petition for habeas corpus. It pertains to the trial of the case on the merits.

As to the argument that the doctrines in Garcia vs. Enrile, and Ilagan vs. Enrile should
be abandoned, this Court finds no compelling reason at this time to disturb the same,
particularly ln the light of prevailing conditions where national security and liability are
still directly challenged perhaps with greater vigor from the communist rebels. What is
important is that everv arrest without warrant be tested as to its legality via habeas
corpus proceeding. This Court. will promptly look into and all other appropriate courts
are enjoined to do the same the legality of the arrest without warrant so that if the
conditions under Sec. 5 of Rule 113, Rules of Court, as elucidated in this Resolution,
are not met, then the detainee shall forthwith be ordered released; but if such conditions
are met, then the detainee shall not be made to languish in his detention but must be
promptly tried to the end that he may be either acquitted or convicted, with the least
delay, as warranted by the evidence.

A Final Word

This Resolution ends as it began, reiterating that mere suspicion of being a Communist
Party member or a subversive is absolutely not a ground for the arrest without warrant
of the suspect. The Court predicated the validity of the questioned arrests without
warrant in these petitions, not on mere unsubstantiated suspicion, but on compliance
with the conditions set forth in Section 5, Rule 113, Rules of Court, a long existing law,
and which, for stress, are probable cause and good faith of the arresting peace officers,
and, further, on the basis of, as the records show, the actual facts and circumstances
supporting the arrests. More than the allure of popularity or palatability to some groups,
what is important is that the Court be right.

ACCORDINGLY, the motions for reconsideration of the decision dated 9 July 1990, are
DENIED. This denial is FINAL.

SO ORDERED.
Narvasa, Melencio-Herrera, Paras, Padilla, Bidin, Grio-Aquino, Medialdea and Davide,
Jr., JJ., concur.

Separate Opinions

FERNAN, C.J., concurring and dissenting:

After a deep and thorough reexamination of the decision of Julv 9, 1990 and an
exhaustive evaluation of the motions for reconsideration of the said decision, I am
inclined to agree with the, majority's resolution on said motions for reconsideration
except for the legality of the warrantless arrests of petitioner Deogracias Espiritu for the
crime of inciting to sedition and petitioner Alfredo Nazareno for the crime of murder.

In the words of the resolution, Espiritu "was arrested without warrant, not for subversion
or any 'continuing offense,' but for uttering" the following: "Bukas tuloy ang welga
natin . . . hanggang sa magkagulo na." Apparently, such statement was, in the
perception of the arresting officers, inciting to sedition. While not conceding the validity
of such perception, realizing that it is indeed possible that Espiritu was merely
exercising his right to free speech, the resolution nonetheless supports the authority of
peace officers "only for purposes of the arrest."

I find this position to be adverse to the very essence of the resolution which sanctions
warrantless arrests provided they are made in accordance with law. In the first place,
Espiritu mav not be considered as having "just committed" the crime charged. He
allegedly first uttered seditious remarks at the National Press Club in the afternoon of
November 12, 1988. The second allegedly seditious remark aforequoted was made at
around 5:00 o'clock in the same afternoon (Decision, pp. 23-24). Under these
circumstances, the law enforcement agents had time, short though it might seem, to
secure a warrant for his arrest. Espiritu's apprehension may not therefore be considered
as covered by Section 5(b) of Rule 113 which allows warrantless arrests "when an
offense has in fact just been committed."

The same observation applies with greater force in the case of Nazareno who was
arrested 14 days after the commission of the crime imputed to him.
Secondly, warrantless arrests may not be allowed if the arresting officer are not sure
what particular provision of law had beeri violated by the person arrested. True it is that
law en.orcement agents and even prosecutors are not all adept at the However,
errneous perception, not to mention ineptitude among their ranks, especially if it would
result in the violation of any right of a person, may not be tolerated. That the arrested
person has the "right to insist during the pre-trial or trial on the merits" (Resolution., p.
18) that he was exercising a right which the arresting officer considered as contrary to
law, is beside the point. No person should be subjected to the ordeal of a trial just
because the law enforcers wrongly perceived his action.

Thirdly, inciting to sedition is not a continuous crime for which the offender may be
arrested without a warrant duly issued by the proper authority. By its nature, a single act
of urging others to commit any of the acts enumerated in Article 142 of the Revised
Penal Code may suffice to hold anyone liable for inciting to sedition. While the crime is
aimed at anarchy and radicalism and presents largely a question of policy (Espuelas vs.
People, 90 Phil, 524 [1951]), it should be remembered that any of the prohibited acts in
Article 142 may infringe upon the fundamental freedoms of speech and expression.
There arises, therefore, the necessity of balancing interests; those of the State as
against those of its individual citizen. Here lies the urgency of judicial intervention before
an arrest is made. Added to this is the subjectivity of the determination of what may
incite other people to sedition. Hence, while the police should act swiftly when a
seditious statement has been uttered in view of the jeopardy it may cause the
government, speedy action should consist not in warrantless arrests but in securing
warrants for such arrests.

On the legality of warrantless arrests of violators of the Anti-Subversion Law, it should

be underscored that anyone who undertakes such arrest must see to it that the alleged
violator is knowing member of a subversive organization as distinguished from a
nominal one (People vs. Ferrer, L-32613-14, December 27, 1972, 48 SCRA 382). Thus,
a subversive may be arrested even if has not committed overt act of overthrowing the
government such as bombing of government offices trie assassination of government
officials provided there is probable cause to believe that he is in the roll of members of a
subversive organization. It devolves upon the accused to prove membership by force or
ciorcion. Certainly, one may not be in such a roll without undergoing the concious act of
enlistment.

It bears repeating theat warrantless arrests are governed by law and subject to stringent
application. Section 5, Rule 113 of the Rules on Criminal Procedure now requires that
an offense "has in fact just been committed. "connotes immediacy in point of time and
excludes cases under the old rule where an offense 'has in fact been committed' no how
long ago. Similarly, the arrestor must have 'personal knowledge of the facts indicating
that the [arrestee] has committed it' (instead of just 'reasonable ground believe that the
[arrestee] has committed it' under the old rule)." (Dissenting opinion in Ilagan vs. Enrile,
G.R. No. 70748, October 21, 1985, 139 SCRA 349, 408).

I deem it aptherein to recall other Court rulings provide guidelines in effecting arrests
without warrants. In People vs. Burgos (G.R. No. 68955, September 4, 1986,144 SCRA
1), the Court considered as illegal the warrantless arrest of a subversive not based on
the arresting officer's personal knowledge such subversion and held that any rule on
arrests witho warrants must be strictly construed. We categorically state therein that
warrantless arrests should "clearly fall within the situations when securing a warrant be
absurd or is manifestly unnecessary was provided by the Rules" (144 SCRA at 14).
Moreover. "it is not enough that there is reasonable ground to believe that the person to
be arrested has committed a crime. A crime must in fact or actually (has just) been
committed first. That crime has actually been committed is an essential precondition. It
is not enough to suspect that a crime may have been committed. The fact of the
commission of the offense must be undisputed. The test of reasonable ground applies
only to the identity of the perpetrator. (Supra, at p. 15).

Earlier, in Morales, Jr. vs. Enrile (G.R. No. 61016, April 26, 1983, 121 SCRA 538), the
Court laid out the procedure to be observed the moment a person is arrested:

At the time a person is arrested, it shall be the duty of the arresting officer
to imform 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 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 arressted, by any person on his behalf,
or appointed by the court upon petition on his behalf, or appointed the
court upon the 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 evidence. (121 SCRA
at 554).

These judicial pronouncements must be observed by everyone concerned: the military

and civilian components of the government tasked with law enforcement as well as the
ordinary citizen who faces a situation wherein civic duty demands his intervention to
preserve peace in the community.

I am not unmindful of the fact that abuses occur in arrests especially of offenders of
crimes with a political or ideological element. Such abuses are more often than not,
triggered by the difficulty in finding evidence that could stand judicial scrutiny to
pinpoint a subversive, police officers usually have to make long persistent surveillance.
However, for the orderly administration of government and the maintenance of peace
and order in the country, good faith should be reposed on the officials implementing the
law. After all, we are not wanting in laws to hold any offending peace officer liable both
administratively and criminally for abuses in the performance of their duties. Victims of
abuses should resort to legal remedies to redress their grievances.

If existing laws are inadequate, the policy-determining branches of the government may
be exhorted peacefully by the citizenry to effect positive changes. This Court, mandated
b the Constitution to uphold the law, can only go as far as inter pruting existing laws and
the spirit behind them. Otherwise, we hail be entering the dangerous ground of judicial
legislation.

GUTIERREZ, JR., J., concurring and dissenting:

The philosophy adopted in our Constitution is that liberty is an essential condition for
order, It is disturbing whenever the Court leans in the direction of order instead of liberty
in har cases coming before us.

People all over the world are fast accepting the theory that only as a society encourages
freedom and permits dissent can it have lasting security and real progress, the theory
that enhancing order through constraints on freedom is deceptive because restrictions
on liberty corrode the very values Govenment pretends to promote. I believe we should
move with the people of the world who are fast liberating themselves.

I, therefore, vote for the strict application of Section 5 (a) and (b) of Rule 113 on arrests
without warrant, to wit:

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.

xxx xxx xxx

Only in the cases found in the Rule should we allow arrests without warrants. In case of
doubt, the tendency should be to declare the warrantless arrest illegal.

Insofar as G.R. Nos, 84581-82, G.R. Nos. 84583-84 and G.R. No. 83162 involving
Amelia Roque, Wilfredo Buenaobra, Domingo Anonuevo, Ramon Casiple, and Vicky
Ocaya are concerned, the petitioners were arrested after having been apprehended
while in possession of illegal firearms and ammunitions. They were actually committing
a crime when arrested. I concur in the denial of their motions for reconsideration.

I vote to grant the motion for reconsideration in G.R. No. 85727 where Deogracias
Espiritu was arrested while urging jeepnev and bus drivers to join a strike of transport
workers on the ground that that was inciting to sedition.

This impresses me as Court validation of a clear infringement of an individual's freedom

of speech. "Inciting to sedition" is a term over which the most learned writers and jurists
will differ when applied to actual cases. I doubt if there are more than a handful of
policemen in the whole country who would know the full dimensions of the fine
distinctions which separate the nation's interest in the liberty to fully anfd freely discuss
matters of national importance on one hand and the application of the clear and present
danger rule as the test when claims of national security and public safety are asserted,
on the other. In fact, the percentage of knowledgeability would go down further if we
consider that "inciting to sedition" requires the ability to define, among other (1) what
kinds of speeches or writings fall lander the term "inciting" (2) the meaning of rising
publicly and tumultously; (3,) when does a certain effort amount to force, intimidation. or
illegal method; (4) what constitute the five objects or ends of sedition; and (5) what is a
scurrilous libel against the Philippines. If we allow public speakers to be picked up
simply because what they say is irritating or obnoxious to the ears of a peace officer or
critical of government policy and action, we will undermine all pronouncements of this
Court on the need to protect that matrix of all freedoms, which is freedom of expression.
At the very least, a warrant of arrest after a preliminary examination by a Judge is
essential in this type of offense.

Insofar as G.R. No. 81567 is concemed, I join the other dissenting Justices in their
observations regarding "continuing oftenses." To base warrantless arrests on the
doctrine of continuing offense is to give a license for the illegal detention of persons on
pure suspicion. Rebellion, insurrection, or sedition are political offenses where the line
between overt acts and simple advocacy or adherence to a belief is extremely thin. If a
court has convicted an accused of rebellion and he is found roaming around, he may be
arrested. But until a person is proved guilty, I fail to see how anybody can jump to a
personal conclusion that the suspect is indeed a rebel and must be picked up on sight
whenever seen. The grant of authority in the majority opinion is too broad. If warrantless
searches are to be validated, it should be Congress and not this Court which should
draw strict and narrow standards. Otherwise, the non-rebels who are critical, noisy, or
obnoxious will be indiscriminately lumped up with those actually taking up arms against
the Government.

The belief of law enforcement authorities, no matter how well grounded on past events,
that the petitioner would probably shoot other policemen whom he may meet does not
validate warrantless arrests. I cannot understand why the authorities preferred to bide
their time, await the petitioner's surfacing from underground, and pounce on him with no
legal authority instead of securing warrants of arrest for his apprehension. The
subsequent conviction of a person arrested illegally does not the warrantless arrest.

In G.R. No. 86332, Romulo Bunye was killed on December 14, 1988. The information
that Narciso Nazareno was one of the killers came to the attention of peace officers only
on December 28, 1988 or fourteen (14) days later. To say that the offense "has in fact
just been committed" even if 14 days have lapsed is to stretch Rule 11 3 on warrantless
arrests into ridiculous limits. A warrant of arrest is essential in this case. I vote to grant
the motion for reconsideration.

The subsequent conviction of a person arrested illegally does not reach back into the
past and render legal what was illegal. The violation of the constitutional right against
illegal seizures is not cured by the fact that the arrested person is indeed guilty of the
offense for which he was seized. A government of laws must abide by its own
Constitution.

CONSIDERING THE FOREGOING, I VOTE TO:

(1) DENY the motions for reconsideration in G.R. Nos. 84581-82; G.R. No. 84583-84;
and G.R. No. 83162;

(2) GRANT the motion for reconsideration in G.R. No. 85727;

(3) GRANT the motion for reconsideration in G.R. No. 86332;and

(4) GRANT the motion for reconsideration in G.R. No. 81567.

CRUZ, J., Separate Opinion:

I reiterate my concurrence with the ponencia insofar as it dismissed the petitions of

those who were arrested in flagrante, or subsequently posted bail or chose to remain in
the custody of the military, or voluntarily permitted the search of the house without
warrant. I do not think that under the applicable circumstances the petitioners can
validly complain that they are being unlawfully detained.

But I must again express may dissent to the continued observance of Garcia-Padilla vs.
Enrile, 121 SCRA 472, to justify the warrantless arrest and detention of the other
petitioners on the ground that they were apprehended for the continuing offenses of
rebellion and other allied crimes.

We find in the said decision this partltularly disturbing observation, which was quoted
with approval in the original ponencia:

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 arrest and the granting of bail of 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 govenment forces, or any other milder acts but equally in
pursuance of the rebellious movement. (Emphasis supplied.)

The treatment suggested envisions an actual state of war and is justified only when a
recognition of beuigerency is accorded by the legitimate government to the rebels,
resulting in the application of the laws of war in the regulation of their relations. The
rebels are then considered alien enemies-to be treated as prisoners of war when
captured-and cannot invoke the municipal law of the legitimate government they have
disowned. It is in such a situation that the processes of the local courts are not observed
and the rebels cannot demand the protection of the Bill of Rights that they are deemed
to have renounced by their defiance of the government.

But as long as that recognition has not yet been extended, the legitimate govenment
must treat the rebels as its citizens, subject to its municipal law and entitled to all the
rights provided thereunder, including and especially those guaranteed by the
Constitution. Principal among these in our country are whose embodied in the Bill
of Rights, particularly those guaranteeing due process, prohibiting unreasonable
searches and seizures, allowing bail, and presuming the innocence of the accused. The
legitimate government cannot excuse the suppression of these rights by the
"exigencies" of an armed conflict that at this time remains an intemal matter governed
exclusively by the laws of the Republic of the Philippines.

Treatment of the rebels as if they were foreign invaders or combatants is not

justified in the present situation as our government continues to prosecute them as
violators of our own laws. Under the doctrine announced in Garcia-Padilla, however, all
persons suspected as rebels are by such suspicion alone made subject to summary
arrest no different from the unceremonious capture of an enemy soldier in the course of
a battle. The decision itself says that the arrest "need not follow the usual procedure in
the prosecution of offenses" and "the absence of a judicial warrant is no impediment" as
long as the person arrested is suspected by the authorities of the "continuing offense" of
subversion or rebellion or other related crimes. International law is thus substituted for
municipal law in regulating the relations of the Republic with its own citizens in a purely
domestic matter.

As for the duration of the offenses, the decision contained the following pronouncement
which this Court has also adopted as its own:

. . . 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 front their essentially involving a massive conspiracy of
nationwide manitude. (Emphasis supplied.)

The beginning of the "continuing offense" may be arbitrarily fixed by the authorities,
usually by simply placing the suspect "under surveillance," to lay the basis for his
eventual apprehension. Once so placed, he may at any time be arrested without
warrant on the specious pretext that he is in the process of committing the "continuing
offense," no matter that what he may be actuallly doing at the time is a perfectly
innocent act.

In the case of Dural. the arrest was made while he was engaged in the passive and
innocuous act of undergoing medical treatment. The fiction was indulged that he was
even then, as he lay supine in his sickbed, engaged in the continuing offense of
rebellion against the State. In further justification, the Court says that the arresting
officers acted on "confidential information" that he was in the hospital, which information
"was found to be true." This is supposed to have validated the determination of the
officers that there was "probable cause" that excused the absence of a warrant.

My own impression is that probable cause must be established precisely to justify the
issuance of a warrant, not to dispense with it; moreover, probable cause must be
determined by the judge issuing the warrant, not the arresting officer who says it is not
necessary.

In the case of Espiritu, the arrest was made while he was actually sleeping, and for
allegedly seditious remarks made by him the day before. The Court says his case is not
covered by the Garcia-Padilla doctrine but approves the arrest just the same because
the remarks were supposed to continue their effects even to the following day. The
offense was considered as having been just committed (to make it come under Rule
113, Section 5, of the Rules of Court) despite the considerable time lapse.

It was worse in the case of Nazareno, who was also arrested without warrant, and no
less than fourteen days after the killing. In sustaining this act, the Court says that it was
only on the day of his arrest that he was identified as one of the probable killers, thus
suggesting that the validity of a warrantless arrest is reckoned not from the time of the
commission of an offense but from the time of the Identification of the suspect.

Section 5 of Rule 113 says that a peace officer may arrest a person without a warrant if
the latter "has committed, is actually committing, or is attempting to commit an offense"
or when an offense "has in fact just been committed." The requirement of immediacy is
obvious from the word "just," which, according to Webster, means "a very short time
ago." The arrest must be made almost immediately or soon after these acts, not at any
time after the suspicion of the arresting officer begins, no matter how long ago the
offense was committed.

I am also uneasy over the following observations in the present resolution which I hope
will not be the start of another dangerous doctrine:

The Court, it is true, took into account the admissions of the arrested
persons of their membership in the CPP/NPA, as well as their ownership
of the unlicensed firearms, ammunitions and documents in their
possession. But again, these admissions, as revealed by the records,
strengthen the Court's perception that truly the grounds upon wmch the
arresting officers based their arrests without warrant, are supported by
probable cause, i.e., that the persons arrested were probably guilty of the
 commission of certain offenses, in compliance with Section 5, Rule 113 of
the Rules of Court.

I can only repeat my own misgivings when I dissented in the recent case of People vs.
Malmstedt, G.R. No. 91107, June 19, 1991, where I noted: "The conclusion that there
was probable cause may have been influenced by the subsequent discovery that the
accused was carrying a prohibited drug. This is supposed to justify the soldier's
suspicion. In other words, it was the fact of illegal possession that retroactively
established the probable cause that validated the illegal search and seizure. It was the
fruit of the poisonous tree that washed clean the tree itself."

I submit that the affirmation by this Court of the Garcia-Padilla decision to justify the
illegal arrests made in the cases before us is a step back to that shameful past when
individual rights were wantonly and systematically violated by the Marcos dictatorship. It
seems some of us have short memories of that repressive regime, but I for one am not
one to forget so soon. As the ultimate defender of the Constitution, this Court should not
gloss over the abuses of those who, out of mistaken zeal, would violate individual liberty
in the dubious name of national security. Whatever their ideology and even if it be
hostile to ours, the petitioners are entitled to the protection of the Bill of Rights, no more
and no less than any other person in this country. That is what democracy is all about.

FELICIANO, J., concurring and dissenting:

I concur in the result reached by the majority in the Resolution disposing of the Motion
for Reconsideration.

At the same time, however, I feel compelled to dissent from certain statements made by
the majority principally concerning the applicability of the "continuing crimes" doctrine to
the problem of arrests without warrants. It seems clear that these statements are really
obiter dicta, since they are quite unnecessary for sustaining the actual results reached
in the majority Resolution. This was summarily pointed out in my very brief statement
concurring in the result reached in the original Decision of the Court dated 9 July 1990.
The subsequent developments in several of the cases here consolidated, which are
carefully detailed in the majority Resolution, make this even clearer. Nonetheless, the
majority Resolution has taken the time and trouble expressly to reiterate the "continuing
crimes" doctrine as applicable in respect of warrantless arrests. Although the above
statements are obiter, they have been made and, I believe, need to be addressed to
some extent and the inter-relation of the "continuing crimes" doctrine with constitutional
rights explored.
1. We start at the beginning, that is, the constitutional guarantee against unreasonable
seizures of persons. Article III Section 2 of the Constitution 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. (Emphais supplied)

Under the above provision, arrests, i.e., the constraint and seizure of the persons of
individual members of society, must, as a general rule, be preceded by the securing of a
warrant of arrest, the rendition of which complies with the constitutional procedure
specified in Article III Section 2. Arrests made without a warrant issued by a judge after
complying with the constitutional procedure, are prima facie unreasonable seizures of
persons within the meaning of Article III Section 2.

2. There are, however, certain well-recognized exceptions to the norm that warrantless
arrests are unreasonable seizures of persons. Those exceptions are, in our day,
essentially found in Section 5(a) and (b) of Rule 113 of the Rules of Court. Section 5(a)
and (b) mark out the situations where an officer of the law, or a private person for that
matter, may lawfully arrest a person without previously securing a warrant of arrest. The
full text of Section 5, Rule 113 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.
3. Before examining the scope and implications of Section 5(a) and (b), it is important to
recall that judicial interpretation and application of Section 5(a) and (b) must take those
provision for what they are: they are exceptions to a vital constitutional norm enshrined
in the Bill of Rights. Exceptions to such a norm must be strictly construed so as not to
render futile and meaningless the constitutional rule requiring warrants of arrests before
the persons of individuals may be lawfully constrained and seized. The ordinary rule
generally applicable to statutory provisions is that exceptions to such provisions must
not be stretched beyond what the language in which they are cast fairly warrants, and
all doubts should be resolved in favor of the general provision, rather than the
exception. 1 This rule must apply with special exigency and cogency where we deal, not
with an ordinary statutory provision, but with a constitutional guarantee. 2 Exceptions to
such a guarantee must be read with especial care and sensitivity and kept within the
limits of their language so to keep vital and significant the general constitutional norms
warrantless arrests. In Alvarez vs. Court of First Instance, 3 this Court, stressing that:

II. As the protection of the citizen and the maintenance of his constitutional
rights is one of the highest duties and privileges of the court. these
constitutional guaranties should be given a liberal construction or a strict
construction in favor of the individual, to prevent stealthy encroachment
upon, or gradual depreciation of, the rights secured by them (State vs.
Custer County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965; 237
Pac., 373). Since the proceeding is a drastic one, it is the general rule that
statutes authorizing searches and seizures or search warrants must be
strictly construed (Rose vs. St. Clair, 28 Fed. [2d], 189; Leonard vs. U.S.,
6 Fed. [2d], 353; Perry vs. U.S., 14 Fed. [2d], 88; Cofer vs. State, 118 So.,
613. (emphasis supplied)

held that:

. . . All illegal searches and seizures are unreasonable whith lawful ones
are reasonable. 4

In People vs. Burgos, 5 this Court reiterated the above rule in the following terms:

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 commit ting 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 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 vilated and so
deserving of full protection. 6 (emphasis supplied)

4. Section 5(a) relates to situations where a crime is committed or attempted to be

committed in the presence of the arresting officer. The fact of the occurrence of the
offense, or of the attempt to commit an offense, in the presence of the arresting officer,
may be seen to be the substitute, under the circumstances, for the securing of a warrant
of arrest. In such situation, there is an obvious need for immediate, even instantaneous,
action on the part of the arresting officer to suppress the breach of public order and to
prevent further breaches then and there. Section 5(a) may, moreover, be seen to refer
to overt acts constitutive of a crime taking place in the presence of the arresting officer.
The term "presence" in this connection is properly and restrictively construed to relate to
acts taking place within the optical or perhaps auditory perception of the arresting
officer. 7 If no overt, recognizably criminal, acts occur which are perceptible through the
senses of the arresting officer, such officer could not, of course, become aware at all
that a crime is being committed or attempted to be committed in his presence. 8 It is
elementary that purely mental or psychological phenomena, not externalized in overt
physical acts of a human person, cannot constitute a crime in our legal system. For a
crime to exist in our legal law, it is not enough that mens rea be shown; there must also
be an actus reus. If no such overt acts are actually taking place in the presence or
within the sensor perception of the arresting officer, there would, in principle, be ample
time to go to a magistrate and ask for a warrant of arrest. There would, in other words,
not be that imperious necessity for instant action to prevent an attempted crime, to
repress the crime being committed, or to capture the doer of the perceive criminal act,
the necessity which serves as the justification in law of warrantless arrests under
Section 5(a).

5. Turning to Section 5 (b), two (2) elements must be coincide before a warrantless
arrest may be sustained under this subsection: 1) the offense must have "just been
committed" when the arresting officer arrived in the scene; and 2) the officer must have
"personal knowledge" of facts indicating tha the person to be arrested has committed
the offense. In somewhat different terms, the first requirement imports that th effects or
corpus of the offense which has just been committed are still visible: e.g. a person
sprawled on the ground, dead of gunshot wound; or a person staggering around
bleeding profusely from stab wounds. The arresting officer may not ha seen the actual
shooting or stabbing of the victim, and thereto the offense can not be said to have been
committed "in [his] presence." The requirement of "personal knowledge" on the part of
the arresting officer is a requirement that such knowledge must have been obtained
directly from sense perception the arresting officer. That requirement would exclude
informtion conveyed by another person, no matter what his reputation for, truth and
reliability might be. 9 Thus, where the arresting officer comes upon a person dead on
the street and sees a person running away with a knife from where the victim is
sprawled the ground, he has personal knowledge of facts which render it highly
probable that the person fleeing was the doer of the criminal deed. The arresting officer
must, in other words, perceive through his own senses some act which directly
connects the person to be arrested with the visible effects or corpus of a crime which
has "just been committed."

6. The use of the words "has in fact just been committed" underscores the requirement
that the time interval between the actual commission of the crime and the arrival of the
arresting officer must be brief indeed. In the first place, the word "just" was fairly recently
inserted in Section 5(b) by the 1985 Rules on Criminal Procedures, no doubt in order to
underscore the point here being made. In the second place, a latitudinarian view of the
phrase "has in fact just been committed" would obviously render pointless the
requirement in Section 5(a) that the crime must have been committed "[in] the
presence" of the arresting officer. In G.R. No. 86332, the warrantless arrest of Alfredo
Nazareno 14-days after the occurrence of the killing with which he was charged along
with other persons, cannot by any standard be justified under Section 5(b). In G.R. No.
81567, Dural was arrested without warrant while being treated in a hospital the day after
the shooting of the policemen in which he was suspected to have been a participant.
While 1-day may be substantially different from 14-days, still it must be pointed out that
at the time Dural was arrested in the hospital, the killing of the two (2) policemen in
Caloocan City far away from the St. Agnes Hospital in Quezon City could not
reasonably be said to have been just committed. There was no showing, nor did the
Court require it, that the arresting officers had been in "hot pursuit" of Dural beginning at
the scene of the killing and ending the next day in the hospital.

7. It is worth noting that the requisite of "personal knowledge" on the part of the
arresting officer who is determining "probable cause" right at the scene of the crime, is
in a sense more exacting than the standard imposed by the Constitution upon the judge
who, in the seclusion of his chambers, ascertains "probable cause" by examining the
evidence submitted before him. The arresting officer must himself have "personal
knowledge"; the magistrate may rely upon the personal knowledge of the witnesses
examined by or for him in issuing a warrant of arrest. In the present Resolution, the
majority begins with noting the requirement of "personal knowledge" in Section 5(b), but
winds up in the next page with a very diluted standard of "reasonable belief and "good
faith" on the part of the arresting officers. The stricter standard is properly applicable to
the officers seizing a person without a warrant of arrest, for they are acting in derogation
of a constitutional right. That the person unlawfully arrested without a warrant may later
turn out to be guilty of the offense he was suspected of in the first place is, course, quite
beside the point. Even a person secretly guilty some earlier crime is constitutionally
entitled to be secure from warrantless arrest, unless he has in fact committed physically
observable criminal acts in the presence of the arresting officer or hadjust committed
such acts when the arresting officer burst upon the scene.

8. Examination of the utilization in the majotity Resolution of the doctrine of "continuing

crimes," shows that doctrine is here being used as a substitute for the requirement
under Section 5(a) that the offense "has in fact just been presence of the arresting
officer arrived, but rather because the person to be arrested is suspected of having
committed a crime in the future. The pertinent portion of the majority Resolution reads:

. . . Dural did not cease to be, or because less of a subversive, FOR

PURPOSE OF ARREST, simply because he was, at the time of arrest,
confined in the St. Agnes Hospital. . . . That Dural had shot the two (2)
policemen in Caloocan City as part of his mission as a "sparrow" (NPA
member) did not end there and then. Dural, given another opportunity,
would have shot or would shoot other policemen anywhere as agents or
representatives of organized government. It is in this sense that
subversion like rebelion (or insurrection) is perceived here as a continuing
offense. Unlike other so-called "common" offenses, i.e., adultery, murder,
arson, etc., which generally end upon their commission, subversion and
rebellion are anchored on an ideological base which compels the
repetition of the same acts of lawlessness and violence until the overriding
objectives of overthrowing organized government is attained. (Emphasis
supplied)
9. I respectfully submit that an examination of the "continuing crimes" doctrine as
actually found in our case law offers no reasonable basis for such use of the dotrine.
More specifically, that doctrine, in my submission, does not dispence with the
requirement that overt acts recognizably criminal in character must take place in the
presence of the arresting officer, or must have just been committed when the arresting
officer arrived, if the warrantless arrest it to be lawful. The "continuing crimes" doctrine
in our case law (before rendition of Garcia-Padilla vs. Enrile 10 does not sustain
warrantless arrests of person to be arrested is, as it were, merely resting in between
specific lawless and commit the moment he gets an opportunity to do so.

Our case law shows that the "continuing crimes" doctrine has been used basically in
relation to two (2) problems: the first problem is that of determination of whether or not a
particular offense was committed within the territorial jurisdiction of the trial court; the
second problem is that of determining whether a single crime or multiple crimes were
committed where the defense of double jeopardy is raised.

10. In respect of the first problem, the gist of our case law is that where some of the
ingredients or elements of an offense taken place within the territorial jurisdiction of one
court and some other ingredients or elements of the same offense occur in the territory
of another court, (e.g., estafa or malversation) either one of the two courts has
jurisdiction to try the offense. Where all of the essential elements of a crime take place
within the territory of one court but "by reason of he very nature of the offense
committed" the violation of the law is deemed to be "continuing," then the court within
whose territorial jurisdiction the offense continues to be committed, has jurisdiction to try
a person charged with such offense. In the latter case, the offense is deemed to be
continuing because some or all of the elements constituting the offense occurred within
jurisdiction of the second court (e.g., kidnapping and illegal detention; libel; evasion of
service of sentence). The criminal acts are regarded as repeated or as continuing within
the province or city where the defendant was found and arrested. 11 Clearly, overt acts
of the accussed constituting elements of the crime charged must be shown to have
been committed within the territorial jurisdiction of the court where he is charged.

11. Turning to the second type of problem, the question is normally presented in terms
of whether one crime or multiple crimes were committed by the accused. Where the
series of acts actually alleged and proven to have been committed by the accused
constituted only one and the same crime, the defense of double jeopardy becomes
available where a second information is filed covering acts later in the series. Upon the
other hand, where the acts of the accused constituted discrete, multiple offenses, each
act comprising a distinct and separate offense, the double jeopardy defense is non-
available. 12 The point worth stressing is that in passing upon the issue relating to the
unity or multiplicity of offense committed, the overt acts of the accused constitutive
either of the single offense or of the plural offenses, must be shown.

12. My final submission, is that, the doctrine of "continuing crimes," which has its own
legitimate function to serve in our criminal law jurisprudence, cannot be invoked for
weakening and dissolving the constitutional guarantee against warrantless arrest.
Where no overt acts comprising all or some of the elements of the offense charged are
shown to have been committed by the person arrested without warrant, the "continuing
crime" doctrine should not be used to dress up the pretense that a crime, begun or
committed elsewhere, continued to be committed by the person arrested in the
presence of the arresting officer. The capacity for mischief of such a utilization of the
"continuing crimes" doctrine, is infinitely increased where the crime charged does not
consist of unambiguous criminal acts with a definite beginning and end in time and
space (such as the killing or wounding of a person or kidnapping and illegal dentention
or arson) but rather of such problematic offenses as membership in or affiliation with or
becoming a member of, a subversive association or organization. For in such cases, the
overt constitutive acts may be morally neutral in themselves, and the unlawfulness of
the acts a function of the aims or objectives of the organization involved. Note, for
instance, the following acts which constitute prima facie evidence of "membership in any
subversive association:" 13

a) Allowing himself to be listed as a member in any book or any of the

lists, records, correspondence, or any other document of the organization;

b) Subjecting himself to the discipline of such association or organization

in any form whatsoever;

c) Giving financial contribution to such association or organization in dues,

assessments, loans or in any other forms;

xxx xxx xxx

f) Conferring with officers or other members of such association or

organization in furtherance of any plan or enterprise thereof;

xxx xxx xxx

h) Preparing documents, pamphlets, leaflets, books, or any other type of

publication to promote the objectives and purposes of such association or
organization;

xxx xxx xxx

 k) Participating in any was in the activities, planning action, objectives, or
purposes of such association or organization;

xxx xxx xxx

It may well be, as the majority implies, that the constitutional rule against warrantless
arrests and seizures makes the law enforcement work of police agencies more difficult
to carry out. It is not our Court's function, however, and the Bill of Rights was not
designed, to make life easy for police forces but rather to protect the liberties of private
individuals. Our police forces must simply learn to live with the requirements of the Bill
of Rights, to enforce the law by modalities which themselves comply with the
fundamental law. Otherwise they are very likely to destroy, whether through sheer
ineptness or excess of zeal, the very freedoms which make our polity worth protecting
and saving.

REGALADO, J.: Separate Opinion:

While I have heretofore concurred in the ponencia in the above-entitled cases and I
reiterate such concurrence, I wish to unburden myself of some reservations on the
rationale adopted in G.R. No. 86332.

It is posited in this resolution that "(a)lthough the killing of Bunye II occurred on 14

December 1988, while Nazareno's arrest without warrant was made only on 28
December 1988, or 14 days later, the arrest falls under Section 5(b) of Rule 113, since it
was only on 28 December 1988 that the police authorities came to know that Nazareno
was probably one of those guilty in the killing of Bunye II."

I am afraid that there has been a misapplication of Section 5(b) of Rule 113 which, while
authorizing a peace officer or a private person to effect a warrantless arrest, specifically
conditions that grant of authority upon the situation "(w)hen 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."

It is significant that when the corresponding provisions of the 1964 Rules of Court were
amended in the 1985 Rules of Criminal Procedure, the particular revision of paragraph
(b) of the aforesaid section consisted in imposing the requirements that the person
making the arrest has personal knowledge of the facts indicating that the arrestee is
responsible for an offense which has just been committed.

Now, according to the resolution, "the records show that in the morning of 14 December
1988, Romulo Bunye II was killed by a group of men in Alabang, Muntinlupa, Metro
Manila; that at about 5 o'clock in the morning of 28 December 1988, Ramil Regala, one
of the suspects in the said killing, was arrested and he pointed to Narciso Nazareno as
one of his companions during the killing of Bunye II; that at 7:20 of the same morning
(28 December 1988), the police agents arrested Nazareno, without warrant, for
investigation."

Since, clearly, the arresting police agents merely acted upon the information imparted
by one of the suspects, Ramil Regala, the resolution has emasculated the requirement
in Section 5(b) that the person making the arrest must have had personal knowledge of
factual indications regarding the complicity or liability of the arrestee for the crime. Yet,
that amendment requiring such personal knowledge must have been designed to
obviate the practice in the past of warrantless arrests being effected on the basis of or
supposed reliance upon information obtained from third persons who merely professed
such knowledge or, worse, concocted such reports for variant reasons not necessarily
founded on truth.

Further, and obviously as an added deterrent to the possibility that such arrest without a
warrant may result from imputations based on dubious motives, it is now required that
the crime must have just been committed. The recency contemplated here, in relation to
the making of the warrantless arrest, is the time when the crime was in fact committed,
and not the time when the crime was in fact committed, and not the time when the
person making the arrest learned or was informed of such commission. Otherwise, at
the risk of resorting to reductio ad absurdum, such warrantless arrests could be validly
made even for a crime committed, say, more than a year ago but of which the arresting
officer received information only today.

The brevity in the interval of time between the commission of the crime and the arrest,
as now required by Section 5(b), must have been dictated by the consideration, among
others, that by reason of such recency of the criminal occurrence, the probability of the
arresting officer acquiring personal and/or reliable knowledge of such fact and the
identity of the offender is necessarily enhanced, if not assured. The longer the interval,
the more attenuated are the chances of his obtaining such verifiable knowledge. In the
case under consideration, the obtention of information of a crime committed fourteen
(14) days earlier necessarily undermines the capacity of the arresting officer to
ascertain the reliability of the information he is acting upon and to acquire personal
knowledge thereof after such verification.

It may be granted, as an ad hoc proposition, that the arrest of Nazareno was based on
probable cause and it was not whimsical, at least, in this instance. It is correct to say
that prevailing conditions affecting national security and stability must also be taken into
account. However, for the reasons above elucidated, I take exception to the conclusion
that the conditions in Section 5(b) of Rule 113 had been complied with in this case. It is
true that the corresponding information was filed against Nazareno shortly after his
arrest but that, precisely, is another cause for controversy. Definitely, if the rules on
arrest are scrupulously observed, there would be no need for the usual invocation of
Ilagan as a curative balm for unwarranted incursions into civil liberties.

SARMIENTO, J.: dissenting:

I reiterate my dissent. I submit that in spite of its "clarificatory" resolution, 1 the majority
has not shown why the arrests in question should after all be sustained.

According to the majority, Rolando Dural (G.R. No. 815667) was validly arrested without
a warrant and that his arrest was sufficient compliance with the provisions of Section 5,
paragraph (b), Rule 113, of the Rules of Court. According to the majority, he, Dural, was
after all committing an offense (subversion being supposedly a continuing offense) and
that the military did have personal knowledge that he had committed it. "Personal
knowledge," according to the majority, is supposedly no more than "actual belief or
reasonable grounds . . . of suspicion," and suspicion is supposedly 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 guilty of
the person to be arrested. A reasonable suspicion therefore must be
founded on probable cause, coupled with good faith on the part of the
peace officers making the arrest. 2

As I said, I dissent.

First, and as I held, subversion, as an offense punished by Executive Order No. 167, as
amended by Executive Order No. 276, in relation to Republic Act No. 1700, 3 is made
up of "overt acts." 4 In People vs. Ferrer 5 this Court defined "overt acts" as follows:

. . . Indeed, were the Anti-Subversion Act a bill of attainder, it would be

totally unnecessary to charge Communists in court, as the law alone,
without more would suffice to secure their punishment. But the undeniable
fact is that their guilt still has to be judicially established. The Government
has yet to prove at the trial that the accused joined the Party knowingly,
willfully and by overt acts, and that they joined the Party, knowing its
subversive character and with specific intent to further its basic objective,
i.e., to overthrow the existing government by force, deceit, and other illegal
 means and place the country under the control and domination of a
foreign power.

As Ferrer held, that above "overt acts" constitute the essence of "subversion," and as
Ferrer has taken pains to explain, the law requires more than mere membership in a
subversive organization to make the accused liable. I respectfully submit that for
purposes of arrest without a warrant, that above "overt acts" should be visible to the
eyes of the police officers (if that is possible), otherwise the accused can not be said to
be committing any offense within the contemplation of the Rules of Court, to justify
police action, and otherwise, we would have made "subversion" to mean mere
"membership" when, as Ferrer tells us, subversion means more that mere membership.

I find strained that majority's interpretation of "personal knowledge," as the majority

would interpret it, as no more than "actual belief or reasonable suspicion," that is,
"suspicion . . . based on actual facts . . . [and] founded on probable cause, coupled with
good faith . . . " 6 I submit that personal knowledge means exactly what it says that
the peace officer is aware that the accused has committed an offense, in this case,
membership in a subversive organization with intent to further the objectives thereof. It
is to be noted that prior to their amendment, the Rules (then Section 6) spoke of simple
"reasonable ground" which would have arguably encompassed "actual belief or
suspicion . . . coupled with good faith" referred to by the majority. Section 5(b) as
amended, however, speaks of "personal knowledge"; I respectfully submit that to give to
"personal knowledge" the same meaning as "reasonable ground" is to make the
amendment as useless exercise.

What, furthermore, we have here was a mere "confidential information" that a "sparrow
man" had been wounded and was recuperating in the hospital, and that that person was
Rolando Dural. Clearly, what we have is second-hand, indeed, hearsay, information,
and needless to say, not personal knowledge.

I would like to point out that in the case of People vs. Burgos 7 this Court rejected a
similar arrest because of lack of personal knowledge, and, as the Court held,
"[w]hatever knowledge was possessed by the arresting officers came in its entirety from
the information furnished by [another] . . ." 8 I do not see how We can act differently
here.

I do not find the majority's reliance on the case of United States vs. Santos 9 to be well-
taken. Santos involved a prosecution for coercion (against a peace officer for affecting
an arrest without a warrant). Santos, however, did in fact affirm the illegality of the arrest
but absolved the peace officer on grounds of good faith. Santos did not say that so long
as he, the peace officer, was acting in good faith, as the majority here says that the
military was acting in good faith, the arrest is valid. Quite to the contrary, Santos
suggested that notwithstanding good faith on the part of the police, the arrest is
nevertheless subject to question.

As far as the information leading to the arrest of Dural is concerned, the majority would
quite evidently swallow the version of the military as if in the first place, there truly was
an information, and that it was reliable, and that "it was found to be true;" 10 and as if, in
the second place, the hospital authorities (the alleged informants) could have legally
tipped the military under existing laws. We have, it should be noted, previously rejected
such a species of information because of the lack of "compulsion for [the informant] to
state truthfully his charges under pain of criminal prosecution." 11 Here, it is worse,
because we do not even know who that informant was.

The majority is apparently unaware that under Executive Order No. 212, amending
Presidential Decree No. 169, hospital establishments are required to report cases of
acts of violence to "government health authorities" not to the military.

I am concerned that if the military were truly armed with reliable information and if it did
have personal knowledge to believe that Dural had committed an offense, there was no
reason for the military to ignore the courts, to which the Constitution after all, gives the
authority to issue warrants. As People vs. Burgos held:

More important, we find no compelling reason for the haste with which the
arresting officers sought to arrest the accused. We fail to see why they
failed to first go through the process of obtaining a warrant of arrest, if
indeed they had reasonable ground to believe that the accused had truly
committed a crime. There is no showing that there was a real
apprehension that the accused was on the verge of flight or escape.
Likewise, there is no showing that the whereabouts of the accused were
unknown. 12

I do not likewise see how the petitioners Amelia Roque, Wilfredo Buenaobra, Domingo
Anonuevo, Ramon Caspile, and Vicky Ocaya (G.R. Nos. 84581-82; 83162) could have
been lawfully picked up under similar circumstances. As the majority points out, the
military had (again) acted on a mere tip-the military had no personal knowledge (as I
elaborated what personal knowledge means). Second, I do not think that the majority
can say that since Amelia Roque, et al. "were NPA's anyway" (As Roque, et al. allegedly
admitted), immediate arrests were "prudent" and necessary. As I said, that Roque, et al.
were admitted "NPA's" is (was) the question before the trial court and precisely, the
subject of controversy. I think it is imprudent for this Court to pass judgment on the guilt
of the petitioners-since after all, and as the majority points out, we are talking simply of
the legality of the petitioner's arrests.

More important, that Roque, et al. "were NPA's anyway" is evidently, a mere say-so of
the military, and evidently, the Court is not bound by bare say-so's. Evidently, we can not
approve an arrest simply because the military says it is a valid arrest (the accused being
"NPA's anyway") that would be abdication of judicial duty and when, moreover, the
very basis of the claim rests on dubious "confidential information."

According to the majority, we are speaking of simple arrests; we are not talking of the
guilt or innocence of the accused. I certainly hope not, after the majority referred to
Rolando Dural as a "sparrow man" and having Amelia Roque, et al. admit to being
NPA's."

It is to gloss over at any rate, the nature of arrest as a restraining on liberty. It is to me

immaterial that the guilt of the accused still has to be established, since meanwhile, the
accused are in fact being deprived of liberty. Arrest to me, is something to crow about,
even if in the opinion of the majority, it is nothing to crow about (a mere "administrative
measure").

I can not, again, accept the validity of the arrests of Deogracia Espiritu or Narciso
Nazareno (G.R. Nos. 85727; 86332). Espiritu was supposedly picked up for inciting to
sedition, in uttering supposedly, on November 22, 1988, the following:

Bukas tuloy and welga natin . . . hanggang sa magkagulo na. 13

Espiritu however was arrested on November 23, 1988, a day later-and in no way is
"inciting to sedition" a continuing offense. Obviously, the majority is not saying that it is
either, but that:

. . . Many persons may differ as to the validity of such perception and

regard the language as falling within free speech guaranteed by the
Constitution. But, then, Espiritu has not lost the right to insist, during the
trial on the merits, that he was just exercising his right to free speech
regardless of the charged atmosphere in which it was uttered. But, the
authority of the peace officers to make the arrest, without warrant, at the
time the words were uttered, or soon thereafter, is still another thing. In the
balancing of authority and freedom, which obviously becomes difficult at
times, the Court has, in this case, titled the scale in favor of authority but
only for purposes of the arrest (not conviction). Let it be noted that the
 Court has ordered the bail for Espiritu's release to be reduced from
P60,000.00 to P10,000.00. 14

And obviously, the majority is concerned about whether or not Espiritu's speech was
after all, protected speech, but apparently, that is also of no moment, since: (1) that is a
matter of defense; (2) we are talking of mere arrests, and as far as arrests are
concerned, "the Court has, in this case, titled in favor of authority," 15 and (3) we have,
anyway, given a reduced bail to the accused.

First, that the accused's statement is in the category of free speech is not only plain to
my mind, it is a question I do not think the majority can rightly evade in these petitions
without shirking the Court's constitutional duty. It is to my mind plain, because it does
not contain enough "fighting words" recognized to be seditious. 16 Secondly, it is the
very question before the Courtwhether or not the statement in question constitutes an
offense for purposes of a warrantless arrest. It is a perfectly legal question to my mind
and I am wondering why we can not answer it.

What the majority has not answered, as I indicated, is that inciting to sedition is in no
way a continuing offense, and as I said, the majority is not apparently convicted that it
is, either. Of course, the majority would anyway force the issue: "But the authority of the
peace officers to make the arrest, without warrant, at the time the words were uttered,
or soon thereafter, is still another thing." 17 First, Espiritu was picked up the following
day, and in no way is "the following day" "soon thereafter". Second, we would have
stretched the authority of peace officers to make warrantless arrests for acts done days
before. I do not think this is the contemplation of the Rules of Court.

As in the case of Burgos in People vs. Burgos, 18 Espiritu was neither "on the verge of
flight or escape" 19 and there was no impediment for the military to go through the
judicial processes, as there was none in the case of Burgos.

In the case of People vs. Aminnudin, 20 this Court held that unless there "was a crime
about to be committed or had just been committed," and unless there existed an
urgency as where a moving vehicle is involved, instant police action can not be justified.

"In the balancing of authority and freedom," states the majority, "the Court has, in this
case, titled in favor of authority but only for purposes of the arrest (not conviction)." 21 It
is a strange declaration, first, because it is supported by no authority (why the Court
should "tilt" on the side of Government), and second, because this Court has leaned, by
tradition, on the side of liberty as the custodian of the Bill of Rights even if we
were talking of "simple" arrests.
I do not understand why this Court should "tilt" . . . the scale in favor of authority . . . in
this case," 22 as if to say that normally, this Court would have tilted the scales the other
way. I do not understand why these cases are apparently, special cases, and
apparently, the majority is not telling us neither. I am wondering why, apart from the fact
that these cases involved, incidentally, people who think differently from the rest of us.

The majority goes on:

Although the killing of Bunye II occurred on 14 December 1988, while

Nazareno's arrest without warrant was made only on 28 December 1988,
or 14 days later, the arrest falls under Section 5(b) of Rule 113, since it
was only on 28 December 1988 that the police authorities came to know
that Nazareno was probably one of those guilty in the killing of Bunye II.
23

With all due respect, I do not think that the majority is aware of the serious implications
of its pronouncement on individual rights (and statutory construction in general), and I
feel I am appropriately concerned because as a member of the Court, I am co-
responsible for the acts of my colleagues and I am afraid that I may, rightly or wrongly,
be in time made to defend such an indefensible pronouncement.

Section 5(b) of Rule 113 is clear and categorical: the offense must have been "just
committed" and the authorities must have "personal knowledge."

In no way can an offense be said to have been "just committed" fourteen days after it
was in fact (allegedly) committed. In no way can the authorities be said to have
"personal knowledge" two weeks thereafter; whatever "personal knowledge" they have
can not possibly be "personal knowledge" of a crime that had "just been committed;"
whatever "personal knowledge" they have is necessarily "personal knowledge" of a
crime committed two weeks before.

In no way can Nazareno's arrest be said to be an arrest sanctioned by the exceptional

provisions of the Rules.

I am not saying that the military can not act in all cases, and it is sheer ignorance to
suppose that I am saying it, (or worse, that I am "coddling criminals"). I am not saying
that a suspected criminal, if he can not be arrested without a warrant, can not be
arrested at all but that the military should first procure a warrant from a judge before
effecting an arrest. It is not too much to ask of so-called law enforcers.
As it is, the majority has enlarged the authority of peace officers to act, when the Rules
have purposely limited it by way of an exception, precisely, to the general rule,
mandated by the Constitution no less, that arrests may be done only through a judicial
warrant. As it is, the majority has in fact given the military the broadest discretion to act,
a discretion the law denies even judges 24 today it is fourteen days, tomorrow, one
year, and sooner, a decade. I submit that a year, a decade, would not be in fact
unreasonable, following the theory of the majority, since the military can claim anytime
that it "found out only later," as the majority did not find it unreasonable for the Capital
Command to claim that it "came to know that Nazareno was probably one of those guilty
in the killing of Bunye II" 25and none of us can possibly dispute it.

I would like to stress strongly that we are not talking of a simple "administrative
measure" alonewe are talking of arrests, of depriving people of libertyeven if we are
not yet talking of whether or not people are guilty. That we are not concerned with guilt
or innocence is hardly the point, I respectfully submit, and it will not minimize the
significance of the petitioners' predicament.

With respect to Wilfredo Buenaobra, I submit that the majority has, as in the cases of
Amelia Roque, et al., ignored the fact that Buenaobra's alleged "admission" (actually, an
uncounselled confession) was precisely, the basis for Buenaobra's arrest. It is to beg
the question, I respectfully submit, to approve the military's action for the reason that
Buenaobra confessed, because Buenaobra confessed for the reason that the military,
precisely, pounced on him. I am not to be mistaken for prejudging Buenaobra's
innocence (although it is supposed to be presumed) but I can not imagine that
Buenaobra would have voluntarily proclaimed to the military that he was an NPA courier
so that the military could pounce on him.

I respectfully submit that the cases Garcia vs. Padilla 26 and Ilagan vs. Enrile 27 have
been better days. I do not see how this court can continuously sustain them "where
national security and stability are still directly challenged perhaps with greater vigor from
the communist rebels." 28 First and foremost, and as the majority has conceded, we do
not know if we are in fact dealing with "Communists." The case of Deogracias Espiritu,
for one, hardly involves subversion. Second, "Communism" and "national security" are
old hat the dictator's own excuses to perpetuate tyranny, and I am genuinely
disappointed that we would still fall for old excuses. Third, Garcia and Ilagan rested on
supposed grounds that can not be possibly justified in a regime that respects the rule of
law that the Presidential Commitment Order (PCO) is a valid presidential document
(Garcia) and that the filing of an information cures a defective arrest (Ilagan). Fourth and
finally, it is evident that neither "Communist threat" nor "national security" are valid
grounds for warrantless arrests under Section 5(b) of Rule 113.
I most respectfully submit that Garcia and Ilagan have not only been diluted by
subsequent jurisprudence (e.g., People vs. Burgos, supra), they are relics of
authoritarian rule that can no longer be defended, if they could have been defended, in
Plaza Miranda or before our own peers in the bar.

"What is important," says the majority, "is that every arrest without warrant be tested as
to its legality, via habeas corpus proceedings." 29 I supposed that goes without saying.
But it is also to patronize the petitioners and simply, to offer a small consolation, when
after all, this Court is validating their continued detention. 30 With all due respect, I
submit that it is nothing for which the public should be elated.

A Final Word

As I began my dissent, in this Resolution and the Decision sought to be reconsidered, I

reiterate one principle: The State has no right to bother citizens without infringing their
right against arbitrary State action. "The right of the people," states the Constitution, "to
be secure in their persons, houses, papers, and effects against unreasonable searchers
and seizures of whatever nature and for any purpose shall be inviolable . . . ." 31 "The
State," the Charter likewise states, "values the dignity of every human person and
guarantees full respect for human rights." 32 The Constitution states the general rule
the majority would make the exception the rule, and the rule the exception. With all due
respect, this is not what constitutionalism is all about.

I submit that the "actual facts and circumstances" the majority refers to are, in the first
place, doubtful, the "actual facts and circumstances" being no more than "confidential
information" (manufactured or genuine, we have no way of telling) and in the second
place, any information with which the military (or police) were armed could no more than
be hearsay, not personal, information. I submit that the "actual facts and circumstances"
the majority insists on can not justify the arrests in question under Section 5(b) of Rule
113, the rule the majority insists is the applicable rule.

Apparently, Section 5(b) is not the applicable rule, as far as Deogracias Espiritu and
Narciso Nazareno are concerned; certainly, it is not the Section 5(b) I know. As I
indicated, Espiritu was arrested one day after the act, allegedly, inciting to sedition;
Nazareno was picked up fourteen days after it (allegedly, murder). Yet, the majority
would approve the police's actions nonetheless because the police supposedly "found
out only later." I submit that the majority has read into Section 5(b) a provision that has
not been written there.

"More than the allure of popularity of palatability to some groups," concludes the
majority, "what is important is that the Court be right." 33
Nobody has suggested in the first place, that Umil was and is a question of popularity or
palatability. Umil is a question, on the contrary, of whether or not the military (or police),
in effecting the arrests assailed, had complied with the requirements of law on
warrantless arrests. Umil is a question of whether or not this Court, in approving the
military's actions, is right.

In spite of "EDSA", a climate of fear persists in the country, as incidences of

disappearances, torture, hamletting, bombings, saturation drives, and various human
rights violations increase in alarming rates. In its update for October, 1990, the Task
Force Detainees of the Philippines found:

An average of 209 arrested for political reasons monthly since 1988, 94% of them
illegally;

Four thousand four hundred eight (4,408) political detentions from January, 1989 to
September, 1990, 4,419, illegally;

Of those arrested, 535 showed signs of torture; 280 were eventually salvaged, 40, of
frustrated salvage, and 109 remained missing after their arrest;

Forty (40) cases of massacres, with 218 killed; 54 cases of frustrated massacre, in
which 157 were wounded;

The victims belonged to neighborhood and union organizations;

Since February, 1986, 532 of those illegally arrested were women;

From January to June 1990, 361 children were detained for no apparent reason;

One million ten thousand four hundred nine (1,010,409) have been injured as a
consequence of bombing, shellings, and food blockades undertaken by the military
since 1988. 34

It is a bleak picture, and I am disturbed that this Court should express very little
concern. I am also disappointed that it is the portrait of the Court I am soon leaving.
Nonetheless, I am hopeful that despite my departure, it will not be too late.

Motions denied.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-69803 October 8, 1985

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

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

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

MELENCIO-HERRERA, J.:

The facts before the Court in these Certiorari, Prohibition, and mandamus proceedings
will be briefly stated. The three petitioners will be referred to through their surnames of
NOLASCO, AGUILAR-ROQUE and TOLENTINO.
1. Prior to August 6, 1984 (hereinafter to be referred to without the year), AGUILAR-
ROQUE was one of the accused of Rebellion in Criminal Case No.
MC-25-113 of Military Commission No. 25, both cases being entitled "People of the
Philippines vs. Jose Ma. Sison, et al." She was then still at large.
2. At 11:30 A.M. on August 6th, AGUILAR-ROQUE and NOLASCO were arrested by a
Constabulary Security Group (CSG) at the intersection of Mayon Street and P. Margall
Street, Quezon City. The stated time is an allegation of petitioners, not denied by
respondents. The record does not disclose that a warrant of arrest had previously
beeen issued against NOLASCO.
3. At 12:00 N. on August 6th, elements of the CSG searched the premises at 239-B
Mayon Street, Quezon City. The stated time is an allegation of petitioners, not
specifically denied by respondents. In their COMMENT, however, respondents have
alleged that the search was conducted "late on the same day"; that is late on august
6th.
4. On August 6th, at around 9:00 A.M., Lt. Col. Virgilio G. Saldajeno of the CSG, applied
for a Search Warrant from respondent Hon. Ernani Cruz Pao, Executive Judge of the
Regional Trial Court in Quezon City, to be served at No. 239-B Mayon Street, Quezon
City, determined tyo be the leased residence of AGUILAR-ROQUE, after almost a
month of "round the clock surveillance" of the premises as a "suspected underground
house of the CPP/NPA." AGUILAR-ROQUE has been long wanted by the military for
being a high ranking officer of the Communist Party of the Philippines, particularly
connected with the MV Karagatan/Doa Andrea cases.
In connection with the Search Warrant issued, the following may be stated:

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

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

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

5. In connection with the search made at 12:00 N. of August 6th the following may be
stated:

(a) TOLENTINO was a person then in charge of the premises. He was arrested by the
searching party presumably without a warrant of arrest.

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

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

6. (a) On August 10th, the three petitioners, AGUILAR-ROQUE, NOLASCO and

TOLENTINO, were charged before the Quezon City Fiscal's Office (the CITY FISCAL,
for short) upon complaint filed by the CSG against petitioners for "Subversion/Rebellion
and/or Conspiracy to Commit Rebellion/Subversion."

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

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

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

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

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

8. (a) On December 12th, petitioners filed a Motion to Suppress in the SUBVERSIVE

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

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

This Court, on February 12, 1985, issued a Temporary Restraining Order enjoining the
respondents or their duly authorized representatives from introducing evidence obtained
under the Search Warrant.
The PETITIONERS principally assert that the Search Warrant is void because it is a
general warrant since it does not sufficiently describe with particularity the things subject
of the search and seizure, and that probable cause has not been properly established
for lack of searching questions propounded to the applicant's witness. The respondents,
represented by the Solicitor General, contend otherwise, adding that the questions
raised cannot be entertained in this present petition without petitioners first moving for
the quashal of the disputed Search Warrant with the issuing Judge.

We find merit in the Petition.

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

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

Documents, papers and other records of the Communist Party of the

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

It is at once evident that the foregoing Search Warrant authorizes the seizure of
personal properties vaguely described and not particularized. It is an all- embracing
description which includes everything conceivable regarding the Communist Party of the
Philippines and the National Democratic Front. It does not specify what the subversive
books and instructions are; what the manuals not otherwise available to the public
contain to make them subversive or to enable them to be used for the crime of rebellion.
There is absent a definite guideline to the searching team as to what items might be
lawfully seized thus giving the officers of the law discretion regarding what articles they
should seize as, in fact, taken also were a portable typewriter and 2 wooden boxes. It is
thus in the nature of a general warrant and infringes on the constitutional mandate
requiring particular description of the things to be seized. In the recent rulings of this
Court, search warrants of similar description were considered null and void for being too
general. Thus:
 Subversive documents, pamphlets, leaflets, books, and other publications
to promote the objectives and purposes of the subversive organizations
known as Movement for Free Philippines. Light-a-Fire Movement and April
6 Movement. 6

The things to be seized under the warrant issued by respondent judge

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

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

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

Q Mr. Dionicio Lapus, there is an application for search

warrant filed by Lt. Col. Virgilio Saldajeno and the Court
would like to know if you affirm the truth of your answer in
this deposition?

(The deposition instead)

A Yes, sir,

Q How long did it take you for the surveillance?

A Almost a month, sir.

Q Are you a lawyer, Mr. Lapus?

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

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

A Yes, Your Honor.

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

Roque?

A Because of our day and night surveillance, Your Honor,

there were so many suspicious persons with documents.

Q What kind of documents do you refer to?

A Documents related to the Communist Party of Philippines

and New People's Army.

Q What else?

A Conferences of the top ranking officials from the National

Democratic Front, Organization of the Communist Party of
the Philippines ...

Q And may include what else?

A Other papers and documents like Minutes of the Party

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

The foregoing questions propounded by respondent Executive Judge to the applicant's

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

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

Parenthetically, it strikes the Court that the pendency of the SEARCH WARRANT CASE
and of the SUBVERSIVE DOCUMENTS CASE before two different Courts is not
conducive to an orderly administration of justice. It should be advisable that, whenever a
Search Warrant has been issued by one Court, or Branch, and a criminal prosecution is
initiated in another Court, or Branch, as a result of the service of the Search Warrant,
the SEARCH WARRANT CASE should be consolidated with the criminal case for
orderly procedure. The later criminal case is more substantial than the Search Warrant
proceeding, and the Presiding Judge in the criminal case should have the right to act on
petitions to exclude evidence unlawfully obtained.

Notwithstanding the irregular issuance of the Search Warrant and although, ordinarily,
the articles seized under an invalid search warrant should be returned, they cannot be
ordered returned in the case at bar to AGUILAR-ROQUE. Some searches may be made
without a warrant. Thus, Section 12, Rule 126, Rules of Court, explicitly provides:

Section 12. Search without warrant of person arrested.A person

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

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

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

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

WHEREFORE, while Search Warrant No. 80-84 issued on August 6, 1984 by

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

SO ORDERED.

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

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

Aquino, J.; took no part.

Concepcion Jr., J., reserves his vote.

Separate Opinions
TEEHANKEE, J., concurring and dissenting:

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

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

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

I vote to grant the petition in toto.

ABAD SANTOS, J., concurring and dissenting:

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

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

CUEVAS, J., concurring and dissenting

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

SEC. 12. Search without warrant of person arrested.A person charged

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

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

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

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

The right without a search warrant contemporaneously to search a person

lawfully arrested while committing a crime and to search the place where
the arrest is made in order to find and seize things connected with the
crime as its fruits or as the means by which it was committed, as well as
weapons or other things to effect an escape from custody is not to be
doubted. CAROLL vs. US 267 US 122. 158. ... But the right does not
extend to other places. Frank Agnello's house was several blocks distant
from Alba's house where the arrest was made. When it was entered and
searched, the conspiracy was ended and the defendants were under
arrest and in custody elsewhere. That search cannot be sustained as an
incident of the arrests. MARSON vs. US, 275 US 192, 199. (Emphasis
supplied) (Agnello vs. U.S., 269 U.S. 20,30)
The second element which must exist in order to bring the case within the exception to
the general rule is that, in addition to a lawful arrest, the search must be incident to the
arrest.

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

In the instant case, petitioners were arrested at the intersection of Mayon St. and P.
Margall St. at 11:30 A.M. of August 6. 1976. The search, on the other hand, was
conducted after the arrest, that was at around 12:00 noon of the same day or "late that
same day (as respondents claim in their "COMMENT") at the residence of petitioner
AGUILAR-ROQUE in 239B Mayn St., Quezon City. How far or how many kilometers is
that place from the place where petitioner was arrested do not appear shown by the
record. But what appears undisputed is that the search was made in a place other than
the place of arrest and, not on the occasion of nor immediately after the arrest. It cannot
be said, therefore, that such a search was incidental to the arrest of the petitioners. Not
being an incident of a lawful arrest, the search of the premises at 239B Mayon St.,
Quezon City WITHOUT A VALID SEARCH WARRANT is ILLEGAL and violative of the
constitutional rights of the respondent. The things and properties seized on the occasion
of said illegal search are therefore INADMISSIBLE in evidence under the exclusionary
rule. However, not all the things so seized can be ordered returned to their owners.
Objects and properties the possession of which is prohibited by law, cannot be returned
to their owners notwithstanding the illegality of their seizure. (Mata vs. Bayona, 128
SCRA 388, 1984 citing Castro vs. Pabalan, 70 SCRA 478). Thus, the subversive
materials seized by the government agents which cannot be legally possessed by
anyone under the law can and must be retained by the government.

Separate Opinions

TEEHANKEE, J., concurring and dissenting.

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

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

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

ABAD SANTOS, J., concurring and dissenting:

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

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

CUEVAS, J., concurring and dissenting:

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

I, however, regret being unable to concur with the dictum justifying the said search on
the basis of Sec. 12, Rule 126 of the Rules of Court which provides:

SEC. 12. Search without warrant of person arrested.A person charged

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

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

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

The right without a search warrant contemporaneously to search a person

lawfully arrested while committing a crime and to search the place where
the arrest is made in order to find and seize things connected with the
crime as its fruits or as the means by which it was committed, as well as
weapons or other things to effect an escape from custody is not to be
doubted. CAROLL vs. US 267 US 122. 158. ... But the right does not
extend to other places. Frank Agnello's house was several blocks distant
from Alba's house where the arrest was made. When it was entered and
searched, the conspiracy was ended and the defendants were under
arrest and in custody elsewhere. That search cannot be sustained as an
incident of the arrests. MARSON vs. US, 275 US 192, 199. (Emphasis
supplied) (Agnello vs. U.S., 269 U.S. 20,30)

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

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

In the instant case, petitioners were arrested at the intersection of Mayon St. and P.
Margall St. at 11:30 A.M. of August 6. 1976. The search, on the other hand, was
conducted after the arrest, that was at around 12:00 noon of the same day or "late that
same day (as respondents claim in their "COMMENT") at the residence of petitioner
AGUILAR-ROQUE in 239B Mayon St., Quezon City. How far or how many kilometers is
that place from the place where petitioner was arrested do not appear shown by the
record. But what appears undisputed is that the search was made in a place other than
the place of arrest and, not on the occasion of nor immediately after the arrest. It cannot
be said, therefore, that such a search was incidental to the arrest of the petitioners. Not
being an incident of a lawful arrest, the search of the premises at 239B Mayon St.,
Quezon City WITHOUT A VALID SEARCH WARRANT is ILLEGAL and violative of the
constitutional rights of the respondent. The things and properties seized on the occasion
of said illegal search are therefore INADMISSIBLE in evidence under the exclusionary
rule. However, not all the things so seized can be ordered returned to their owners.
Objects and properties the possession of which is prohibited by law, cannot be returned
to their owners notwithstanding the illegality of their seizure. (Mata vs. Bayona, 128
SCRA 388, 1984 citing Castro vs. Pabalan, 70 SCRA 478). Thus, the subversive
materials seized by the government agents which cannot be legally possessed by
anyone under the law can and must be retained by the government.