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1 Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 93828 December 11, 1992 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SANTIAGO EVARISTO and NOLI CARILLO, accused-appellants.

PADILLA, J.: This is an appeal from the decision of the Regional Trial Court of Trece Martires, Cavite, * in Criminal Case No. NC-267, entitled "People of the Philippines v. Santiago Evaristo and Noli Carillo," finding the accused guilty of illegal possession of firearms in violation of Presidential Decree No. 1866 and accordingly sentencing them to the penalty of life imprisonment. The information indicting the accused-appellants (hereinafter referred to as the appellants) reads: The undersigned Assistant Provincial Fiscal accuses SANTIAGO EVARISTO AND NOLI CARILLO of the crime of VIOLATION of P.D. 1866, committed as follows: That on or about the 23rd. day of August 1988, in the Municipality of Mendez, Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused being private persons not authorized by law did then and there, willfully, unlawfully and feloniously manufacture, repair and kept (sic) in their possession, custody and control one (1) caliber 38 revolver (paltik) with two live ammunition and one (1) empty shell of said caliber, two (2) 12 gauge home made shot guns, one (1) caliber 22 revolver (sumpak) and two (2) vise grips and one (1) plier use (sic) in the manufacture and repair of said firearms without any permit or license from competent (sic) authority. CONTRATRY (sic) TO LAW. Cavite City, August 30, 1988. 1 Appellants having entered a plead of not guilty, trial thereupon commenced, with the prosecution and the defense presenting their respective witnesses and evidence to support their divergent versions of the events leading to the arrest of the appellants. A careful review of the records and the testimony of the prosecution witnesses, Sgt. Eladio Romeroso and CIC Edgardo Vallarta of the Philippine Constabulary, indicates that on the day in question, a contingent composed of Romeroso and Vallarta, together with a Sgt. Daniel Maligaya, also of the Philippine Constabulary, and two (2) members of the Integrated National Police, were on routine patrol duty in Barangay III, Mendez, Cavite. At or about 5:50 in the afternoon, successive bursts of gunfire were heard in the vicinity. Proceeding to the approximate source of the same, they came upon one Barequiel Rosillo who was firing a gun into the air. Seeing the patrol, Rosillo ran to the nearby house of appellant Evaristo prompting the lawmen to pursue him. Upon approaching the immediate perimeter of the house, specifically a cement pavement or porch leading to the same, the patrol chanced upon the slightly inebriated appellants, Evaristo and Carillo. Inquiring as to the whereabouts of Rosillo, the police patrol members were told that he had already

2 escaped through a window of the house. Sgt. Vallarta immediately observed a noticeable bulge around the waist of Carillo who, upon being frisked, admitted the same to be a .38 revolver. After ascertaining that Carillo was neither a member of the military nor had a valid license to possess the said firearm, the gun was confiscated and Carillo invited for questioning. As the patrol was still in pursuit of Rosillo, Sgt. Romeroso sought Evaristo's permission to scour through the house, which was granted. In the sala, he found, not Rosillo, but a number of firearms and paraphernalia supposedly used in the repair and manufacture of firearms, all of which, thereafter, became the basis for the present indictment against Evaristo. For their part, the appellants dispute the above narration of the events in question, alleging that they were forcibly taken into custody by the police officers and even subjected to physical and mental indignities. They denied ownership or knowledge of any of the firearms presented in evidence, contending that these were purposely planted in their possession by the prosecution witnesses and other police authorities. After evaluation of all the evidence, the trial court rendered the now-assailed decision dated 18 April 1990, the dispositive portion of which reads: Wherefore, for having possessed firearms in violation of P.D. No. 1866, accused Santiago Evaristo and Noli Carillo are hereby sentenced to serve the penalty provided for under Sec. 1 thereof. The full period of their preventive imprisonment shall be deducted from the aforementioned penalty. With costs de oficio. SO ORDERED. 2 Hence, this petition, assigning the following as errors of the trial court: 1. The lower court gravely erred in admitting Exhibits "B" to "F" in evidence considering that those are illegally seized evidence; 2. The lower court gravely erred in finding that said illegally seized evidence are firearms as contemplated in Presidential Decree No. 1866; and 3. The lower court gravely erred in giving credence to the arresting officer's testimonies which are patently contradictory and half truths (sic) testimonies. 3 First, on the issue of illegal search. The pertinent rule on the matter is Article III of the Constitution, the relevant portion of which provides: Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Sec. 3. (1) . . . . (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. It is to be noted that what the above constitutional provisions prohibit are unreasonable searches and seizures. For a search to be reasonable under the law, there must, as a rule, be a search warrant validly issued by an appropriate judicial officer. Yet, the rule that searches and seizures must be supported by a valid search warrant is not an absolute and inflexible rule, for jurisprudence has recognized several

3 exceptions to the search warrant requirement. Among these exceptions is the seizure of evidence in plain view, adopted by this jurisdiction from the pronouncements of the United States Supreme Court in Harris vs. U.S. 4 and Coolidge vs. New Hampshire. 5 Thus, it is recognized that objects inadvertently falling in the plain view of an officer who has the right to be in the position to have that view, are subject to seizure and may be introduced in evidence. 6 The records in this case show that Sgt. Romerosa was granted permission by the appellant Evaristo to enter his house. The officer's purpose was to apprehend Rosillo whom he saw had sought refuge therein. Therefore, it is clear that the search for firearms was not Romerosa's purpose in entering the house, thereby rendering his discovery of the subject firearms as inadvertent and even accidental. With respect to the firearms seized from the appellant Carillo, the Court sustains the validly of the firearm's seizure and admissibility in evidence, based on the rule on authorized warrantless arrests. Section 5, Rule 113 of the 1985 Rules on Criminal Procedure provides: Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and 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. For purposes of the present case, the second circumstance by which a warrantless arrest may be undertaken is applicable. For, as disclosed by the records, the peace officers, while on patrol, heard bursts of gunfire and this proceeded to investigate the matter. This incident may well be within the "offense" envisioned by par. 5 (b) of Rule 113, Rules of Court. As the Court held in People of the Philippines v. Sucro, 7 "an offense is committed in the presence or within the view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or HEARS THE DISTURBANCES CREATED THEREBY AND PROCEEDS AT ONCE TO THE SCENE THEREOF." 8 The next inquiry is addressed to the existence of personal knowledge on the part of the peace officer of facts pointing to the person to be arrested as the perpetrator of the offense. Again, reference to the records resolves said query. Giving chase to Rosillo, the peace officers came upon the two (2) appellants who were then asked concerning Rosillo's whereabouts. At that point, Sgt. Vallarta discerned the bulge on the waist of Carillo. This visual observation along with the earlier report of gunfire, as well as the peace officer's professional instincts, are more than sufficient to pass the test of the Rules. Consequently, under the facts, the firearm taken from Carillo can be said to have been seized incidental to a lawful and valid arrest. The next area to be addressed is the allegation of the appellants that the statute's coverage does not extend to firearms that are not functional or serviceable. The Court does not agree. Section 1 of P.D. No. 1866 penalizes "any person who shall unlawfully manufacture, deal in, acquire, dispose, orpossess any firearms, PART OF FIREARM, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition." 9 It is clear that the law makes no distinction as to serviceable or functional firearms. Indeed, the possession of even a part of a firearm is sufficient to come within the prohibitive ambit of the statute. Ubi lex non distinguit nec nos distinguere debemus.

4 Lastly, the appellants challenge the veracity of the testimonies of the prosecution witnesses, maintaining that these were inconsistent with each other, thereby giving rise to the conclusion that the entire incident was a contrivance on their part. Specifically, they point to the apparent conflict in the statement of the prosecution witnesses that there were only three (3) individuals in the vicinity (aside from the peace officers) as opposed to the testimony of another peace officer, testifying as a hostile witness, that aside from the appellants, and Rosillo, there were also other people in the vicinity, such as Evaristo's mother, brother and other farmers. The Court sees no such conflict. A recourse to the trial court proceedings easily shows that the two (2) prosecution witnesses, Sgt. Romerosa and CIC Vallarta, testified in a straightforward and candid manner, categorically identifying the appellants as the two (2) individuals they had apprehended and clearly narrating the circumstances of such apprehension. The defense has given no possible reason or motivation for these peace officers to make false accusations against the appellants. Absent the presentation of such defense evidence, the testimony of the peace officers should deserve full credence. WHEREFORE, the judgment of the trial court of Trece Martires, Cavite in Criminal Case No. NC-267 finding the accused Santiago Evaristo and Noel Carillo guilty beyond reasonable doubt for Illegal Possession of Firearms as defined in Presidential Decree No. 1866, is hereby AFFIRMED. The Court orders the forfeiture of the firearms and other incidental paraphernalia found in the possession of the appellants, in favor of the Philippine National Police (PNP) to be disposed of in accordance with law. No pronouncement as to costs. SO ORDERED.

5 Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 101124 May 17, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CARMELINA TABAR y CARMILOTES and ROMMEL ARRIESGADO y TABAR, accused.CARMELINA TABAR y CARMILOTES, accused-appellant. The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant.

DAVIDE JR., J.: Carmelina Tabar y Carmilotes and her nephew, Rommel Arriesgado y Tabar, of Tres de Abril, Punta Princesa, Cebu City, were charged with the violation of Section 4, Article II of R.A.No. 6425, as amended, in an Information filed by the Office of the City Fiscal of Cebu City with the Regional Trial Court of Cebu City on 9 February 1989, the accusatory portion of which reads a follows: That on or about the 8th day of February 1989, at about 3:00 PM. in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conniving and confederating together and mutually helping each other, with deliberate intent, did then and there sell and deliver, without authority of law, Three (3) sticks of marijuana cigarettes, a (sic) prohibited drugs, to a person who posted himself as a buyer, in Viol. of Sec. 4, Art. 11, of RA 6425, as amended, otherwise known as the Dangerous Act of 1972. 1 The case was docketed as Criminal Case No. CBU-14863 and after it was raffled off to Branch 15 of the said court, the accused were forthwith arraigned. Carmelina entered a plea of not guilty while Rommel, then seventeen (17) years of age, with the conformity of the prosecution, entered a plea of guilty to the lesser offense of possession of marijuana under Section 8, Article II of R.A. No. 6425, as amended. 2 As a consequence of his plea, the trial court handed down on 24 April 1989 an Order which reads in part as follows: Therefore this court being satisfied that the accused herein is the same Ramil Tabar described in Annex 1 (Certificate of Birth) of the said accused, and it appearing that he is still a minor (17 years), he is entitled to a suspended sentence of the penalty for possession of marijuana which is a jail term of six (6) years and one (1) day to twelve (12) years and a fine of Six Thousand (P6,000.00) pesos (Sec. 8 RA 6425 as amended of B.P. 179, March 2, 1982). WHEREFORE, the accused Rommel Tabar y Arriesgado is hereby discharged on probation (Sec. 32 of RA 6425 as amended by B.P. 179) and committed to the custody of the Department of Social Welfare and Development, Cebu Regional Office (No. 7) until he reaches the age of majority, or otherwise finally discharged upon orders of this court pursuant to P.D. 603 and B.P. 179, but to be placed under the Supervision of the Dangerous Drugs Board, the alleged crime being drug related, and for a period of one (1) year from date hereof.

6 The Regional Director of the DSWD is hereby ordered to conduct and submit a case study of the accused minor to this court, within sixty days and to report on his conduct once every four months, to this court. 3 Thereafter, trial proceeded as against Carmelina alone. The prosecution presented Pfc. Josephus Trangia and Myra P. Arreola, a forensic analyst of the PC Crime Laboratory Service, as its witnesses. The testimony of Pfc. Raul Tumakay was ordered stricken out since he could not be cross-examined. The defense had only Carmelina as its witness. On 22 December 1990, the trial court promulagated its decision, dated 17 December 1990, 4 finding Carmelina "guilty, beyond reasonable doubt, for (sic) violation of Section 4, Article II RA 6425, otherwise known as the Dangerous Drug Act of 1972 as amended by PD 1675" and sentencing her to "Reclusion Perpetua and to pay a fine of P20,000.00 for the act of selling and distributing marijuana." 5 The conviction is premised on the following findings of fact: From the evidence which consists of the testimony of Pfc. Josephus Trangia, the court gathered that at about 3:00 P.M. of February 8, 1989, he was with Pfc. Romeo Cortes and Gualberto Gabales on a buy-bust operation for marijuana after receipt of information about marijuana pushers in Punta Princesa, Cebu City and that they had their informant go ahead of them after giving the P5.00 bill for him to purchase marijuana. He continued saying that their informant stood in front of a shanty while they posted themselves at a distance of about 50 meters from the place where their informant was standing. And that they saw a young boy approached their informant and handed cigarettes to him who in turn handed the marked money to the young boy. Then, their informant gave them the pre-arranged signal of scratching his head with his right hand; that after the signal, he and his companions immediately approached the young boy and the informant introduced them as police officers. This young boy was about 16-17 years old, by the name of Rommel Arriesgado y Tabar. He had earlier pleaded guilty to the lesser offense of mere possession of marijuana and was, in fact, already convicted by this court. Upon being shown a P5.00 bill with the initials written thereon as: GDG-89 and bearing SL L F 637396, he identified the same bill as the one given to their informant and marked as Exh. "A" for the prosecution. He explained the initials GDG which stands for Gualberto G. Gabales, his team member. He further declared that after the prearranged signal from their informant, they immediately proceeded to the scene and were given three sticks of marijuana by their informant after buying the same from the boy, Rommel Arriesgado and that they proceeded to confiscate the P5.00 bill from the boy. At this juncture, he claimed that he observed that after the transaction, the boy went inside the shanty and the moment he got out, he handed the three sticks of marijuana to the informant. In fact, he claimed that after the proceeding to the shanty, they met Carmelina Tabar, accused herein, and that Carmelina Tabar was holding a white pants from where they found other marijuana sticks in cigarette packs which they confiscated. That they brought Carmelina Tabar to Fuente Police Station for investigation. He claimed that there were 75 sticks of marijuana in the Hope Cigarette pack; 22 sticks of marijuana cigarettes in the Philip Morris pack and 99 sticks of marijuana in the Mark cigarette pack. He said that they also confiscated the pants, but only the marijuana sticks were submitted for testing to the PC Crime Laboratory. That pursuant to this requested analysis, Lieut. Fortunato Quijon of the Police issued a Certification of Field Test, Exh. "B" which showed that three sticks of handrolled cigarettes marked Rommel-89 were positive for marijuana. Shown the three packs of cigarettes distincly marked as Hope, Mark and Philip Morris, he identified the same as the ones confiscated from Carmelina Tabar. So did he identify the cream-colored pants he said they confiscated from Carmelina Tabar and which according to him was used to wrap marijuana sticks inside the pack. He finally told the court that this team was composed of Gualberto D. Gabales, Romeo Cortes, Pfc. Tumakay and himself.

7 On cross-examination, this witness affirmed that when he asked the boy, Rommel where he got the marijuana sticks, he was told he got it from his aunt, the accused herein. He further told the court that they arrested Carmelina Tabar later. When the young boy went inside, they presumed the marijuana came from inside the shanty and that when the accused Carmelina Tabar went out, suspicious-looking and pale and afraid to face them, they told her to stop from going left towards the houses and asked her to open the pants which revealed the three cigarette packs contaning marijuana. The witness candidly admitted they had no search warrant at the time they effected the arrest and confiscation. From the testimonies of Mrs. Myrna Areola, Police Lieutenant, Forensic Analyst of the PC Crime Laboratory, it was established that the specimens submitted to her were positive of marijuana. She then identified Exh. "C", as her Chemistry Report C-038-89. She also identified her signature, Exh. "C-4" thereon and her findings "All are positive of Marijuana", Exh. "C-3"; the specimens submitted as Exh. "C-2" and the name of the subject, Carmelina Tabar as Exh. "C-1". She confirmed her findings on all handrolled cigarettes in all cigarette packs; Hope, Exh. "E-1" to "E-75"; Philip Morris pack, Exh. "F-1" to "F-22" and Mark cigarette pack, Exh. "G-1" to "G-99". She informed the court that the specimens were submitted to her by Pfc Gabales on February 11, 1989, at about 10:50 A.M., and that she examined the sticks one by one and handrolled them again. She also claimed that the police did not ask for a copy of her report and that this is the first time it is presented in court. She informed the court that she placed the specimens in her evidence store room, with keys, she herself kept.6 The trial court discredited the bare denials of Carmelina and unfavorably considered against her an admission that she had been arrested before by the CANU for possession of marijuana, was charged for the violation of Section 8, Article II of R.A. No. 6425 in Criminal Case No. CBU-8573, was convicted therein, but is now on probation. 7 It further considered against her an allegedly very damaging admission, thus: She made a very damaging admission to the court when the Presiding Judge asked her whether it is not true that she kept on crying because she was caught again and she said, "Yes" and at which juncture she admitted to the court that she was serving probation for the same offense. 8 It then concluded that: [A]ccused actually employed her nephew, Rommel Arriesgado to sell marijuana from her store and that she has been in that illicit business for quite sometime now. The evidence notwithstanding, talks in the community where the accused lives is rife with accusations (sic) that she is indeed engaged with members of the family, in the sale and distribution of prohibited drugs such as marijuana. Between the positive testimony of the arresting officers, who appear to be more credible than the accused's worthless and untrustworthy denials, the court gives credence to the evidence of the prosecution. 9 Unable to accept the verdict, Carmelina filed her notice of appeal 10 manifesting therein that she is appealing from the decision to the Court of Appeals. In its Order of 27 February 1991, 11 the trial court gave due course to the appeal and directed the clerk of court "to submit all the records, evidences (sic) and trancripts of this proceeding to the Hon. Court of Appeals, for proper disposition." Considering that the penalty imposed is reclusion perpetua, the Court of Appeals transmitted to this Court the records of the case on 12 August 1991. 12 In the Resolution of 11 September 1991, this Court accepted the appeal. In her Appellant's Brief, 13 Carmelina, hereinafter referred to as the appellant, imputes upon the trial court the commission of the following errors in the appealed decision: I.

8 . . . IN CONVICTING ACCUSED-APPELLANTS (sic) OF VIOLATION OF SECTION 4, ARTICLE II, REPUBLIC ACT 6425 AS AMENDED WHEN THE EVIDENCE DOES NOT WARRANT IT. II. . . . IN ADMITTING EVIDENCE SEIZED WITHOUT ANY SEARCH WARRANT. 14 As to the first assigned error, the appellant claims that the prosecution presented no evidence that she sold marijuana and since there exists no convincing, positive and conclusive proof of conspiracy between her and her co-accused, Rommel Arriesgado, she cannot be held liable for violation of Section 4, Article II of R.A. No. 6425, as amended. In support of the second assigned error, the appellant maintains that the marijuana cigarettes seized from her are inadmissible in evidence because they were obtained in violation of the constitutional guarantee against unreasonable search and seizure. After a careful perusal of the records and evaluation of the evidence, this Court is inclined to agree with the appellant that she should not be convicted under Section 4, Article II of R.A. No, 6425. We rule, however, that she is liable under Section 8, Article II of the said Act. Her conviction by the trial court under Section 4 is primarily based on its conclusion that the appellant "actually employed her nephew Rommel Arriesgado to sell marijuana from her store and that she had been in that illicit business for quite sometime now." This conclusion is based on the trial court's sweeping statement that "talks in the community where the accused lives is rife with accusations that she is indeed engaged with members of the family, in the sale and distribution of prohibited drugs such as marijuana." We find no evidence on record to sustain this charge. It may thus be said that such a conclusion is not based on established facts but on "talks in the community." If indeed such was the fact, it would not have been difficult for the prosecution to provide the court with overwhelming evidence. Yet, it presented only Pat. Trangia who, rather unfortunately, did not even testify or volunteer information that the main target of the busy-bust operation was the appellant. He did not also disclose in his testimony that the appellant was among the reported "pushers" in Punta Princesa, Cebu City. It may be recalled that the buy-bust operation on 8 February 1989 was conducted because, as he alleged: A. Before that time we have already received information from the community of Punta Princesa regarding marijuana pushers in that place. 15 Nevertheless, the prosecutor who conducted the direct-examination of Trangia did not ask further as to identity of the pushers such that it was not proven that the appellant was one of them. The Solicitor General, however, maintains that there was conspiracy, established by circumstancial evidence, between accused Rommel Arriesgado who was caught in flagrante selling three (3) sticks of handrolled marijuana to the informant and accepting the marked money. We are not persuaded since the evidence for the prosecution does not show that (a) the appellant was in the mind of the members of the team when they planned the buybust operation and when they carried out such plan, (b) the three (3) sticks of handrolled marijuana came from the appellant, and (c) the appellant used Rommel as her agent to sell the three (3) sticks to the informant. Moreover, if indeed the prosecution truly believed that such conspiracy existed, it should not have willingly given its conformity to Rommel's plea to the lesser offense of illegal possession of prohibited drugs under Section 8, Article II of R.A. No. 6425, as amended. Having been caught in flagrante for selling marijuana, it was not difficult to prove Rommel's culpability under Section 4, Article II of the Act. Yet it readily consented to his offer to plead guilty to the said lesser offense. It was, however, established beyond any shadow of doubt and, therefore, with moral certainty, that the appellant kept in her possession handrolled sticks of marijuana placed in empty Hope, Philip Morris and Mark cigarrette packs. 16 She does not have any authority to possess them. She may have acquired them with the intention to sell them for profit; but without proof of sale, she cannot be held liable under Section 4, Article II of the Dangerous Drugs Act. For such possession, her liability is covered by Section 8

9 of the said Article which penalizes possession or use of prohibited drugs. The last paragraph thereof reads: xxx xxx xxx The penalty of the imprisonment ranging from six years and one day to twelve years and a fine ranging from six thousand to twelve thousand pesos shall be imposed upon any person who, unless authorized by law, shall possess or use of Indian hemp. Indian hemp is otherwise known as Marijuana. 17 Appellant, therefore, may specifically be penalized under the aforesaid last paragraph of Section 8, Article II of the Act. Applying the Indeterminate Sentence Law, 18 the penalty of eight (8) years as Minimum to twelve (12) years as Maximum and a fine of P10,000.00 may then be imposed upon her. The second assigned error is without merit. The evidence for the prosecution discloses that the appellant placed the packs of marijuana sticks under the rolled pair of pants which she was then carrying at the time she hurriedly left her shanty after noticing the arrest of Rommel. When she was asked to spread it out, which she voluntary did, the package containing the packs of marijuana sticks were thus exposed in plain view to the member of the team. A crime was thus committed in the presence of the policemen. Pursuant to Section 5, Rule 113 and Section 12 Rule 126 of the Revised Rules of Court, she could lawfully be arrested and searched for anything which may be used as proof of the commission of an offense without the corresponding arrest and search warrants. Her own counsel on crossexamination of prosecution witness Josephus Trangia further obtained a affirmation of these facts, thus: Q. You mean to say that when you saw Carmelina Tabar allegely went (sic) out of the shanty you only saw the white long pants and not the cigarettes? A. Only the pants. Q. Did you say that in order to find out what was the contents of the pants, you asked her to open the pants. Isn't it? A. Yes. Q. Now, after she opened it, what did you see? A. Three (3) packs of marijuana cigarettes. Q. Who among you in your team approached Carmelina Tabar? A. It was PFC Raul Tumakay. 19 Even assuming ex gratia argumenti that the seach and seizure were without a warrant, the appellant had effectively waived her constitutional right relative thereto by voluntarily submitting to the seach and seizure. In People vs. Malasugui, 20 this Court ruled: When one voluntarily submits to a search and consent to have it made of his person or premises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th ed., vol. I, pages 631). The right to be secure from unreasonable seach may, like every right, be waived and such waiver may be made either expressly or impliedly. The exclusionary rule relied upon by the appellant does not provide her safe refuge. Before We close this case, a final observation for the guidance of trial judges must be made. For the violation of Section 4, Article II of R. A. No. 6425, as amended, the trial court imposed the penalty ofreclusion perpetua. The penalty provided for therein is "life imprisonment to death and a fine ranging from twenty thousand to thirty thousand pesos." In view of Section 19(1), Article III of the 1987 Constitution which prohibits the imposition of the death penalty, the maximum penalty then imposable thereunder would only be life imprisonment. Life imprisonment, however, is not synonymous with reclusion perpetua. We have reiterated this time and again 21and admonished judges to employ the proper legal terminology in the imposition of imprisonment penalties because of their different accompanying legal accessories and effects. 22

10 IN THE LIGHT OF THE FOREGOING, judgment is hereby rendered modifying the challenged Decision of Branch 15 of the Regional Trial Court of Cebu in Criminal Case No. CBU-14863 dated 17 December 1990 and, as modified, finding appellant CARMELINA TABAR y CARMILOTES guilty beyond reasonable doubt of illegal possession of marijuana under Section 8, Article II of R. A. No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, and, applying the Inderterminate Sentence Law, she is sentenced to suffer imprisonment of eight (8) years as minimum to twelve (12) years as maximum and to pay a fine of Ten Thousand Pesos (P10,000.00). Costs against the appellant.SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC

11 G.R. No. 71410 November 25, 1986 JOSEFINO S. ROAN, petitioner, vs. THE HONORABLE ROMULO T. GONZALES, PRESIDING JUDGE, REGIONAL TRIAL COURT OF MARINDUQUE, BRANCH XXXVIII; THE PROVINCIAL FISCAL OF MARINDUQUE; THE PROVINCIAL COMMANDER, PC-INP MARINDUQUE, respondents.

CRUZ, J: Once again we are asked to annul a search warrant on the ground that it violates the Constitution. As we can do no less if we are to be true to the mandate of the fundamental law, we do annul. One of the most precious rights of the citizen in a free society is the right to be left alone in the privacy of his own house. That right has ancient roots, dating back through the mists of history to the mighty English kings in their fortresses of power. Even then, the lowly subject had his own castle where he was monarch of all he surveyed. This was his humble cottage from which he could bar his sovereign lord and all the forces of the Crown. That right has endured through the ages albeit only in a few libertarian regimes. Their number, regrettably, continues to dwindle against the onslaughts of authoritarianism. We are among the fortunate few, able again to enjoy this right after the ordeal of the past despotism. We must cherish and protect it all the more now because it is like a prodigal son returning. That right is guaranteed in the following provisions of Article IV of the 1973 Constitution: 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. SEC. 4. (1) The privacy of communication and cor- respondence shag be inviolable except upon lawful order of the court, or when public safety and order require otherwise. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. Invoking these provisions, the petitioner claims he was the victim of an illegal search and seizure conducted by the military authorities. The articles seized from him are sought to be used as evidence in his prosecution for illegal possession of firearms. He asks that their admission be temporarily restrained (which we have) 1 and thereafter permanently enjoined. The challenged search warrant was issued by the respondent judge on May 10, 1984. 2 The petitioner's house was searched two days later but none of the articles listed in the warrant was discovered. 3 However, the officers conducting the search found in the premises one Colt Magnum revolver and eighteen live bullets which they confiscated. They are now the bases of the charge against the petitioner. 4 To be valid, a search warrant must be supported by probable cause to be determined by the judge or some other authorized officer after examining the complainant and the witnesses he may produce. No less important, there must be a specific description of the place to be searched and the things to be seized, to prevent arbitrary and indiscriminate use of the warrant. 5

12 Probable cause was described by Justice Escolin in Burgos v. Chief of Staff 6 as referring to "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." As held in a long line of decisions, the probable cause must refer to only one specific offense. 7 The inclusion of the requirement for the "examination under oath or affirmation of the complainant and the witnesses he may produce" was a refinement proposed by Delegate Vicente J. Francisco in the1934 Constitutional Convention. His purpose was the strengthening of the guaranty against unreasonable searches and seizures. Although the condition did not appear in the corresponding provision of the federa Constitution of the United States which served as our model it was then already embodied in the Code of Criminal Procedure. Nevertheless, Delegate Jose P. Laurel, Chairman of the Committee on the Bill of Rights of that body, readily accepted the proposal and it was thereafter, following a brief debate, approved by the Convention. 8 Implementing this requirement, the Rules of Court provided in what was then Rule 126: SEC. 4. Examination of the applicant. The municipal or city judge must, before issuing the warrant, personally examine on oath or affirmation the complainant and any witnesses he may produce and take their depositions in writing, and attach them to the record, in addition to any affidavits presented to him. The petitioner claims that no depositions were taken by the respondent judge in accordance with the above rule, but this is not entirely true. As a matter of fact, depositions were taken of the complainant's two witnesses in addition to the affidavit executed by them. 9 It is correct to say, however, that the complainant himself was not subjected to a similar interrogation. Commenting on this matter, the respondent judge declared: The truth is that when PC Capt. Mauro P. Quinosa personally filed his application for a search warrant on May 10, 1984, he appeared before me in the company of his two (2) witnesses, Esmael Morada and Jesus Tohilida, both of whom likewise presented to me their respective affidavits taken by Pat. Josue V. Lining, a police investigator assigned to the PC-INP command at Camp Col. Maximo Abad. As the application was not yet subscribed and sworn to, I proceeded to examine Captain Quillosa on the contents thereof to ascertain, among others, if he knew and understood the same. Afterwards, he subscribed and swore to the same before me. 10 By his own account, an he did was question Captain Quillosa on the contents of his affidavit only "to ascertain, among others, if he knew and understood the same," and only because "the application was not yet subscribed and swom to." The suggestion is that he would not have asked any questions at all if the affidavit had already been completed when it was submitted to him. In any case, he did not ask his own searching questions. He limited himself to the contents of the affidavit. He did not take the applicant's deposition in writing and attach them to the record, together with the affidavit presented to him. As this Court held in Mata v. Bayona: 11 Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take depositions in writing of the complainant and the witnesses he niay produce and attach them to the record. Such written deposition is necessary in order that the Judge may be able to properly determine the existence or non-existence of the probable cause, to hold liable for perjury the person giving it if it wifl be found later that his declarations are false. We, therefore, hold that the search warrant is tainted with illegality by the failure of the Judge to conform with the essential requisites of taking the depositions in writing and attaching them to the record, rendering the search warrant invalid.

13 The respondent judge also declared that he "saw no need to have applicant Quillosa's deposition taken considering that he was applying for a search warrant on the basis of the information provided by the aforenamed witnesses whose depositions as aforementioned had already been taken by the undersigned." 12 In other words, the applicant was asking for the issuance of the search warrant on the basis of mere hearsay and not of information personally known to him, as required by settled jurisprudence." 13 The rationale of the requirement, of course, is to provide a ground for a prosecution for perjury in case the applicant's declarations are found to be false. His application, standing alone, was insufficient to justify the issuance of the warrant sought. It was therefore necessary for the witnesses themselves, by their own personal information, to establish the apphcant's claims. 14 Even assuming then that it would have sufficed to take the depositions only of the witnesses and not of the applicant himself, there is still the question of the sufficiency of their depositions. It is axiomatic that the examination must be probing and exhaustive, not merely routinary or proforma, if the claimed probable cause is to be established. The examining magistrate must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application. 15 A study of the depositions taken from witnesses Esmael Morada and Jesus Tohilida, who both claimed to be "intelligence informers," shows that they were in the main a mere restatement of their allegations in their affidavits, except that they were made in the form of answers to the questions put to them by the respondent judge. Significantly, the meaningful remark made by Tohilida that they were suspicious of the petitioner because he was a follower of the opposition candidate in the forthcoming election (a "Lecarista") 16 did not excite the respondent judge's own suspicions. This should have put him on guard as to the motivations of the witnesses and alerted him to possible misrepresentations from them. The respondent judge almost unquestioningly received the witnesses' statement that they saw eight men deliver arms to the petitioner in his house on May 2, 1984. 17 This was supposedly done overtly, and Tohilida said he saw everything through an open window of the house while he was near the gate. 18 He could even positively say that six of the weapons were.45 caliber pistols and two were.38 caliber revolvers. 19 One may well wonder why it did not occur to the respondent judge to ask how the witness could be so certain even as to the caliber of the guns, or how far he was from the window, or whether it was on the first floor or a second floor, or why his presence was not noticed at all, or if the acts related were really done openly, in the full view of the witnesses, considering that these acts were against the law. These would have been judicious questions but they were injudiciously omitted. Instead, the declarations of the witnesses were readily accepted and the search warrant sought was issued forthwith. The above-discussed defects have rendered the search warrant invalid. Nonetheless, the Solicitor General argues that whatever defect there was, was waived when the petitioner voluntarily submitted to the search and manifested his conformity in writing. 20 We do not agree. What we see here is pressure exerted by the military authorities, who practically coerced the petitioner to sign the supposed waiver as a guaranty against a possible challenge later to the validity of the search they were conducting. Confronted with the armed presence of the military and the presumptive authority of a judicial writ, the petitioner had no choice but to submit. This was not, as we held in a previous case, 21 the manifestation merely of our traditional Filipino hospitality and respect for authority. Given the repressive atmosphere of the Marcos regime, there was here, as we see it, an intimidation that the petitioner could not resist. The respondents also argue that the Colt Magnum pistol and the eighteen have bullets seized from the petitioner were illegal per se and therefore could have been taken by the military authorities even without a warrant. Possession of the said articles, it is urged, was violative of P.D. 1866 and considered malum prohibitum. Hence, the Wegal articles could be taken even without a warrant.

14 Prohibited articles may be seized but only as long as the search is valid. In this case, it was not because: 1) there was no valid search warrant; and 2) absent such a warrant, the right thereto was not validly waived by the petitioner. In short, the military officers who entered the petitioner's premises had no right to be there and therefore had no right either to seize the pistol and bullets. It does not follow that because an offense is malum prohibitum, the subject thereof is necessarily illegal per se.Motive is immaterial in mala prohibita, but the subjects of this kind of offense may not be summarily seized simply because they are prohibited. A search warrant is still necessary. If the rule were otherwise, then the military authorities could have just entered the premises and looked for the guns reportedly kept by the petitioner without bothering to first secure a search warrant. The fact that they did bother to do so indicates that they themselves recognized the necessity of such a warrant for the seizure of the weapons the petitioner was suspected of possessing. It is true that there are certain instances when a search may be validly made without warrant and articles may be taken validly as a result of that search. For example, a warrantless search may be made incidental to a lawful arrest, 22 as when the person being arrested is frished for weapons he may otherwise be able to use against the arresting officer. Motor cars may be inspected at borders to prevent smuggling of aliens and contraband 23 and even in the interior upon a showing of probable cause. 24 Vessels and aircraft are also traditionally removed from the operation of the rule because of their mobility and their relative ease in fleeing the state's jurisdiction. 25 The individual may knowingly agree to be searched or waive objections to an illegal search. 26 And it has also been held that prohibited articles may be taken without warrant if they are open to eye and hand and the peace officer comes upon them inadvertently. 27 Clearly, though, the instant case does not come under any of the accepted exceptions. The respondents cannot even claim that they stumbled upon the pistol and bullets for the fact is that these things were deliberately sought and were not in plain view when they were taken. Hence, the rule having been violated and no exception being applicable, the conclusion is that the petitioner's pistol and bullets were confiscated illegally and therefore are protected by the exclusionary principle. Stonehill v. Diokno established this rule which was later expressly affirmed in the 1973 Constitution. While conceding that there may be occasions when the criminal might be allowed to go free because "the constable has blundered," Chief Justice Concepcion observed that the exclusionary rule was nonetheless "the only practical means of enforcing the constitutional injunction" against abuse. The decision cited Judge Learned Hand's justification that "only in case the prosecution which itself controls the seizing officials, know that it cannot profit by their wrong, will the wrong be repressed. " The pistol and bullets cannot, of course, be used as evidence against the petitioner in the criminal action against him for illegal possession of firearms. Pending resolution of that case, however, the said articles must remain incustodia legis. Finally, it is true that the petitioner should have, before coming to this Court, filed a motion for the quashal of the search warrant by the respondent judge in accordance with the normal procedure. But as we said and did in Burgos, "this procedural flaw notwithstanding, we take cognizance of this petition in view of the seriousness and urgency of the constitutional issues raised. 28 WHEREFORE, Search Warrant No. 1-84 issued by the respondent judge on May 10, 1984, is hereby declared null and void and accordingly set aside. Our restraining order of August 6,1985, is made permanent. No costs. SO Order

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

15

G.R. No. 96177 January 27, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARI MUSA y HANTATALU, accused-appellant. The Solicitor General for plaintiff-appellee. Pablo L. Murillo for accused-appellant.

ROMERO, J.: The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision, dated August 31, 1990, 1 of the Regional Trial Court (RTC) of Zamboanga City, Branch XII, finding him guilty of selling marijuana in violation of Article II, Section 4 of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972. The information filed on December 15, 1989 against the appellant reads: That on or about December 14, 1989, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and there, wilfully, unlawfully and feloniously sell to one SGT. AMADO ANI, two (2) wrappers containing dried marijuana leaves, knowing the same to be a prohibited drug. CONTRARY TO LAW. 2 Upon his arraignment on January 11, 1990, the appellant pleaded not guilty. 3 At the trial, the prosecution presented three (3) witnesses, namely: (1) Sgt. Amado Ani, Jr. of the 9th Narcotics Command (NARCOM) of Zamboanga City, who acted as poseur-buyer in the buy-bust operation made against the appellant; (2) T/Sgt. Jesus Belarga, also of the 9th Narcotics Command of Zamboanga City, who was the NARCOM team leader of the buy-bust operation; and (3) Athena Elisa P. Anderson, the Document Examiner and Forensic Chemist of PC-INP Crime Laboratory of Regional Command (RECOM) 9. The evidence of the prosecution was summarized by the trial court as follows: Prosecution evidence shows that in the morning of December 13, 1989, T/Sgt. Jesus Belarga, leader of a NARCOTICS COMMAND (NARCOM) team based at Calarian, Zamboanga City, instructed Sgt. Amado Ani to conduct surveillance and test buy on a certain Mari Musa of Suterville, Zamboanga City. Information received from civilian informer was that this Mari Musa was engaged in selling marijuana in said place. So Sgt. Amado Ani, another NARCOM agent, proceeded to Suterville, in company with a NARCOM civilian informer, to the house of Mari Musa to which house the civilian informer had guided him. The same civilian informer had also described to him the appearance of Mari Musa. Amado Ani was able to buy one newspaper-wrapped dried marijuana (Exh. "E") for P10.00. Sgt. Ani returned to the NARCOM office and turned over the newspaper-wrapped marijuana to T/Sgt. Jesus Belarga. Sgt. Belarga inspected the stuff turned over to him and found it to be marijuana. The next day, December 14, 1989, about 1:30 P.M., a buy-bust was planned. Sgt. Amado Ani was assigned as the poseur buyer for which purpose he was given P20.00 (with SN GA955883) by Belarga. The buy-bust money had been taken by T/Sgt. Jesus Belarga from M/Sgt. Noh Sali Mihasun, Chief of Investigation Section, and for which Belarga signed a receipt (Exh. "L" & "L-l" )

16 The team under Sgt. Foncargas was assigned as back-up security. A pre-arranged signal was arranged consisting of Sgt. Ani's raising his right hand, after he had succeeded to buy the marijuana. The two NARCOM teams proceeded to the target site in two civilian vehicles. Belarga's team was composed of Sgt. Belarga, team leader, Sgt. Amado Ani, poseur buyer, Sgt. Lego and Sgt. Biong. Arriving at the target site, Sgt. Ani proceeded to the house of Mari Musa, while the rest of the NARCOM group positioned themselves at strategic places about 90 to 100 meters from Mari Musa's house. T/Sgt. Belarga could see what went on between Ani and suspect Mari Musa from where he was. Ani approached Mari Musa, who came out of his house, and asked Ani what he wanted. Ani said he wanted some more stuff. Ani gave Mari Musa the P20.00 marked money. After receiving the money, Mari Musa went back to his house and came back and gave Amado Ani two newspaper wrappers containing dried marijuana. Ani opened the two wrappers and inspected the contents. Convinced that the contents were marijuana, Ani walked back towards his companions and raised his right hand. The two NARCOM teams, riding the two civilian vehicles, sped towards Sgt. Ani. Ani joined Belarga's team and returned to the house. At the time Sgt. Ani first approached Mari Musa, there were four persons inside his house: Mari Musa, another boy, and two women, one of whom Ani and Belarga later came to know to be Mari Musa's wife. The second time, Ani with the NARCOM team returned to Mari Musa's house, the woman, who was later known as Mari Musa's wife, slipped away from the house. Sgt. Belarga frisked Mari Musa but could not find the P20.00 marked money with him. Mari Musa was then asked where the P20.00 was and he told the NARCOM team he has given the money to his wife (who had slipped away). Sgt. Belarga also found a plastic bag containing dried marijuana inside it somewhere in the kitchen. Mari Musa was then placed under arrest and brought to the NARCOM office. At Suterville, Sgt. Ani turned over to Sgt. Belarga the two newspaper-wrapped marijuana he had earlier bought from Mari Musa (Exhs. "C" & "D"). In the NARCOM office, Mari Musa first gave his name as Hussin Musa. Later on, Mari Musa gave his true name Mari Musa. T/Sgt. Jesus Belarga turned over the two newspaper-wrapped marijuana (bought at the buy-bust), the one newspaper-wrapped marijuana (bought at the test-buy) and the plastic bag containing more marijuana (which had been taken by Sgt. Lego inside the kitchen of Mari Musa) to the PC Crime Laboratory, Zamboanga City, for laboratory examination. The turnover of the marijuana specimen to the PC Crime Laboratory was by way of a letter-request, dated December 14, 1989 (Exh. "B"), which was stamped "RECEIVED" by the PC Crime Laboratory (Exh. "B-1") on the same day. Mrs. Athena Elisa P. Anderson, the Forensic Chemist of the PC Crime Laboratory, examined the marijuana specimens subjecting the same to her three tests. All submitted specimens she examined gave positive results for the presence of marijuana. Mrs. Anderson reported the results of her examination in her Chemistry Report D-100-89, dated December 14, 1989, (Exh. "J", "J-1", "J-2", "J-3", "J-4" and "J-5"). Mrs. Anderson identified in court the two newspaper wrapped marijuana bought at the buy-bust on December 14, 1989, through her initial and the weight of each specimen written with red ink on each wrapper (Exhs. "C-1" and "D-1"). She also identified the one newspaper-wrapped marijuana bought at the test-buy on December 13, 1989, through her markings (Exh. "E-1"). Mrs. Anderson also identified her Chemistry Report (Exh. "J" & sub-markings.) T. Sgt. Belarga identified the two buy-bust newspaper wrapped marijuana through his initial, the words "buy-bust" and the words "December 14, 1989, 2:45 P.M." (written on Exhs. "C" and "D"). Belarga also identified the receipt of the P20 marked money (with SN GA955883) (Exh. "L"), dated December 14, 1989, and his signature thereon (Exh. "L-1"). He also identified the letter-request, dated December 14, 1989, addressed to the

17 PC Crime Laboratory (Exh. "B") and his signature thereon (Exh. "B-2") and the stamp of the PC Crime Laboratory marked "RECEIVED" (Exh. "B-1"). 4 For the defense, the following testified as witnesses: (1) the accused-appellant Mari H. Musa; and (2) Ahara R. Musa, his wife. The trial court summarized the version of the defense, thus: [O]n December 14, 1989, at about 1:30 in the afternoon, Mari Musa was in his house at Suterville, Zamboanga City. With him were his wife, Ahara Musa, known as Ara, his oneyear old child, a woman manicurist, and a male cousin named Abdul Musa. About 1:30 that afternoon, while he was being manicured at one hand, his wife was inside the one room of their house, putting their child to sleep. Three NARCOM agents, who introduced themselves as NARCOM agents, dressed in civilian clothes, got inside Mari Musa's house whose door was open. The NARCOM agents did not ask permission to enter the house but simply announced that they were NARCOM agents. The NARCOM agents searched Mari Musa's house and Mari Musa asked them if they had a search warrant. The NARCOM agents were just silent. The NARCOM agents found a red plastic bag whose contents, Mari Musa said, he did not know. He also did not know if the plastic bag belonged to his brother, Faisal, who was living with him, or his father, who was living in another house about ten arms-length away. Mari Musa, then, was handcuffed and when Mari Musa asked why, the NARCOM agents told him for clarification. Mari Musa was brought in a pick-up, his wife joining him to the NARCOM Office at Calarian, Zamboanga City. Inside the NARCOM Office, Mari Musa was investigated by one NARCOM agent which investigation was reduced into writing. The writing or document was interpreted to Mari Musa in Tagalog. The document stated that the marijuana belonged to Mari Musa and Mari Musa was asked to sign it. But Mari Musa refused to sign because the marijuana did not belong to him. Mari Musa said he was not told that he was entitled to the assistance of counsel, although he himself told the NARCOM agents he wanted to be assisted by counsel. Mari Musa said four bullets were then placed between the fingers of his right hand and his fingers were pressed which felt very painful. The NARCOM agents boxed him and Mari Musa lost consciousness. While Mari Musa was maltreated, he said his wife was outside the NARCOM building. The very day he was arrested (on cross-examination Mari Musa said it was on the next day), Mari Musa was brought to the Fiscal's Office by three NARCOM agents. The fiscal asked him if the marijuana was owned by him and he said "not." After that single question, Mari Musa was brought to the City Jail. Mari Musa said he did not tell the fiscal that he had been maltreated by the NARCOM agents because he was afraid he might be maltreated in the fiscal's office. Mari Musa denied the NARCOM agents' charge that he had sold two wrappers of marijuana to them; that he had received from them a P20.00 bill which he had given to his wife. He did not sell marijuana because he was afraid that was against the law and that the person selling marijuana was caught by the authorities; and he had a wife and a very small child to support. Mari Musa said he had not been arrested for selling marijuana before.5 After trial, the trial court rendered the assailed decision with the following disposition: WHEREFORE, finding accused Mari Musa y Hantatalu guilty beyond reasonable doubt of selling marijuana and pursuant to Sec. 4, Art II of Rep. Act No. 6425, he is sentenced to life imprisonment and to pay the fine of P20,000.00, the latter imposed without subsidiary imprisonment. 6 In this appeal, the appellant contends that his guilt was not proved beyond reasonable doubt and impugns the credibility of the prosecution witnesses.

18 The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not credible because: (1) prior to the buy-bust operation, neither Sgt. Ani nor the other NARCOM agents were personally known by the appellant or vice-versa; and (2) there was no witness to the alleged giving of the two wrappers of marijuana by the appellant to Sgt. Ani. Sgt. Ani testified that on December 13, 1989, upon instruction by T/Sgt. Jesus Belarga, he conducted a test-buy operation on the appellant whereby he bought one wrapper of marijuana for P15.00 from the latter. 7 He reported the successful operation to T/Sgt. Belarga on the same day. 8 Whereupon, T/Sgt. Belarga conducted a conference to organize a buy-bust operation for the following day. 9 On December 14, 1989, at 1:30 p.m., two NARCOM teams in separate vehicles headed by T/Sgt. Belarga and a certain Sgt. Foncardas went to the place of operation, which was the appellant's house located in Laquian Compound, Suterville, Zamboanga City. Sgt. Ani was with the team of T/Sgt. Belarga, whose other members were Sgts. Lego and Biong. 10 Sgt. Ani was given a marked P20.00 bill by T/Sgt. Belarga, which was to be used in the operation. Upon reaching the place, the NARCOM agents positioned themselves at strategic places. 11 Sgt. Ani approached the house. Outside the house, the appellant asked Sgt. Ani what he wanted. Sgt. Ani asked him for some more marijuana. 12 Sgt. Ani gave him the marked P20.00 bill and the appellant went inside the house and brought back two paper wrappers containing marijuana which he handed to Sgt. Ani. 13 From his position, Sgt. Ani could see that there were other people in the house. 14 After the exchange, Sgt. Ani approached the other NARCOM agents and made the pre-arranged signal of raising his right hand. 15 The NARCOM agents, accompanied by Sgt. Ani, went inside the house and made the arrest. The agents searched the appellant and unable to find the marked money, they asked him where it was. The appellant said that he gave it to his wife. 16 The Court, after a careful reading of the record, finds the testimony of Sgt. Ani regarding the buy-bust operation, which resulted in the apprehension, prosecution and subsequent conviction of the appellant, to be direct, lucid and forthright. Being totally untainted by contradictions in any of the material points, it deserves credence. The contention that the appellant could not have transacted with Sgt. Ani because they do not know each other is without merit. The day before the buy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought a wrapper of marijuana from the appellant. Through this previous transaction, Sgt. Ani was able to gain the appellant's confidence for the latter to sell more marijuana to Sgt. Ani the following day, during the buy-bust operation. Moreover, the Court has held that what matters is not an existing familiarity between the buyer and the seller, for quite often, the parties to the transaction may be strangers, but their agreement and the acts constituting the sale and delivery of the marijuana.17 The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was impossible for the appellant to sell marijuana while his wife, cousin and manicurist were present. But the place of the commission of the crime of selling prohibited drugs has been held to be not crucial 18 and the presence of other people apart from the buyer and seller will not necessarily prevent the consummation of the illegal sale. As the Court observed in People v. Paco, 19 these factors may sometimes camouflage the commission of the crime. In the instant case, the fact that the other people inside the appellant's house are known to the appellant may have given him some assurance that these people will not report him to the authorities. The appellant, besides assailing Sgt. Ani's credibility, also questions the credibility of T/Sgt. Belarga. The appellant submits that since T/Sgt. Belarga admitted that he was about 90 meters away from Sgt. Ani and the appellant, he could not have possibly witnessed the sale. The appellant invokes People v. Ale 20 where the Court observed that from a distance of 10-15 meters, a policeman cannot distinguish between marijuana cigarette from ordinary ones by the type of rolling done on the cigarette sticks. And since T/Sgt. Belarga allegedly did not see the sale, the appellant contends that the uncorroborated testimony of Sgt. Ani can not stand as basis for his conviction.

19 People v. Ale does not apply here because the policeman in that case testified that he and his companion were certain that the appellant therein handed marijuana cigarettes to the poseur-buyer based on the appearance of the cigarette sticks. The Court rejected this claim, stating that: This Court cannot give full credit to the testimonies of the prosecution witnesses marked as they are with contradictions and tainted with inaccuracies. Bian testified that they were able to tell that the four cigarettes were marijuana cigarettes because according to him, the rolling of ordinary cigarettes are different from those of marijuana cigarettes. (tsn, November 13, 1984, p. 10). It is however, incredible to believe that they could discern the type of rolling done on those cigarettes from the distance where they were observing the alleged sale of more or less 10 to 15 meters. 21 In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw the appellant hand over marijuana to Sgt. Ani. What he said was that there was an exchange of certain articles between the two. The relevant portion of T/Sgt. Belarga's testimony reads: 22 Q Now, do you remember whether Sgt. Ani was able to reach the house of Mari Musa? A Yes, ma'am. Q After reaching Mari Musa, did you see what happened (sic)? A Yes, ma'am. Q Could you please tell us? A From our vehicle the stainless owner type jeep where Sgt. Lego, Sgt. Biong were boarded, I saw that Sgt. Ani proceeded to the house near the road and he was met by one person and later known as Mari Musa who was at the time wearing short pants and later on I saw that Sgt. Ani handed something to him, thereafter received by Mari Musa and went inside the house and came back later and handed something to Sgt. Ani. Contrary to the contention of the appellant, it was not impossible for T/Sgt. Belarga to have seen, from a distance of 90-100 meters, Sgt. Ani hand to the appellant "something" and for the latter to give to the former "something." Notwithstanding the fact that T/Sgt. Belarga could not have been certain that what Sgt. Ani received from the appellant was marijuana because of the distance, his testimony, nevertheless, corroborated the direct evidence, which the Court earlier ruled to be convincing, presented by Sgt. Ani on the following material points: (1) T/Sgt. Belarga instructed Sgt. Ani to conduct a surveillance and test-buy operation on the appellant at Suterville, Zamboanga City on December 13, 1989; 23 (2) later that same day, Sgt. Ani went back to their office and reported a successful operation and turned over to T/Sgt. Belarga one wrapper of marijuana; 24 (3) T/Sgt. Belarga then organized a team to conduct a buy-bust operation the following day; 25 (4) on December 14, 1989, T/Sgt. Belarga led a team of NARCOM agents who went to Suterville, Zamboanga City; 26 (5) T/Sgt. Belarga gave a P20.00 marked bill to Sgt. Ani which was to be used in the buy-bust operation; 27 (6) upon the arrival of the NARCOM agents in Suterville, Zamboanga City, Sgt. Ani proceeded to the house of the appellant while some agents stayed in the vehicles and others positioned themselves in strategic places; 28 the appellant met Sgt. Ani and an exchange of articles took place. 29 The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence given by Sgt. Ani. Additionally, the Court has ruled that the fact that the police officers who accompanied the poseurbuyer were unable to see exactly what the appellant gave the poseur-buyer because of their distance or

20 position will not be fatal to the prosecution's case 30 provided there exists other evidence, direct or circumstantial, e.g., the testimony of the poseur-buyer, which is sufficient to prove the consummation of the sale of the prohibited drug The appellant next assails the seizure and admission as evidence of a plastic bag containing marijuana which the NARCOM agents found in the appellant's kitchen. It appears that after Sgt. Ani gave the prearranged signal to the other NARCOM agents, the latter moved in and arrested the appellant inside the house. They searched him to retrieve the marked money but didn't find it. Upon being questioned, the appellant said that he gave the marked money to his wife. 31 Thereafter, T/Sgt. Belarga and Sgt. Lego went to the kitchen and noticed what T/Sgt. Belarga described as a "cellophane colored white and stripe hanging at the corner of the kitchen." 32 They asked the appellant about its contents but failing to get a response, they opened it and found dried marijuana leaves. At the trial, the appellant questioned the admissibility of the plastic bag and the marijuana it contains but the trial court issued an Order ruling that these are admissible in evidence. 33 Built into the Constitution are guarantees on the freedom of every individual against unreasonable searches and seizures by providing in Article III, Section 2, the following: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the persons or things to be seized. Furthermore, the Constitution, in conformity with the doctrine laid down in Stonehill v. Diokno, 34 declares inadmissible, any evidence obtained in violation of the freedom from unreasonable searches and seizures. 35 While a valid search warrant is generally necessary before a search and seizure may be effected, exceptions to this rule are recognized. Thus, in Alvero v. Dizon, 36 the Court stated that. "[t]he most important exception to the necessity for a search warrant is the right of search and seizure as an incident to a lawful arrest." 37 Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless search and seizure incident to a lawful arrest, thus: Sec. 12. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant. There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting officer to make a search upon the person of the person arrested. As early as 1909, the Court has ruled that "[a]n officer making an arrest may take from the person arrested any money or property found upon his person which was used in the commission of the crime or was the fruit of the crime or which might furnish the prisoner with the means of committing violence or of escaping, or which may be used as evidence in the trial of the cause . . . " 38 Hence, in a buy-bust operation conducted to entrap a drug-pusher, the law enforcement agents may seize the marked money found on the person of the pusher immediately after the arrest even without arrest and search warrants. 39 In the case at bar, the NARCOM agents searched the person of the appellant after arresting him in his house but found nothing. They then searched the entire house and, in the kitchen, found and seized a plastic bag hanging in a corner. The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend beyond the person of the one arrested to include the premises or surroundings under his immediate

21 control. 40 Objects in the "plain view" of an officer who has the right to be in the position to have that view are subject to seizure and may be presented as evidence. 41 In Ker v. California 42 police officers, without securing a search warrant but having information that the defendant husband was selling marijuana from his apartment, obtained from the building manager a passkey to defendants' apartment, and entered it. There they found the defendant husband in the living room. The defendant wife emerged from the kitchen, and one of the officers, after identifying himself, observed through the open doorway of the kitchen, a small scale atop the kitchen sink, upon which lay a brick-shaped package containing green leafy substance which he recognized as marijuana. The package of marijuana was used as evidence in prosecuting defendants for violation of the Narcotic Law. The admissibility of the package was challenged before the U.S. Supreme Court, which held, after observing that it was not unreasonable for the officer to walk to the doorway of the adjacent kitchen on seeing the defendant wife emerge therefrom, that "the discovery of the brick of marijuana did not constitute a search, since the officer merely saw what was placed before him in full view. 43 The U.S. Supreme Court ruled that the warrantless seizure of the marijuana was legal on the basis of the "plain view" doctrine and upheld the admissibility of the seized drugs as part of the prosecution's evidence. 44 The "plain view" doctrine may not, however, be used to launch unbridled searches and indiscriminate seizures nor to extend a general exploratory search made solely to find evidence of defendant's guilt. The "plain view" doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. 45 Furthermore, the U.S. Supreme Court stated the following limitations on the application of the doctrine: What the "plain view" cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the "plain view" doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. 46 It has also been suggested that even if an object is observed in "plain view," the "plain view" doctrine will not justify the seizure of the object where the incriminating nature of the object is not apparent from the "plain view" of the object. 47 Stated differently, it must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband, or otherwise subject to seizure. In the instant case, the appellant was arrested and his person searched in the living room. Failing to retrieve the marked money which they hoped to find, the NARCOM agents searched the whole house and found the plastic bag in the kitchen. The plastic bag was, therefore, not within their "plain view" when they arrested the appellant as to justify its seizure. The NARCOM agents had to move from one portion of the house to another before they sighted the plastic bag. Unlike Ker vs. California, where the police officer had reason to walk to the doorway of the adjacent kitchen and from which position he saw the marijuana, the NARCOM agents in this case went from room to room with the obvious intention of fishing for more evidence. Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen, they had no clue as to its contents. They had to ask the appellant what the bag contained. When the appellant refused to respond, they opened it and found the marijuana. Unlike Ker v. California, where the marijuana was visible to the police officer's eyes, the NARCOM agents in this case could not have discovered the inculpatory nature of the contents of the bag had they not forcibly opened it. Even assuming then, that the NARCOM agents inadvertently came across the plastic bag because it was within their "plain view," what may be said to be the object in their "plain view" was just the plastic bag and not the marijuana. The incriminating nature of the contents of the plastic bag was not immediately apparent from the "plain view" of said object. It cannot be claimed that the plastic bag clearly betrayed

22 its contents, whether by its distinctive configuration, its transprarency, or otherwise, that its contents are obvious to an observer. 48 We, therefore, hold that under the circumstances of the case, the "plain view" doctrine does not apply and the marijuana contained in the plastic bag was seized illegally and cannot be presented in evidence pursuant to Article III, Section 3(2) of the Constitution. The exclusion of this particular evidence does not, however, diminish, in any way, the damaging effect of the other pieces of evidence presented by the prosecution to prove that the appellant sold marijuana, in violation of Article II, Section 4 of the Dangerous Drugs Act of 1972. We hold that by virtue of the testimonies of Sgt. Ani and T/Sgt. Belarga and the two wrappings of marijuana sold by the appellant to Sgt. Ani, among other pieces of evidence, the guilt of the appellant of the crime charged has been proved beyond reasonable doubt. WHEREFORE, the appeal is DISMISSED and the judgment of the Regional Trial Court AFFIRMED. SO ORDERED.

23 Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 139301 September 29, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs. HUANG ZHEN HUA and JOGY LEE, appellants. DECISION CALLEJO, SR., J.: This is an appeal from the Decision1 of the Regional Trial Court (RTC) of Paraaque City, Metro Manila, Branch 259, convicting the appellants of violation of Section 16, Article III of Republic Act No. 6425, as amended. The Case for the Prosecution Police operatives of the Public Assistance and Reaction Against Crime (PARAC) under the Department of Interior and Local Government received word from their confidential informant that Peter Chan and Henry Lao,2 and appellants Jogy Lee and Huang Zhen Hua were engaged in illegal drug trafficking. The policemen also learned that appellant Lee was handling the payments and accounting of the proceeds of the illegal drug trafficking activities of Lao and Chan.3 PO3 Belliardo Anciro, Jr. and other police operatives conducted surveillance operations and were able to verify that Lao and appellant Lee were living together as husband and wife. They once spotted Chan, Lao, the appellants and two others, in a seafood restaurant in Bocobo Street, Ermita, Manila, late in the evening. On another occasion, the policemen saw Chan, Lao, and the appellants, at the Celicious Restaurant along R. Sanchez Street, Ermita, Manila, at about 8:30 p.m. They were spotted the third time at the Midtown Hotel at about 7:00 p.m. to 8:00 p.m.4 The police operatives also verified that Chan and Lao resided at Room Nos. 1245 and 1247, Cityland Condominium, De la Rosa Street, Makati City, and in a two-storey condominium unit at No. 19 Atlantic Drive, Pacific Grand Villa, Sto. Nio, Paraaque, Metro Manila.5 On October 25, 1996, SPO2 Cesar N. Teneros of the PARAC secured Search Warrant No. 96-801 for violation of Presidential Decree (P.D.) No. 1866 (illegal possession of firearms and explosives) and Search Warrant No. 96-802, for violation of Sections 12, 14 and 16 of Rep. Act No. 6425, as amended, from Judge William M. Bayhon, Executive Judge of the RTC of Manila.6 Senior Police Inspector Lucio Margallo supervised the enforcement of Search Warrant No. 96-801 at the Cityland Condominium at about 11:00 p.m. on October 29, 1996. With him were PO3 Anciro, Jr., PO3 Wilhelm Castillo, SPO3 Roger Ferias and seven other policemen of the PARAC, who were all in uniform, as well as a Cantonese interpreter by the name of Chuang. While no persons were found inside, the policemen found two kilos of methamphetamine hydrochloride, popularly known as shabu, paraphernalia for its production, and machines and tools apparently used for the production of fake credit cards.7 Thereafter, the police operatives received information that Lao and Chan would be delivering shabu at the Furama Laser Karaoke Restaurant at the corner of Dasmarias and Mancha Streets, Manila. The policemen rushed to the area on board their vehicles. It was 2:00 a.m. of October 26, 1996. The policemen saw Chan and Lao on board the latters Honda Civic car. As the two men alighted, one of the men approached them and introduced himself, but Chan and Lao fired shots. Thus, a shoot-out ensued between the members of the raiding team and the two suspects. Chan and Lao were shot to death during the encounter. The policemen found two plastic bags, each containing one kilo of shabu, in Laos car. The policemen then proceeded to No. 19 Atlantic Drive, Pacific Grand Villa, to enforce Search Warrant No. 96-802. When the policemen arrived at the place, they coordinated with Antonio Pangan, the officer

24 in charge of security in the building.8 The men found that the Condominium Unit No. 19 was leased to Lao under the name Henry Kao Tsung. The policemen, Pangan and two security guards of the Pacific Grand Villa proceeded to the condominium unit. Anciro, Jr. knocked repeatedly on the front door, but no one responded. Pangan, likewise, knocked on the door.9 Appellant Lee peeped through the window beside the front door.10 The men introduced themselves as policemen,11 but the appellant could not understand them as she could not speak English.12 The policemen allowed Pangan to communicate with appellant Lee by sign language and pointed their uniforms to her to show that they were policemen. The appellant then opened the door and allowed the policemen, Pangan and the security guards into the condominium unit.13 The policemen brought appellant Lee to the second floor where there were three bedrooms a masters bedroom and two other rooms. When asked where she and Lao slept, appellant Lee pointed to the masters bedroom.14 Anciro, Jr., Margallo and PO3 Wilhelm Castillo then searched the masters bedroom, while Ferias and Pangan went to the other bedroom where appellant Zhen Hua was sleeping.15 Ferias awakened appellant Zhen Hua and identified himself as a policeman. Appellant Zhen Hua was surprised.16 Anciro, Jr. saw a small cabinet inside the masters bedroom about six feet high. He stood on a chair, opened the cabinet and found two transparent plastic bags each containing one kilo of shabu,17 a feeding bottle, a plastic canister18 and assorted paraphernalia.19 Inside the drawer of the beds headboard, Anciro, Jr. also found assorted documents, pictures, bank passbooks issued by the Allied Banking Corporation, credit cards, passports and identification cards of Lao and Lee.20 Anciro, Jr. asked appellant Lee who was the owner of the crystalline substance, but the latter did not respond because she did not know English.21 Anciro, Jr. asked Margallo for instructions on what to do with the things he had found, and the latter told him to keep the same for future reference,22 and as evidence against any other suspect for illegal drug transactions.23 Anciro, Jr., Pangan and Margallo later showed the seized articles to the other members of the team.24 Anciro, Jr. told appellant Lee to bring some of her clothes because they were bringing her to the PARAC headquarters. Appellant Lee did as she was told and took some clothes from the cabinet in the masters bedroom where Anciro, Jr. had earlier found the shabu.25 The policemen brought the appellants to the PARAC headquarters. The following articles were found and confiscated by the policemen in the condominium unit: a. TWO (2) Big Transparent Plastic Bags containing about one (1) Kilo each of white crystalline granules later tested to be Methamphetamine Hydrochloride or Shabu, a regulated drug; b. ONE (1) Transparent Plastic Baby Feeding Bottle containing an undetermined quantity of suspected Shabu; c. ONE (1) Small Plastic Cannister also containing undetermined amount of suspected Shabu . d. Assorted Pieces of Shabu Paraphernalia consisting of Improvised Tooters used for sniffing shabu, Improvised Burners used for burning Shabu, aluminum foils, etc.;26 Anciro, Jr. placed the articles he found in the cabinet inside a box.27 The appellants were then brought to the PARAC headquarters where they were detained. Pangan signed a Certification28 that the search conducted by the policemen had been orderly and peaceful. Anciro, Jr. affixed his initials on the transparent plastic bags and their contents, the transparent baby feeding bottle and the plastic cannister and their contents. On October 26, 1996, he and Ferias29 brought the seized items to the PNP Crime Laboratory for laboratory examination30 along with the letter-request31 thereon. On the same day, Forensic Chemist Officer Isidro L. Cario signed Chemistry Report No. D-1243-96 which contained his findings on the laboratory examination of the items which were marked as Exhibits "A" to "A-4," viz: SPECIMEN SUBMITTED: Exh. "A" One (1) "must de Cartier Paris" carton containing the following:

25 Exh. "A-1" One (1) heat-sealed transparent plastic bag containing 1,000.40 grams of white crystalline substance. Exh. "A-2" One (1) heat-sealed transparent plastic bag containing 998.10 grams of white crystalline substance. Exh. "A-3" One (1) transparent plastic "Babyflo Nurser" feeding bottle with pink cover containing 18.52 grams of white crystalline substance. Exh. "A-4" One (1) transparent plastic container with white cover containing 3.28 grams of white crystalline substance. NOTE: The above-stated specimen were allegedly taken from the residence of the above-named subjects. xxx PURPOSE OF LABORATORY EXAMINATION: To determine the presence of prohibited and/or regulated drug. FINDINGS: Qualitative examination conducted on the above-stated specimens, Exhs. "A-1" through "A-4" gave POSITIVE result to the test for Methamphetamine hydrochloride, a regulated drug. xxx32 The police officers executed an affidavit of arrest.33 Pangan and the two security guards signed a certification stating that nothing was destroyed in the condominium unit and that the search was orderly and peaceful.34 The policemen also accomplished an inventory of the articles seized during the search.35 The appellants were charged of violation of Section 16, Rep. Act No. 6425, as amended, in an Information filed in the RTC of Paraaque, Metro Manila, the accusatory portion of which reads: That on or about the 26th day of October 1996, in the Municipality of Paraaque, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and both of them mutually helping and aiding one another, not being lawfully authorized to possess or otherwise use any regulated drug and without the corresponding license or prescription, did then and there willfully, unlawfully and feloniously have, in their possession and under their control and custody, the following to wit: A. One (1) heat-sealed transparent plastic bag containing 1,000.40 grams of white crystalline substance; B. One (1) heat-sealed transparent plastic bag containing 998.1 grams of white crystalline substance; C. One (1) transparent plastic "Babyflo Nurser" feeding bottle with pink cover containing 18.52 grams of white crystalline substance; D. One (1) transparent plastic container with white cover containing 3.28 grams of white crystalline substance which when examined were found to be positive for Methamphetamine Hydrochloride (Shabu), a regulated drug. CONTRARY TO LAW.36 Both appellants, assisted by counsel, were duly arraigned on November 29, 1992, and pleaded not guilty to the charge.

26 The Case for the Appellants Appellant Jogy Lee denied the charge. She testified that she was a resident of Kwantong, China, a college graduate who could not speak nor understand English. She was once employed in a real estate firm. One of her co-employees was Huang Zhen Hua.37 She met Henry Lao in China sometime in 1995,38 and he brought her to Belgium that same year. Lao also helped her procure a Belguim passport, for he explained that if she only had a Chinese passport, it would be difficult to secure visas from countries she wanted to go to and visit; whereas many countries did not require a Belgian passport holder to secure visas before allowing entry therein. In the process, he and Lao fell in love and became lovers. Upon Laos invitation, appellant Lee visited the Philippines as a tourist for the first time in April 1996. Lao met her at the airport, and she was, thereafter, brought to a hotel in Manila where she stayed for less than a month.39 She returned to the Philippines a second time and was again billeted in a hotel in Manila. All her expenses were shouldered by Lao, who was engaged in the garlic business.40 As far as she knew, Lao was not engaged in any other business.41 In June 1996, she invited her friend, appellant Huang Zhen Hua to visit the Philippines to enjoy the tourist spots.42 They were then in China. In the evening of October 1, 1996, appellant Lee returned to the Philippines on a tourist visa. She was fetched by Lao, and she was brought to his condominium unit at No. 19, Atlantic Drive, Pacific Grand Villa, Sto. Nio, Paraaque. She had been residing there since then. She and Lao used to go to the shopping malls43 and she even saw Chan once when he cleaned his Nissan car in Laos garage. On October 22, 1996, appellant Zhen Hua arrived from China at the NAIA and was met by Lao at the airport. He tried to check in at the Diamond Hotel but Lee told him that he could stay in the condominium unit. Zhen Hua was brought to the Villa where he had been staying since then. The appellants had made plans to visit Cebu. At about 6:00 a.m. on October 26, 1996, appellant Lee was sleeping in the masters bedroom at the condominium unit. She had closed all the windows because she had turned the air conditioning unit on. Zhen Hua was sleeping in the other bedroom in the second floor beside the masters bedroom. Laos Honda Civic car and Chans Nissan car were in the garage beside the condominium unit. Momentarily, Lee heard someone knocking on the bedroom door. When she opened it, three (3) policemen barged into the bedroom and at the room where appellant Zhen Hua was sleeping. Anciro, Jr. was not among the men. Lee did not hear the policemen knock at the main door before they entered.44 The policemen were accompanied by Chuang, a Cantonese interpreter, who told her that the policemen were going to search the house.45 Appellant Lee saw a policeman holding two papers, but no search warrant was shown to her.46 She was so frightened. The policemen placed two plastic bags on the bed before they searched the masters bedroom. Appellant Lee went to the room of appellant Zhen Hua and when she returned to the masters bedroom, she saw shabu on the bed.47 The policemen took her ring, watch and the P600,000 owned by Lao which had earlier been placed in the cabinet, her papers and documents, and those of Laos as well. She had never seen any shabu in the room before the incident. Thereafter, she and appellant Zhen Hua were brought to the PARAC headquarters where they were detained. Chuang, the cantonese interpreter, informed her that shabu had been found in the condominium unit and that the policemen were demanding P5,000,000 for her release. She was also told that if she did not pay the amount, she would be charged with drug trafficking, and that the leader of the group who arrested her would be promoted. However, she told Chuang that she had no money. Since she could not pay the amount, she was boarded on a PARAC owner-type jeep and returned to the condominium unit where the policemen took all the household appliances, such as the television, compact discs, washing machine, including laundry detergent. Only the sofa and the bed were not taken. About ten (10) days later, the appellants secured the services of counsel. Antonio Pangan testified that he and the policemen knocked on the door to the condominium unit but that no one responded. He shouted, "Sir Henry," referring to Lao, but there was no response from inside the condominium. After about three (3) to five (5) minutes, a policeman kicked the door open and they entered the house. They went to the second floor and saw the appellants sleeping.

27 Pangan testified that he did not see any shabu that was seized by the policemen. He learned that shabu had been found and taken from the condominium unit only when he saw someone holding up the substance on television during the daily news program TV Patrol.48 Appellant Zhen Hua also denied the charge. He corroborated the testimony of appellant Lee that upon her invitation, he arrived in the Philippines on a tourist visa on October 22, 1996. He claimed that he did not see Anciro, Jr. in the condominium unit when policemen arrived and searched the house. He testified that aside from the PARAC policemen, he was also investigated by policemen from Taiwan. After trial, the court rendered judgment on January 10, 1999, convicting both appellants of the crime charged. The decretal portion of the decision reads: WHEREFORE, PREMISES CONSIDERED, finding accused Jogy Lee and Huang Zhen Hua GUILTY beyond reasonable doubt for violation of Sec. 16, Art. III, RA 6425, as amended by RA 7659, and considering the absence of any aggravating circumstances, this Court hereby sentences both accused to suffer the penalty of Reclusion Perpetua and to pay a fine of P500,000.00 each. The properties seized in accordance with the search warrants issued relative to this case are hereby ordered confiscated in favor of the government and the Clerk of Court of this Court is directed to turn over to the Dangerous Drugs Board, the drugs and paraphernalia subject hereof for proper disposition. The Clerk of Court is also directed to prepare the Mittimus for the immediate transfer of both accused Jogy Lee and Huang Zhen Hua from the Paraaque City Jail to the Bureau of Correccions (sic) in Muntinlupa City. SO ORDERED.49 The Present Appeal On appeal to this Court, appellant Zhen Hua, asserts that: First. The evidence for the prosecution, as a whole, is so far as self-contradictory, inherently improbable and palpably false to be accepted as a faithful reflection of the true facts of the case; Second. Appellant Huang Zhen Huas conviction was based merely on the trial courts conclusion that he "is not an epitome of first class tourist and that he appeared nonchalant throughout the proceedings;" Third. In convicting said appellant, the court below completely disregarded the glaring facts and admissions of the prosecutions principal witnesses that no regulated drug was ever found in his possession; Fourth. The trial court, likewise, ignored the fact that the appellants arrest was illegal and in violation of his constitutional and basic rights against arrest without probable cause as determined by a Judge and that his arraignment did not constitute a waiver of such right; Fifth. The trial court failed to consider the fact that the presumption of regularity of performance of the police officers who took part in the search had been overcome by prosecution's own evidence, thereby wrongly giving such presumption substance over and above the constitutional presumption of innocence of the appellant.50 For her part, appellant Lee contends that: 1.01 THE ALLEGED TWO KILOS OF SHABU FOUND INSIDE ONE OF THE ROOMS IN THE TOWNHOUSE RENTED BY HENRY LAU WERE MERELY PLANTED BY PARAC OPERATIVES; 1.02 THE IMPLEMENTATION OF THE SEARCH WARRANT WAS HIGHLY IRREGULAR, DUBIOUS AND UNREASONABLE AS THE SEARCH WARRANT DID NOT CONTAIN ANY PARTICULAR DESCRIPTION

28 OF THE ROOM TO BE SEARCHED, NOR WAS THERE ANY INTERPRETER TO ASSIST AND GUIDE JOGY LEE, WHO NEITHER KNEW NOR UNDERSTAND THE ENGLISH LANGUAGE, DURING THE SEARCH AND EVEN DURING THE TRIAL; 2. THE LOWER COURT ERRED IN NOT ACQUITTING ACCUSED JOGY LEE UPON THE GROUND THAT HER GUILT WAS NOT ESTABLISHED BY PROOF BEYOND REASONABLE DOUBT.51 For its part, the Office of the Solicitor General (OSG) posits that appellant Zhen Hua should be acquitted on the ground of reasonable doubt, but that the conviction of appellant Lee should be affirmed. The Courts Ruling We shall delve into and resolve the assigned errors of the appellants Huang Zhen Hua and Jogy Lee sequentially. On Appellant Zhen Hua The OSG contends that the prosecution failed to muster the requisite quantum of evidence to prove appellant Zhen Huas guilt beyond reasonable doubt for the crime charged, thus: Huang Zhen Hua denies having anything to do with the bags of "shabu" found in the townhouse unit of Henry Lau. He claims that he arrived in the Philippines as a tourist on October 22, 1996, upon the invitation of Jogy Lee. Allegedly, at the time of his arrest, he had been in the Philippines for barely four days. He claims that he was just temporarily billeted as a guest at the townhouse where Jogy Lee was staying. And that he had no control whatsoever over said townhouse. He puts emphasis on the fact that the search of his room turned out to be "negative" and that the raiding team failed to seize or confiscate any prohibited or regulated drug in his person or possession. He, therefore, prays for his acquittal. The People submits that Huang Zhen Hua is entitled to acquittal. The prosecutions evidence fails to meet the quantum of evidence required to overcome the constitutional presumption of innocence; thus, regardless of the supposed weakness of his defense, and his innocence may be doubted, he is nonetheless entitled to an acquittal (Natividad v. Court of Appeals, 98 SCRA 335 (1980), cited in People v. Fronda, G.R. No. 130602, March 15, 2000). The constitutional presumption of innocence guaranteed to every individual is of primary importance, and the conviction of the accused must rest not on the weakness of the defense but on the strength of the evidence for the prosecution. In the instant case, as pointed out by appellant Huang Zhen Hua, the trial court erred when it did not give much weight to the admission made by the prosecution witnesses that no regulated drug was found in his person. No regulated drug was also found inside his room or in his other belongings such as suitcases, etc. Thus, he had no actual or constructive possession of the confiscated "shabu." Moreover, it is not disputed that Huang Zhen Hua had only been in the country for barely four (4) days at the time when he was arrested. The prosecution was unable to show that in these four (4) days Huang Zhen Hua committed acts which showed that he was in cahoots with the drug syndicate Henry Lau and Peter Chan. It was not even shown that he was together with Henry Lau and Peter Chan on any occasion. As for Huang Zhen Hua, therefore, there is no direct evidence of any culpability. Nor is there any circumstantial evidence from which any culpability may be inferred.52 We agree with the OSG. In a case of recent vintage, this Court, in People vs. Tira,53 ruminated and expostulated on the juridical concept of "possession" under Section 16, Article III of Rep. Act No. 6425, as amended, and the evidence necessary to prove the said crime, thus: The essential elements of the crime of possession of regulated drugs are the following: (a) the accused is found in possession of a regulated drug; (b) the person is not authorized by law or by duly constituted authorities; and, (c) the accused has knowledge that the said drug is a regulated drug. This crime is mala prohibita, and, as such, criminal intent is not an essential element. However, the prosecution must prove that the accused had the intent to possess (animus posidende) the drugs. Possession, under the law, includes not only actual possession, but also

29 constructive possession. Actual possession exists when the drug is in the immediate physical possession or control of the accused. On the other hand, constructive possession exits when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found. Exclusive possession or control is not necessary. The accused cannot avoid conviction if his right to exercise control and dominion over the place where the contraband is located, is shared with another. Thus, conviction need not be predicated upon exclusive possession, and a showing of nonexclusive possession would not exonerate the accused. Such fact of possession may be proved by direct or circumstantial evidence and any reasonable inference drawn therefrom. However, the prosecution must prove that the accused had knowledge of the existence and presence of the drug in the place under his control and dominion and the character of the drug. Since knowledge by the accused of the existence and character of the drugs in the place where he exercises dominion and control is an internal act, the same may be presumed from the fact that the dangerous drug is in the house or place over which the accused has control or dominion, or within such premises in the absence of any satisfactory explanation.54 In this case, the prosecution failed to prove that the appellant, at any time, had actual or constructive possession of the regulated drug found in the masters bedroom where appellant Lee was sleeping; or that the appellant had accessed the said room at any given time; or that he had knowledge of the existence of shabu in appellant Lees bedroom. Appellant Zhen Hua had arrived in the Philippines upon the invitation of appellant Lee only on October 22, 1996 or barely four (4) days before the arrival of the policemen and the search conducted in the condominium unit leased by Henry Lao. He was a mere visitor of appellant Lee. There is no evidence that appellant Zhen Hua was aware of the alleged illegal drug activities and/or transactions of Henry Lao, Peter Chan and appellant Lee. The policemen did not find any regulated drug in the room where appellant Zhen Hua was sleeping when they made their search. The evidence of the prosecution against appellant Zhen Hua falls short of the requisite quantum of evidence to prove conspiracy between him, appellant Lee and Chan or Lao. There is conspiracy when two or more persons agree to commit a crime and decide to commit it.55 Conspiracy cannot be presumed.56 Conspiracy must be proved beyond reasonable doubt like the crime subject of the conspiracy.57 Conspiracy may be proved by direct evidence or by proof of the overt acts of the accused, before, during and after the commission of the crime charged indicative of a common design.58 The bare fact that on two or three occasions after the arrival of appellant Zhen Hua from China, and before the search conducted in Laos condominium unit, appellant Zhen Hua had been seen with Lao, Chan and appellant Lee. Having dinner or lunch at a restaurant does not constitute sufficient proof that he had conspired with them or with any of them to possess the subject-regulated drug. Mere association with the principals by direct participation or mere knowledge of conspiracy, without more, does not suffice.59 Anciro, Jr. even admitted that during his surveillance, he could have mistaken appellant Zhen Hua for another group of Chinese persons who were also being watched.60 Appellant Zhen Hua should, thus, be acquitted. On Appellant Lee Appellant Lee avers that certain irregularities were attendant in the issuance and implementation of Search Warrant No. 96-802, as follows: (a) the policemen who implemented the search warrant failed in their duty to show to her the said warrant, inform her of their authority and explain their presence in the condominium unit; (b) the policemen gained entry into the condominium unit by force while she was sleeping; and (c) articles and personal effects owned by her and Lao were taken and confiscated by the policemen, although not specified in the search warrant. The appellant concludes that the articles procured by the policemen on the occasion of the search of the condominium unit are inadmissible in evidence.

30 Appellant Lee, likewise, contends that she was a victim of a frame-up because the policemen planted the regulated drug on her bed even before they searched the bedroom. She went to the room of appellant Zhen Hua to find out if he was already awake, and when she returned to the bedroom, she noticed shabu on her bed. She avers that the sole testimony of Anciro, Jr., that he found the regulated drug in the masters bedroom, is incredible because he was not with the policemen who barged into the bedroom. She notes that even Pangan, the caretaker of the Villa, testified that he did not see any illegal drug confiscated by the policemen. According to appellant Lee, the trial court erred in convicting her of the crime charged, considering that Lao and Chan were the suspects identified in the search warrants, not her. She avers that she had no knowledge of the alleged illegal drug transactions of her lover Lao. She contends that there was no probable cause for her arrest as her mere presence in the condominium unit does not render her liable for the shabu found in the masters bedroom of the condominium unit leased by Lao. She further avers that the testimonies of the witnesses for the prosecution are inconsistent; hence, barren of probative weight. The appellant also asserts that she was deprived of her right to due process when the trial court conducted a trial without a Chinese interpreter to assist her. The OSG, for its part, avers that the police officers are presumed to have performed their duties. Based on the testimony of Anciro, Jr., appellant Lee was shown the search warrant, through the window, and the policemen identified themselves through their uniforms. The security guards of the condominium also explained the search warrant to the appellant. Although she was, at first, reluctant to open the door, appellant Lee later voluntarily opened the door and allowed them entry into the unit. There was no evidence of forcible entry into the unit and no breakage of any door. The OSG further avers that the appellant had been in the country for quite sometime already and could not have gotten around without understanding English. In fact, the OSG argues that when Anciro, Jr. told the appellant to get some of her clothes since she would be brought to the police headquarters in Quezon City, she did as she was told and took her clothes from the cabinet where the shabu were found by the policemen. The OSG further points out that Pangan, the chief of security of the subdivision who was a witness for appellant Lee, even testified that the search was orderly. The OSG contends that there was probable cause for the appellants arrest because an informant had tipped off the arresting officers that the appellant was a member of a syndicate dealing with illegal drugs, and that she handled the accounts of Lao and Chan. The appellant was not a victim of frame-up because she was present when the policemen searched the masters bedroom where she was sleeping and where she kept her clothes, and witnessed the discovery of the regulated drugs and paraphernalia. We agree with the contention of the appellant that the constitutional proscription against unreasonable search and seizure applies to Filipino citizens, as well as to aliens temporarily residing in the country. The rule against unreasonable search and seizure forbids every search that is unreasonable; it protects all those suspected or known to be offenders, as well as the innocent. The guarantee is as important and imperative as the guarantee of the other fundamental rights of the citizens.61 All owes the duty for its effective enforcement lest there shall be an impairment of the right for the purpose for which it was adopted.62 Section 7, Rule 126 of the Revised Rules of Criminal Procedure provides: SEC. 7. Right to break door or window to effect search. The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein. The police officers were obliged to give the appellant notice, show to her their authority, and demand that they be allowed entry. They may only break open any outer or inner door or window of a house to execute the search warrant if, after such notice and demand, such officers are refused entry to the place of directed search. This is known as the "knock and announce" principle which is embodied in AngloAmerican Law. The method of entry of an officer into a dwelling and the presence or absence of such notice are as important considerations in assessing whether subsequent entry to search and/or arrest is

31 constitutionally reasonable.63 In Gouled v. The United States,64 it was held that a lawful entry is the indispensable predicate of a reasonable search. A search would violate the Constitution if the entry were illegal, whether accomplished by force, by illegal threat or mere show of force. The principle may be traced to a statute in England way back in 1275 providing that "if a person takes the beasts of another and causes them to be driven into a castle or fortress, if the sheriff makes a solemn demand for the deliverance of the beasts, and if the person did not cause the beasts to be delivered incontinent, the king shall cause the said castle or fortress to be beaten down without recovery." Common law courts appended an important qualification: But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors , for the law without a default in the owner abhors the destruction or breaking of any house (which is for the habitation and safety of man) by which great damage and inconvenience might ensue to the party, when no default is in him; for perhaps he did not know of the process, of which, if he had noticed, it is to be presumed that he would obey it65 Blackstone simply stated the principle that the sheriff may justify breaking open doors if the possession be not quietly delivered.66 The principle was woven quickly into the fabric of early American law and in the Fourth Amendment in the United States Federal Constitution. It is an element of the reasonableness inquiry under the Fourth Amendment as held in Wilson v. Arkansas.67 Generally, officers implementing a search warrant must announce their presence, identify themselves to the accused and to the persons who rightfully have possession of the premises to be searched, and show to them the search warrant to be implemented by them and explain to them said warrant in a language or dialect known to and understood by them. The requirement is not a mere procedural formality but is of the essence of the substantial provision which safeguards individual liberty.68 No precise form of words is required. It is sufficient that the accused has notice of the officers, their authority and the purpose of the search and the object to be seized. It must be emphasized that the notice requirement is designed not only for the protection of the liberty of the person to be searched or of his property but also the safety and well-being of the officers serving and implementing the search warrant. Unless the person to whom the warrant is addressed and whose property is to be searched is notified of the search warrant and apprised of the authority of the person serving the warrant, he may consider the unannounced intrusion into the premises as an unlawful aggression on his property which he will be justified in resisting, and in the process, may cause injury even to the life of the officer implementing the warrant for which he would not be criminally liable. Also, there is a very real possibility that the police serving and implementing the search warrant may be misinformed as to the name or address of the suspect, or to other material affirmations. Innocent citizens should not suffer the shock, fright, shame or embarrassment attendant upon an unannounced intrusion.69 Indeed, a lawful entry is the indispensable predicate of a reasonable search. A search would violate the constitutional guarantee against unreasonable search and seizure if the entry were illegal, whether accomplished by force, or by threat or show of force or obtained by stealth, or coercion.70 Unannounced intrusion into the premises is permissible when (a) a party whose premises or is entitled to the possession thereof refuses, upon demand, to open it; (b) when such person in the premises already knew of the identity of the officers and of their authority and persons; (c) when the officers are justified in the honest belief that there is an imminent peril to life or limb; and (d) when those in the premises, aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers to believe that an escape or the destruction of evidence is being attempted. Suspects have no constitutional right to destroy evidence or dispose of evidence.71 However, the exceptions above are not exclusive or conclusive. At times, without the benefit of hindsight and ordinarily on the spur of the moment, the officer must decide whether or not to make an unannounced intrusion into the premises. Although a search and seizure of a dwelling might be constitutionally defective, if the police officers entry was without prior announcement, law enforcement interest may also establish the reasonableness of an unannounced entry.72 Indeed, there is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances.73 In determining the lawfulness of an unallowed entry and the existence of probable cause, the courts are concerned only with what the officers had reason to believe and the time of the entry.74 In Richards v. Wisconsin,75 it was held that:

32 [1] In order to justify a "no-knock" entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. This standardas opposed to a probable-cause requirementstrikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interest affected by no-knock entries.76 As articulated in Benefield v. State of Florida,77 what constitutes breaking includes the lifting of a latch, turning a door knob, unlocking a chain or hasp, removing a prop to or pushing open a closed door of entrance to the house, even a closed screen door.78 However, entry obtained through the use of deception, accomplished without force is not a "breaking" requiring officers to first announce their authority and purpose because the reasons behind the rule are satisfied there was no real likelihood of violence, no unwarranted intrusion or privacy and no damage to the residence of the accused.79 As to how long an officer implementing a search warrant must wait before breaking open any door cannot be distilled into a constitutional stopwatch. Each case has to be decided on a case-to-case basis requiring an examination of all the circumstances.80 The proper trigger point in determining, under the "knock and announce" rule, whether the police waited long enough before entering the residence to execute a warrant, is when those inside should have been alerted that the police wanted entry to execute a warrant.81 In this case, we rule that the policemen complied with Section 7, Rule 126 of the Revised Rules of Criminal Procedure before entering the condominium unit. Appellant Lee admitted, when she testified, that the police officers were accompanied by Chuang, a Cantonese interpreter, who informed her that his companions were police officers and had a search warrant for the premises, and also explained to her that the officers were going to search the condominium unit.82 The appellant was sufficiently aware of the authority of the policemen, who wore PARAC uniforms, to conduct the search and their purpose. Moreover, Anciro, Jr. told the appellant, in English, to bring some clothes with her as she was to be brought to the police headquarters. Without such request being interpreted to the appellant, the latter did as she was directed and took some clothes from the cabinet atop the headboard.83 The evidence on record shows that the police officers knocked on the outer door before entering the condominium unit, and after a while, the appellant opened the door and allowed the policemen and Pangan to enter. Anciro, Jr. testified, thus: Q Do you still recall Mr. Witness the identities of the security guards who helped you or assisted you in implementing said search warrants at Grand Villa Subdivision? A The OIC of the Home Owners Association, Antonio Pangan, and the OIC of the Security Agency and two (2) other security guards. Q Do you recall the names of those persons you mentioned Mr. Witness? A I can hardly recall their names. Q After having been assisted or coordinated with said security officers and the OIC of the Home Owners Association, what did you do next? A We told them that if we could ask them if they have a duplicate key and also knock and introduce ourselves, knock on the said condominium. Q Did they do that, the request? A Yes, Sir. Q Meaning to say, you arrived at #19 Atlantic Drive, Pacific Grand Villa? A Yes, Sir. Q While you were already at the door of that targeted house to implement said search warrants, what happened next, if any? What did you do after that? A We knocked on the door and tried to find out if there was somebody there because the Home Owners Association doesnt have any key for the door. We asked them to knock also because they are the ones who have access with the tenants. Q And after knocking, what happened next? A There were around 5 minutes, no one was trying to open the door. By that time, we thought they were still asleep.

33 Q And then after that what did you do, if any? A We asked Mr. Pangan to knock and introduce himself and another security guard to try to knock on the kitchen which is on the back door. Q And then after that? A And then after that, it was a female person who showed up to (sic) the window of the kitchen and asked who we are in a sign language. Q And this female person who showed up to (sic) the window I withdraw. Were you able to have a good look on that female person who showed herself thru the window? A Yes, Sir. Q And who is this person Mr. Witness? A She was identified as Jogy Lee, Sir.84 The appellant failed to prove that the policemen broke open the door to gain entry into the condominium unit. She could have asked the court for an ocular inspection to show the door which was allegedly broken into by the policemen, or at least adduce in evidence pictures showing the said breakage. The appellant failed to do so. The testimony of the appellant is even belied by Pangan, who was a witness for the appellant, who certified, along with three other security guards, that nothing was destroyed and that the search was conducted in a peaceful and orderly manner.85 We are not impervious of the testimony of Pangan that the policemen kicked the outer door to gain entry into the condominium unit, which testimony is seemingly in derogation of his certification. However, Pangan admitted that the policemen did so only after knocking on the door for three (3) to five (5) minutes and after he had called Lao in a loud voice and received no response from the appellants: Q Did you come to know the persons wherein your presence was being required according to your security guards? A According to my security guards, they introduced themselves as police operatives. Q Did you comply with the invitation of these police authorities? A Yes, they called me and according to them, they will search Unit 19, that is what they told me. Q Can you please tell us what time did the police operatives conduct the search? A I cannot recall anymore because the incident happened in 1996. I dont know what time was that. Q When they conducted the search, were you there? A I was there because that unit cannot be opened if the caretaker is not present. Q Are you trying to say that you were the one who opened the door of that unit occupied by Henry Kau Chung? A They kicked the door and when nobody opened the door, they pushed the door and the door was opened. Q They forcibly opened the door when nobody opened it? A Kaya naman po ginawa yon dahil nandoon naman po ang caretaker, wala naman pong masamang mangyayari dahil nandoon naman po ang namamahala. Q From the time you knocked at the door of this unit up to the time that the police operatives forcibly break open the door, how many minutes had elapsed? A Matagal din po silang kumakatok sa pintuan. I said, "Mr. Henry, pakibuksan nyo ang pinto, would you mind to open the door, kasi merong mga police officers na gustong ma-search itong unit mo. Then, when nobody was answering, they forcibly opened the door. Q Was there any other occupant other than Henry Kau Chung in that unit at that time? A At the second floor, they saw this Jogy Lee and her male companion whom I do not know. Q But during the time that you were trying to seek entry to the door, there was no one who responded, is that correct? A Pardon, Sir? Q At the time that you were trying to knock at the door, there was no one who responded to your knocking at the door? A Nobody was answering, Sir. Q And that compelled the police operatives to open the door forcibly? A Yes, Sir.86 COURT:

34 From the first time you knocked at the door, how long a time lapsed before the police officer broke open the door? A Matagal din po. Q For how long? A Maybe for about three to five minutes. Q When nobody was answering, they forced open the door? A Yes, Your Honor. COURT: Continue.87 The appellant failed to prove, with clear and convincing evidence, her contention that Anciro, Jr. placed the shabu on her bed before he continued his search in the bedroom, and that she was a victim of frame-up by the policemen. She relied on her testimony and those of Pangan and Ferias that they did not see Anciro, Jr. discover and take custody of the shabu in the cabinet. The appellants defense of frame-up is nothing new. It is a common and standard line of defense in most prosecutions for violation of the Dangerous Drugs Law. While such defense cannot and should not always be considered as contrived, nonetheless, it is generally rejected for it can easily be concocted but is difficult to prove. Police officers are, after all, presumed to have acted regularly in the performance of their official functions, in the absence of clear and convincing proof to the contrary, or that they are motivated by ill-will.88 It is true, as testified by Pangan and Ferias that, they did not see Anciro, Jr. discover and take custody of the shabu subject of this case. However, as explained by Pangan, he remained in the ground floor of the condominium unit while Anciro, Jr., Castillo and Margallo searched the bedroom of appellant Lee and her lover Lao, and Ferias proceeded to the room occupied by appellant Zhen Hua where he conducted his search. Thus, Pangan testified: Q When the masters bedroom was searched where Jogy Lee was then, according to you, sleeping, did you accompany the PARAC members? A No, Sir, because I was talking to a member of the PARAC downstairs. Q What about the members of the security force? A They were outside, Sir. Q During the search made on the masters bedroom? A Yes, Sir. Q How about when the search was made in the room occupied by Huang Zhen Hua, were you present then? A No, Sir, I was still downstairs. Q How about the other guards? A They were also outside.89 For his part, Ferias declared: Q In other words, you did not go inside the biggest room? A No, Sir. Q You proceeded to another room where co-accused Huang Zhen Hua was then sleeping? A Yes, Sir. Q What happened next? A We woke up Huang Zhen Hua and we introduced ourselves to him as police officers. Q What was the reaction of Huang Zhenhua? A He was surprised.90 Q In other words, you did not go inside the biggest room? A No, Sir. Q You proceeded to another room where co-accused Huang Zhen Hua was then sleeping? A Yes, Sir. Q What happened next? A We woke up Huang Zhen Hua and we introduced ourselves to him as police officers. Q What was the reaction of Huang Zhen Hua? A He was surprised.91

35 Pangan testified that before the police officers conducted their search in the second floor of the condominium unit, he did not see them bring in anything: Q But you are very sure that before the police officers searched the unit, you did not see them bringing anything with them, they were all empty-handed? A I did not see, Sir.92 No less than Pangan himself, a witness for the appellants, and three of the security guards of the subdivision, who accompanied the policemen in implementing the search warrants, certified that, what was found inside the condominium unit and confiscated by the policemen were two plastic bags which contained white crystalline powder substances suspected to be shabu.93 The appellant admitted that she saw shabu in her bedroom while the policemen were there. She claimed that the policemen placed the plastic bag on the bed before they started the search and that she noticed the shabu only after he returned from the room of appellant Zhen Hua to see if he was already awake is hard to believe. First. We find it incredible that the policemen placed the shabu on the appellants bed, in her full view, for which the latter could be prosecuted for planting evidence and, if convicted, sentenced to death under Section 19 of Rep. Act 7659: SECTION 19. Section 24 of Republic Act No. 6425, as amended, known as the Dangerous Act of 1972, is hereby amended to read as follows: Sec. 24. Penalties for Government Officials and Employees and Officers and Members of Police Agencies and the Armed Forces, Planting of Evidence. The maximum penalties provided for [in] Section 3, 4(1), 5(1), 6, 7, 8, 9, 11, 12 and 13 of Article II and Sections 14, 14-A, 15(1), 16 and 19 of Article III shall be imposed, if those found guilty of any of the said offenses are government officials, employees or officers, including members of police agencies and the armed forces. Any such above government official, employee or officer who is found guilty of "planting" any dangerous drugs punished in Sections 3, 4, 7, 8, 9 and 13 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act in the person or in the immediate vicinity of another as evidence to implicate the latter, shall suffer the same penalty as therein provided. Second. The appellant failed to inform her counsel of the alleged planting of evidence by the policemen; if she had done so, for sure, the said counsel would have prepared her affidavit and filed the appropriate motion in court for the suppression of the things/articles seized by the policemen. Third. The appellant failed to charge the policemen with planting of evidence before or after she was charged of violation of Rep. Act No. 6425, as amended. Fourth. The appellant cannot even identify and describe the policeman or policemen who allegedly planted the evidence. The fact is that, as gleaned from the affidavit of arrest signed by Anciro, Jr. and Ferias, the articles and substances found and confiscated from the condominium unit of Lao and appellant Lee at Atlantic Drive and at the Cityland condominium unit of Lao and Chan were itemized as follows: a. TWO (2) Big Transparent Plastic Bags containing about one (1) kilo each of white crystalline granules later tested to be Methamphetamine Hydrochloride or Shabu, a regulated drug; b. ONE (1) Transparent Plastic Baby Feeding Bottle containing undetermined quantity of suspected Shabu; c. ONE (1) Small Plastic Canister also containing undetermined amount of suspected Shabu

36 d. Assorted Pieces of Shabu Paraphernalia consisting of Improvised Tooters used for sniffing shabu, Improvised Burners used for burning Shabu, aluminum foils, etc.; a. TWO (2) Kettles/Pots containing more or less 1 kilos of Raw Shabu or Methamphetamine Hydrochloride; b. Two (2) Big Transparent Plastic Bags containing more or less Two (2) Kilos of Shabu; c. Three (3) Plastic Basins, small, medium, large, used for containers of finished/cooked Shabu; c. Several pieces of Plastic Strainers used for draining out liquids from finished Shabu; e. One (1) Plastic Container with liquid chemical of undetermined element; f. Several pieces of Spoons and ladles with traces of raw Shabu used in stirring mixtures g. One (1) Electric Cooking Stove w/one coil burner; h. One (1) Unit Card Making Machine; i. One (1) Unit Card Stamping Machine; j. Several pieces of Credit Cards and Telephone Cards;94 Anciro, Jr. placed his initials on the plastic bags containing white crystalline powder which were found and confiscated at Atlantic Drive and, in the company of Ferias, delivered the same to the PNP Crime Laboratory for examination, per the request of Police Superintendent Janice P. de Guzman, the chief of the PARAC. We agree with the appellant that she was not one of the accused named in the search warrants. However, such fact did not proscribe the policemen from arresting her and charging her of violation of Rep. Act No. 6425, as amended. There was, in fine, probable cause for her warrantless arrest independent of that found by Judge William Bayhon when he issued the search warrants against Lao and Chan for search of the condominium units at Atlantic Drive and Cityland. Probable cause exists for the warrantless detention and arrest of one at the premises being searched when the facts and circumstances within their knowledge and of which they had reliable and trustworthy information are sufficient to themselves warrant a reasonable belief of a cautious person that an offense has been or is being committed.95 It has been held that: Probable cause for the arrest of petitioner Diane Ker, while not present at the time the officers entered the apartment to arrest her husband, was nevertheless present at the time of her arrest. Upon their entry and announcement of their identity, the officers were met not only by George Ker but also by Diane Ker, who was emerging from the kitchen. Officer Berman immediately walked to the doorway from which she emerged and, without entering, observed the brick-shaped package of marijuana in plain view. Even assuming that her presence in a small room with the contraband in a prominent position on the kitchen sink would not alone establish a reasonable ground for the officers belief that she was in joint possession with her husband, that fact was accompanied by the officers information that Ker had been using his apartment as a base of operations for his narcotics activities. Therefore, we cannot say that at the time of her arrest there were no sufficient grounds for a reasonable belief that Diane Ker, as well as her husband, were committing the offense of possession of marijuana in the presence of the officers.96 In Draper v. United States,97 it was held that informations from a reliable informant, corroborated by the police officers observations as to the accuracy of the description of the accused, and of his presence at a particular place, is sufficient to establish probable cause. In this case, the police officers received reliable information and verified, after surveillance, that appellant Lee and Lao were living together as husband and wife in the condominium unit and that appellant Lee handled the accounting of the payments and proceeds of the illegal drug trafficking activities of Lao. Indeed, the policemen found that the appellant occupied the bedroom and slept in the same bed used by Lao. The appellant took her clothes from the same cabinet where the subject shabu and paraphernalia were found by Anciro, Jr. The appellant had been living in the same condominium unit with Lao since October 1, 1996 until her arrest on October 25, 1996. Along with Lao, the appellant thus had joint control and possession of the bedroom, as well as of the articles, paraphernalia, and the shabu found therein. Such facts and circumstances are sufficient on which to base a reasonable belief that the appellant had joint possession of the regulated drugs found in the bedroom along with Lao, her live-in partner, in line with our ruling in

37 People v. Tira.98 For the purpose of prosecution for violation of the Dangerous Drugs Law, possession can be constructive and need not be exclusive, but may be joint.99 Admittedly, Anciro, Jr. seized and took custody of certain articles belonging to the appellant and Lao which were not described in the search warrants. However, the seizure of articles not listed in a search warrant does not render the seizure of the articles described and listed therein illegal; nor does it render inadmissible in evidence such articles which were described in the warrant and seized pursuant thereto. Moreover, it bears stressing that Anciro, Jr. saw the unlisted articles when he and the other policemen implemented the search warrants. Such articles were in plain view of Anciro, Jr. as he implemented the search warrants and was authorized to seize the said articles because of their close connection to the crime charged. As held in Coolidge, Jr. v. New Hampshire:100 An example of the applicability of the plain view doctrine is the situation in which the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character. Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate. Thus, the police may inadvertently come across evidence while in hot pursuit of a fleeing suspect. And an object that comes into view during a search incident to arrest that is appropriately limited in scope under existing law may be seized without a warrant. Finally, the plain view doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. 101 It cannot be denied that the cards, passbook, passport and other documents and papers seen by the policemen have an intimate nexus with the crime charged or, at the very least, incriminating. The passport of the appellant would show when and how often she had been in and out of the country. Her credit cards and bank book would indicate how much money she had amassed while in the country and how she acquired or earned the same. The pictures and those of the other persons shown therein are relevant to show her relationship to Lao and Chan.102 Contrary to the claim of the appellant, it is not true that the trial court failed to provide an interpreter when she testified. The records show that a Cantonese interpreter attended the trial and interpreted her testimony. The Rules of Court does not require the trial court to provide the appellant with an interpreter throughout the trial. An interpreter is required only if the witness on the stand testifies in a language other than in English or is a deaf- mute. The appellant may procure the services of an interpreter at her own expense. Contrary to the claim of appellant Lee, the prosecution adduced proof beyond reasonable doubt of her guilt of the crime charged. She and Lao, her lover, had joint possession of the shabu which the policemen found and confiscated from her bedroom. IN LIGHT OF ALL THE FOREGOING, the appeal of appellant Huang Zhen Hua is GRANTED. The Decision of the Regional Trial Court of Paraaque City, convicting him of the crime charged, is REVERSED AND SET ASIDE. The said appellant is ACQUITTED of said charge. The Director of the Bureau of Corrections is hereby directed to release the said appellant from detention unless he is detained for another cause or charge, and to submit to the Court, within five (5) days from notice hereof, a report of his compliance with the directive of the Court. The appeal of appellant Jogy Lee is DENIED. The Decision dated January 10, 1999, of the Regional Trial Court of Paraaque City, convicting her of violation of Section 16, Rep. Act No. 6425 is AFFIRMED. No costs. SO ORDder

38

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. L-25434 July 25, 1975 HONORABLE ARSENIO N. ROLDAN, JR., in his capacity as Acting Commissioner, Philippine Fisheries Commission, and THE PHILIPPINE NAVY, petitioners, vs. HONORABLE FRANCISCO ARCA, as Presiding Judge of the Court of First Instance of Manila (Branch 1) and MORABE, DE GUZMAN & COMPANY, respondents. Office of the Solicitor General Arturo A. Alafriz and Solicitor Augusto M. Amores for petitioners. J. C. Yuseco and A.R. Narvasa for private respondent.

MAKASIAR, J.: A petition for certiorari and prohibition with preliminary injunction to restrain respondent Judge from enforcing his order dated October 18, 1965, and the writ of preliminary mandatory injunction thereunder issued. On April 3, 1964, respondent company filed with the Court of First Instance of Manila a civil case docketed as No. 56701 against petitioner Fisheries Commissioner Arsenio N. Roldan, Jr., for the recovery of fishing vessel Tony Lex VI (one of two fishing boats in question) which had been seized and impounded by petitioner Fisheries Commissioner through the Philippine Navy. On April 10, 1964, respondent company prayed for a writ of preliminary mandatory injunction with respondent court, but said prayer was, however, denied. On April 28, 1964, the Court of First Instance of Manila set aside its order of April 10, 1964 and granted respondent company's motion for reconsideration praying for preliminary mandatory injunction. Thus, respondent company took Possession of the vessel Tony Lex VI from herein petitioners by virtue of the abovesaid writ. On December 10, 1964, the Court of First Instance of Manila dismissed Civil Case No. 56701 for failure of therein petitioner (respondent company herein) to prosecute as well as for failure of therein defendants (petitioners herein)to appear on the scheduled date of hearing. The vessel, Tony Lex VI or Srta. Winnie however, remained in the possession of respondent company. On July 20, 1965, petitioner Fisheries Commissioner requested the Philippine Navy to apprehend vessels Tony Lex VI and Tony Lex III, also respectively called Srta. Winnie and Srta. Agnes, for alleged violations of some provisions of the Fisheries Act and the rules and regulations promulgated thereunder. On August 5 or 6, 1965, the two fishing boats were actually seized for illegal fishing with dynamite. Fish caught with dynamite and sticks of dynamite were then found aboard the two vessels. On August 18, 1965, the Fisheries Commissioner requested the Palawan Provincial Fiscal to file criminal charges against the crew members of the fishing vessels.

39 On September 30, 1965, there were filed in the court of First Instance of Palawan a couple of informations, one against the crew members of Tony Lex III, and another against the crew members of Tony Lex VI both for violations of Act No. 4003, as amended by Commonwealth Acts Nos. 462, 659 and 1088, i.e., for illegal fishing with the use of dynamite. On the same day, the Fiscal filed an ex parte motion to hold the boats in custody as instruments and therefore evidence of the crime (p. 54, rec.), and cabled the Fisheries Commissioner to detain the vessels (p. 56, rec.). On October 2 and 4, likewise, the Court of First Instance of Palawan ordered the Philippine Navy to take the boats in custody. On October 2, 1965, respondent company filed a complaint with application for preliminary mandatory injunction, docketed as Civil Case No. 62799 with the Court of First Instance of Manila against herein petitioners. Among others, it was alleged that at the time of the seizure of the fishing boats in issue, the same were engaged in legitimate fishing operations off the coast of Palawan; that by virtue of the offer of compromise dated September 13, 1965 by respondent company to the Secretary of Agriculture and Natural Resources, the numerous violations of the Fishery Laws, if any, by the crew members of the vessels were settled. On October 9, 1965, petitioners, represented by the Solicitor General, opposed the above-mentioned complaint, alleging among others, that: (1) the issuance of the writ would disrupt the status quo of the parties and would render nugatory any decision of the respondent court favorable to the defendant; (2) that the vessels, being instruments of a crime in criminal cases Nos. 3416 and 3417 filed with the Court of First Instance of Palawan, the release of the vessels sans the corresponding order from the abovementioned court would deprive the same of its authority to dispose of the vessels in the criminal cases and the Provincial Fiscal would not be able to utilize said vessels as evidence in the prosecution of said cases; (3) that as petitioners herein were in possession of one of the vessels in point, they cannot now be deprived of the legal custody thereof by reason of the dismissal of Civil Case No. 56701; (4) that petitioner Fisheries Commissioner has the power to seize and detain the vessels pursuant to Section 5 of Republic Act No. 3215 in relation to Sections 903 and 2210 of the Revised Tariff and Customs Code; (5) that respondents herein have not exhausted administrative remedies before coming to court; (6) that the compromise agreement approved by the Secretary of Agriculture and Natural Resources and indorsed to the Fisheries Commissioner is never a bar to the prosecution of the crime perpetrated by the crew members of the vessels belonging to respondent company. And again, on October 15, 1965, herein petitioners filed their memorandum praying for the denial of the application for preliminary mandatory injunction. On the same day, October 15, 1965, herein petitioners filed an urgent motion to submit additional documentary evidence. On October 18, 1965, herein petitioners, as defendants in said Civil Case No. 62799, filed their answer to the complaint with affirmative defenses, reiterating the grounds in their opposition to the issuance of a writ of preliminary mandatory injunction and adding that herein private respondent admitted committing the last violation when it offered in its letter dated September 21, 1965 to the Acting Commissioner of Fisheries, to compromise said last violation (Exh. 12, pp. 60-61, rec.). On said day, October 18, 1965, the respondent Judge issued the challenged order granting the issuance of the writ of preliminary mandatory injunction and issued the preliminary writ upon the filing by private respondent of a bond of P5,000.00 for the release of the two vessels(pp. 95-102, rec.). On October 19, 1965, herein petitioners filed a motion for reconsideration of the order issuing the preliminary writ on October 18, 1965 on the ground, among others, that on October 18, 1965 the Philippine Navy received from the Palawan Court of First Instance two orders dated October 2 and 4, 1965 requiring the Philippine Navy to hold the fishing boats in custody and directing that the said vessels should not be released until further orders from the Court, and that the bond of P5,000.00 is grossly insufficient to cover the Government's losses in case the two vessels, which are worth P495,000.00, are placed beyond the reach of the Government, thus frustrating their forfeiture as instruments of the crime (pp. 103-109, rec.).1wph1.t On November 23, 1965, respondent Judge denied the said motion for reconsideration (p. 110, rec.).

40 WE rule that the respondent Judge of the Manila Court of First Instance acted without jurisdiction and with grave abuse of discretion when he issued on October 18, 1965 the order directing the issuance of a writ of preliminary mandatory injunction and when he refused to reconsider the same. I When the respondent Judge issued the challenged order on October 18, 1965 and the writ of preliminary mandatory injunction pursuant thereto, the fishing vessels were already under the jurisdiction of the Court of First Instance of Palawan by virtue of its orders of October 2 and 4, 1965, upon motion of the Provincial Fiscal (pp. 54, 55, rec.), directing the Philippine Navy to detain (pp. 108, 109, rec.) said vessels, which are subject to forfeiture as instruments of the crime, to be utilized as evidence in Criminal Cases Nos. 3416 and 3417 for illegal fishing pending in said court (pp. 54-55, rec.). The said vessels were seized while engaging in prohibited fishing within the territorial waters of Palawan (pp. 45, 48,-53, rec.) and hence within the jurisdiction of the Court of First Instance of Palawan, in obedience to the rule that "the place where a criminal offense was committed not only determines the venue of the action but is an essential element of jurisdiction"(Lopez vs. Paras, L-25795, Oct. 29, 1966, 18 SCRA 616, 619). The jurisdiction over the vessels acquired by the Palawan Court of First Instance cannot be interfered with by another Court of First Instance. The orders of October 2 and 4, 1965 by the Palawan Court of First Instance expressly direct the Philippine Navy "to hold in custody" the two vessels and that "same should not be released without prior order or authority from this Court" (pp. 108, 109, rec.). Only the Palawan court can order the release of the two vessels. Not even the Secretary of Agriculture and Natural Resources nor the Fisheries Commissioner can direct that the fishing boats be turned over to private respondent without risking contempt of court. The grave abuse of discretion committed by the respondent Judge was heightened by the fact that he did not reconsider his order of October 18, 1965 after he was informed by petitioners in their motion for reconsideration filed on October 19, 1965 that the Palawan Court of First Instance had already issued the two orders dated October 2 and 4, 1965 directing the Philippine Navy to hold in custody the fishing boats until further orders. It is basic that one court cannot interfere with the judgments, orders or decrees of another court of concurrent or coordinate jurisdiction having equal power to grant the relief sought by injunction; because if coordinate courts were allowed to interfere with each other's judgments, decrees or injunctions, the same would obviously lead to confusion and might seriously hinder the administration of justice (Ongsinco, etc. vs. Tan, et al., 97 Phil. 330; PNB vs. Javellana, 92 Phil. 525; Montesa vs. Manila Cordage Company, 92 Phil. 25; Hubahib vs. Insular Drug Company, 64 Phil. 119; Hacbang, et al. vs. The Leyte Auto Bus Company, et al., G.R. No. L-17907, May 30, 1963, 8 SCRA, 103, 107-109; NPC vs. Hon. Jesus de Vera, G.R. No. L-15763, Dec. 22, 1961, 3 SCRA, 646, 648; Cabigao vs. del Rosario, 44 Phil. 182; Araneta & Uy vs. Commonwealth Insurance Company, 55 OG 431; Moran, Comments on the Rules of Court, Vol. III, 1970 ed., p. 64). As early as October 2 and 4, 1965, the two boats were already in custodia legis under the sole control of the Palawan Court of First Instance. The Manila Court of First Instance cannot interfere with and change that possession (Hacbang vs. Leyte Bus Co., Inc., supra; NPC vs. Hon. Jesus de Vera, supra). It is immaterial that the vessels were then in the Philippine Navy basin in Manila; for the same in no way impugns the jurisdiction already vested in the Palawan court, which has custody thereof through the Philippine Navy. This is analogous to the situation in Colmenares versus Villar (L-27124, May 29, 1970, 33 SCRA 186, 188-9), wherein We ruled "where the illegal possession of firearms was committed in the town where the Court sits, the fact that the firearms were confiscated from the accused in another town does not affect the jurisdiction of the Court" (pp. 186, 189). It is likewise of no moment that the herein respondents were not notified by the herein petitioners of the seizure of the questioned vessels by the Philippine Navy, because such previous notice is not required by law. II

41 The dismissal on December 10, 1964 of the first Civil Case No. 56701 by the Court of First Instance of Manila had the necessary effect of automatically dissolving the writ of preliminary mandatory injunction issued therein on April 28, 1964, directing the return of fishing vessel Tony Lex VI (pp. 156-157, rec.). Such a preliminary writ, like any other interlocutory order, cannot survive the main case of which it was but an incident; because "an ancillary writ of preliminary injunction loses its force and effect after the dismissal of the main petition" (National Sugar Workers' Union, etc., vs. La Carlota Sugar Central, et al., L-23569, May 25, 1972, 45 SCRA 104, 109; Lazaro vs. Mariano, 59 Phil. 6Z7, 631; Saavedra vs. Ibaez, 56 Phil. 33, 37; Hi Caiji vs. Phil. Sugar Estate and Development Company, 50 Phil. 592, 594).1wph1.t Moreover, the writ of preliminary injunction issued on April 28, 1964 in Civil Case No. 56701 was directed against the detention of the vessel Tony Lex VI for violations committed prior to August 5, 1965, and therefore cannot and does not extend to the seizure and detention of said vessel for violations on August 5 or 6, 1965, which violations were not and could not possibly be the subjectmatter of said Civil Case No. 56701 which was filed on April 3, 1964 (p. 12, rec.). III Herein petitioners can validly direct and/or effect the seizure of the vessels of private respondent for illegal fishing by the use of dynamite and without the requisite licenses. Section 4 of Republic Act No. 3512 approved on March 20, 1963 empowers the Fisheries Commissioner to carry out the provisions of the Fisheries Act, as amended, and all rules and regulations promulgated thereunder, to make searches and seizures personally or through his duly authorized representatives in accordance with the Rules of Court, of "explosives such as ... dynamites and the like ...; including fishery products, fishing equipment, tackle and other things that are subject to seizure under existing fishery laws"; and "to effectively implement the enforcement of existing fishery laws on illegal fishing." Paragraph 5 of Section 4 of the same Republic Act 3512 likewise transferred to and vested in the Philippine Fisheries Commission "all the powers, functions and duties heretofore exercised by the Bureau of Customs, Philippine Navy and Philippine Constabulary over fishing vessels and fishery matters ..." Section 12 of the Fisheries Act, otherwise known as Republic Act No. 4003, as amended, prohibits fishing with dynamites or other explosives which is penalized by Section 76 thereof "by a fine of not less than P1,500.00 nor more than P5,000.00, and by imprisonment for not less than one (1) year and six (6) months nor more than five (5) years, aside from the confiscation and forfeiture of all explosives, boats, tackles, apparel, furniture, and other apparatus used in fishing in violation of said Section 12 of this Act." Section 78 of the same Fisheries Law provides that "in case of a second offense, the vessel, together with its tackle, apparel, furniture and stores shall be forfeited to the Government." The second paragraph of Section 12 also provides that "the possession and/or finding, of dynamite, blasting caps and other explosives in any fishing boat shall constitute a presumption that the said dynamite and/or blasting capsand explosives are being used for fishing purposes in violation of this Section, and that the possession or discovery in any fishing boat or fish caught or killed by the use of dynamite or other explosives, under expert testimony, shall constitute a presumption that the owner, if present in the fishing boat, or the fishing crew have been fishing with dynamite or other explosives." (Emphasis supplied). Under Section 78 of the Fisheries Act, as amended, any person, association or corporation fishing in deep sea fishery without the corresponding license prescribed in Sections 17 to 22 Article V of the Fisheries Act or any other order or regulation deriving force from its provisions, "shall be punished for each offense by a fine of not more than P5,000.00, or imprisonment, for not more than one year, or both, in the discretion of the Court; Provided, That in case of an association or corporation, the President or manager shall be directly responsible for the acts of his employees or laborers if it is proven that the latter acted with his knowledge; otherwise the responsibility shall extend only as far as fine is concerned: Provided, further, That in the absence of a known owner of the vessel, the master, patron or person in charge of such vessel shall be responsible for any violation of this Act: and Provided, finally,

42 That in case of a second offense, the vessel together with its tackle, apparel, furniture and storesshall be forfeited to the Government" (Emphasis supplied). Under Section 13 of Executive Order No. 389 of December 23, 1950, reorganizing the Armed Forces of the Philippines, the Philippine Navy has the function, among others, "to assist the proper governmental agencies in the enforcement of laws and regulations pertaining to ... fishing ..." (46 OG 5905, 5911). Section 2210 of the Tariff and Customs Code, as amended by PD No. 34 of October 27, 1972, authorized any official or person exercising police authority under the provisions of the Code, to search and seize any vessel or air craft as well as any trunk, package, bag or envelope on board and to search any person on board for any breach or violation of the customs and tariff laws. When the Philippine Navy, upon request of the Fisheries Commissioner, apprehended on August 5 or 6, 1965 the fishing boats Tony Lex III and Tony Lex VI, otherwise known respectively as Srta. Agnes and Srta. Winnie, these vessels were found to be without the necessary license in violation of Section 903 of the Tariff and Customs Code and therefore subject to seizure under Section 2210 of the same Code, and illegally fishing with explosives and without fishing license required by Sections 17 and 18 of the Fisheries Law (pp. 46-47, rec.).1wph1.t The operation of the fishing boat Tony Lex III was suspended pursuant to the order dated January 28, 1964 issued by the Commissioner of Fisheries pending the final determination of the case against it for illegal fishing with explosives on January 21, 1964 (p. 34, rec.) and remained suspended until its apprehension on August 5 or 6, 1965 (p. 46, rec.). For illegal fishing with explosives on March 23, 1963, the renewal of the fishing boat license of Tony Lex VI was suspended for one year from the time said boat was moored at Pier 14 at North Harbor, Manila, without prejudice to the institution of a criminal case against its owner and/or operator, pursuant to the order dated May 19, 1964 issued by the Commissioner of Fisheries (pp. 35-36, rec.), the motion for reconsideration of which order was denied by the Commissioner of Fisheries in an order dated August 17, 1964 (pp. 41-42, rec.). For illegal fishing with dynamite on March 28, 1963, the operation of Tony Lex VI was suspended by the Commissioner of Fisheries in an order dated April 1, 1963 (p. 62, rec.). For illegal fishing again with explosives on April 25, 1963, the fishing boat Tony Lex VI together with its tackle, apparel, furniture and all other apparatus used in fishing was ordered confiscated and forfeited in favor of the Government and a fine in the amount of P5,000.00 was imposed on its owners-operators, without prejudice to the filing of the necessary criminal action, pursuant to the order of June 2, 1964 of the Commissioner of Fisheries(pp. 37-38, rec.). Again, for comitting the same violation on June 19, 1963, a fine in the amount of P5,000.00 was imposed on the owners-operators of fishing boat Tony Lex VI pursuant to the order of June 4, 1964 issued by the Commissioner of Fisheries (pp. 39-40, rec.).. It appears, therefore, that since January 28, 1964, the fishing boat Tony Lex III was suspended from operating and was ordered moored at Pier 14, North Harbor, Manila (pp. 34, 46-47, rec.); and that the fishing vessel Tony Lex VI was suspended for one year from May 24, 1964 and was actually ordered forfeited to the Government pursuant to the order of June 2, 1964 for repeated violations of Section 12 of the Fisheries Act (pp. 37- 38. rec.).1wph1.t As a matter of fact, when apprehended on August 5 or 6, 1965, both vessels were found to be without any license or permit for coastwise trade or for fishing and unlawfully fishing with explosives, for which reason their owners and crew were accordingly indicted by the Provincial Fiscal of Palawan for illegal fishing with dynamite and without the requisite license (pp. 48-53, rec.). As heretofore intimated, the two fishing boats were apprehended on numerous occasions for fishing with dynamite from March 28, 1963 to March 11, 1964, which violations private respondent, as owneroperator, sought to compromise by offering to pay a fine of P21,000.00 for all said prior violations.

43 Such previous violations of Sections 12, 17 and 18 of the Fisheries Act committed by the two fishing boats, Tony Lex III and Tony Lex VI, from March 28, 1963 until August 5 or 6, 1965, rendered the said vessels subject to forfeiture under Sections 76 and 78 of the Fisheries Act, as amended. Search and seizure without search warrant of vessels and air crafts for violations of the customs laws have been the traditional exception to the constitutional requirement of a search warrant, because the vessel can be quickly moved out of the locality or jurisdiction in which the search warrant must be sought before such warrant could be secured; hence it is not practicable to require a search warrant before such search or seizure can be constitutionally effected (Papa vs. Mago, L-27360, Feb. 28, 1968, 22 SCRA 857, 871-74; Magoncia vs. Palacio, 80 Phil. 770, 774; Caroll vs. U.S. 267, pp. 132, 149, 158; Justice Fernando, The Bill of Rights, 1972 ed., p. 225; Gonzales, Philippine Constitutional Law, 1966 ed., p. 300). The same exception should apply to seizures of fishing vessels breaching our fishery laws. They are usually equipped with powerful motors that enable them to elude pursuing ships of the Philippine Navy or Coast Guard. Another exception to the constitutional requirement of a search warrant for a valid search and seizure, is a search or seizure as an incident to a lawful arrest (Alvero vs. Dizon, 76 Phil. 637; Justice Fernando, The Bill of Rights, 1972 ed., p. 224). Under our Rules of Court, a police officer or a private individual may, without a warrant, arrest a person (a) who has committed, is actually committing or is about to commit an offense in his presence; (b) who is reasonably believed to have committed an offense which has been actually committed; or (c) who is a prisoner who has escaped from confinement while serving a final judgment or from temporary detention during the pendency of his case or while being transferred from one confinement to another (Sec. 6, Rule 113, Revised Rules of Court). In the case at bar, the members of the crew of the two vessels were caught in flagrante illegally fishing with dynamite and without the requisite license. Thus their apprehension without a warrant of arrest while committing a crime is lawful. Consequently, the seizure of the vessel, its equipment and dynamites therein was equally valid as an incident to a lawful arrest. The alleged compromise approved by the Secretary of Agriculture and Natural Resources on September 13, 1965 (pp. 63-64, 158-159, rec.) cannot be invoked by the respondents because the said compromise referred to about thirty violations of the fisheries law committed by the private respondent from March 28, 1963 to March 11, 1964. The violations by the two vessels of private respondent by reason of which these vessels were apprehended and detained by the Philippine Navy upon request of the Commissioner of Fisheries, were committed on August 5 or 6, 1965. Moreover, the power to compromise would exist only before a criminal prosecution is instituted; otherwise the Department Secretary or any of his sub-alterns can render criminal prosecutions for violations of the fisheries law a mere mockery. It is not in the public interest nor is it good policy to sustain the viewpoint that the Department Secretary can compromise criminal cases involving public, not private, offenses after the indictment had been instituted in court. The fishing vessels together with all their equipment and the dynamites found therein are not only evidence of the crime of illegal fishing but also subject to forfeiture in favor of the Government as instruments of the crime (Art. 45, Revised Penal Code, Sec. 78, Act No. 4003, as amended). Section 80(j) of Act No. 4003, as amended, precludes such a compromise the moment the Fisheries Commissioner decides to prosecute the criminal action in accordance with Sections 76 and 78 of the other penal provisions of the fisheries law. Furthermore, any compromise shall be upon the recommendation of the Fisheries Commission (Section 80[i], Act No. 4003), which did not recommend such a compromise for the violation on August 5 or 6, 1965 of Section 12 in relation to Sections 76 and 78 of Act No. 4003, as amended. On the contrary, the Fisheries Commissioner requested the Provincial Fiscal to institute the criminal cases (pp. 43-45, rec.) and the Provincial Fiscal filed the corresponding informations docketed as Criminal Cases Nos. 3416 and 3417 on September 30, 1965 against the owners and the members of the crew of the vessels (pp. 48-53, rec.). It should be noted that in the first indorsement dated September 13, 1965 of the Secretary of Agriculture and Natural Resources approving the compromise fine of P21,000.00 for the various violations committed previous to August 5 or 6, 1965 (pp. 34-42, 47, 58-64, 149-155, 158-159, rec.), the Department Secretary "believes that the offer made by the company was an implied admission of violations of said provisions of the Fisheries Law and regulations, ..." (pp. 63, 158, rec.). The said

44 approval was granted after the private respondent filed a motion for reconsideration of the indorsement dated March 5, 1965 of the Secretary of Agriculture and Natural Resources disapproving the offer by private respondent to pay the fine by way of compromise. There can be no dispute that the term fishing boat (employed in the second paragraph of Section 12 of the Fisheries Act applies to the vessels Tony Lex III and Tony Lex VI. Even private respondent refers to said fishing boats as fishing vessels "engaged in fishing operations" or "in commercial fishing" in paragraph IV of its complaint in Civil Case No. 62799 (p. 18, rec.), as well as in its various communications to the Fisheries Commissioner (pp. 60-61, 65, 82, rec.).1wph1.t The two fishing vessels Tony Lex III and Tony Lex VI likewise fall under the term vessel used in Sections 17, 76 and 78, as well as the term boats utilized in the second paragraph of Section 76 of the Fisheries Act. They can also fall under the term fishing equipment employed in Section 4 of Republic Act No. 3512; because a fishing equipment is never complete and cannot be effectively used in off-shore or deep-sea fishing without the fishing boat or fishing vessel itself. And these two vessels of private respondent certainly come under the termfishing vessels employed in paragraph 5 of Section 4 of the same Republic Act 3512 creating the Fisheries Commission. Hence, no useful purpose can be served in trying to distinguish between boat and vessel with reference to Tony Lex III and Tony Lex VI. As a matter of fact, the accepted definition of vessel includes "every description of water craft, large or small, used or capable of being used as a means of transportation on water" (Cope versus Vallete, etc., 199 U.S. 625; U.S. vs. Holmes, 104 Fed. 884; Charles Barnes Co. vs. One Dredge Boat, 169 Fed. 895; and Yu Con vs. Ipil, 41 Phil. 780). The word boat in its ordinary sense, means any water craft (Monongahela River Construction, etc. vs. Hardsaw, 77 NE 363, 365). The fishing boats Tony Lex III and Tony Lex VI are likewise vessels within the meaning of the termvessel used in Sections 903 and 2210 of the Tariff and Customs Code. WHEREFORE, THE PETITION IS HEREBY GRANTED AND THE ORDER OF RESPONDENT JUDGE DATED OCTOBER 18, 1965, THE WRIT OF PRELIMINARY MANDATORY INJUNCTION ISSUED THEREUNDER AND THE ORDER DATED NOVEMBER 23, 1965, ARE HEREBY SET ASIDE AS NULL AND VOID, WITH COSTS AGAINST PRIVATE RESPONDENT. Castro (Chairman,), Esguerra, Muoz Palma and Martin, JJ., concur.

45 Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 120670 October 23, 2003

PEOPLE OF THE PHILIPPINES, appellee, vs. HEDISHI SUZUKI, appellant. DECISION SANDOVAL-GUTIERREZ, J.: For automatic review is the Decision1 of the Regional Trial Court, Branch 45, Bacolod City in Criminal Case No. 94-16100 convicting Hedishi Suzuki, appellant, of illegal possession of marijuana, defined and penalized under Section 8, Article II of R.A. No. 6525, as amended,2 and sentencing him to suffer the penalty of death and to pay a fine of P10,000,000.00. The Information3 against appellant reads: "That on or about the 12th day of April, 1994, in the City of Bacolod, Philippines, and within the jurisdiction of this Honorable Court, the herein accused, not being lawfully authorized to possess, prepare, administer or otherwise use any prohibited drug, did then and there willfully, unlawfully and feloniously have in his possession and under his custody and control 1.9 kilos or 1,900 grams, more or less, of marijuana which is a prohibited drug, in violation of the aforementioned laws. "Acts contrary to law." Upon arraignment, appellant entered a plea of not guilty. Thereafter, trial followed.1a\^/phi1.net The prosecution presented P/Inspector Rea Abastillas Villavicencio, the forensic chemist of the Philippine National Police (PNP) Crime Laboratory, SPO1 Arturo Casugod, Sr. of the Police Aviation Security Command (PASCOM), PO3 Rhodelin Poyugao, also of the PASCOM, and SPO1 Gilbert Linda of the Narcotics Command (NARCOM), all of Bacolod City. Their testimonies, woven together, established the following facts: Sometime in November, 1993, the PNP Narcotics Command issued a directive to all Chiefs of Narcotics Regional Field Units to cover all domestic airport terminals within their respective areas of responsibility, following reports that drug trafficking is prevalent in domestic airports; and to coordinate with local airport authorities and the PASCOM. In the morning of April 12, 1994, while the prosecution witnesses were in their respective stations, appellant and Takeshi Koketsu, both Japanese nationals, entered the pre-departure area of the Bacolod Airport Terminal. Appellant was bound for Manila via flight No. 132 of the Philippine Airlines and was carrying a small traveling bag and a box marked "Bongbongs piaya."4 At the pre-departure area, upon the advice of Corazon Sinosa, a civilian personnel of the PASCOM, appellant proceeded to the "walkthrough metal detector," a machine which produces a red light and an alarm once it detects the presence of metallic substance or object. Thereupon, the red light switched on and the alarm sounded, signifying the presence of metallic substance either in his person or in the box he was carrying. This prompted PO3 Poyugao to frisk him bodily. Finding no metallic object in his body, PO3 Poyugao picked up the box of piaya and passed it through the machine. Again, the machine was activated. PO3 Poyugao then ordered appellant to go to the hand-carried luggage inspection counter where several PASCOM and NARCOM personnel were present. SPO1 Casugod requested appellant to open the box. He appeared tense and reluctant and started to leave, but SPO1 Casugod called him. Eventually he consented, saying in faltering English, "open, open." SPO1 Casugod opened the box and found therein

46 eighteen (18) small packs, seventeen (17) of which were wrapped in aluminum foil. SPO1 Casugod opened one pack. Inside were dried fruiting tops which looked like marijuana. Upon seeing this, appellant ran outside the pre-departure area but he was chased by PO3 Poyugao, SPO1 Linda and Donato Barnezo of the PASCOM. They apprehended appellant near the entrance of the terminal and brought him to the PASCOM office. They also brought Takeshi and his wife, Lourdes Linsangan, to the office, being suspects as conspirators with appellant in drug trafficking. Lourdes asked permission to call Atty. Silvestre Tayson. When he arrived, the police apprised appellant of his constitutional rights. Meanwhile, SPO1 Casugod weighed the contents of the box and inventoried the same. The total weight of the suspected marijuana fruiting tops was 1.9 kilograms or 1,900 grams. He then drafted a "confiscation receipt" which appellant, upon the advice of Atty. Tayson, refused to acknowledge. SPO1 Casugod turned over appellant to SPO1 Linda for investigation. Subsequently, appellant and his companions were brought to the prosecutors office for inquest and placed under the custody of C/Inspector Ernesto Alcantara at the NARCOM office. The box with its contents was brought to the PNP Crime Laboratory. Inspector Villavicencio conducted three tests on the specimen samples which proved positive for marijuana. The defense presented appellant as its sole witness whose testimony is as follows: On April 9, 1994, he and Takeshi Koketsu arrived in Manila from Osaka, Japan. The purpose of his trip was to collect from Takeshi Y2.5 million or P500,000.00 which the latter owed him. Waiting for them at the airport was Takeshis wife, Lourdes. On the same day, the three flew to Bacolod City. Appellant stayed at the house of Takeshi. Two days later, appellant asked Takeshi to pay. When Takeshi admitted he had no money, appellant got angry and went to the Casino Filipino where he stayed until 10:30 in the evening. Upon leaving the casino, he met Pinky who enticed him to have sex with her. They then proceeded to the Moonlight Motel. Moments later, Pinky left, while appellant stayed there for the night. He told her he was leaving the following morning. The following day or on April 12, 1994, appellant went to the airport.1awphi1.nt Pinky, who was there waiting, gave him a box of "Bongbongs piaya" as "pasalubong" from Bacolod City. He did not ascertain the contents of the box since he trusted Pinky although he just met her the previous night. Appellant found and joined Takeshi and Lourdes at the coffee shop. Takeshi apologized for his failure to pay his debt, assuring him that he would settle his obligation next month. When it was time to leave, appellant, accompanied by Takeshi, proceeded to the pre-departure area. When he passed through the metal detector, a policeman frisked him, got the box and placed it inside the metal detector. The machine produced a red light, hence, the policeman brought the box to the inspection table, with appellant following him. Thereafter, the policeman, whom he later knew as SPO1 Arturo Casugod, pointed to the box uttering something appellant did not understand. Appellant said, "wait a minute," (in Japanese) and went outside to ask Takeshi and Lourdes to interpret for him, but they did not respond. When PO3 Rhodelin Poyugao called him back to the pre-departure area, he found Takeshi near the table and the box containing something wrapped in aluminum foil already opened. Takeshi told him that he was carrying marijuana. He replied it was given to him by a woman that morning. Then he and SPO1 Casugod went to the PASCOM office where the latter weighed the contents of the box. He did not sign the "Confiscation Receipt" presented to him. They then proceeded to the NARCOM office with C/Inspector Ernesto Alcantara, SPO1 Linda, PO3 Poyugao, and three other officers. From the NARCOM office, appellant was brought to the Bacolod Police Station. Shortly thereafter, they went to the Nagoya Restaurant owned by Takeshi where appellant saw C/Inspector Alcantara and Lourdes talking. When he inquired from Takeshi what was going on, he was told they needed money in dealing with the police. Appellant was then brought to the prosecutors office. There Takeshi told him to keep silent as he would make a deal with the prosecutor. Then they went to Takeshis house where appellant stayed for two days.

47 On April 14, 1994, C/Inspector Alcantara and SPO1 Linda brought appellant to the Bacolod City Jail. Takeshi visited him twice, advising him to ask someone from Japan to send him money and be discreet, otherwise he would be killed; and to admit he has in his possession less than 750 grams of marijuana so he could post bail. However, he refused. Five days later, appellant, escorted by the police, went to Takeshis house to retrieve his money (Y120,000 equivalent to P30,000.00), but Takeshi told him that it was already spent for the food and drinks of the NARCOM agents and the airport policemen. On December 7, 1994, the trial court rendered its Decision, the dispositive portion of which reads: "WHEREFORE, finding the accused HEDISHI SUZUKI guilty beyond reasonable doubt of the offense charged, he is hereby sentenced to suffer the maximum penalty of death, to pay a fine of Ten Million Pesos (P10,000,000.00), and to pay the costs. "Pursuant to Section 20, Article IV of Republic Act No. 6425, as amended by Section 17 of Republic Act No. 7659, let the 1,547.07 grams of dried marijuana fruiting tops, subject matter of this case, be confiscated and forfeited in favor of the government and be turned over to the Dangerous Drugs Board Custodian, NBI, to be disposed according to law. "SO ORDERED." Hence the instant mandatory review. In his brief, appellant ascribes to the trial court the following errors: "I THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE GOVERNMENT AGENTS HAD THE LEGAL AUTHORITY WHEN THEY OPENED AND SEARCHED THE SMALL CARTON IN QUESTION. II THE TRIAL COURT GRAVELY ERRED IN FINDING THAT SUFFICIENT PROBABLE CAUSE EXISTS FOR THE OPENING AND SEARCH OF THE SUBJECT CARTON AND IN DECLARING LEGAL AND VALID THE SEIZURE OF SAID CARTON AND THE SUBSEQUENT ARREST OF THE APPELLANT. III THE TRIAL COURT GRAVELY ERRED IN ADMITTING IN EVIDENCE THE MARIJUANA CONTENTS OF THE SUBJECT CARTON AGAINST THE APPELLANT. IV THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE SEARCH ON THE CARTON IN QUESTION WAS INCIDENTAL TO A LAWFUL ARREST. V THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE SEARCH ON THE SUBJECT CARTON WAS MADE UNDER THE EXCEPTION OF SEIZURE OF EVIDENCE IN PLAIN VIEW. VI THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE ARREST OF THE APPELLANT WAS VALID AS HE WAS CAUGHT IN FLAGRANTE DELICTO POSSESSING MARIJUANA. VII

48 THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THERE WAS UNQUALIFIED, VOLUNTARY AND AUTHORITATIVE CONSENT GIVEN BY THE APPELLANT TO THE OPENING OF THE CARTON. VIII ON THE ASSUMPTION EX GRATIA ARGUMENTI THAT THE APPELLANT WAS CAUGHT IN POSSESSION OF MARIJUANA, THE TRIAL COURT GRAVELY ERRED IN CONVICTING HIM, FOR THE PROSECUTION FAILED TO PROVE THE NEGATIVE ELEMENT OF THE OFFENSE. IX ON THE ASSUMPTION EX GRATIA ARGUMENTI THAT HE WAS CAUGHT IN PHYSICAL POSSESSION OF THE CARTON IN QUESTION (CONTAINING MARIJUANA), THE TRIAL COURT GRAVELY ERRED IN FINDING THAT APPELLANT INTENDED TO POSSESS SAID PACKS OF MARIJUANA. X THE TRIAL COURT GRAVELY ERRED IN FINDING THAT APPELLANTS PETITION TO BE RELEASED ON BAIL CONSTITUTES WAIVER OF ANY IRREGULARITY ATTENDING HIS ARREST AND ESTOPS HIM FROM QUESTIONING ITS VALIDITY. XI THE TRIAL COURT GRAVELY ERRED IN NOT GIVING DUE WEIGHT, CONSIDERATION AND CREDIT TO THE TESTIMONY OF THE APPELLANT AND IN DECLARING THE SAME SELF-SERVING AND NOT AMPLY PROVEN. XII THE TRIAL COURT GRAVELY ERRED IN DISREGARDING SUBSTANTIAL CONTRADICTIONS IN THE EVIDENCE FOR THE PROSECUTION WHICH CREATE REASONABLE DOUBT ON THE GUILT OF THE APPELLANT. XIII THE TRIAL COURT GRAVELY ERRED IN GOING BEYOND THE EVIDENCE PRESENTED BY THE PROSECUTION IN SUPPORT OF ITS DECISION CONVICTING APPELLANT. XIV THE TRIAL COURT GRAVELY ERRED IN SENTENCING APPELLANT TO THE MAXIMUM PENALTY OF DEATH AND IMPOSING A FINE OF TEN MILLION PESOS. XV THE TRIAL COURT GRAVELY ERRED IN HOLDING THAT THE GUILT OF THE APPELLANT WAS PROVEN BY THE PROSECUTION BEYOND REASONABLE DOUBT AND IN NOT ACQUITTING HIM." Considering that the above assigned errors are interrelated, they will be discussed jointly. Appellant invokes his constitutional right against unreasonable search and seizure, contending that: (1) the authority to open and investigate suspicious packages and cargoes under Section 8 of Republic Act No. 62355does not apply to PASCOM and NARCOM agents but is limited only to aircraft companies or operators of aircraft for hire; (2) he did not consent to be searched by the authorities; (3) the prohibited substances confiscated by the authorities were not actually in their plain view; and (4) the search they conducted was not incidental to a lawful arrest. Pertinent is Section 8 of Republic Act No. 6235 which reads:

49 "SECTION 8. Aircraft companies which operate as public utilities or operators of aircraft which are for hire are authorized to open and investigate suspicious packages and cargoes in the presence of the owner or shipper, or his authorized representatives if present, in order to help the authorities in the enforcement of the provisions of this Act: Provided, That if the owner, shipper or his representative refuses to have the same opened and inspected, the airline or air carrier is authorized to refuse the loading thereof." In line with the afore-cited law, the trial court correctly upheld the PASCOMs authority to open packages and cargoes, thus: "This Court does not subscribe to the contention of the accused. The Police Aviation Security Command (PASCOM) is the implementing arm of the National Action Committee on Anti-Hijacking (NACAH), which is a creation of Presidential Letter of Instruction (LOI) No. 399, dated April 28, 1976. "On February 18, 1978, a Memorandum of Understanding among the Secretary of National Defense, the Secretary of Public Works, Transportation and Communication, the Secretary of Justice, the Director General, National Intelligence and Security Authority and the Secretary of Finance was signed. The purpose was to establish a working arrangement among cognizant agencies, set up guidelines and procedures for the security of the airport complex throughout the Philippines particularly handling, coordination and disposition of hijacking and other criminal incidents that may occur thereat (PAFM 39, page 1-3). Under the said Memorandum of Understanding the then AVSECOM (now PASCOM) shall have the following functions and responsibilities: 1. Secure all airports against offensive and terroristic acts that threaten civil aviation; 2. Undertake aircraft anti-hijacking operations; 3. Exercise operational control and supervision over all agencies involved in airport security operations; 4. Take all necessary preventive measures to maintain peace and order, and provide other pertinent public safety services within the airports; xxx One of its guidelines before the passenger can enter the sanitized area (pre-departure area) is to check the hand-carried luggage and personal effects of passengers (PAFM 3-9, page 2-3). Passengers are allowed one hand-carried bag or attach case with the following limitation: a. x x x x x x b. x x x x x x c. It can be readily opened for inspection (PAFM 3-9, page 2-4). Based upon the Memorandum of Understanding, pursuant to President LOI 399, in relation to R.A. 6235, the PASCOM had the legal authority to be at the Bacolod Airport, Bacolod City and to inspect luggages or hand-carried bags. Under DOC 8973/3, Security Manual for Safeguarding Civil Aviation against Acts of Unlawful Interference, particularly paragraph 3.6.4 when x-ray inspection is not possible or when the x-ray image of a bag gives rise to suspicion, x x x, a manual search must be carried out (Memorandum of the Prosecution, pp. 15-16; underscoring supplied).

50 "The prosecution correctly argued that the PASCOM established a system of checkpoint at the predeparture area of the Bacolod Airport to quickly inspect or screen persons or hand-carried baggages for illegal items pursuant to said Memorandum of Agreement, which in turn derived its life from LOI 399. In short, the setting up of checkpoint at the Bacolod Airport on April 12, 1994 does not have only jurisprudential basis (Valmonte vs. De Villa, et al., G.R. No. 83288, September 29, 1989, 178 SCRA 211, more popularly known as the checkpoints cases) but also statutory basis. "Moreover, to sustain the stand of the accused exclusively limiting the authority to open and search suspicious luggages would result to absurdity. It would deprive law enforcers of their authority to perform their duty of maintaining order, preserving peace, protecting life and property and other police works such as crime detection, while within the airport premises. The construction given by the accused conveniently omitted the phrase found in Section 8 of Republic Act No. 6235 which reads in order to help the authorities in the enforcement of the provisions of this Act. The word authorities evidently refers to police officers and other law enforcers such as the PASCOM officers. It follows that in allowing or authorizing aircraft companies which operate as public utilities or operators of aircraft which are for hire, to open and investigate suspicious packages and seizures, the authors of the law does not disallow or prohibit law enforcement agencies of the government from assisting or conducting the opening and investigation of suspicious packages and cargoes. Otherwise, they will be remiss in their sworn duty of protecting the public in general and more particularly those in the aviation industry. x x x. It becomes crystal-clear that the PASCOM officers and personnel had the legal authority when they opened and investigated the box in the presence of the accused and his counsel." This is not the first time we recognize a search conducted pursuant to routine airport security procedure as an exception to the proscription against warrantless searches. In People vs. Canton,6 and People vs. Johnson,7 we validated the search conducted on the departing passengers and the consequent seizure of the shabu found in their persons, thus: "Persons may lose the protection of the search and seizure clause by exposure of their persons or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to recognize as reasonable. Such recognition is implicit in airport security procedures. With increased concern over airplane hijacking and terrorism has come increased security at the nations airports. Passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence of suspicious objects, physical searches are conducted to determine what the objects are. There is little question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacy expectations associated with airline travel. Indeed, travelers are often notified through airport public address systems, signs and notices in their airline tickets that they are subject to search and, if any prohibited materials or substances are found, such would be subject to seizure. These announcements place passengers on notice that ordinary constitutional protections against warrantless searches and seizures do not apply to routine airport procedures." (Underscoring ours) Clearly, the PASCOM agents have the right under the law to conduct search of prohibited materials or substances. To simply refuse passengers carrying suspected illegal items to enter the pre-departure area, as claimed by appellant, is to deprive the authorities of their duty to conduct search, thus sanctioning impotence and ineffectivity of the law enforcers, to the detriment of society.8 It should be stressed, however, that whenever the right against unreasonable search and seizure is challenged, an individual may choose between invoking the constitutional protection or waiving his right by giving consent to the search or seizure.9 Here, appellant voluntarily gave his consent to the search conducted by the PASCOM agents. The testimony of SPO1 Arturo Casugod, Sr. is quite revealing, thus: "Q And when the said carton box was passed for the second time thru the walk-through machine it indicated this metallic element by flashing a red light, is that correct? A Yes, sir.

51 Q And because of that, what did you do? A Rhodelin Poyugao put the box on top of the inspection table. Q What happened then? A And then our non-uniformed personnel, Mr. Donato Barnezo, asked the passenger Mr. Hedishi Suzuki, saying, kindly open your box for inspection. Q What happened after he asked the accused to open the box? A Mr. Hedishi Suzuki refused to open, sir. He signaled no, no. Q What happened then? A At that juncture, sir. I advised the said passenger, Mr. Hedishi Suzuki: Very sorry, sir, we need to open your luggage because it indicated a red light. Q When you say open the luggage you are referring to the box? A Referring to the small carton marked Bongbong Piaya. Q What happened then? A Mr. Hedishi Suzuki tried to get outside of the pre-departure area instead of opening the box. Q Where did Mr. Suzuki go if he went away? A Before he could get out of the door of the pre-departure area I called his attention to come back. Q Did he come back? A He came back and I explained to him again, sir, that we are very sorry but we need to open your small carton marked Bongbong Piaya. I told him, I am very sorry, sir, but we need to open your small carton marked Bongbong Piaya. Q And what did Mr. Suzuki do? A Mr. Suzuki answered me, open. Q What did you do? A I said kindly open your carton and he repeated, open. Q For the second time? A Yes, sir. Q What did you do then because he said open? A I explained to him, sir, and I asked him again, sir, I am going to open this and he told me you open. Q Then, what did you do?

52 A I got hold of the carton and opened it by means of cutting the masking tape that bound both ends of the carton. Q And what did you find inside the said box? A When I opened the box, sir, I found out that it contained suspected dried marijuana fruiting tops wrapped in an aluminum foil, sir, and transparent cellophane. x x x."10 That appellant gave his consent when PO1 Casugod asked him to open the box was confirmed by SPO1 Linda and PO3 Poyugao.11 As succinctly found by the trial court, appellant cannot deny that he consented by feigning ignorance of the English language, thus: "Accused through counsel would want this Court to believe that the opening of the carton containing marijuana fruiting tops was without the consent of the accused. The defense relied on the alleged inability of the accused to understand nor speak the English language because he is a Japanese national. It made capital on the presence of Japanese interpreters, Tsuyushi Tsuchida and Hideo Agarie, who assisted during the trial. "The Court has no doubt in the positive testimonies of the prosecution witnesses and their categorical declaration that accused Hedishi Suzuki gave his consent not only nodding his head but also by saying Open. Open. Open. There was even a third-party consent given by his Japanese companion Takeshi Koketsu. "The allegation of the accused that he does not understand English is indeed incredible to believe. As aptly observed by Assistant City Prosecutor Rafael Guanco, the trial prosecutor, the accused might not be able to speak straight English yet he might understand English (Memorandum of the Prosecution, page 21). The prosecution witnesses categorically declared that accused Hedishi Suzuki was speaking English during the airport encounter with the PASCOM and NARCOM operatives and while being investigated at the PASCOM Office. While it may be true that Lourdes Linsangan participated on some occasions, her participation merely facilitated the conversation. "The Court cannot believe accuseds protestation of ignorance of the English language. There are several indications that accused understand the English language. It may be noted that in filing a motion to terminate the legal services of Atty. Nicanor Villarosa, it appeared that accused caused its preparation or filing without the assistance of a lawyer (Motion To Terminate Services of Counsel, page 53, expediente). The accused testified that his wife is proficient in English. Accused was able to play games in the casino, the night before the airport incident. He was able to give direction to the driver from the motel to the airport. He has traveled to the Philippines about ten (10) times. He claims to be an owner and manager of a company where some clients or customers are non-Japanese such as Germans and Americans. During the trial accused appeared to be an intelligent witness and this Court has keenly observed that accused had shown eagerness and readiness to answer the questions propounded in the English language even before the Japanese translation. Above all, accused answered in the affirmative when queried by the Court whether he was able to attend English classes while in college. In short, the Court was literally taken for a ride when initially made to believe that the accused could not read, speak and understand the English language." It is axiomatic that a reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case.12 Given the circumstances obtaining here, we find the search conducted by the airport authorities reasonable and, therefore, not violative of his constitutional rights. Hence, when the search of the box of piaya revealed several marijuana fruiting tops, appellant is deemed to have been caught in flagrante delicto, justifying his arrest even without a warrant under Section 5(a), Rule 113 of the Rules of Criminal Procedure.13 The packs of marijuana obtained in the course of such valid search are thus admissible as evidence against appellant.14 Nonetheless, we find the trial courts reliance on the plain view doctrine misplaced. Such doctrine finds application only when the incriminating nature of the object is in the "plain view" of the police

53 officer.15 Here, it is beyond cavil that the marijuana seized from appellant is contained in the box of piaya, wrapped in aluminum foil and not immediately apparent to the airport authorities. Neither was the search incidental to a lawful arrest since appellant was not yet arrested at the time of the search. To be considered a search incidental to a lawful arrest, the law requires that there must be a lawful arrest before the search can be made.16 At this point, it bears stressing that mere possession of the prohibited substance is a crime per se and the burden of proof is upon appellant to show that he has a license or permit under the law to possess the prohibited drug.17Here, appellant failed to prove that he has a license to possess the marijuana. In People vs. Bongcarawan,18 we held that such possession constitutes prima facie evidence of animus possidendi sufficient to convict an accused in the absence of any satisfactory explanation. Appellant vigorously contends that the trial court should have sustained his unrebutted testimony that he was a victim of frame-up contrived by Takeshi in connivance with the arresting officers, especially C/Inspector Ernesto Alcantara, accused in several criminal charges. It is noteworthy that aside from appellants testimony, not a shred of evidence was presented by the defense to prove his claim that he was framed-up. Not even Pinky who allegedly gave him the box of piaya containing marijuana was presented as a witness to confirm his story. We have ruled that clear and convincing evidence is required to prove the defense of "frame-up" because in the absence of proof of any intent on the part of the police authorities to falsely impute such crime against appellant, the presumption of regularity in the performance of official duty stands.19 Also, allegations of frame-up are easily fabricated, making it the common and standard line of defense in prosecutions involving the Dangerous Drugs Law.20 We are not swayed by appellants reference to C/Inspector Alcantaras criminal records. Suffice it to state that he is neither an accused in this case or a prosecution witness. We have carefully reviewed the records and found no cogent reason to overthrow the findings of fact and conclusions of law by the trial court. That this is a matter exclusively within its competence, since it had the unique opportunity of observing the witnesses and their manner of testifying during trial, had long been established. Hence, its findings are accorded respect and will not be disturbed on appeal, except when there is a clear showing that facts of weight and substance which would affect the outcome of the case have been overlooked, misunderstood, or misapplied.21 This exception is not present here. However, the trial court imposed the wrong penalty. Under Republic Act No. 6425, as amended by Republic Act No. 7659, the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to P10,000,000.00 shall be imposed if the quantity of marijuana or Indian hemp shall be 750 grams or more.22 Section 63 of the Revised Penal Code provides that when the law prescribes a penalty composed of two indivisible penalties, the lesser penalty shall be applied in the absence of any aggravating or mitigating circumstance. 23 In the case at bar, there being no mitigating or aggravating circumstance, appellants possession of 1,547.70 grams24 of marijuana does not merit the supreme penalty of death but only reclusion perpetua. While the imposition of a fine is mandatory in cases of conviction of possession of illegal drugs,25 we, however, reduce the fine imposed by the trial court to P1,000,000.00, considering that courts may fix any amount within the limits established by law.26 WHEREFORE, the Decision of the Regional Trial Court, Branch 45, Bacolod City in Criminal Case No. 9416100 finding appellant Hedishi Suzuki guilty beyond reasonable doubt of violation of Section 8, Article II of R.A. No. 6425, as amended, is hereby AFFIRMED with the MODIFICATION in the sense that he is sentenced to reclusion perpetua and fined One Million (P1,000,000.00) Pesos. Costs de oficio.SO ORDERED

54 SUPREME COURT OF THE UNITED STATES

392 U.S. 1 Terry v. Ohio CERTIORARI TO THE SUPREME COURT OF OHIO

No. 67 Argued: December 12, 1967 --- Decided: June 10, 1968 A Cleveland detective (McFadden), on a downtown beat which he had been patrolling for many years, observed two strangers (petitioner and another man, Chilton) on a street corner. He saw them proceed alternately back and forth along an identical route, pausing to stare in the same store window, which they did for a total of about 24 times. Each completion of the route was followed by a conference between the two on a corner, at one of which they were joined by a third man (Katz) who left swiftly. Suspecting the two men of "casing a job, a stickup," the officer followed them and saw them rejoin the third man a couple of blocks away in front of a store. The officer approached the three, identified himself as a policeman, and asked their names. The men "mumbled something," whereupon McFadden spun petitioner around, patted down his outside clothing, and found in his overcoat pocket, but was unable to remove, a pistol. The officer ordered the three into the store. He removed petitioner's overcoat, took out a revolver, and ordered the three to face the wall with their hands raised. He patted down the outer clothing of Chilton and Katz and seized a revolver from Chilton's outside overcoat pocket. He did not put his hands under the outer garments of Katz (since he discovered nothing in his pat-down which might have been a weapon), or under petitioner's or Chilton's outer garments until he felt the guns. The three were taken to the police station. Petitioner and Chilton were charged with carrying [p2] concealed weapons. The defense moved to suppress the weapons. Though the trial court rejected the prosecution theory that the guns had been seized during a search incident to a lawful arrest, the court denied the motion to suppress and admitted the weapons into evidence on the ground that the officer had cause to believe that petitioner and Chilton were acting suspiciously, that their interrogation was warranted, and that the officer, for his own protection, had the right to pat down their outer clothing having reasonable cause to believe that they might be armed. The court distinguished between an investigatory "stop" and an arrest, and between a "frisk" of the outer clothing for weapons and a full-blown search for evidence of crime. Petitioner and Chilton were found guilty, an intermediate appellate court affirmed, and the State Supreme Court dismissed the appeal on the ground that "no substantial constitutional question" was involved. Held: 1. The Fourth Amendment right against unreasonable searches and seizures, made applicable to the States by the Fourteenth Amendment, "protects people, not places," and therefore applies as much to the citizen on the streets as well as at home or elsewhere. Pp. 8-9. 2. The issue in this case is not the abstract propriety of the police conduct, but the admissibility against petitioner of the evidence uncovered by the search and seizure. P. 12. 3. The exclusionary rule cannot properly be invoked to exclude the products of legitimate and restrained police investigative techniques, and this Court's approval of such techniques should not discourage remedies other than the exclusionary rule to curtail police abuses for which that is not an effective sanction. Pp. 13-15.

55 4. The Fourth Amendment applies to "stop and frisk" procedures such as those followed here. Pp. 16-20. (a) Whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person within the meaning of the Fourth Amendment. P. 16. (b) A careful exploration of the outer surfaces of a person's clothing in an attempt to find weapons is a "search" under that Amendment. P. 16. 5. Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous[p3] regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed. Pp. 2027. (a) Though the police must, whenever practicable, secure a warrant to make a search and seizure, that procedure cannot be followed where swift action based upon on-the-spot observations of the officer on the beat is required. P. 20. (b) The reasonableness of any particular search and seizure must be assessed in light of the particular circumstances against the standard of whether a man of reasonable caution is warranted in believing that the action taken was appropriate. Pp. 21-22. (c) The officer here was performing a legitimate function of investigating suspicious conduct when he decided to approach petitioner and his companions. P. 22. (d) An officer justified in believing that an individual whose suspicious behavior he is investigating at close range is armed may, to neutralize the threat of physical harm, take necessary measures to determine whether that person is carrying a weapon. P. 24. (e) A search for weapons in the absence of probable cause to arrest must be strictly circumscribed by the exigencies of the situation. Pp. 25-26. (f) An officer may make an intrusion short of arrest where he has reasonable apprehension of danger before being possessed of information justifying arrest. Pp. 26-27. 6. The officer's protective seizure of petitioner and his companions and the limited search which he made were reasonable, both at their inception and as conducted. Pp. 27-30. (a) The actions of petitioner and his companions were consistent with the officer's hypothesis that they were contemplating a daylight robbery and were armed. P. 28. (b) The officer's search was confined to what was minimally necessary to determine whether the men were armed, and the intrusion, which was made for the sole purpose of protecting himself and others nearby, was confined to ascertaining the presence of weapons. Pp. 29-30. 7. The revolver seized from petitioner was properly admitted into evidence against him, since the search which led to its seizure was reasonable under the Fourth Amendment. Pp. 30-31. Affirmed. [p4]

56 Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 119220 September 20, 1996 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NILO SOLAYAO, accused-appellant.

ROMERO, J.: Accused-appellant Nilo Solayao was charged before the Regional Trial Court of Naval, Biliran, Branch 16, with the crime of illegal possession of firearm and ammunition 1 defined and penalized under Presidential Decree No. 1866. The lone prosecution witness, SPO3 Jose Nio, narrated that at about 9:00 o'clock in the evening of July 9, 1992, with CAFGU members Teofilo Llorad, Jr. and Cecilio Cenining, he went to Barangay Caulangohan, Caibiran, Biliran. They were to conduct an intelligence patrol as required of them by their intelligence officer to verify reports on the presence of armed persons roaming around the barangays of Caibiran. 2 From Barangay Caulangohan, the team of Police Officer Nio proceeded to Barangay Onion where they met the group of accused-appellant Nilo Solayao numbering five. The former became suspicious when they observed that the latter were drunk and that accused-appellant himself was wearing a camouflage uniform or a jungle suit. Accused-appellant's companions, upon seeing the government agents, fled. 3 Police Officer Nio told accused-appellant not to run away and introduced himself as "PC," after which he seized the dried coconut leaves which the latter was carrying and found wrapped in it a 49-inch long homemade firearm locally know as "latong." When he asked accused-appellant who issued him a license to carry said firearm or whether he was connected with the military or any intelligence group, the latter answered that he had no permission to possess the same. Thereupon, SPO3 Nio confiscated the firearm and turned him over to the custody of the policemen of Caibiran who subsequently investigated him and charged him with illegal possession of firearm. 4 Accused-appellant, in his defense, did not contest the confiscation of the shotgun but averred that this was only given to him by one of his companions, Hermogenes Cenining, when it was still wrapped in coconut leaves. He claimed that he was not aware that there was a shotgun concealed inside the coconut leaves since they were using the coconut leaves as a torch. He further claimed that this was the third torch handed to him after the others had been used up. 5 Accused-appellant's claim was corroborated by one Pedro Balano that he indeed received a torch from Hermogenes Cenining which turned out to be a shotgun wrapped in coconut leaves. 6 On August 25, 1994, the trial court found accused-appellant guilty of illegal possession of firearm under Section 1 of Presidential Decree No. 1866 and imposed upon him the penalty of imprisonment ranging fromreclusion temporal maximum to reclusion perpetua. The trial court, having found no mitigating but one aggravating circumstance of nighttime, sentenced accusedappellant to suffer the prison term of reclusion perpetua with the accessory penalties provided by law. 7 It found that accused-appellant did not contest the fact that SPO3 Nio confiscated the firearm from him and that he had no permit or license to possess the same. It hardly found

57 credible accused-appellant's submission that he was in possession of the firearm only by accident and that upon reaching Barangay Onion, he followed four persons, namely, Hermogenes Cenining, Antonio Sevillano, Willie Regir and Jovenito Jaro when he earlier claimed that he did not know his companions. 8 Accused-appellant comes to this Court on appeal and assigns the following errors: I. The trial court erred in admitting in evidence the homemade firearm. II. The trial court erred in appreciating the aggravating circumstance of nighttime in the imposition of the maximum penalty against the accused-appellant. 9 This court, in the case of People v. Lualhati 10 ruled that in crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz: (a) the existence of the subject firearm and (b) the fact that the accused who owned or possessed it does not have the corresponding license or permit to possess the same. In assigning the first error, accused-appellant argued that the trial court erred in admitting the subject firearm in evidence as it was the product of an unlawful warrantless search. He maintained that the search made on his person violated his constitutional right to be secure in his person and effects against unreasonable searches and seizures. Not only was the search made without a warrant but it did not fall under any of the circumstances enumerated under Section 5, Rule 113 of the 1985 Rules on Criminal Procedure which provides, inter alia: A peace officer or a private person may, without a warrant, arrest a person when in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. Hence, the search being unlawful, the homemade firearm confiscated from him is inadmissible in evidence for being "the fruit of the poisonous tree." 11 As such, the prosecution's case must necessarily fail and the accused-appellant acquitted. Accused-appellant's arguments follow the line of reasoning in People v. Cuizon, et al. 12 where this Court declared: ". . . emphasis is to be laid on the fact that the law requires that the search be incident to a lawful arrest, in order that the search itself may likewise be considered legal. Therefore, it is beyond cavil that a lawful arrest must precede the search of a person and his belongings. Were a search first undertaken, then an arrest effected based on evidence produced by the search, both such search and arrest would be unlawful, for being contrary to law." Under the circumstances obtaining in this case, however, accused-appellant's arguments are hardy tenable. He and his companions' drunken actuations aroused the suspicion of SPO3 Nio's group, as well as the fact that he himself was attired in a camouflage uniform or a jungle suit 13 and that upon espying the peace officers, his companions fled. It should be noted that the peace officers were precisely on an intelligence mission to verify reports that armed persons were roaming around the barangays of Caibiran. 14 The circumstances in this case are similar to those obtaining in Posadas v. Court of Appeals 15 where this Court held that "at the time the peace officers identified themselves and apprehended the petitioner as he attempted to flee, they did not know that he had committed, or was actually committing the offense of illegal possession of firearm and ammunitions. They just suspended that he was hiding something in the buri bag. They did not know what its contents were. The said circumstances did not justify an arrest without a warrant." This Court, nevertheless, ruled that the search and seizure in the Posadas case brought about by the suspicious conduct of Posadas himself can be likened to a "stop and frisk" situation. There was probable cause to conduct a search even before an arrest could be made.

58 In the present case, after SPO3 Nio told accused-appellant not to run away, the former identified himself as a government agents. 16 The peace officers did not know that he had committed, or was actually committing, the offense of illegal possession of firearm. Tasked with verifying the report that there were armed men roaming in the barangays surrounding Caibiran, their attention was understandably drawn to the group that had aroused their suspicion. They could not have known that the object wrapped in coconut leaves which accused-appellant was carrying hid a firearm. As with Posadas, the case at bar constitutes an instance where a search and seizure may be effected without first making an arrest. There was justifiable cause to "stop and frisk" accusedappellant when his companions filed upon seeing the government agents. Under the circumstances, the government agents could not possibly have procured a search warrant first. Thus, there was no violation of the constitutional guarantee against unreasonable searches and seizures. Nor was there error on the part of the trial court when it admitted the homemade firearm as evidence. As to the question of whether or not the prosecution was able to prove the second element, that is, the absence of a license or permit to possess the subject firearm, this Court agrees with the Office of the Solicitor General which pointed out that the prosecution failed to prove that accused-appellant lacked the necessary permit or license to possess the subject firearm. 17 Undoubtedly, it is the constitutional presumption of innocence that lays such burden upon the prosecution. The absence of such license and legal authority constitutes an essential ingredient of the offense of illegal possession of firearm, and every ingredient or essential element of an offense must be shown by the prosecution by proof beyond reasonable doubt. 18 In People v. Tiozon, 19 this Court said: It is true that People vs. Lubo, 101 Phil. 179 and People vs. Ramos, 8 SCRA 758 could be invoked to support the view that it is incumbent upon a person charged with illegal possession of a firearm to prove the issuance to him of a license to possess the firearm, but we are of the considered opinion that under the provisions of Section 2, Rule 131 of the Rules of Court which provide that in criminal cases the burden of proof as to the offense charged lies on the prosecution and that a negative fact alleged by the prosecution must be proven if "it is an essential ingredient of the offense charged," the burden of proof was with the prosecution in this case to prove that the firearm used by appellant in committing the offense charged was not properly licensed. It cannot be denied that the lack or absence of a license is an essential ingredient of the offense of illegal possession of a firearm. The information filed against appellant in Criminal Case No. 3558 of the lower court (now G.R. No. 27681) specifically alleged that he had no "license or permit to possess" the .45 caliber pistol mentioned therein. Thus it seems clear that it was the prosecution's duty not merely to allege that negative fact but to prove it. This view is supported by similar adjudicated cases. In U.S. vs. Tria, 17 Phil. 303, the accused was charged with "having criminally inscribed himself as a voter knowing that he had none of the qualifications required to be a voter. It was there held that the negative fact of lack of qualification to be a voter was an essential element of the crime charged and should be proved by the prosecution. In another case (People vs. Quebral. 68 Phil. 564) where the accused was charged with illegal practice of medicine because he had diagnosed, treated and prescribed for certain diseases suffered by certain patients from whom he received monetary compensation, without having previously obtained the proper certificate of registration from the Board of Medical Examiners, as provided in Section 770 of the Administrative Code, this Court held that if the subject of the negative averment like, for instance, the act of voting without the qualifications provided by law is an essential ingredient of the offense charged, the prosecution has the burden of proving the same, although in view of the difficulty of proving a negative allegation, the prosecution, under such circumstance, need only

59 establish a prima facie case from the best evidence obtainable. In the case before Us, both appellant and the Solicitor General agree that there was not even a prima facie case upon which to hold appellant guilty of the illegal possession of a firearm. Former Chief Justice Moral upholds this view as follows: The mere fact that the adverse party has the control of the better means of proof of the fact alleged, should not relieve the party making the averment of the burden of proving it. This is so, because a party who alleges a fact must be assumed to have acquired some knowledge thereof, otherwise he could not have alleged it. Familiar instance of this is the case of a person prosecuted for doing an act or carrying on a business, such as, the sale of liquor without a license. How could the prosecution aver the want of a license if it had acquired no knowledge of that fact? Accordingly, although proof of the existence or non-existence of such license can, with more facility, be adduced by the defendant, it is nevertheless, encumber upon the party alleging the want of the license to prove the allegation. Naturally, as the subject matter of the averment is one which lies peculiarly within the control or knowledge of the accused prima facie evidence thereof on the part of the prosecution shall suffice to cast the onus upon him." (6 Moran, Comments on the Rules of Court, 1963 edition, p. 8). Finally, the precedents cited above have been crystallized as the present governing case law on this question. As this Court summed up the doctrine in People v. Macagaling: 20 We cannot see how the rule can be otherwise since it is the inescapable duty of the prosecution to prove all the ingredients of the offense as alleged against the accused in an information, which allegations must perforce include any negative element provided by the law to integrate that offense. We have reiterated quite recently the fundamental mandate that since the prosecution must allege all the elements of the offense charged, then it must prove by the requisite quantum of evidence all the elements it has thus alleged. In the case at bar, the prosecution was only able to prove by testimonial evidence that accusedappellant admitted before Police Officer Nio at the time that he was accosted that he did not have any authority or license to carry the subject firearm when he was asked if he had one. 21 In other words, the prosecution relied on accused-appellant's admission to prove the second element. Is this admission sufficient to prove beyond reasonable doubt the second element of illegal possession of firearm which is that accused-appellant does not have the corresponding license? Corollary to the above question is whether an admission by the accused-appellant can take the place of any evidentiary means establishing beyond reasonable doubt the fact averred in the negative in the pleading and which forms an essential ingredient of the crime charged. This Court answers both questions in the negative. By its very nature, an "admission is the mere acknowledgment of a fact or of circumstance from which guilt may be inferred, tending to incriminate the speaker, but not sufficient of itself to establish his guilt." 22 In other words, it is a "statement by defendant of fact or facts pertinent to issues pending, in connection with proof of other facts or circumstances, to prove guilt, but which is, of itself, insufficient to authorize conviction." 23 From the above principles, this Court can infer that an admission in criminal cases is insufficient to prove beyond reasonable doubt the commission of the crime charged. Moreover, said admission is extra-judicial in nature. As such, it does not fall under Section 4 of Rule 129 of the Revised Rules of Court which states: An admission, verbal or written, made by a party in the course of the trial or other proceedings in the same case does not require proof. Not being a judicial admission, said statement by accused-appellant does not prove beyond reasonable doubt the second element of illegal possession of firearm. It does not even establish

60 a prima facie case. It merely bolsters the case for the prosecution but does not stand as proof of the fact of absence or lack of a license. This Court agrees with the argument of the Solicitor General that "while the prosecution was able to establish the fact that the subject firearm was seized by the police from the possession of appellant, without the latter being able to present any license or permit to possess the same, such fact alone is not conclusive proof that he was not lawfully authorized to carry such firearm. In other words, such fact does not relieve the prosecution from its duty to establish the lack of a license or permit to carry the firearm by clear and convincing evidence, like a certification from the government agency concerned." 24 Putting it differently, "when a negative is averred in a pleading, or a plaintiff's case depends upon the establishment of a negative, and the means of proving the fact are equally within the control of each party, then the burden of proof is upon the party averring the negative." 25 In this case, a certification from the Firearms and Explosives Unit of the Philippine National Police that accused-appellant was not a licensee of a firearm of any kind or caliber would have sufficed for the prosecution to prove beyond reasonable doubt the second element of the crime of illegal possession of firearm. In view of the foregoing, this Court sees no need to discuss the second assigned error. WHEREFORE, the assailed judgment of the court a quo is REVERSED and SET ASIDE. Accusedappellant Nilo Solayao is hereby ACQUITTED for insufficiency of evidence and ordered immediately released unless there are other legal grounds for his continued detention, with cost de oficio. SO ORDERED.

61 Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 113447 October 9, 1997 ALAIN MANALILI y DIZON, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

PANGANIBAN, J.: When dealing with a rapidly unfolding and potentially criminal situation in the city streets where unarguably there is no time to secure an arrest or a search warrant, policemen should employ limited, flexible responses like "stop-and-frisk" which are graduated in relation to the amount of information they possess, the lawmen being ever vigilant to respect and not to violate or to treat cavalierly the citizen's constitutional rights against unreasonable arrest, search and seizure. The Case This rule is reiterated as we resolve this petition for review on certiorari under Rule 45 of the Rules of Court, seeking the reversal of the Decision of the Court of Appeals dated April 19, 1993 and its Resolution dated January 20, 1994 in CA G.R. CR No. 07266, entitled "People of the Philippines vs. Alain Manalili y Dizon." In an Information dated April 11, 1988, 1 Petitioner Alain Manalili y Dizon was charged by Assistant Caloocan City Fiscal E. Juan R. Bautista with violation of Section 8, Article II of Republic Act No. 6425, allegedly committed as follows: 2 That on or about the 11th day of April 1988 in Caloocan City, MM, Philippines and within the jurisdiction of this Honorable Court, the above-named accused without any authority of law, did then and there wilfully, unlawfully and feloniously have in his custody, possession and control crushed marijuana residue, which is a prohibited drug and knowing the same to be such. Contrary to Law. Upon his arraignment on April 21, 1988, appellant pleaded "not guilty" to the charge. 3 With the agreement of the public prosecutor, appellant was released after filing a P10,000.00 bail bond. 4 After trial in due course, the Regional Trial Court of Caloocan City, Branch 124, acting as a Special Criminal Court, rendered on May 19, 1989 a decision 5 convicting appellant of illegal possession of marijuana residue. The dispositive portion of the decision reads: 6 WHEREFORE, in view of all the foregoing, this Court finds the accused ALAIN MANALILI Y DIZON guilty beyond reasonable doubt of violation of Section 8, Article II, of Republic Act No. 6425, as amended (Illegal Possession of Marijuana residue), and hereby sentences (sic) said accused to suffer imprisonment of SIX (6) YEARS and ONE (1) DAY; and to pay a fine of P6,000.00; and to pay the costs. xxx xxx xxx

62 Appellant remained on provisional liberty. 7 Atty. Benjamin Razon, counsel for the defense, filed a Notice of Appeal8 dated May 31, 1989. On April 19, 1993, Respondent Court 9 promulgated its assailed Decision, denying the appeal and affirming the trial court: 10 ACCORDINGLY, the decision appealed from dated May 19, 1989 is hereby AFFIRMED in all respects. Costs against appellant. Respondent Court 11 denied reconsideration via its assailed Resolution dated January 20, 1994, disposing: ACCORDINGLY, accused-appellant's motion for reconsideration is, as is hereby DENIED. The Facts Version of the Prosecution The facts, as found by the trial court, are as follows: 12 At about 2:10 o'clock in the afternoon of April 11, 1988, policemen from the Anti-Narcotics Unit of the Kalookan City Police Station were conducting a surveillance along A. Mabini street, Kalookan City, in front of the Kalookan City Cemetery. The policemen were Pat. Romeo Espiritu and Pat. Anger Lumabas and a driver named Arnold Enriquez was driving a Tamaraw vehicle which was the official car of the Police Station of Kalookan City. The surveillance was being made because of information that drug addicts were roaming the area in front of the Kalookan City Cemetery. Upon reaching the Kalookan City Cemetery, the policemen alighted from their vehicle. They then chanced upon a male person in front of the cemetery who appeared high on drugs. The male person was observed to have reddish eyes and to be walking in a swaying manner. When this male person tried to avoid the policemen, the latter approached him and introduced themselves as police officers. The policemen then asked the male person what he was holding in his hands. The male person tried to resist. Pat Romeo Espiritu asked the male person if he could see what said male person had in his hands. The latter showed the wallet and allowed Pat. Romeo Espiritu to examine the same. Pat. Espiritu took the wallet and examined it. He found suspected crushed marijuana residue inside. He kept the wallet and its marijuana contents. The male person was then brought to the Anti-Narcotics Unit of the Kalookan City Police Headquarters and was turned over to Cpl. Wilfredo Tamondong for investigation. Pat. Espiritu also turned over to Cpl. Tamondong the confiscated wallet and its suspected marijuana contents. The man turned out to be the accused ALAIN MANALILI y DIZON. Upon receipt of the confiscated suspected marijuana residue from Pat. Espiritu, Cpl. Tamondong wrapped the same with a white sheet of paper on which he wrote "Evidence "A" 4/11/88 Alain Manalili". The white sheet of paper was marked as Exhibit "E-3". The residue was originally wrapped in a smaller sheet of folded paper. (Exhibit "E-4"). Cpl. Tamondong next prepared a referral slip addressed to the NBI Forensic Chemistry Section requesting a chemical analysis of the subject marijuana residue (Exhibit "D"). Cpl. Tamondong thereafter prepared a Joint Affidavit of the apprehending policemen (Exhibit "A"). Pat. Angel Lumabas handcarried the referral slip (Exhibit "D") to the National Bureau of Investigation (NBI), including the subject marijuana residue for chemical analysis. The signature of Pat. Lumabas appears on the left bottom corner of Exhibit "D". The Forensic Chemistry Section of the NBI received the aforesaid referral slip and the subject marijuana residue at 7:40 o'clock in the evening of April 11, 1988 as shown on the stamped portion of Exhibit "D".

63 It was NBI Aida Pascual who conducted the microscopic and chemical examinations of the specimen which she identified. (Exhibit "E") 13 Mrs. Pascual referred to the subject specimen as "crushed marijuana leaves" in her Certification dated April 11, 1988 (Exhibit "F"). 14 These crushed marijuana leaves gave positive results for marijuana, according to the Certificate. Mrs. Pascual also conducted a chromatographic examination of the specimen. In this examination, she also found that the "crushed marijuana leaves" gave positive results for marijuana. She then prepared a Final Report of her examinations (Exhibit "G"). After conducting the examinations, Ms. Pascual placed the specimen in a white letter-envelope and sealed it. (Exhibit "E"). She then wrote identification notes on this letter-envelope. (Exhibit "E-1"). Pat. Lumabas carried the Certification marked as Exhibit "F" from the NBI Forensic Chemistry Section to Cpl. Tamondong. Upon receipt thereof, Cpl. Tamondong prepared a referral slip addressed to the City Fiscal of Kalookan City. (Exhibit "C") On rebuttal, Pat. Espiritu testified that appellant was not riding a tricycle but was walking in front of the cemetery when he was apprehended. 15 Version of the Defense The trial court summarized the testimonies of the defense witnesses as follows: 16 At about 2:00 o'clock in the afternoon of April 11, 1988, the accused ALAIN MANALILI was aboard a tricycle at A. Mabini street near the Kalookan City Cemetery on the way to his boarding house. Three policemen ordered the driver of the tricycle to stop because the tricycle driver and his lone passenger were under the influence of marijuana. The policemen brought the accused and the tricycle driver inside the Ford Fiera which the policemen were riding in. The policemen then bodily searched the accused and the tricycle driver. At this point, the accused asked the policemen why he was being searched and the policemen replied that he (accused) was carrying marijuana. However, nothing was found on the persons of the accused and the driver. The policemen allowed the tricycle driver to go while they brought the accused to the police headquarters at Kalookan City where they said they would again search the accused. On the way to the police headquarters, the accused saw a neighbor and signalled the latter to follow him. The neighbor thus followed the accused to the Kalookan City Police Headquarters. Upon arrival thereat, the accused was asked to remove his pants in the presence of said neighbor and another companion. The policemen turned over the pants of the accused over a piece of bond paper trying to look for marijuana. However, nothing was found, except for some dirt and dust. This prompted the companion of the neighbor of the accused to tell the policemen to release the accused. The accused was led to a cell. The policemen later told the accused that they found marijuana inside the pockets of his pants. At about 5:00 o'clock in the afternoon on the same day, the accused was brought outside the cell and was led to the Ford Fiera. The accused was told by the policemen to call his parents in order to "settle" the case. The policemen who led the accused to the Ford Fiera were Pat. Lumabas, Pat. Espiritu and Cpl. Tamondong. Pat. Lumabas was the policeman who told the accused to call his parents. The accused did not call his parents and he told the policemen that his parents did not have any telephone. At about 5:30 o'clock in the afternoon of the same day, the accused was brought in the office of an inquest Fiscal. There, the accused told the Fiscal that no marijuana was found on his person but the Fiscal told the accused not to say anything. The accused was then brought back to the Kalookan City Jail.

64 Loreto Medenilla, the tricycle driver who was allegedly with the accused when he and the accused were stopped by policemen and then bodily searched on April 11, 1988, testified. He said that the policemen found nothing either on his person or on the person of the accused when both were searched on April 11, 1988. Roberto Abes, a neighbor of the accused, testified that he followed the accused at the Kalookan City Police Headquarters on April 11, 1988. He said that the police searched the accused who was made to take off his pants at the police headquarters but no marijuana was found on the body of the accused. Appellant, who was recalled to the stand as sur-rebuttal witness, presented several pictures showing that tricycles were allowed to ply in front of the Caloocan Cemetery. 17 The Rulings of the Trail and the Appellate Courts The trial court convicted petitioner of illegal possession of marijuana residue largely on the strength of the arresting officers' testimony. Patrolmen Espiritu and Lumabas were "neutral and disinterested" witnesses, testifying only on what transpired during the performance of their duties. Substantially they asserted that the appellant was found to be in possession of a substance which was later identified as crushed marijuana residue. The trial court disbelieved appellant's defense that this charge was merely "trumped up," because the appellant neither took any legal action against the allegedly erring policemen nor moved for a reinvestigation before the city fiscal of Kalookan City. On appeal, Respondent Court found no proof that the decision of the trial court was based on speculations, surmises or conjectures. On the alleged "serious" discrepancies in the testimonies of the arresting officers, the appellate court ruled that the said inconsistencies were insubstantial to impair the essential veracity of the narration. It further found petitioner's contention that he could not be convicted of illegal possession of marijuana residue to be without merit, because the forensic chemist reported that what she examined were marijuana leaves. Issues Petitioner assigns the following errors on the part of Respondent Court: I The Court of Appeals erred in upholding the findings of fact of the trial court. II The Court of Appeals erred in upholding the conviction of (the) accused (and) in ruling that the guilt of the accused had been proved (beyond) reasonable doubt. III The Court of Appeals erred in not ruling that the inconsistencies in the testimonies of the prosecution witnesses were material and substantial and not minor. IV The Court of Appeals erred in not appreciating the evidence that the accused was framed for the purpose of extorting money. V

65 The Court of Appeals erred in not acquitting the accused when the evidence presented is consistent with both innocence and guilt. VI The Court of Appeals erred in admitting the evidence of the prosecution which are inadmissible in evidence. Restated more concisely, petitioner questions (1) the admissibility of the evidence against him, (2) the credibility of prosecution witnesses and the rejection by the trial and the appellate courts of the defense of extortion, and (3) the sufficiency of the prosecution evidence to sustain his conviction. The Court's Ruling The petition has no merit. First Issue: Admissibility of the Evidence Seized During a Stop-and-Frisk Petitioner protests the admission of the marijuana leaves found in his possession, contending that they were products of an illegal search. The Solicitor General, in his Comment dated July 5, 1994, which was adopted as memorandum for respondent, counters that the inadmissibility of the marijuana leaves was waived because petitioner never raised this issue in the proceedings below nor did he object to their admissibility in evidence. He adds that, even assuming arguendo that there was no waiver, the search was legal because it was incidental to a warrantless arrest under Section 5 (a), Rule 113 of the Rules of Court. We disagree with petitioner and hold that the search was valid, being akin to a stop-and-frisk. In the landmark case of Terry vs. Ohio, 18 a stop-and-frisk was defined as the vernacular designation of the right of a police officer to stop a citizen on the street, interrogate him, and pat him for weapon(s): . . . (W)here a police officer observes an unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identified himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapon seized may properly be introduced in evidence against the person from whom they were taken. 19 In allowing such a search, the United States Supreme Court held that the interest of effective crime prevention and detection allows a police officer to approach a person, in appropriate circumstances and manner, for purposes of investigating possible criminal behavior even though there is insufficient probable cause to make an actual arrest. This was the legitimate investigative function which Officer McFadden discharged in that case, when he approached petitioner and his companion whom he observed to have hovered alternately about a street corner for an extended period of time, while not waiting for anyone; paused to stare in the same store window roughly 24 times; and conferred with a third person. It would have been sloppy police work for an officer of 30 years' experience to have failed to investigate this behavior further. In admitting in evidence two guns seized during the stop-and-frisk, the US Supreme Court held that what justified the limited search was the more immediate interest of the police officer in taking steps to assure himself that the person with whom he was dealing was not armed with a weapon that could unexpectedly and fatally be used against him.

66 It did not, however, abandon the rule that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure, excused only by exigent circumstances. In Philippine jurisprudence, the general rule is that a search and seizure must be validated by a previously secured judicial warrant; otherwise, such search and seizure is unconstitutional and subject to challenge. 20Section 2, Article III of the 1987 Constitution, gives this guarantee: Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Any evidence obtained in violation of the mentioned provision is legally inadmissible in evidence as a "fruit of the poisonous tree," falling under the exclusionary rule: Sec. 3. . . . (2) Any evidence obtained in violation of . . . the preceding section shall be inadmissible for any purpose in any proceeding. This right, however, is not absolute. 21 The recent case of People vs. Lacerna enumerated five recognized exceptions to the rule against warrantless search and seizure, viz.: "(1) search incidental to a lawful arrest, (2) search of moving vehicles, (3) seizure in plain view, (4) customs search, and (5) waiver by the accused themselves of their right against unreasonable search and seizure." 22 In People vs. Encinada, 23 the Court further explained that "[i]n these cases, the search and seizure may be made only with probable cause as the essential requirement. Although the term eludes exact definition, probable cause for a search is, at best, defined as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged; or the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the item(s), article(s) or object(s) sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched." Stop-and-frisk has already been adopted as another exception to the general rule against a search without a warrant. In Posadas vs. Court of Appeals, 24 the Court held that there were many instances where a search and seizure could be effected without necessarily being preceded by an arrest, one of which was stop-and-frisk. In said case, members of the Integrated National Police of Davao stopped petitioner, who was carrying a buri bag and acting suspiciously. They found inside petitioner's bag one .38-cal. revolver with two rounds of live ammunition, two live ammunitions for a .22-cal. gun and a tear gas grenade. In upholding the legality of the search, the Court said that to require the police officers to search the bag only after they had obtained a search warrant might prove to be useless, futile and much too late under the circumstances. In such a situation, it was reasonable for a police officer to stop a suspicious individual briefly in order to determine his identity or to maintain the status quo while obtaining more information, rather than to simply shrug his shoulders and allow a crime to occur. In the case at hand, Patrolman Espiritu and his companions observed during their surveillance that appellant had red eyes and was wobbling like a drunk along the Caloocan City Cemetery, which according to police information was a popular hangout of drug addicts. From his experience as a member of the Anti-Narcotics Unit of the Caloocan City Police, such suspicious behavior was characteristic of drug addicts who were "high." The policemen therefore had sufficient reason to stop petitioner to investigate if he was actually high on drugs. During such investigation, they found marijuana in petitioner's possession: 25 FISCAL RALAR:

67 Q And why were you conducting surveillance in front of the Caloocan Cemetery, Sangandaan, Caloocan City? A Because there were some informations that some drug dependents were roaming around at A. Mabini Street in front of the Caloocan Cemetery, Caloocan City. xxx xxx xxx Q While you were conducting your surveillance, together with Pat. Angel Lumabas and one Arnold Enriquez, what happened, if any? A We chanced upon one male person there in front of the Caloocan Cemetery then when we called his attention, he tried to avoid us, then prompting us to approach him and introduce ourselves as police officers in a polite manner. xxx xxx xxx Q Could you describe to us the appearance of that person when you chanced upon him? A That person seems like he is high on drug. Q How were you able to say Mr. Witness that that person that you chanced upon was high on drug? A Because his eyes were red and he was walking on a swaying manner. Q What was he doing in particular when you chanced upon him? A He was roaming around, sir. Q You said that he avoided you, what did you do when he avoided you? A We approached him and introduced ourselves as police officers in a polite manner, sir. Q How did you introduce yourselves? A In a polite manner, sir. Q What did you say when you introduced yourselves? A We asked him what he was holding in his hands, sir. Q And what was the reaction of the person when you asked him what he was holding in his hands? A He tried to resist, sir. Q When he tried to resist, what did you do? A I requested him if I can see what was he was (sic) holding in his hands. Q What was the answer of the person upon your request? A He allowed me to examine that something in his hands, sir.

68 xxx xxx xxx Q What was he holding? A He was holding his wallet and when we opened it, there was a marijuana (sic) crushed residue. Furthermore, we concur with the Solicitor General's contention that petitioner effectively waived the inadmissibility of any evidence illegally obtained when he failed to raise this issue or to object thereto during the trial. A valid waiver of a right, more particularly of the constitutional right against unreasonable search, requires the concurrence of the following requirements: (1) the right to be waived existed; (2) the person waiving it had knowledge, actual or constructive, thereof; and (3) he or she had an actual intention to relinquish the right. 26Otherwise, the Courts will indulge every reasonable presumption against waiver of fundamental safeguards and will not deduce acquiescence from the failure to exercise this elementary right. In the present case, however, petitioner is deemed to have waived such right for his failure to raise its violation before the trial court. In petitions under Rule 45, as distinguished from an ordinary appeal of criminal cases where the whole case is opened for review, the appeal is generally limited to the errors assigned by petitioner. Issues not raised below cannot be pleaded for the first time on appeal. 27 Second Issue: Assessment of Evidence Petitioner also contends that the two arresting officers' testimony contained "polluted, irreconcilable and unexplained" contradictions which did not support petitioner's conviction. We disagree. Time and again, this Court has ruled that the trial court's assessment of the credibility of witnesses, particularly when affirmed by the Court of Appeals as in this case, is accorded great weight and respect, since it had the opportunity to observe their demeanor and deportment as they testified before it. Unless substantial facts and circumstances have been overlooked or misappreciated by the trial court which, if considered, would materially affect the result of the case, we will not countenance a departure from this rule. 28 We concur with Respondent Court's ruling: (e)ven assuming as contended by appellant that there had been some inconsistencies in the prosecution witnesses' testimonies, We do not find them substantial enough to impair the essential veracity of their narration. In People vs. Avila, it was held that "As long as the witnesses concur on the material points, slight differences in their remembrance of the details, do not reflect on the essential veracity of their statements. However, we find that, aside from the presumption of regularity in the performance of duty, the bestowal of full credence on Pat. Espiritu's testimony is justified by tangible evidence on record. Despite Pat. Lumabas' contradictory testimony, that of Espiritu is supported by the Joint Affidavit 29 signed by both arresting policemen. The question of whether the marijuana was found inside petitioner's wallet or inside a plastic bag is immaterial, considering that petitioner did not deny possession of said substance. Failure to present the wallet in evidence did not negate that marijuana was found in petitioner's possession. This shows that such contradiction is minor and does not destroy Espiritu's credibility. 30 Third Issue: Sufficiency of Evidence The elements of illegal possession of marijuana are: (a) the accused is in possession of an item or object which is identified to be a prohibited drug; (b) such possession is not authorized by law; and (c) the accused freely and consciously possessed the said drug. 31 The substance found in petitioner's possession was identified by NBI Forensic Chemist Aida Pascual to be crushed marijuana leaves. Petitioner's lack of authority to possess these leaves was established. His awareness thereof was undeniable, considering that petitioner was high on drugs when stopped by the policemen and that he resisted when asked to show and identify the thing he was holding. Such

69 behavior clearly shows that petitioner knew that he was holding marijuana and that it was prohibited by law. Furthermore, like the trial and the appellate courts, we have not been given sufficient grounds to believe the extortion angle in this case. Petitioner did not file any administrative or criminal case against the arresting officers or present any evidence other than his bare claim. His argument that he feared for his life was lame and unbelievable, considering that he was released on bail and continued to be on bail as early as April 26, 1988. 32Since then, he could have made the charge in relative safety, as he was no longer in the custody of the police. His defense of frame-up, like alibi, is viewed by this Court with disfavor, because it is easy to concoct and fabricate. 33 The Proper Penalty The trial and the appellate courts overlooked the Indeterminate Sentence Law (Act No. 4103, as amended) by sentencing petitioner to a straight penalty of six years and one day of imprisonment, aside from the imposed fine of six thousand pesos. This Act requires the imposition of an indeterminate penalty: Sec. 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. (As amended by Act No. 4225.) Sec. 2. This Act shall not apply to persons convicted of offenses punished with death penalty or life-imprisonment; to those convicted of treason; to those convicted of misprision of treason, rebellion, sedition or espionage; to those convicted of piracy; to those who are habitual delinquents; to those who shall have escaped from confinement or evaded sentence; to those who having been granted conditional pardon by the Chief Executive shall have violated the terms thereof; to those whose maximum term of imprisonment does not exceed one year, not to those already sentenced by final judgment at the time of approval of this Act, except as provided in Section 5 hereof. (Emphasis supplied) The Dangerous Drugs Law, R.A. 6425, as amended by B.P. 179, imposes the following penalty for illegal possession of marijuana: Sec. 8. . . . . The penalty of imprisonment ranging from six years and one day to twelve years and a fine ranging from six thousand to twelve thousand pesos shall be imposed upon any person who, unless authorized by law, shall possess or use Indian hemp. Prescinding from the foregoing, the Court holds that the proper penalty is an indeterminate sentence of imprisonment ranging from six years and one day to twelve years. 34 WHEREFORE, the assailed Decision and Resolution are hereby AFFIRMED with MODIFICATION. Petitioner is sentenced to suffer IMPRISONMENT of SIX (6) YEARS, as minimum, to TWELVE (12) YEARS, as maximum, and to PAY a FINE of SIX THOUSAND PESOS. Costs against petitioner. SO ORDERED.

70 Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 123595 December 12, 1997 SAMMY MALACAT y MANDAR, petitioner, vs. COURT OF APPEALS, and PEOPLE OF THE PHILIPPINES, respondents.

DAVIDE, JR., J.: In an Information 1 filed on 30 August 1990, in Criminal Case No. 90-86748 before the Regional Trial Court (RTC) of Manila, Branch 5, petitioner Sammy Malacat y Mandar was charged with violating Section 3 of Presidential Decree No. 1866, 2 as follows: That on or about August 27, 1990, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and knowingly keep, possess and/or acquire a hand grenade, without first securing the necessary license and/or permit therefor from the proper authorities. At arraignment 3 on 9 October 1990, petitioner, assisted by counsel de oficio, entered a plea of not guilty. At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits "A," "A-1," and "A-2," 4 while the prosecution admitted that the police authorities were not armed with a search warrant nor warrant of arrest at the time they arrested petitioner. 5 At trial on the merits, the prosecution presented the following police officers as its witnesses: Rodolfo Yu, the arresting officer; Josefino G. Serapio, the investigating officer; and Orlando Ramilo, who examined the grenade. Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated National Police, Police Station No. 3, Quiapo, Manila, testified that on 27 August 1990, at about 6:30 p.m., in response to bomb threats reported seven days earlier, he was on foot patrol with three other police officers (all of them in uniform) along Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store at Plaza Miranda. They chanced upon two groups of Muslim-looking men, with each group, comprised of three to four men, posted at opposite sides of the corner of Quezon Boulevard near the Mercury Drug Store. These men were acting suspiciously with "[t]heir eyes. . . moving very fast." 6 Yu and his companions positioned themselves at strategic points and observed both groups for about thirty minutes. The police officers then approached one group of men, who then fled in different directions. As the policemen gave chase, Yu caught up with and apprehended petitioner. Upon searching petitioner, Yu found a fragmentation grenade tucked inside petitioner's "front waist line." 7 Yu's companion, police officer Rogelio Malibiran, apprehended Abdul Casan from whom a .38 caliber revolver was recovered. Petitioner and Casan were then brought to Police Station No. 3 where Yu placed an "X" mark at the bottom of the grenade and thereafter gave it to his commander. 8 On cross-examination, Yu declared that they conducted the foot patrol due to a report that a group of Muslims was going to explode a grenade somewhere in the vicinity of Plaza Miranda. Yu recognized petitioner as the previous Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw petitioner and 2 others attempt to detonate a grenade. The attempt was aborted when Yu and other policemen chased

71 petitioner and his companions; however, the former were unable to catch any of the latter. Yu further admitted that petitioner and Casan were merely standing on the corner of Quezon Boulevard when Yu saw them on 27 August 1990. Although they were not creating a commotion, since they were supposedly acting suspiciously, Yu and his companions approached them. Yu did not issue any receipt for the grenade he allegedly recovered from petitioner. 9 Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner and a certain Abdul Casan were brought in by Sgt. Saquilla 10 for investigation. Forthwith, Serapio conducted the inquest of the two suspects, informing them of their rights to remain silent and to be assisted by competent and independent counsel. Despite Serapio's advice, petitioner and Casan manifested their willingness to answer questions even without the assistance of a lawyer. Serapio then took petitioner's uncounselled confession (Exh. "E"), there being no PAO lawyer available, wherein petitioner admitted possession of the grenade. Thereafter, Serapio prepared the affidavit of arrest and booking sheet of petitioner and Casan. Later, Serapio turned over the grenade to the Intelligence and Special Action Division (ISAD) of the Explosive Ordinance Disposal Unit for examination. 11 On cross-examination, Serapio admitted that he took petitioner's confession knowing it was inadmissible in evidence. 12 Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties included, among other things, the examination of explosive devices, testified that on 22 March 1991, he received a request dated 19 March 1991 from Lt. Eduardo Cabrera and PO Diosdado Diotoy for examination of a grenade. Ramilo then affixed an orange tag on the subject grenade detailing his name, the date and time he received the specimen. During the preliminary examination of the grenade, he "[f]ound that [the] major components consisting of [a] high filler and fuse assembly [were] all present," and concluded that the grenade was "[l]ive and capable of exploding." On even date, he issued a certification stating his findings, a copy of which he forwarded to Diotoy on 11 August 1991. 13 Petitioner was the lone defense witness. He declared that he arrived in Manila on 22 July 1990 and resided at the Muslim Center in Quiapo, Manila. At around 6:30 in the evening of 27 August 1990, he went to Plaza Miranda to catch a breath of fresh air. Shortly after, several policemen arrived and ordered all males to stand aside. The policemen searched petitioner and two other men, but found nothing in their possession. However, he was arrested with two others, brought to and detained at Precinct No. 3, where he was accused of having shot a police officer. The officer showed the gunshot wounds he allegedly sustained and shouted at petitioner "[i]to ang tama mo sa akin." This officer then inserted the muzzle of his gun into petitioner's mouth and said, "[y]ou are the one who shot me." Petitioner denied the charges and explained that he only recently arrived in Manila. However, several other police officers mauled him, hitting him with benches and guns. Petitioner was once again searched, but nothing was found on him. He saw the grenade only in court when it was presented. 14 The trial court ruled that the warrantless search and seizure of petitioner was akin to it a "stop and frisk," where a "warrant and seizure can be effected without necessarily being preceded by an arrest" and "whose object is either to maintain the status quo momentarily while the police officer seeks to obtain more information." 15 Probable cause was not required as it was not certain that a crime had been committed, however, the situation called for an investigation, hence to require probable cause would have been "premature." 16 The RTC emphasized that Yu and his companions were "[c]onfronted with an emergency, in which the delay necessary to obtain a warrant, threatens the destruction of evidence" 17 and the officers "[h]ad to act in haste," as petitioner and his companions were acting suspiciously, considering the time, place and "reported cases of bombing." Further, petitioner's group suddenly ran away in different directions as they saw the arresting officers approach, thus "[i]t is reasonable for an officer to conduct a limited search, the purpose of which is not necessarily to discover evidence of a crime, but to allow the officer to pursue his investigation without fear of violence." 18 The trial court then ruled that the seizure of the grenade from petitioner was incidental to a lawful arrest, and since petitioner "[l]ater voluntarily admitted such fact to the police investigator for the purpose of bombing the Mercury Drug Store," concluded that sufficient evidence existed to establish petitioner's guilt beyond reasonable doubt.

72 In its decision 19 dated 10 February 1994 but promulgated on 15 February 1994, the trial court thus found petitioner guilty of the crime of illegal possession of explosives under Section 3 of P.D. No. 186, and sentenced him to suffer: [T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OFRECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum. On 18 February 1994, petitioner filed a notice of appeal 20 indicating that he was appealing to this Court. However, the record of the case was forwarded to the Court of Appeals which docketed it as CA-G.R. CR No. 15988 and issued a notice to file briefs. 21 In his Appellant's Brief 22 filed with the Court of Appeals, petitioner asserted that: 1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH UPON THE PERSON OF ACCUSED-APPELLANT AND THE SEIZURE OF THE ALLEGED HANDGRENADE FROM HIM "WAS AN APPROPRIATE INCIDENT TO HIS ARREST." 2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE AGAINST ACCUSED-APPELLANT THE HANDGRENADE ALLEGEDLY SEIZED FROM HIM AS IT WAS A PRODUCT OF AN UNREASONABLE AND ILLEGAL SEARCH. In sum, petitioner argued that the warrantless arrest was invalid due to absence of any of the conditions provided for in Section 5 of Rule 113 of the Rules of Court, citing People vs. Mengote. 23 As such, the search was illegal, and the hand grenade seized, inadmissible in evidence. In its Brief for the Appellee, the Office of the Solicitor General agreed with the trial court and prayed that its decision be affirmed in toto. 24 In its decision of 24 January 1996, 25 the Court of Appeals affirmed the trial court, noting, first, that petitioner abandoned his original theory before the court a quo that the grenade was "planted" by the police officers; and second, the factual finding of the trial court that the grenade was seized from petitioner's possession was not raised as an issue. Further, respondent court focused on the admissibility in evidence of Exhibit "D," the hand grenade seized from petitioner. Meeting the issue squarely, the Court of Appeals ruled that the arrest was lawful on the ground that there was probable cause for the arrest as petitioner was "attempting to commit an offense," thus: We are at a loss to understand how a man, who was in possession of a live grenade and in the company of other suspicious character[s] with unlicensed firearm[s] lurking in Plaza Miranda at a time when political tension ha[d] been enkindling a series of terroristic activities, [can] claim that he was not attempting to commit an offense. We need not mention that Plaza Miranda is historically notorious for being a favorite bomb site especially during times of political upheaval. As the mere possession of an unlicensed grenade is by itself an offense, Malacat's posture is simply too preposterous to inspire belief. In so doing, the Court of Appeals took into account petitioner's failure to rebut the testimony of the prosecution witnesses that they received intelligence reports of a bomb threat at Plaza Miranda; the fact that PO Yu chased petitioner two days prior to the latter's arrest, or on 27 August 1990; and that petitioner and his companions acted suspiciously, the "accumulation" of which was more than sufficient to convince a reasonable man that an offense was about to be committed. Moreover, the Court of Appeals observed: The police officers in such a volatile situation would be guilty of gross negligence and dereliction of duty, not to mention of gross incompetence, if they [would] first wait for Malacat to hurl the grenade, and kill several innocent persons while maiming numerous

73 others, before arriving at what would then be an assured but moot conclusion that there was indeed probable cause for an arrest. We are in agreement with the lower court in saying that the probable cause in such a situation should not be the kind of proof necessary to convict, but rather the practical considerations of everyday life on which a reasonable and prudent mind, and not legal technicians, will ordinarily act. Finally, the Court of Appeals held that the rule laid down in People v. Mengote, 26 which petitioner relied upon, was inapplicable in light of "[c]rucial differences," to wit: [In Mengote] the police officers never received any intelligence report that someone [at] the corner of a busy street [would] be in possession of a prohibited article. Here the police officers were responding to a [sic] public clamor to put a check on the series of terroristic bombings in the Metropolis, and, after receiving intelligence reports about a bomb threat aimed at the vicinity of the historically notorious Plaza Miranda, they conducted foot patrols for about seven days to observe suspicious movements in the area. Furthermore, in Mengote, the police officers [had] no personal knowledge that the person arrested has committed, is actually committing, or is attempting to commit an offense. Here, PO3 Yu [had] personal knowledge of the fact that he chased Malacat in Plaza Miranda two days before he finally succeeded in apprehending him. Unable to accept his conviction, petitioner forthwith filed the instant petition and assigns the following errors: 1. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF THE TRIAL COURT THAT THE WARRANTIES ARREST OF PETITIONER WAS VALID AND LEGAL. 2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING IN PEOPLE VS.MENGOTE DOES NOT FIND APPLICATION IN THE INSTANT CASE. In support thereof, petitioner merely restates his arguments below regarding the validity of the warrantless arrest and search, then disagrees with the finding of the Court of Appeals that he was "attempting to commit a crime," as the evidence for the prosecution merely disclosed that he was "standing at the corner of Plaza Miranda and Quezon Boulevard" with his eyes "moving very fast" and "looking at every person that come (sic) nearer (sic) to them." Finally, petitioner points out the factual similarities between his case and that ofPeople v. Mengote to demonstrate that the Court of Appeals miscomprehended the latter. In its Comment, the Office of the Solicitor General prays that we affirm the challenged decision.. For being impressed with merit, we resolved to give due course to the petition. The challenged decision must immediately fall on jurisdictional grounds. To repeat, the penalty imposed by the trial court was: [N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum. The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall unlawfully possess grenades is reclusion temporal in its maximum period to reclusion perpetua. For purposes of determining appellate jurisdiction in criminal cases, the maximum of the penalty, and not the minimum, is taken into account. Since the maximum of the penalty is reclusion perpetua, the appeal therefrom should have been to us, and not the Court of Appeals, pursuant to Section 9(3) of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129), 27 in relation to Section 17 of the Judiciary Act of 1948, 28 Section 5(2) of Article VIII of the Constitution 29 and Section 3(c) of Rule 122 of the Rules of

74 Court. 30 The term "life imprisonment" as used in Section 9 of B.P. Blg. 129, the Judiciary Act of 1948, and Section 3 of Rule 122 must be deemed to includereclusion perpetua in view of Section 5(2) of Article VIII of the Constitution. Petitioner's Notice of Appeal indicated that he was appealing from the trial court's decision to this Court, yet the trial court transmitted the record to the Court of Appeals and the latter proceeded to resolve the appeal. We then set aside the decision of the Court of Appeals for having been rendered without jurisdiction, and consider the appeal as having been directly brought to us, with the petition for review as petitioner's Brief for the Appellant, the comment thereon by the Office of the Solicitor General as the Brief for the Appellee and the memoranda of the parties as their Supplemental Briefs. Deliberating on the foregoing pleadings, we find ourselves convinced that the prosecution failed to establish petitioner's guilt with moral certainty. First, serious doubt surrounds the story of police officer Yu that a grenade was found in and seized from petitioner's possession. Notably, Yu did not identify, in court, the grenade he allegedly seized. According to him, he turned it over to his commander after putting an "X" mark at its bottom; however, the commander was not presented to corroborate this claim. On the other hand, the grenade presented in court and identified by police officer Ramilo referred to what the latter received from Lt. Eduardo Cabrera and police officer Diotoy not immediately after petitioner's arrest, but nearly seven (7) months later, or on 19 March 1991; further, there was no evidence whatsoever that what Ramilo received was the very same grenade seized from petitioner. In his testimony, Yu never declared that the grenade passed on to Ramilo was the grenade the former confiscated from petitioner. Yu did not, and was not made to, identify the grenade examined by Ramilo, and the latter did not claim that the grenade he examined was that seized from petitioner. Plainly, the law enforcement authorities failed to safeguard and preserve the chain of evidence so crucial in cases such as these. Second, if indeed petitioner had a grenade with him, and that two days earlier he was with a group about to detonate an explosive at Plaza Miranda, and Yu and his fellow officers chased, but failed to arrest them, then considering that Yu and his three fellow officers were in uniform and therefore easily cognizable as police officers, it was then unnatural and against common experience that petitioner simply stood there in proximity to the police officers. Note that Yu observed petitioner for thirty minutes and must have been close enough to petitioner in order to discern petitioner's eyes "moving very fast." Finally, even assuming that petitioner admitted possession of the grenade during his custodial investigation by police officer Serapio, such admission was inadmissible in evidence for it was taken in palpable violation of Section 12(1) and (3) of Article III of the Constitution, which provide as follows: Sec. 12 (1). Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. xxx xxx xxx (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. Serapio conducted the custodial investigation on petitioner the day following his arrest. No lawyer was present and Serapio could not have requested a lawyer to assist petitioner as no PAO lawyer was then available. Thus, even if petitioner consented to the investigation and waived his rights to remain silent and to counsel, the waiver was invalid as it was not in writing, neither was it executed in the presence of counsel.

75 Even granting ex gratia that petitioner was in possession of a grenade, the arrest and search of petitioner were invalid, as will be discussed below. The general rule as regards arrests, searches and seizures is that a warrant is needed in order to validly effect the same. 31 The Constitutional prohibition against unreasonable arrests, searches and seizures refers to those effected without a validly issued warrant, 32 subject to certain exceptions. As regards valid warrantless arrests, these are found in Section 5, Rule 113 of the Rules of Court, which reads, in part: Sec. 5. Arrest, without warrant; when lawful A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped . . . A warrantless arrest under the circumstances contemplated under Section 5(a) has been denominated as one "in flagrante delicto," while that under Section 5(b) has been described as a "hot pursuit" arrest. Turning to valid warrantless searches, they are limited to the following: (1) customs searches; (2) search of moving vehicles; (3) seizure of evidence in plain view; (4) consent searches; 33 (5) a search incidental to a lawful arrest;34 and (6) a "stop and frisk." 35 In the instant petition, the trial court validated the warrantless search as a "stop and frisk" with "the seizure of the grenade from the accused [as an appropriate incident to his arrest," hence necessitating a brief discussion on the nature of these exceptions to the warrant requirement. At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a search incidental to a lawful arrest. These two types of warrantless searches differ in terms of the requisite quantum of proof before they may be validly effected and in their allowable scope. In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used as a pretext for conducting a search. 36 In this instance, the law requires that there first be a lawful arrest before a search can be made the process cannot be reversed. 37 At bottom, assuming a valid arrest, the arresting officer may search the person of the arrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and seize any money or property found which was used in the commission of the crime, or the fruit of the crime, or that which may be used as evidence, or which might furnish the arrestee with the means of escaping or committing violence. 38 Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in light of the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on the part of petitioner, indicating that a crime had just been committed, was being committed or was going to be committed. Having thus shown the invalidity of the warrantless arrest in this case, plainly, the search conducted on petitioner could not have been one incidental to a lawful arrest. We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited protective search of outer clothing for weapons," as laid down in Terry, thus:

76 We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment . . . 39 Other notable points of Terry are that while probable cause is not required to conduct a "stop and frisk," 40it nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A genuine reason must exist, in light of the police officer's experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. 41 Finally, a "stop-and-frisk" serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer. Here, there are at least three (3) reasons why the "stop-and-frisk" was invalid: First, we harbor grave doubts as to Yu's claim that petitioner was a member of the group which attempted to bomb Plaza Miranda two days earlier. This claim is neither supported by any police report or record nor corroborated by any other police officer who allegedly chased that group. Aside from impairing Yu's credibility as a witness, this likewise diminishes the probability that a genuine reason existed so as to arrest and search petitioner. If only to further tarnish the credibility of Yu's testimony, contrary to his claim that petitioner and his companions had to be chased before being apprehended, the affidavit of arrest (Exh. "A") expressly declares otherwise, i.e., upon arrival of five (5) other police officers, petitioner and his companions were "immediately collared." Second, there was nothing in petitioner's behavior or conduct which could have reasonably elicited even mere suspicion other than that his eyes were "moving very fast" an observation which leaves us incredulous since Yu and his teammates were nowhere near petitioner and it was already 6:30 p.m., thus presumably dusk. Petitioner and his companions were merely standing at the corner and were not creating any commotion or trouble, as Yu explicitly declared on cross-examination: Q And what were they doing? A They were merely standing. Q You are sure of that? A Yes, sir. Q And when you saw them standing, there were nothing or they did not create any commotion. A None, sir. Q Neither did you see them create commotion? A None, sir. 42 Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was "discovered" "inside

77 the front waistline" of petitioner, and from all indications as to the distance between Yu and petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not have been visible to Yu. In fact, as noted by the trial court: When the policemen approached the accused and his companions, they were not yet aware that a handgrenade was tucked inside his waistline. They did not see any bulging object in [sic] his person. 43 What is unequivocal then in this case are blatant violations of petitioner's rights solemnly guaranteed in Sections 2 and 12(1) of Article III of the Constitution. WHEREFORE, the challenged decision of the Seventeenth Division of the Court of Appeals in CA-G.R. CR No. 15988 is SET ASIDE for lack of jurisdiction on the part of said Court and, on ground of reasonable doubt, the decision of 10 February 1994 of Branch 5 of the Regional Trial Court of Manila is REVERSED and petitioner SAMMY MALACAT y MANDAR is hereby ACQUITTED and ORDERED immediately released from detention, unless his further detention is justified for any other lawful cause. Costs de Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-27360 February 28, 1968

HON. RICARDO G. PAPA, as Chief of Police of Manila; HON. JUAN PONCE ENRILE, as Commissioner of Customs; PEDRO PACIS, as Collector of Customs of the Port of Manila; and MARTIN ALAGAO, as Patrolman of the Manila Police Department, petitioners, vs. REMEDIOS MAGO and HILARION U. JARENCIO, as Presiding Judge of Branch 23, Court of First Instance of Manila, respondents. Office of the Solicitor General for petitioners. Juan T. David for respondents. ZALDIVAR, J.: This is an original action for prohibition and certiorari, with preliminary injunction filed by Ricardo Papa, Chief of Police of Manila; Juan once Enrile, Commissioner of Customs; Pedro Pacis, Collector of Customs of the Port of Manila; and Martin Alagao, a patrolman of the Manila Police Department, against Remedios Mago and Hon. Hilarion Jarencio, Presiding Judge of Branch 23 of the Court of First Instance of Manila, praying for the annulment of the order issued by respondent Judge in Civil Case No. 67496 of the Court of First Instance of Manila under date of March 7, 1967, which authorized the release under bond of certain goods which were seized and held by petitioners in connection with the enforcement of the Tariff and Customs Code, but which were claimed by respondent Remedios Mago, and to prohibit respondent Judge from further proceeding in any manner whatsoever in said Civil Case No. 67496. Pending the determination of this case this Court issued a writ of preliminary injunction restraining the respondent Judge from executing, enforcing and/or implementing the questioned order in Civil Case No. 67496 and from proceeding with said case. Petitioner Martin Alagao, head of the counter-intelligence unit of the Manila Police Department, acting upon a reliable information received on November 3, 1966 to the effect that a certain shipment of personal effects, allegedly misdeclared and undervalued, would be released the following day from the customs zone of the port of Manila and loaded on two trucks, and upon orders of petitioner Ricardo Papa, Chief of Police of Manila and a duly deputized agent of the Bureau of Customs, conducted surveillance at gate No. 1 of the customs zone. When the trucks left gate No. 1 at about 4:30 in the afternoon of November 4, 1966, elements of the counter-intelligence unit went after the trucks and intercepted them at the Agrifina Circle, Ermita, Manila. The load of the two trucks consisting of nine

78 bales of goods, and the two trucks, were seized on instructions of the Chief of Police. Upon investigation, a person claimed ownership of the goods and showed to the policemen a "Statement and Receipts of Duties Collected in Informal Entry No. 147-5501", issued by the Bureau of Customs in the name of a certain Bienvenido Naguit. Claiming to have been prejudiced by the seizure and detention of the two trucks and their cargo, Remedios Mago and Valentin B. Lanopa filed with the Court of First Instance of Manila a petition "for mandamus with restraining order or preliminary injunction, docketed as Civil Case No. 67496, alleging, among others, that Remedios Mago was the owner of the goods seized, having purchased them from the Sta. Monica Grocery in San Fernando, Pampanga; that she hired the trucks owned by Valentin Lanopa to transport, the goods from said place to her residence at 1657 Laon Laan St., Sampaloc, Manila; that the goods were seized by members of the Manila Police Department without search warrant issued by a competent court; that anila Chief of Police Ricardo Papa denied the request of counsel for Remedios Mago that the bales be not opened and the goods contained therein be not examined; that then Customs Commissioner Jacinto Gavino had illegally assigned appraisers to examine the goods because the goods were no longer under the control and supervision of the Commissioner of Customs; that the goods, even assuming them to have been misdeclared and, undervalued, were not subject to seizure under Section 2531 of the Tariff and Customs Code because Remedios Mago had bought them from another person without knowledge that they were imported illegally; that the bales had not yet been opened, although Chief of Police Papa had arranged with the Commissioner of Customs regarding the disposition of the goods, and that unless restrained their constitutional rights would be violated and they would truly suffer irreparable injury. Hence, Remedios Mago and Valentin Lanopa prayed for the issuance of a restraining order, ex parte, enjoining the above-named police and customs authorities, or their agents, from opening the bales and examining the goods, and a writ of mandamus for the return of the goods and the trucks, as well as a judgment for actual, moral and exemplary damages in their favor. On November 10, 1966, respondent Judge Hilarion Jarencio issued an order ex parte restraining the respondents in Civil Case No. 67496 now petitioners in the instant case before this Court from opening the nine bales in question, and at the same time set the hearing of the petition for preliminary injunction on November 16, 1966. However, when the restraining order was received by herein petitioners, some bales had already been opened by the examiners of the Bureau of Customs in the presence of officials of the Manila Police Department, an assistant city fiscal and a representative of herein respondent Remedios Mago. Under date of November 15, 1966, Remedios Mago filed an amended petition in Civil Case No. 67496, including as party defendants Collector of Customs Pedro Pacis of the Port of Manila and Lt. Martin Alagao of the Manila Police Department. Herein petitioners (defendants below) filed, on November 24, 1966, their "Answer with Opposition to the Issuance of a Writ of Preliminary Injunction", denying the alleged illegality of the seizure and detention of the goods and the trucks and of their other actuations, and alleging special and affirmative defenses, to wit: that the Court of First Instance of Manila had no jurisdiction to try the case; that the case fell within the exclusive jurisdiction of the Court of Tax Appeals; that, assuming that the court had jurisdiction over the case, the petition stated no cause of action in view of the failure of Remedios Mago to exhaust the administrative remedies provided for in the Tariff and Customs Code; that the Bureau of Customs had not lost jurisdiction over the goods because the full duties and charges thereon had not been paid; that the members of the Manila Police Department had the power to make the seizure; that the seizure was not unreasonable; and the persons deputized under Section 2203 (c) of the Tariff and Customs Code could effect search, seizures and arrests in inland places in connection with the enforcement of the said Code. In opposing the issuance of the writ of preliminary injunction, herein petitioners averred in the court below that the writ could not be granted for the reason that Remedios Mago was not entitled to the main reliefs she prayed for; that the release of the goods, which were subject to seizure proceedings under the Tariff and Customs Code, would deprive the Bureau of Customs of the authority to forfeit them; and that Remedios Mago and Valentin Lanopa would not suffer irreparable injury. Herein petitioners prayed the court below for the lifting of the restraining order, for the denial of the issuance of the writ of preliminary injunction, and for the dismissal of the case.

79 At the hearing on December 9, 1966, the lower Court, with the conformity of the parties, ordered that an inventory of the goods be made by its clerk of court in the presence of the representatives of the claimant of the goods, the Bureau of Customs, and the Anti-Smuggling Center of the Manila Police Department. On December 13, 1966, the above-named persons filed a "Compliance" itemizing the contents of the nine bales. Herein respondent Remedios Mago, on December 23, 1966, filed an ex parte motion to release the goods, alleging that since the inventory of the goods seized did not show any article of prohibited importation, the same should be released as per agreement of the patties upon her posting of the appropriate bond that may be determined by the court. Herein petitioners filed their opposition to the motion, alleging that the court had no jurisdiction to order the release of the goods in view of the fact that the court had no jurisdiction over the case, and that most of the goods, as shown in the inventory, were not declared and were, therefore, subject to forfeiture. A supplemental opposition was filed by herein petitioners on January 19, 1967, alleging that on January 12, 1967 seizure proceedings against the goods had been instituted by the Collector of Customs of the Port of Manila, and the determination of all questions affecting the disposal of property proceeded against in seizure and forfeiture proceedings should thereby be left to the Collector of Customs. On January 30, 1967, herein petitioners filed a manifestation that the estimated duties, taxes and other charges due on the goods amounted to P95,772.00. On February 2, 1967, herein respondent Remedios Mago filed an urgent manifestation and reiteration of the motion for the release under bond of the goods. On March 7, 1967, the respondent Judge issued an order releasing the goods to herein respondent Remedios Mago upon her filing of a bond in the amount of P40,000.00, and on March 13, 1967, said respondent filed the corresponding bond. On March 13, 1967, herein petitioner Ricardo Papa, on his own behalf, filed a motion for reconsideration of the order of the court releasing the goods under bond, upon the ground that the Manila Police Department had been directed by the Collector of Customs of the Port of Manila to hold the goods pending termination of the seizure proceedings. Without waiting for the court's action on the motion for reconsideration, and alleging that they had no plain, speedy and adequate remedy in the ordinary course of law, herein petitioners filed the present action for prohibition and certiorari with preliminary injunction before this Court. In their petition petitioners alleged, among others, that the respondent Judge acted without jurisdiction in ordering the release to respondent Remedios Mago of the disputed goods, for the following reasons: (1) the Court of First Instance of Manila, presided by respondent Judge, had no jurisdiction over the case; (2) respondent Remedios Mago had no cause of action in Civil Case No. 67496 of the Court of First Instance of Manila due to her failure to exhaust all administrative remedies before invoking judicial intervention; (3) the Government was not estopped by the negligent and/or illegal acts of its agent in not collecting the correct taxes; and (4) the bond fixed by respondent Judge for the release of the goods was grossly insufficient. In due time, the respondents filed their answer to the petition for prohibition and certiorari in this case. In their answer, respondents alleged, among others: (1) that it was within the jurisdiction of the lower court presided by respondent Judge to hear and decide Civil Case No. 67496 and to issue the questioned order of March 7, 1967, because said Civil Case No. 67496 was instituted long before seizure, and identification proceedings against the nine bales of goods in question were instituted by the Collector of Customs; (2) that petitioners could no longer go after the goods in question after the corresponding duties and taxes had been paid and said goods had left the customs premises and were no longer within the control of the Bureau of Customs; (3) that respondent Remedios Mago was purchaser in good faith of the goods in question so that those goods can not be the subject of seizure and forfeiture proceedings; (4) that the seizure of the goods was affected by members of the Manila Police Department at a place outside control of jurisdiction of the Bureau of Customs and affected without any search warrant or a warrant of seizure and detention; (5) that the warrant of seizure and detention subsequently issued by the Collector of Customs is illegal and unconstitutional, it not being issued by a judge; (6) that the seizing officers have no authority to seize the goods in question because they are not articles of prohibited importation; (7) that petitioners are estopped to institute the present action because they had agreed before the respondent Judge that they would not interpose any

80 objection to the release of the goods under bond to answer for whatever duties and taxes the said goods may still be liable; and (8) that the bond for the release of the goods was sufficient. The principal issue in the instant case is whether or not, the respondent Judge had acted with jurisdiction in issuing the order of March 7, 1967 releasing the goods in question. The Bureau of Customs has the duties, powers and jurisdiction, among others, (1) to assess and collect all lawful revenues from imported articles, and all other dues, fees, charges, fines and penalties, accruing under the tariff and customs laws; (2) to prevent and suppress smuggling and other frauds upon the customs; and (3) to enforce tariff and customs laws. 1 The goods in question were imported from Hongkong, as shown in the "Statement and Receipts of Duties Collected on Informal Entry". 2 As long as the importation has not been terminated the imported goods remain under the jurisdiction of the Bureau of customs. Importation is deemed terminated only upon the payment of the duties, taxes and other charges upon the articles, or secured to be paid, at the port of entry and the legal permit for withdrawal shall have been granted. 3 The payment of the duties, taxes, fees and other charges must be in full. 4 The record shows, by comparing the articles and duties stated in the aforesaid "Statement and Receipts of Duties Collected on Informal Entry" with the manifestation of the Office of the Solicitor General 5 wherein it is stated that the estimated duties, taxes and other charges on the goods subject of this case amounted to P95,772.00 as evidenced by the report of the appraiser of the Bureau of Customs, that the duties, taxes and other charges had not been paid in full. Furthermore, a comparison of the goods on which duties had been assessed, as shown in the "Statement and Receipts of Duties Collected on Informal Entry" and the "compliance" itemizing the articles found in the bales upon examination and inventory, 6 shows that the quantity of the goods was underdeclared, presumably to avoid the payment of duties thereon. For example, Annex B (the statement and receipts of duties collected) states that there were 40 pieces of ladies' sweaters, whereas Annex H (the inventory contained in the "compliance") states that in bale No. 1 alone there were 42 dozens and 1 piece of ladies' sweaters of assorted colors; in Annex B, only 100 pieces of watch bands were assessed, but in Annex H, there were in bale No. 2, 209 dozens and 5 pieces of men's metal watch bands (white) and 120 dozens of men's metal watch band (gold color), and in bale No. 7, 320 dozens of men's metal watch bands (gold color); in Annex B, 20 dozens only of men's handkerchief were declared, but in Annex H it appears that there were 224 dozens of said goods in bale No. 2, 120 dozens in bale No. 6, 380 dozens in bale No. 7, 220 dozens in bale No. 8, and another 200 dozens in bale No. 9. The articles contained in the nine bales in question, were, therefore, subject to forfeiture under Section 2530, pars. e and m, (1), (3), (4), and (5) of the Tariff and Customs Code. And this Court has held that merchandise, the importation of which is effected contrary to law, is subject to forfeiture, 7 and that goods released contrary to law are subject to seizure and forfeiture. 8 Even if it be granted, arguendo, that after the goods in question had been brought out of the customs area the Bureau of Customs had lost jurisdiction over the same, nevertheless, when said goods were intercepted at the Agrifina Circle on November 4, 1966 by members of the Manila Police Department, acting under directions and orders of their Chief, Ricardo C. Papa, who had been formally deputized by the Commissioner of Customs, 9 the Bureau of Customs had regained jurisdiction and custody of the goods. Section 1206 of the Tariff and Customs Code imposes upon the Collector of Customs the duty to hold possession of all imported articles upon which duties, taxes, and other charges have not been paid or secured to be paid, and to dispose of the same according to law. The goods in question, therefore, were under the custody and at the disposal of the Bureau of Customs at the time the petition for mandamus, docketed as Civil Case No. 67496, was filed in the Court of First Instance of Manila on November 9, 1966. The Court of First Instance of Manila, therefore, could not exercise jurisdiction over said goods even if the warrant of seizure and detention of the goods for the purposes of the seizure and forfeiture proceedings had not yet been issued by the Collector of Customs. The ruling in the case of "Alberto de Joya, et al. v. Hon. Gregorio Lantin, et al.," G.R. No. L-24037, decided by this Court on April 27, 1967, is squarely applicable to the instant case. In the De Joya case, it appears that Francindy Commercial of Manila bought from Ernerose Commercial of Cebu City 90 bales of assorted textiles and rags, valued at P117,731.00, which had been imported and entered thru the port of Cebu. Ernerose Commercial shipped the goods to Manila on board an inter-island vessel. When

81 the goods where about to leave the customs premises in Manila, on October 6, 1964, the customs authorities held them for further verification, and upon examination the goods were found to be different from the declaration in the cargo manifest of the carrying vessel. Francindy Commercial subsequently demanded from the customs authorities the release of the goods, asserting that it is a purchaser in good faith of those goods; that a local purchaser was involved so the Bureau of Customs had no right to examine the goods; and that the goods came from a coastwise port. On October 26, 1964, Francindy Commercial filed in the Court of First Instance of Manila a petition for mandamus against the Commissioner of Customs and the Collector of Customs of the port of Manila to compel said customs authorities to release the goods. Francindy Commercial alleged in its petition for mandamus that the Bureau of Customs had no jurisdiction over the goods because the same were not imported to the port of Manila; that it was not liable for duties and taxes because the transaction was not an original importation; that the goods were not in the hands of the importer nor subject to importer's control, nor were the goods imported contrary to law with its (Francindy Commercial's) knowledge; and that the importation had been terminated. On November 12, 1964, the Collector of Customs of Manila issued a warrant of seizure and identification against the goods. On December 3, 1964, the Commissioner of Customs and the Collector of Customs, as respondents in the mandamus case, filed a motion to dismiss the petition on the grounds of lack of jurisdiction, lack of cause of action, and in view of the pending seizure and forfeiture proceedings. The Court of First Instance held resolution on the motion to dismiss in abeyance pending decision on the merits. On December 14, 1964, the Court of First Instance of Manila issued a preventive and mandatory injunction, on prayer by Francindy Commercial, upon a bond of P20,000.00. The Commissioner of Customs and the Collector of Customs sought the lifting of the preliminary and mandatory injunction, and the resolution of their motion to dismiss. The Court of First Instance of Manila, however, on January 12, 1965, ordered them to comply with the preliminary and mandatory injunction, upon the filing by Francindy Commercial of an additional bond of P50,000.00. Said customs authorities thereupon filed with this Court, on January 14, 1965, a petition for certiorari and prohibition with preliminary injunction. In resolving the question raised in that case, this Court held: This petition raises two related issues: first, has the Customs bureau jurisdiction to seize the goods and institute forfeiture proceedings against them? and (2) has the Court of First Instance jurisdiction to entertain the petition for mandamus to compel the Customs authorities to release the goods? Francindy Commercial contends that since the petition in the Court of first Instance was filed (on October 26, 1964) ahead of the issuance of the Customs warrant of seizure and forfeiture (on November 12, 1964),the Customs bureau should yield the jurisdiction of the said court. The record shows, however, that the goods in question were actually seized on October 6, 1964, i.e., before Francindy Commercial sued in court. The purpose of the seizure by the Customs bureau was to verify whether or not Custom duties and taxes were paid for their importation. Hence, on December 23, 1964, Customs released 22 bales thereof, for the same were found to have been released regularly from the Cebu Port (Petition Annex "L"). As to goods imported illegally or released irregularly from Customs custody, these are subject to seizure under Section 2530 m. of the Tariff and Customs Code (RA 1957). The Bureau of Customs has jurisdiction and power, among others to collect revenues from imported articles, fines and penalties and suppress smuggling and other frauds on customs; and to enforce tariff and customs laws (Sec. 602, Republic Act 1957). The goods in question are imported articles entered at the Port of Cebu. Should they be found to have been released irregularly from Customs custody in Cebu City, they are subject to seizure and forfeiture, the proceedings for which comes within the jurisdiction of the Bureau of Customs pursuant to Republic Act 1937. Said proceeding should be followed; the owner of the goods may set up defenses therein (Pacis v. Averia, L-22526, Nov. 20, 1966.) From the decision of the Commissioner of Customs

82 appeal lies to the Court of Tax Appeals, as provided in Sec. 2402 of Republic Act 1937 and Sec. 11 of Republic Act, 1125. To permit recourse to the Court of First Instance in cases of seizure of imported goods would in effect render ineffective the power of the Customs authorities under the Tariff and Customs Code and deprive the Court of Tax Appeals of one of its exclusive appellate jurisdictions. As this Court has ruled in Pacis v. Averia,supra, Republic Acts 1937 and 1125 vest jurisdiction over seizure and forfeiture proceedings exclusively upon the Bureau of Customs and the Court of Tax Appeals. Such law being special in nature, while the Judiciary Act defining the jurisdiction of Courts of First Instance is a general legislation, not to mention that the former are later enactments, the Court of First Instance should yield to the jurisdiction of the Customs authorities. It is the settled rule, therefore, that the Bureau of Customs acquires exclusive jurisdiction over imported goods, for the purposes of enforcement of the customs laws, from the moment the goods are actually in its possession or control, even if no warrant of seizure or detention had previously been issued by the Collector of Customs in connection with seizure and forfeiture proceedings. In the present case, the Bureau of Customs actually seized the goods in question on November 4, 1966, and so from that date the Bureau of Customs acquired jurisdiction over the goods for the purposes of the enforcement of the tariff and customs laws, to the exclusion of the regular courts. Much less then would the Court of First Instance of Manila have jurisdiction over the goods in question after the Collector of Customs had issued the warrant of seizure and detention on January 12, 1967. 10 And so, it cannot be said, as respondents contend, that the issuance of said warrant was only an attempt to divest the respondent Judge of jurisdiction over the subject matter of the case. The court presided by respondent Judge did not acquire jurisdiction over the goods in question when the petition for mandamus was filed before it, and so there was no need of divesting it of jurisdiction. Not having acquired jurisdiction over the goods, it follows that the Court of First Instance of Manila had no jurisdiction to issue the questioned order of March 7, 1967 releasing said goods. Respondents also aver that petitioner Martin Alagao, an officer of the Manila Police Department, could not seize the goods in question without a search warrant. This contention cannot be sustained. The Chief of the Manila Police Department, Ricardo G. Papa, having been deputized in writing by the Commissioner of Customs, could, for the purposes of the enforcement of the customs and tariff laws, effect searches, seizures, and arrests,11 and it was his duty to make seizure, among others, of any cargo, articles or other movable property when the same may be subject to forfeiture or liable for any fine imposed under customs and tariff laws. 12 He could lawfully open and examine any box, trunk, envelope or other container wherever found when he had reasonable cause to suspect the presence therein of dutiable articles introduced into the Philippines contrary to law; and likewise to stop, search and examine any vehicle, beast or person reasonably suspected of holding or conveying such article as aforesaid. 13 It cannot be doubted, therefore, that petitioner Ricardo G. Papa, Chief of Police of Manila, could lawfully effect the search and seizure of the goods in question. The Tariff and Customs Code authorizes him to demand assistance of any police officer to effect said search and seizure, and the latter has the legal duty to render said assistance. 14 This was what happened precisely in the case of Lt. Martin Alagao who, with his unit, made the search and seizure of the two trucks loaded with the nine bales of goods in question at the Agrifina Circle. He was given authority by the Chief of Police to make the interception of the cargo. 15 Petitioner Martin Alagao and his companion policemen had authority to effect the seizure without any search warrant issued by a competent court. The Tariff and Customs Code does not require said warrant in the instant case. The Code authorizes persons having police authority under Section 2203 of the Tariff and Customs Code to enter, pass through or search any land, inclosure, warehouse, store or building, not being a dwelling house; and also to inspect, search and examine any vessel or aircraft and any trunk, package, or envelope or any person on board, or to stop and search and examine any vehicle, beast or person suspected of holding or conveying any dutiable or prohibited article introduced into the Philippines contrary to law, without mentioning the need of a search warrant in said cases. 16 But in the search of a dwelling house, the Code provides that said "dwelling house may be entered and searched only upon warrant issued by a judge or justice of the peace. . . ." 17 It is our considered view, therefor, that except in the case of the search of a dwelling house, persons exercising police authority under the customs law may effect search and seizure without a search warrant in the enforcement of customs laws.

83 Our conclusion finds support in the case of Carroll v. United States, 39 A.L.R., 790, 799, wherein the court, considering a legal provision similar to Section 2211 of the Philippine Tariff and Customs Code, said as follows: Thus contemporaneously with the adoption of the 4th Amendment, we find in the first Congress, and in the following second and fourth Congresses, a difference made as to the necessity for a search warrant between goods subject to forfeiture, when concealed in a dwelling house of similar place, and like goods in course of transportation and concealed in a movable vessel, where readily they could be put out of reach of a search warrant. . . . Again, by the 2d section of the Act of March 3, 1815 (3 Stat. at L.231, 232, chap. 94), it was made lawful for customs officers not only to board and search vessels within their own and adjoining districts, but also to stop, search and examine any vehicle, beast or person on which or whom they should suspect there was merchandise which was subject to duty, or had been introduced into the United States in any manner contrary to law, whether by the person in charge of the vehicle or beast or otherwise, and if they should find any goods, wares, or merchandise thereon, which they had probably cause to believe had been so unlawfully brought into the country, to seize and secure the same, and the vehicle or beast as well, for trial and forfeiture. This Act was renewed April 27, 1816 (3 Sta. at L. 315, chap. 100), for a year and expired. The Act of February 28, 1865, revived 2 of the Act of 1815, above described, chap. 67, 13 Stat. at L. 441. The substance of this section was re-enacted in the 3d section of the Act of July 18, 1866, chap. 201, 14 Stat. at L. 178, and was thereafter embodied in the Revised Statutes as 3061, Comp. Stat. 5763, 2 Fed. Stat. Anno. 2d ed. p. 1161. Neither 3061 nor any of its earlier counterparts has ever been attacked as unconstitutional. Indeed, that section was referred to and treated as operative by this court in Von Cotzhausen v. Nazro, 107 U.S. 215, 219, 27 L. ed. 540, 541, 2 Sup. Ct. Rep. 503. . . . In the instant case, we note that petitioner Martin Alagao and his companion policemen did not have to make any search before they seized the two trucks and their cargo. In their original petition, and amended petition, in the court below Remedios Mago and Valentin Lanopa did not even allege that there was a search. 18 All that they complained of was, That while the trucks were on their way, they were intercepted without any search warrant near the Agrifina Circle and taken to the Manila Police Department, where they were detained. But even if there was a search, there is still authority to the effect that no search warrant would be needed under the circumstances obtaining in the instant case. Thus, it has been held that: The guaranty of freedom from unreasonable searches and seizures is construed as recognizing a necessary difference between a search of a dwelling house or other structure in respect of which a search warrant may readily be obtained and a search of a ship, motorboat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. (47 Am. Jur., pp. 513-514, citing Carroll v. United States, 267 U.S. 132, 69 L. ed., 543, 45 S. Ct., 280, 39 A.L.R., 790; People v. Case, 320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686.) In the case of People v. Case (320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686), the question raised by defendant's counsel was whether an automobile truck or an automobile could be searched without search warrant or other process and the goods therein seized used afterwards as evidence in a trial for violation of the prohibition laws of the State. Same counsel contended the negative, urging the constitutional provision forbidding unreasonable searches and seizures. The Court said: . . . Neither our state nor the Federal Constitution directly prohibits search and seizure without a warrant, as is sometimes asserted. Only "unreasonable" search and seizure is forbidden. . . .

84 . . . The question whether a seizure or a search is unreasonable in the language of the Constitution is a judicial and not a legislative question; but in determining whether a seizure is or is not unreasonable, all of the circumstances under which it is made must be looked to. The automobile is a swift and powerful vehicle of recent development, which has multiplied by quantity production and taken possession of our highways in battalions until the slower, animal-drawn vehicles, with their easily noted individuality, are rare. Constructed as covered vehicles to standard form in immense quantities, and with a capacity for speed rivaling express trains, they furnish for successful commission of crime a disguising means of silent approach and swift escape unknown in the history of the world before their advent. The question of their police control and reasonable search on highways or other public places is a serious question far deeper and broader than their use in so-called "bootleging" or "rum running," which is itself is no small matter. While a possession in the sense of private ownership, they are but a vehicle constructed for travel and transportation on highways. Their active use is not in homes or on private premises, the privacy of which the law especially guards from search and seizure without process. The baffling extent to which they are successfully utilized to facilitate commission of crime of all degrees, from those against morality, chastity, and decency, to robbery, rape, burglary, and murder, is a matter of common knowledge. Upon that problem a condition, and not a theory, confronts proper administration of our criminal laws. Whether search of and seizure from an automobile upon a highway or other public place without a search warrant is unreasonable is in its final analysis to be determined as a judicial question in view of all the circumstances under which it is made. Having declared that the seizure by the members of the Manila Police Department of the goods in question was in accordance with law and by that seizure the Bureau of Customs had acquired jurisdiction over the goods for the purpose of the enforcement of the customs and tariff laws, to the exclusion of the Court of First Instance of Manila, We have thus resolved the principal and decisive issue in the present case. We do not consider it necessary, for the purposes of this decision, to discuss the incidental issues raised by the parties in their pleadings. WHEREFORE, judgment is hereby rendered, as follows: (a) Granting the writ of certiorari and prohibition prayed for by petitioners; (b) Declaring null and void, for having been issued without jurisdiction, the order of respondent Judge Hilarion U. Jarencio, dated March 7, 1967, in Civil Code No. 67496 of the Court of First Instance of Manila; (c) Declaring permanent the preliminary injunction issued by this Court on March 31, 1967 restraining respondent Judge from executing, enforcing and/or implementing his order of March 7, 1967 in Civil Case No. 67496 of the Court of First Instance of Manila, and from proceeding in any manner in said case; (d) Ordering the dismissal of Civil Case No. 67496 of the Court of First Instance of Manila; and1wph1.t (e) Ordering the private respondent, Remedios Mago, to pay the costs. It is so ordered. . SO ORDERED.

85 Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-41686 November 17, 1980 PEOPLE OF THE PHILIPPINES, petitioner, vs. COURT OF FIRST INSTANCE OF RIZAL, BRANCH IX, QUEZON CITY, presided by HON. ULPIANO SARMIENTO, JESSIE HOPE and MONINA MEDINA, respondents.

GUERRERO, J.: This original petition for certiorari seeks to nullify the Order dated August 20, 1975 issued by District Judge Ulpiano Sarmiento in Criminal Case No. Q-3781 which stalled the prosecution of respondents Sgt. Jessie C. Hope and Monina Medina for the alleged violation of section 3601 1 of the Tariff and Customs Code. The order declared as inadmissible in evidence the allegedly smuggled articles obtained by apprehending agents in the course of a warrantless search and seizure. Dispositively, the order decreed: WHEREFORE, in accordance with Article IV, Sec. 4, paragraph 2 of the present Constitution, the boxes and the watches and bracelets contained therein seized from the car of the accused Sgt. Jessie C. Hope, are hereby declared inadmissible in evidence in this case; likewise, the pictures taken of said items attempted to be presented as evidence in the instant case is hereby declared in admissible as evidence against the accused. SO ORDERED. The records disclose that one week before February 9, 1974, the Regional Anti-Smuggling Action Center (RASAC) was informed by an undisclosed Informer that a shipment of highly dutiable goods would be transported to Manila from Angeles City on a blue Dodge car. Spurred by such lead, RASAC Agents Arthur Manuel and Macario Sabado, on the aforesaid date and upon order of the Chief of Intelligence and Operations Branch, RASAC-MBA, Col. Antonio Abad, Jr., stationed themselves in the vicinity of the toll gate of the North Diversion Road at Balintawak, Quezon City. At about 6:45 A.M. of the same day, a light blue Dodge car with Plate No. 21-87-73, driven by Sgt. Jessie Hope who was accompanied by Monina Medina approached the exit gate and after giving the toll receipt sped away towards Manila. The RASAC agents gave a chase and overtook Sgt. Hope's car. Agent Sabado blew his whistle and signaled Sgt. Hope to stop but the latter instead of heeding, made a U-turn back to the North Diversion Road, but he could not go through because of the buses in front of his car. At this point, the agents succeeded in blocking Sgt. Hope's car and the latter stopped. Manuel and Sabado who were in civilian clothes showed their Identification cards to respondents and introduced themselves as RASAC agents. The Agents saw four (4) boxes on the back seat of the Dodge and upon inquiry as to what those boxes were, Sgt. Hope answered "I do not know." Further, respondents were asked where they were bringing the boxes, to which respondent Medina replied that they were bringing them (boxes) to the Tropical Hut at Epifanio de los Santos. Agent Sabado boarded the Dodge car with respondents while Agent Manuel took their own car and both cars drove towards Tropical Hut making a brief stop at the Bonanza where Agent Manuel called up Col. Abad by telephone. Arriving at the Tropical Hut, the party, together with Col. Abad who had joined them waited for the man who according to Monina Medina was supposed to receive the boxes. As the man did not appear, Col.

86 Abad "called off the mission" and brought respondents and their car to Camp Aguinaldo arriving there at about 9:00 A.M. (Respondents' Memorandum, records, pp. 180-183). An inspection of Sgt. Hope's car at Camp Aguinaldo yielded eleven (11) sealed boxes, four (4) on the rear seat and seven (7) more in the baggage compartment which was opened on orders of Col. Abad. On the same order of the intelligence officer, the boxes were opened before the presence of respondents Hope and Medina, representatives of the Bureau of Internal Revenue, Bureau of Customs, P.C., COSAC and photographers of the Department of National Defense. The contents of the boxes revealed some "4,441 more or less wrist watches of assorted brands; 1,075 more or less watch bracelets of assorted brands" (based on a later inventory), supposedly untaxed. As consequence, thereof, ASAC Chairman General Pelagio Cruz requested the Bureau of Customs to issue a Warrant of Seizure and Detention against the articles including the Dodge car. The Collector of Customs did issue the same on February 12, 1974. It was admitted, however, that when the apprehending agents arrested respondents and brought them together with the seized articles to the ASAC Office in Camp Aguinaldo, the former were not armed with a warrant of arrest and seizure. In conjunction with the Warrant of Seizure and Detention issued by the Collector of Customs, seizure proceedings were instituted and docketed as Seizure Identification No. 14281 against the wrist watches and watch bracelets pursuant to Section 2530 (m) 1 of the Tariff and Customs Code, and Seizure Identification No. 14281-A against the Dodge car pursuant to Section 2530(k) of the same Code. 2 During the hearing of the aforesaid cases, respondents disclaimed ownership of the seized articles. Ownership was instead claimed by one Antonio del Rosario who intervened in the proceedings. The claimant-intervenor testified that he bought the watches and bracelets from Buenafe Trading as evidenced by a sales invoice certified to be authentic by the BIR Revenue Regional Office No. 6 of Quezon City, which transaction was entered in the book of accounts of aforesaid claimant; that the same articles were brought to a buyer in Angeles City, but when the sale failed to materialize, claimant contracted respondent Monina Medina to transport back the boxes to Manila for a consideration of P1,000.00 without disclosing the contents thereof which claimant simply represented as PX goods; that when he bought the watches from Buenafe, he presumed that the corresponding duties have already been paid, only to be surprised later on when he was informed that the same were seized for nonpayment of taxes. On the other hand, respondent Hope testified to the effect that at the time of apprehension, he had no knowledge of the contents of the boxes, and granting that he had such knowledge, he never knew that these are untaxed commodities that he consented to transport said boxes from Angeles City to Manila in his car upon request of his girl friend Monina as a personal favor; that he was not present when the boxes were loaded in his car nor was he ever told of their contents on the way. On the part of respondent Monina Medina, she testified that what she did was only in compliance with the agreement with Mr. Del Rosario to transport the boxes and deliver them to a certain Mr. Peter at the Tropical Hut who will in turn give her the contracted price; that Mr. Del Rosario did not reveal the contents of the boxes which she came to know of only when the boxes were opened at Camp Aguinaldo. As there was not enough evidence to controvert the testimonies of respondents and the narration of claimant Antonio del Rosario, the Collector of Customs issued his decision in the seizure cases on April 1, 1975 declaring that the seized articles including the car are not subject of forfeiture. The dispositive portion of this decision reads: WHEREFORE, by virtue of Section 2312 of the Tariff and Customs Code, it is hereby ordered and decreed that the subject motor vehicle, one (1) Dodge, Model 1965, Motor No. 33859, Serial No. W357348361, File No. 2B-1884, with Plate No. EH 21-87, '73 covered by Seizure Identification No. 14281-A be, as it is hereby declared released to its registered owner, Jessie C. Hope, upon proper Identification. Relative to Seizure Identification No. 14281, it is further ordered and decreed that the subject matter thereof to wit: 4,606 pcs. of assorted brands of wrist watches, 1,399 pieces of assorted brands of wrist bracelets and 100 pcs. of tools be, as they are hereby likewise declared released to the rightful owner thereof, Antonio del Rosario, upon payment of the levitable duties, taxes and other charges due thereon plus a fine equivalent to 100% of

87 the duties and taxes thereof. Furthermore, should claimant-intervenor fail to pay the assessable duties, taxes and other charges owing from the aforestated articles within 30 days from the time this decision becomes final and unappealable, the same shall be deemed abandoned in favor of the government to be disposed of in the manner provided for by law. Meanwhile, on March 14, 1974, after the requisite preliminary investigation, the City Fiscal of Quezon City, finding the existence of a prima facie case against respondents Hope and Medina, filed Criminal Case No. Q-3781 in the Court of First Instance of Rizal (Quezon City). Upon arraignment on April 23, 1974, respondents pleaded not guilty. Trial commenced on January 28, 1975 and while the prosecution through its first witness, Agent Macario Sabado, was adducing as evidence the pictures of the eleven (11) boxes containing the assorted watches and watch bracelets, counsel for respondents objected to the presentation of the pictures and the subject articles on the ground that they were seized without the benefit of warrant, and therefore inadmissible in evidence under Section 4(2), Article IV of the New Constitution. After the parties have argued their grounds in their respective memoranda, respondent trial court issued the questioned order of August 20, 1975 as cited earlier. The prosecutions motion for reconsideration was denied on September 30, 1975. Hence, this petition which was treated as a special civil action in Our Resolution of May 5, 1976. The substantive issue as urged in the petition is whether or not the seizure of the merchandise in a moving vehicle by authorized agents commissioned to enforce customs laws without warrant of seizure breaches the constitutional immunity against unreasonable search and seizure and therefore, such merchandise are inadmissible in evidence. Corollary to the issue is, has the trial court gravely abused its discretion in finding the affirmative? The State holds on the proposition that the rules governing search and seizure had been liberalized when a moving vehicle is the object of the search and the necessity of a prior warrant has been relaxed on the ground of practicality, considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge a requirement which borders on impossibility in the case of smuggling effected by the use of a moving vehicle that can transport contraband from one place to another with impunity. Petitioner vigorously contends that contraband may be seized without necessity of a search warrant since the Constitution does not guaranty immunity to smugglers and that a warrantless seizure of contraband in a moving vehicle is justified by the traditional exception attached to the Fourth Amendment of the U.S. Constitution, and such exception must be adopted in interpreting the relevant provision in the new Philippine Constitution. As counter argument, respondents maintain that the decision of the Collector of Customs in their seizure cases which has now become final and unappealable has made no pronouncement that the subject articles are smuggled items. More so, the decision has entirely cleared respondents of any liability or responsibility in the alleged smuggling activity and as a consequence, the decision has the direct effect of deciding finally that the watches and bracelets are not smuggled and that respondents have not violated the customs and tariff laws as charged in the criminal complaint. Respondents argue further that the interception of accused Jessie Hope's car by RASAC Agents while in the course of a normal trip without any order of the court and without having shown that the interception was necessary in the interest of national security, public safety or public health, is an impairment of the liberty of travel under section 5, Article IV of the 1973 Constitution. Finally, they claim that the agents had one week's time before the date of apprehension to secure the necessary warrant but since they failed to get this court order, the search of Hope's car and the spontaneous seizure of the boxes loaded therein and the contents thereof is a violation of the constitutional guarantee against "unreasonable searches and seizure of whatever nature and for any purpose" under section 3, Article IV of the fundamental law. We find for petitioner. The opposing counsel's attempt to draw an Identity between the seizure cases and the present criminal action to the ultimate end that the decision in the former should be made decisive of the issue of criminal liability must be overruled. It is not accurate to say that the Collector of Customs made no findings that the articles were smuggled. In fact, what the Collector stated was that the prosecution failed to present the quantum of evidence sufficient to warrant the forfeiture of the

88 subject articles (Pages 128 and 130 of Annex "E", Records, p. 109). In a general sense, this does not necessarily exclude the possibility of smuggling. But if the aim of a confirmation that the goods are indeed smuggled, is to draw an inference to tie up respondents' criminal liability, the Collector is not duty bound, nor is there any need for him to arrive at such a conclusion. It is quite clear that seizure and forfeiture proceedings under the tariff and customs laws are not criminal in nature as they do not result in the conviction of the offender nor in the imposition of the penalty provided for in section 3601 of the Code3. As can be gleaned from Section 2533 of the code, seizure proceedings, such as those instituted in this case, are purely civil and administrative in character, the main purpose of which is to enforce the administrative fines or forfeiture incident to unlawful importation of goods or their deliberate possession. The penalty in seizure cases is distinct and separate from the criminal liability that might be imposed against the indicted importer or possessor and both kinds of penalties may be imposed. 4 In the case at bar, the decision of the Collector of Customs, as in other seizure proceedings, concerns the resrather than the persona. The proceeding is a probe on contraband or illegally imported goods. These merchandise violated the revenue law of the country, and as such, have been prevented from being assimilated in lawful commerce until corresponding duties are paid thereon and the penalties imposed and satisfied either in the form of fines or of forfeiture in favor of the government who will dispose of them in accordance with law. The importer or possessor is treated differently. The fact that the administrative penalty befalls on him is an inconsequential incidence to criminal liability. By the same token, the probable guilt cannot be negated simply because he was not held administratively liable. The Collector's final declaration that the articles are not subject to forfeiture does not detract his findings that untaxed goods were transported in respondents' car and seized from their possession by agents of the law. Whether criminal liability lurks on the strength of the provision of the Tariff and Customs Code adduced in the information can only be determined in a separate criminal action. Respondents' exoneration in the administrative cases cannot deprive the State of its right to prosecute. But under our penal laws, criminal responsibility, if any, must be proven not by preponderance of evidence but by proof beyond reasonable doubt. Considering now the critical area of the dispute, under the law, the authority of persons duly commissioned to enforce tariff and customs laws is quite exceptional when it pertains to the domain of searches and seizures of goods suspected to have been introduced in the country in violation of the customs laws. This Court had occasion to recognize this power granted to persons having police authority under Section 2203 of the Code, who in order to discharge their official duties more effecttively ... may at anytime enter, pass through, or search any land or inclosure of any warehouse, store or other building not being a dwelling house. (Section 2208, emphasis supplied) ... (to) go aboard any vessel or aircraft within the limits of any collection district, and to inspect, search and examine said vessel or aircraft and any trunk, package, box or envelope on board, and search any person on board the said vessel or aircraft and to this end to hail and stop such vessel or aircraft if under way. to use all necessary force to compel compliance; and if it shall appear that any breach or violation of the customs and tariff laws of the Philippines has been committed, whereby or in consequence of which such vessels or aircrafts, or the article, or any part thereof, on board of or imported by such vessel or aircrafts, is hable to forfeiture to make seizure of the same or any part thereof. The power of search herein above given shall extend to the removal of any false bottom, partition, bulkhead or other obstruction, so far as may be necessary to enable the officer to discover whether any dutiable or forfeitable articles may be concealed. (Section 2210) or, ... (to) open and examine any box, trunk, envelope or other container wherever found when he has reasonable cause to suspect the presence therein of dutiable or prohibited

89 article or articlesintroduced into the Philippines contrary to law, and likewise to stop, search and examine any vehicle, beast or person reasonably suspected of holding or conveying such article as aforesaid (Section 2211, emphasis supplied) As enunciated in the leading case of Papa v. Mago 5, in the exercise of the specific functions aforecited, the Code does not mention the need of a search warrant unlike Section 2209 which explicitly provides that a "dwelling house may be entered and searched only upon warrant issued by a judge (or justice of the peace), upon swom application showing probable cause and particularly describing the place to be searched and person or thing to be seized." Aware of this delineation, the Court in that case expressed the considered view that "except in the case of the search of a dwelling house, persons exercising police authority under the customs law may effect search and seizure without a search warrant in the enforcement of customs laws. The rationale of the Mago ruling was nurtured by the traditional doctrine in Carroll v. United States 6 wherein an imprimatur against constitutional infirmity was stamped in favor of a warrantless search and seizure of such nature as in the case at bar. On this stable foundation We refute the constitutional charge of respondents that the warrantless seizure violated Article IV, Section 3 of the 1973 Constitution, which finds origin in the Fourth Amendment of the American Constitution 7 The Carroll doctrine arose from the indictment and conviction of George Carroll and partner for transporting in an automobile intoxicating liquor in violation of the National Prohibition Act. They assailed the conviction on the ground that the trial court admitted in evidence two of the sixty-eight bottles found by searching the automobile and eventual seizure of the same allegedly in violation of the 4th Amendment, and therefore that the use of the liquor as evidence was improper. 8 To paraphrase the significant views of Mr. Chief Justice Taft, the legislative history of the Act clearly established the intent of Congress to make a distinction between the necessity for a search warrant in the search of private dwellings and that of automobiles and other road vehicles in the enforcement of the Act. This distinction is consistent with the 4th Amendment since the latter does not denounce an searches or seizures, but only such as are unreasonable. Searches and seizures without warrant are valid if made upon probable cause, that is, upon a belief reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction. 9Similarly, other statutes of the Union such as the Act of 1789, Act of August 4, 1790, and Act of March 3, 1815, among others, construed in the light of the 4th Amendment had recognized the distinctive feature of a warrantless search of a ship motorboat, wagon, or automobile for contraband goods where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. 10 In such a situation, what appears to the measure of legality of the seizure was formulated in this sense: "that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported. " Therein the guarantee of the 4th Amendment was fulfilled. Where seizure is impossible except without warrant, the seizing officer acts unlawfully and at his peril unless he can show the court probable cause. 11 The counsel for the State is candid enough to admit that the Anti-Smuggling Action Center tries its best to follow-up the more promising tips and information from informers, but ever often, the information proves false or the smugglers are forewarned. 12 It is quite true the ASAC received one such information several days or a week before the encounter; but the fact that its agents failed to obtain a warrant in spite of the time allowance is not a sign that they have been remiss in their duty. The records hardly reveal anything certain and confirmatory of the report during the said period except the general knowledge that some highly dutiable goods would be transported from Angeles City to Manila in a blue Dodge automobile. Not even the trial court has made any findings that ASAC has established with exactitude the place to be searched and the person or thing to be seized. Lacking this essential determination, the agents could not have possibly secured a valid warrant even if they had foreseen its compelling necessity. For one thing, the information could have been just another false alarm. Providentially, however, things turned out differently when in the morning of February 9, 1974, the undisclosed Informer himself went along with the agents to the rendezvous point where at the appointed time he positively Identified an approaching car as the one described by him a week earlier to be the suspected carrier of untaxed merchandise. Clearly therefore, the agents acted not on the basis of

90 a mere hearsay but on a confirmed information worthy of belief and probable cause enough for them to adopt measures to freeze the fleeting event. We need not argue that the subjective phase of the police action taken by the ASAC Agents to effect the apprehension of the suspected violators can be anything less than the ensuing interception and stoppage of respondents' vehicle after a short chase. Neither can We sustain the argument that in doing so, the agents violated respondents' constitutional "liberty of travel". To recall again Mr. Chief Justice Taft: "(B)ut those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise." 13 What followed next in the scene was a simple inquiry as to the contents of the boxes seen inside the car. Respondents' baffled denial of knowledge thereof could not but only heighten the suspicion of a reasonable and inquisitive mind. Thus, the probable cause has not been any less mitigated. The purpose of the constitutional guarantee against unreasonable searches and seizures is to prevent violations of private security in person and property and unlawful invasion of the sanctity of the home by officers of the law acting under legislative or judicial sanction and to give remedy against such usurpation when attempted. 14 The right to privacy is an essential condition to the dignity and happiness and to the peace and security of every individual, whether it be of home or of persons and correspondence. 15 The constitutional inviolability of this great fundamental right against unreasonable searches and seizures must be deemed absolute as nothing is more closer to a man's soul than the serenity of his privacy and the assurance of his personal security. Any interference allowable can only be for the best of causes and reasons. We draw from the context of the Constitution that an intended search or seizure attains a high degree of propriety only when a probable cause duly determined is branded on a warrant duly issued by a judge or other responsible person as may be authorized by law. Not invariably, however, the reasonableness or unreasonableness of the interference is not wholly defendent on the presence of a warrant or the lack of it. In the ordinary cases where warrant is indispensably necessary, the mechanics prescribed by the Constitution and reiterated in the Rules of Court must be followed and satisfied. But We need not argue that there are exceptions. Thus, in the extraordinary events where warrant is not necessary to effect a valid search or seizure, or when the latter cannot be performed except without warrant, what constitutes a reasonable or unreasonable search or seizure becomes purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched and the character of the articles procured. 16 The ultimate question then, if any, that should confront the actuations of the ASAC Agents in this case is whether the warrantless search and seizure conducted by them is lawful or not. We have already seen that what they did was a faithful performance of a duty authorized under the Tariff and Customs Code directing them as authorized agents to retrieve articles reasonably suspected of having been possessed, issued or procured in violation of the tariff laws for which the government has a direct interest. The official capacity of the agents has never been questioned by respondents. Neither did respondents raise an issue on the constitutionality of the law giving the agents the power to act as mandated. There 'is no question that the Agents have not exceeded their authority nor have they acted so licentiously to bear upon respondents moral embarrassment or substantial prejudice beyond what is necessary. The purpose of the search and seizure is more than clear to Us, hence, We rule out the suspicion that the intention is only to elicit evidence to be used against respondents. We do not see strong justification for the trial court's failure to recognize the circumstances at bar as among the "rare cases" which it admittedly conceded to be exempted from the requirement of a warrant. 17 The lapse lies on the dismal gap in the trial court's developmental treat- ment of the law on arrest, search and seizure. It missed the vital distinction emphatically laid down in Boyd v. United States 18 which was cited in Carroll with "particular significance and applicability." Thus, We quote Mr. Justice Bradley in Boyd: ... The search and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for

91 and seizure of a man's private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him, The two things differ in toto coelo. In the one case, the government is entitled to the possession of the property; in the other it is not. The seizure of stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of the revenue laws or concealed to avoid the duties payable on them, has been authorized by English statutes for at least two centuries past; and the like seizure have been authorized by our revenue acts from the commencement of the government. The first statute passed by Congress to regulate the collection of duties, the Act of July 31, 1789. 1 State at L. 29, 43, chap. 5, contains provisions to this effect. As this act was passed by the same Congress which proposed for adoption the original Amendments to the Constitution, it is clear that the members of that body did not regard searches and seizures of this kind as 'unreasonable' and they are not embraced within the prohibition of the Amendment. So also the supervision authorized to be exercised by officers of the revenue over the manufacture of custody of excisable articles, and the entries thereof in books required by law to be kept for their inspection, are necessarily excepted out of the category of unreasonable searches and seizures. So also the laws which provide for the search and seizure of articles and things which it is unlawful for a person to have in his possession for the purpose of issue or disposition, such as counterfeit coin, lottery tickets, implements of gambling, etc. are not within this category. Commonwealth v. Dana, 2 Met 329. Many other things of this character might be enumerated. (Emphasis supplied). Recently, in Viduya v. Berdiago 19 " this Court reiterated the controlling force of the Papa v. Mago ruling hereinbefore cited and the persuasive authority of the leading decision in Carroll v. U.S., supra, and in explaining the rationale of the doctrine significantly said that "(i)t is not for this Court to do less than it can to implement and enforce the mandates of the customs and revenue laws. The evils associated with tax evasion must be stamped out without any disregard, it is to be affirmed, of any constitutional right ... The circumstances of the case at bar undoubtedly fall squarely within the privileged area where search and seizure may lawfully be effected without the need of a warrant. The facts being no less receptive to the applicability of the classic American ruling, the latter's force and effect as well as the Mago decision must be upheld and reiterated in this petition. the find that the constitutional guarantee has not been violated and the respondent court gravely erred in issuing the order of August 20, 1975 declaring as inadmissible evidence the items or articles obtained and seized by the apprehending agents without any search warrant, as well as the pictures of said items attempted to be presented as evidence against the accused. Notwithstanding the reversal and setting aside of the order of respondent judge assailed herein, thereby allowing the introduction and admission of the subject prohibited articles in the trial of the accused Jessie C. Hope and Monina Medina for alleged smuggling, in the interest of speedy justice, the prosecution is directed forthwith to re-assess and re-evaluate the evidence at its disposal, considering the lapse of time since the trial commenced on June 28, 1975 and was thus delayed due to the filing of the instant certiorari petition and that on April 1, 1975, after seizure proceedings initiated by the Collector of Customs, the said articles were ordered released upon payment of the leviable duties, taxes and other charges due thereon plus a fine equivalent to 100% of the duties and taxes thereof. After such re-assessment and re-evaluation, the prosecution must promptly take the necessary action on the premises for the protection of the rights and interests of all parties concerned. WHEREFORE, the Order appealed from is hereby set aside and the case is ordered remanded for further trial and reception of evidence without excluding the articles subject of the seizure or for such action as the prosecution may take after the re-assessment and re-evaluation of its evidence as hereinabove directed. This judgment is immediately executory. SO ORDERED

92 Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 88017 January 21, 1991 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LO HO WING alias PETER LO, LIM CHENG HUAT alias ANTONIO LIM and REYNALDO TIA y SANTIAGO, defendants. LO HO WING alias PETER LO, defendant-appellant. The Solicitor General for plaintiff-appellee. Segundo M. Gloria, Jr. for defendant-appellant.

GANCAYCO, J.:p This case involves the unlawful transport of metamphetamine, a regulated drug under Republic Act No. 6425, as amended. One of its derivatives is metamphetamine hydrochloride, notoriously known in street parlance as "shabu" or "poor man's cocaine." Appellant Peter Lo, together with co-accused Lim Cheng Huat alias Antonio Lim and Reynaldo Tia, were charged with a violation of Section 15, Article III of the aforementioned statute otherwise known as the Dangerous Drugs Act of 1972, before Branch 114 of the Regional Trial Court of Pasay City. Only appellant and co-accused Lim Cheng Huat were convicted. They were sentenced to suffer life imprisonment, to pay a fine of P25,000.00 each, and to pay the costs. Their co-accused Reynaldo Tia was discharged as a state witness. The pertinent portion of the information reads as follows: That on or about the 6th day of October, 1987, in Pasay City, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, without authority of law, did then and there willfully, unlawfully and feloniously deliver, dispatch or transport 56 teabags of Metamphetamine, a regulated drug. Contrary to law. 1 The antecedent facts of the case as found by the trial court are as follows: In July 1987, the Special Operations Group, a unit of the Criminal Investigation Service (CIS) of the Philippine Constabulary (PC), received a tip from one of its informers about an organized group engaged in the importation of illegal drugs, smuggling of contraband goods, and gunrunning. After an evaluation of the information thus received, a project codenamed "OPLAN SHARON 887" was created in order to bust the suspected syndicate. As part of the operations, the recruitment of confidential men and "deep penetration agents' was carried out to infiltrate the crime syndicate. One of those recruited was the discharged accused, Reynaldo Tia (hereinafter referred to as Tia). Tia was introduced to his co-accused Lim Cheng Huat (hereinafter referred to as Lim) by another confidential agent named George on August 3, 1987. Lim expressed a desire to hire a male travelling companion for his business nips abroad. Tia offered his services and was hired.

93 Lim and Tia met anew on several occasions to make arrangements for a trip to China. In the course of those meetings, Tia was introduced to Peter Lo (hereinafter referred to as appellant), whom Tia found out to be the person he was to accompany to China in lieu of Lim. As a "deep penetration agent," Tia regularly submitted reports of his undercover activities on the suspected criminal syndicate. Meanwhile, the officer-in-charge of OPLAN SHARON 887, Captain Luisito Palmera, filed with his superiors the reports submitted to him, and officially informed the Dangerous Drugs Board of Tia's activities. On October 4, 1987, appellant and Tia left for Hongkong on board a Philippine Airlines flight. Before they departed, Tia was able to telephone Captain Palmera to inform him of their expected date of return to the Philippines as declared in his round-trip plane ticket-October 6, 1987 at two o'clock in the afternoon. The day after they arrived in Hongkong, Tia and appellant boarded a train bound for Guangzhou, in the People's Republic of China. Upon arriving there, they checked in at a hotel, and rested for a few hours. The pair thereafter went to a local store where appellant purchased six (6) tin cans of tea. Tia saw the paper tea bags when the cans were opened for examination during the purchase. Afterwards, they returned to the hotel. Appellant kept the cans of tea in his hotel room. That evening, Tia went to appellant's room to talk to him. Upon entering, he saw two other men with appellant. One was fixing the tea bags, while the other was burning substance on a piece of aluminum foil using a cigarette lighter. Appellant joined the second man and sniffed the smoke emitted by the burning substance. Tia asked the latter what they would be bringing back to the Philippines. He was informed that their cargo consisted of Chinese drugs. Tia stayed in the room for about twenty minutes before going back to his room to sleep. The next day, October 6,1987, the two returned to Manila via a China Airlines flight. Appellant had with him his red traveling bag with wheels. Before departing from Guangzhou however, customs examiners inspected their luggage. The tin cans of tea were brought out from the traveling bag of appellant. The contents of the cans were not closely examined, and appellant was cleared along with Tia. The plane landed at the Ninoy Aquino International Airport (NAIA), then named Manila International Airport, on schedule. Lim met the newly-arrived pair at the arrival area. Lim talked to appellant, while Tia, upon being instructed, looked after their luggage. After Lim and appellant finished their conversation, the latter hailed a taxicab. Appellant and Tia boarded the taxicab after putting their luggage inside the back compartment of the vehicle. Lim followed in another taxi cab. Meanwhile, a team composed of six operatives headed by Captain Palmera was formed to act on the tip given by Tia. On the expected date of arrival, the team proceeded to the NAIA. Captain Palmera notified the Narcotics Command (NARCOM) Detachment at the airport for coordination. After a briefing, the operatives were ordered to take strategic positions around the arrival area. Two operatives stationed just outside the arrival area were the first ones to spot the suspects emerging therefrom. Word was passed on to the other members of the team that the suspects were in sight. Appellant was pulling along his red traveling bag while Tia was carrying a shoulder bag. The operatives also spotted Lim meeting their quarry. Upon seeing appellant and Tia leave the airport, the operatives who first spotted them followed them. Along Imelda Avenue, the car of the operatives overtook the taxicab ridden by appellant and Tia and cut into its path forcing the taxi driver to stop his vehicle. Meanwhile, the other taxicab carrying Lim sped away in an attempt to escape. The operatives disembarked from their car, approached the taxicab, and asked the driver to open the baggage compartment. Three pieces of luggage were retrieved from the back compartment of the vehicle. The operatives requested from the suspects permission to search their luggage. A tin can of tea was taken out of the red traveling bag owned by appellant. Sgt. Roberto Cayabyab, one of the operatives, pried the lid open, pulled out a paper tea bag from the can and pressed it in the middle to feel its contents. Some crystalline white powder resembling crushed alum came out of the bag. The sergeant then opened the tea bag and examined its contents more closely. Suspecting the crystalline powder to be a dangerous drug, he had the three traveling bags opened for inspection. From the red traveling bag, a total of six (6) tin cans were found, including the one previously

94 opened. Nothing else of consequence was recovered from the other bags. Tia and appellant were taken to the CIS Headquarters in Quezon City for questioning. Meanwhile, the second taxicab was eventually overtaken by two other operatives on Retiro Street, Quezon City. Lim was likewise apprehended and brought to the CIS Headquarters for interrogation. During the investigation of the case, the six tin cans recovered from the traveling bag of appellant were opened and examined. They contained a total of fifty-six (56) paper tea bags with white crystalline powder inside instead of tea leaves. The tea bag opened by Sgt. Cayabyab during the search and seizure was sent to the PC-INP Crime Laboratory for preliminary examination. Tests conducted on a sample of the crystalline powder inside the tea bag yielded a positive result that the specimen submitted was metamphetamine. Samples from each of the fifty-six (56) tea bags were similarly tested. The tests were also positive for metamphetamine. Hence, the three suspects were indicted. In rendering a judgment of conviction, the trial court gave full credence to the testimonies of the government anti-narcotics operatives, to whom the said court applied the well-settled presumption of regularity in the performance of official duties. Appellant now assigns three errors alleged to have been committed by the trial court, namely: I. THE TRIAL COURT ERRED IN NOT DECLARING THE SEARCH AND SEIZURE ON THE ACCUSED AS ILLEGAL. II. THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY OF DELIVERING, DISPATCHING OR TRANSPORTING METAMPHETAMINE, A REGULATED DRUG. III. THE TRIAL COURT ERRED IN DISCHARGING REYNALDO TIA TO TESTIFY FOR THE PROSECUTION. 2 We affirm. Anent the first assignment of error, appellant contends that the warrantless search and seizure made against the accused is illegal for being violative of Section 2, Article III of the Constitution. He reasons that the PC-CIS officers concerned could very well have procured a search warrant since they had been informed of the date and time of a arrival of the accused at the NAIA well ahead of time, specifically two (2) days in advance. The fact that the search and seizure in question were made on a moving vehicle, appellant argues, does not automatically make the warrantless search herein fall within the coverage of the well-known exception to the rule of the necessity of a valid warrant to effect a search because, as aforementioned, the anti-narcotics agents had both time and opportunity to secure a search warrant. The contentions are without merit. As correctly averred by appellee, that search and seizure must be supported by a valid warrant is not an absolute rule. There are at least three (3) well-recognized exceptions thereto. As set forth in the case of Manipon, Jr. vs. Sandiganbayan, 3 these are: [1] a search incidental to an arrest, [2] a search of a moving vehicle, and [3] seizure of evidence in plain view (emphasis supplied). The circumstances of the case clearly show that the search in question was made as regards a moving vehicle. Therefore, a valid warrant was not necessary to effect the search on appellant and his co-accused. In this connection, We cite with approval the averment of the Solicitor General, as contained in the appellee's brief, that the rules governing search and seizure have over the years been steadily liberalized

95 whenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judgea requirement which borders on the impossible in the case of smuggling effected by the use of a moving vehicle that can transport contraband from one place to another with impunity. 4 We might add that a warrantless search of a moving vehicle is justified on the ground that "it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." 5 In the instant case, it was firmly established from the factual findings of the trial court that the authorities had reasonable ground to believe that appellant would attempt to bring in contraband and transport it within the country. The belief was based on intelligence reports gathered from surveillance activities on the suspected syndicate, of which appellant was touted to be a member. Aside from this, they were also certain as to the expected date and time of arrival of the accused from China. But such knowledge was clearly insufficient to enable them to fulfill the requirements for the issuance of a search warrant. Still and all, the important thing is that there was probable cause to conduct the warrantless search, which must still be present in such a case. The second assignment of error is likewise lacking in merit. Appellant was charged and convicted under Section 15, Article III of Republic Act No. 6425, as amended, which reads: The penalty of life imprisonment to death and a fine ranging from twenty thousand to thirty thousand pesos shall be imposed upon any person who, unless authorized by law, shall sell, dispose, deliver, transport or distribute any regulated drug (emphasis supplied). The information charged the accused of delivering, transporting or dispatching fifty-six (56) tea bags containing metamphetamine, a regulated drug. The conjunction "or' was used, thereby implying that the accused were being charged of the three specified acts in the alternative. Appellant argues that he cannot be convicted of "delivery" because the term connotes a source and a recipient, the latter being absent under the facts of the case. It is also argued that "dispatching' cannot apply either since appellant never sent off or disposed of drugs. As for "transporting," appellant contends that he cannot also be held liable therefor because the act of transporting necessarily requires a point of destination, which again is non- existent under the given facts. The contentions are futile attempts to strain the meaning of the operative acts of which appellant and his co-accused were charged in relation to the facts of the case. There is no doubt that law enforcers caught appellant and his co-accused in flagrante delicto of transporting a prohibited drug. The term "transport" is defined as "to carry or convey from one place to another." 6 The operative words in the definition are "to carry or convey." The fact that there is actual conveyance suffices to support a finding that the act of transporting was committed. It is immaterial whether or not the place of destination is reached. Furthermore, the argument of appellant gives rise to the illogical conclusion that he and his coaccused did not intend to bring the metamphetamine anywhere, i.e.they had no place of destination. The situation in the instant case is one where the transport of a prohibited drug was interrupted by the search and arrest of the accused. Interruption necessarily infers that an act had already been commenced. Otherwise, there would be nothing to interrupt. Therefore, considering the foregoing, since the information included the acts of delivery, dispatch or transport, proof beyond reasonable doubt of the commission of any of the acts so included is sufficient for conviction under Section 15, Article III of Republic Act No. 6425, as amended. Moreover, the act of transporting a prohibited drug is a malum prohibitum because it is punished as an offense under a special law. It is a wrong because it is prohibited by law. Without the law punishing the act, it cannot be considered a wrong. As such, the mere commission of said act is what constitutes the offense punished and suffices to validly charge and convict an individual caught committing the act so punished, regardless of criminal intent. 7

96 As to the third assigned error, appellant contests the discharge of accused Reynaldo Tia to testify for the prosecution on the ground that there was no necessity for the same. Appellant argues that deep penetration agents such as Tia "have to take risks and accept the consequences of their actions." 8 The argument is devoid of merit. The discharge of accused Tia was based on Section 9, Rule 119 of the Rules of Court, which reads in part: Sec. 9. Discharge of the accused to be state witness. When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case,the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state . . . (emphasis supplied). As correctly pointed out by the Solicitor General, the discharge of an accused is left to the sound discretion of the lower court. The trial court has the exclusive responsibility to see that the conditions prescribed by the rule exist. 9In the instant case, appellant does not allege that any of the conditions for the discharge had not been met by the prosecution. Therefore, the discharge, as ordered by the trial court, stands. Finally, appellant alleges that the testimony of Sgt. Roberto Cayabyab regarding the facts surrounding the commission of the offense proves that the discharge of accused Tia is unnecessary. The allegation is baseless. Appellant himself admits that the sergeant's testimony corroborates the testimony of the discharged accused. The fact of corroboration of the testimonies bolsters the validity of the questioned discharge precisely because paragraph (a) of the aforequoted rule on discharge requires that the testimony be substantially corroborated in its material points. The corroborative testimony of the PC-CIS operative does not debunk the claim of the prosecution that there is absolute necessity for the testimony of accused Tia. WHEREFORE, the decision appealed from is hereby AFFIRMED in toto and the appeal is thereby DISMISSED. No costs. SO ORDERED.

97 Republic of the Philippines SUPREME COURT THIRD DIVISION G.R. No. 146706. July 15, 2005 TOMAS SALVADOR, Petitioners, vs. THE PEOPLE OF THE PHILIPPINES, Respondents. DECISION SANDOVAL-GUTIERREZ, J.: At bar is the petition for review on certiorari1 filed by Tomas Salvador assailing the Decision2 dated August 9, 2000 and Resolution dated January 9, 2001 of the Court of Appeals in CA-G. R. CR No. 20186. On the wee hours of June 4, 1994, Aurelio Mandin, Danilo Santos and petitioner Tomas Salvador, then aircraft mechanics employed by the Philippine Air Lines (PAL) and assigned at the Ninoy Aquino International Airport (NAIA) and Manila Domestic Airport, were nabbed by intelligence operatives of the Philippine Air Force (PAF) for possessing thirteen (13) packets containing assorted smuggled watches and jewelries valued at more than half a million pesos. Consequently, they were charged before the Regional Trial Court (RTC), Branch 117, Pasay City with violation of Section 3601 of the Tariff and Customs Code, docketed as Criminal Case No. 94-5843. The Information reads: "That on or about the 4th day of June 1994 at the NAIA/Domestic Airport vicinity, Pasay City and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually helping one another, did then and there, willfully, unlawfully, and felonious assist in the concealment and unlawful importation of the following items: 198 pieces of means watches P187,110.00 76 pieces of mens diving watches 8,640.00 32 pieces of ladies watches 11,600.00 1600 grams of assorted jewelry. 322,000.00 with a total market value of P537,500.00 FIVE HUNDRED THIRTY-SEVEN THOUSAND THREEE HUNDRED FIFTY PESOS, more or less, Philippine Currency, without authority or permit from proper authorities. CONTRARY TO LAW."3 When arraigned, all the accused, duly assisted by counsel, pleaded not guilty to the charge. Trial on the merits then ensued. The prosecution established the following facts: On June 3, 1994, a Special Mission Group from the PAF Special Operations Squadron, headed by Major Gerardo B. Pagcaliuangan and composed of Sgts. Rodolfo A. Teves, Geronimo G. Escarola, Virgilio M. Sindac and Edwin B. Ople, conducted routine surveillance operations at the Manila Domestic Airport to check on reports of alleged drug trafficking and smuggling being facilitated by certain PAL personnel. Major Pagcaliuangan then ordered Sgts. Teves and Ople to keep close watch on the second airplane parked inside the Domestic Airport terminal. This aircraft is an Airbus 300 with tail number RPC-3001. It

98 arrived at the NAIA at 10:25 in the evening of June 3, 1994 from Hong Kong as Flight No. PR-311. After its passengers disembarked and its cargo unloaded, it was towed by the PAL ground crew and parked at the ramp area of the Domestic Airport terminal. At around 11:30 that same evening, Sgt. Teves reported over his radio that three (3) persons had boarded the Airbus 300. The team did not move, but continued its surveillance. At 12:15 a.m. the following day (June 4), Sgt. Teves reported that the three (3) persons who earlier boarded the Airbus 300 had disembarked with their abdominal areas bulging. They then boarded an airplane tow truck with its lights off. The PAF surveillance team promptly boarded their vehicles and followed the aircraft tow truck. At the Lima Gate of the Domestic Airport, the team blocked and stopped the tow truck. Sgt. Teves then got off, identified himself and asked the four (4) persons on board to alight. They were later identified as Tomas Salvador, petitioner, Aurelio Mandin, Danilo Santos and Napoleon Clamor, the driver of the tow truck. Sgt. Teves approached Aurelio Mandin. He noticed that Mandins uniform was partly open, showing a girdle. While Sgt. Teves was reaching for the girdle, a package wrapped in brown packaging tape fell. Suspecting that the package contained smuggled items, Sgt. Teves yelled to his teammates, "Positive!" Thereupon, the rest of the team surrounded petitioner and his two co-accused who surrendered without a fight. The team searched their bodies and found that the three were wearing girdles beneath their uniforms, all containing packets wrapped in packaging tape. Mandin yielded five (5) packets, while petitioner and Santos had four (4) each. The team confiscated the packets and brought all the accused to the PAFSECOM Office. At around 8:00 oclock the following morning, Emilen Balatbat, an examiner of the Bureau of Customs, arrived at the PAFSECOM Office. She opened one of the packets and on seeing that it contained dutiable goods, she proceeded to weigh the thirteen (13) packets seized from the accused. She then prepared an inventory of the items seized and listed the weight of the packets.4 Thereafter, she brought the seized packets to the In-Board Section, Bureau of Customs, Airport Office where their contents were identified and appraised. The Bureau of Customs found 248 pieces of assorted watches and fourteen karat (14K) gold jewelries valued as follows: QTY. 10 6 8 5 UNIT pcs. pcs. pcs. pcs. DESCRIPTION Half-bangles with Charms Tricolors Bracelet with Charms Tricolors Bracelet (Tricolor) Bangles (3 pcs./set) Tricolor Babys Bangles with charm L-Bangles with charm L-Bangles L-Creolla Earrings TOTAL GRAMS 1,495 x P200.00/gm. Assorted Watches Citizen M watches with black dial with gold metal bracelet (-1) x $25 Seiko 5 Ladies watches with blue dial with white metal bracelet (-1) x $25 Seiko Divers Watch Mens- Black dial with rubberized bracelet (-1) x $50 Seiko 5 Ladies watches with yellow dial with gold metal bracelet (1) x $25 Citizen L-watches with white dial (4) x $20 APPRAISED VALUE 122.8 gms. 52.4 gms. 64.2 gms. 155.3 gms. 18.2 gms. 68.5 gms. 112.3 gms. 901.56 gms. +P 299,052.00

204 24 16 4 4

pcs. pcs. pcs. pcs. pcs.

$2,600.00 600.00 800.00 100.00 80.00

99 62 34 ____ pcs. pcs. pcs. Seiko 5 Mens watches with yellow dial with gold metal bracelet (1) x $25 Seiko 5 Mens watches with black dial with gold metal bracelet (1) x $25 1,550.00 850.00 $6,580.00

248 The Investigating State Prosecutor conducted an inquest and thereafter recommended that petitioner and his co-accused be charged with violating Section 3601 of the Tariff and Customs Code. Accordingly, the Information, mentioned earlier, was filed with the RTC. After the prosecution rested its case, the accused filed a Joint Demurrer to Evidence. In an Order dated October 12, 1995, the trial court denied the demurrer and directed the accused to present their evidence. All the accused denied committing the offense charged, claiming they were framed-up by the military. Danilo Santos testified that on the night of June 3, 1994, he was assigned to the Airbus 300 with tail No. RPC-3001, joining three junior mechanics who were then working on said aircraft. He was conducting a visual check of the plane when a tow truck arrived on its way to Nichols Airfield. He told one of the junior mechanics that he would take a break and be back in an hour. He then boarded the tow truck. When it was near the Lima Gate, a jeep with four (4) men in civilian attire aboard approached him. The four pointed their firearms at him and, after searching him for drugs, he was frisked but nothing was found. He was nonetheless brought by the men to the PAFSECOM Office, then to Villamor Airbase Hospital for a medical examination and alcohol test. Thereafter, he was brought back to the PAFSECOM Office. There, another military man arrived and brought out a box containing packets. Then he and his companions were told to put on their mechanics uniforms and to wear girdles. The packets were placed on their bodies, after which they were photographed. He further testified that he was asked to sign a certain paper but was not allowed to read it thoroughly. During the investigation, he was not apprised of his rights nor assisted by a counsel. Petitioner Tomas Salvador likewise denied any knowledge of the questioned items seized from him. He testified that during the incident in question, he only boarded the tow truck to take a break at the PAL canteen. He saw a box on the tow truck but was not aware of its contents. After his arrest, he was made to sign a document under duress. Aurelio Mandin also denied committing the offense charged. He declared that after his arrest, he was made to sign a document by the PAF personnel, the contents of which he was not able to read. He signed it because he was struck with a .45 caliber handgun by one of the military men and threatened him with summary execution if he would not do so. He was not informed of his rights nor given the services of counsel during the investigation. After hearing, the trial court rendered its Decision convicting all the accused of the offense charged, thus: "WHEREFORE, in view of the foregoing, the Court finds the accused Aurelio Mandin y Liston, Danilo Santos y Antonio and Tomas Salvador y Magno GUILTY beyond reasonable doubt for violation of Section 3601 of the Tariff and Customs Code of the Philippines (TCCP). There being no aggravating or mitigating circumstance and applying the Indeterminate Sentence Law, the court sentences each of the accused to an indeterminate term of EIGHT (8) YEARS and ONE (1) DAY of prision mayor, as minimum, to TEN (10) YEARS of prision mayor, as maximum, and to pay a fine of EIGHT THOUSAND PESOS (P8,000.00), without subsidiary imprisonment in case of insolvency, and to pay the costs. The court also orders the forfeiture of the confiscated articles in favor of the Government. SO ORDERED."5

100 All the accused then seasonably interposed an appeal to the Court of Appeals, docketed as CA-G.R. CR No. 20186. On August 9, 2000, the Appellate Court promulgated its Decision affirming the trial courts Decision, thus: "We cannot see any justification for the setting aside of the contested Decision. THE FOREGOING CONSIDERED, the appealed Decision is hereby AFFIRMED. SO ORDERED."6 They filed a motion for reconsideration but was denied in a Resolution dated January 9, 2001.7 Only Tomas Salvador opted to elevate his case to this Court by way of the instant petition for review on certiorari. He submits for our consideration the following assignments of error: "I THE ESSENTIAL ELEMENTS OF THE CRIME CHARGED IN THE INFORMATION LIKE UNLAWFUL IMPORTATION, POSSESSION OF UNLAWFULLY IMPORTED ARTICLES AND CONSPIRACY IN THE COMMISSION OF THE SAME, WERE NEVER PROVEN BEYOND REASONABLE DOUBT. II THERE WAS NO PROBABLE CAUSE FOR THE ARREST AND SEARCH OF THE PERSONS OF THE ACCUSED. III THE ACCEPTANCE BY THE TRIAL COURT AND THE AFFIRMANCE BY THE APPELLATE COURT OF THE TESTIMONIES OF PROSECUTION WITNESSES, AS WELL AS ALL ITS DOCUMENTARY EXHIBITS, DESPITE THE FACT THAT THE SAME WERE APPARENTLY OBTAINED IN VIOLATION OF THE CONSTITUTIONAL RIGHTS OF THE ACCUSED WERE UNLAWFUL. IV THE DENIAL BY THE TRIAL COURT AND THE CONCURRENCE BY THE APPELLATE COURT OF THE DEMURRER TO EVIDENCE WERE ALSO WITHOUT LEGAL BASIS."8 The above assignments of error boil down to these issues: (1) whether the seized items are admissible in evidence; and (2) whether the prosecution has proved the guilt of petitioner beyond reasonable doubt. On the first issue, petitioner contends that the warrantless search and seizure conducted by the PAF operatives is illegal. Citing People v. Burgos,9 he maintains that at the time he and his co-accused were stopped by the PAF law enforces, they were unaware that a crime was being committed. Accordingly, the law enforcers were actually engaged in a fishing expedition in violation of his Constitutional right against unlawful search and seizure. Thus, the seized items should not have been admitted in evidence against him. The Office of the Solicitor General (OSG) counters that under the factual circumstances of the case at bar, there was sufficient probable cause for the PAF surveillance team to stop and search petitioner and his companions. They boarded the parked Air Bus 300 PAL plane at the time when there were no other PAL personnel working therein. They stayed inside the plane for sometime and surprisingly, came out with bulging waists. They then stopped and looked around and made apparent signals. All these acts were sufficient to engender a reasonable suspicion that petitioner and his colleagues were up to something illegal. Moreover, the search and seizure was conducted in connection with the enforcement of customs law when the petitioner and his co-accused were riding a motor vehicle. In addition, the search was conducted at the vicinity of Lima Gate of the Manila Domestic Airport which, like every gate

101 in the airport perimeter, has a checkpoint. Finally, the petitioner and his companionsagreed to the search after one of them was caught with a suspicious-looking packet. Under these circumstances, the search and seizure is legal and the seized items are admissible in evidence. We agree with the OSG. As a rule, the Bill of Rights prohibits intrusions by the law enforcers to a persons body, personal effects or residence, unless the same are conducted pursuant to a valid search warrant issued in compliance with the procedure mandated by the Constitution and the Rules of Court. Thus, Sections 2 and 3(2), Article 3 of the 1987 Constitution provide: "SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. SEC. 3. xxx (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. x x x." The above Constitutional provisions do not prohibit searches and seizures, but only such as are unreasonable. Our jurisprudence provides for privileged areas where searches and seizures may lawfully be effected sans a search warrant. These recognized exceptions include: (1) search of moving vehicles; (2) search in plain view; (3) customs searches; (4) waiver or consented searches; (5) stop-andfrisk situations; and (6) search incidental to a lawful arrest.10 Here, it should be noted that during the incident in question, the special mission of the PAF operatives was to conduct a surveillance operation to verify reports of drug trafficking and smuggling by certain PAL personnel in the vicinity of the airport. In other words, the search made by the PAF team on petitioner and his co-accused was in the nature of a customs search. As such, the team properly effected the search and seizure without a search warrant since it exercised police authority under the customs law.11 In Papa vs. Mago12 involving a customs search, we held that law enforcers who are tasked to effect the enforcement of the customs and tariff laws are authorized to search and seize, without a search warrant, any article, cargo or other movable property when there is reasonable cause to suspect that the said items have been introduced into the Philippines in violation of the tariff and customs law. They may likewise conduct a warrantless search of any vehicle or person suspected of holding or conveying the said articles, as in the case at bar. In short, Mago clearly recognizes the power of the State to foil any fraudulent schemes resorted to by importers who evade payment of customs duties. The Governments policy to combat the serious malady of smuggling cannot be reduced to futility and impotence on the ground that dutiable articles on which the duty has not been paid are entitled to the same Constitutional protection as an individuals private papers and effects. Here, we see no reason not to apply this State policy which we have continued to affirm.13 Moreover, we recall that at the time of the search, petitioner and his co-accused were on board a moving PAL aircraft tow truck. As stated earlier, the search of a moving vehicle is recognized in this jurisdiction as a valid exception to the requirement for a search warrant. Such exception is easy to understand. A search warrant may readily be obtained when the search is made in a store, dwelling house or other immobile structure. But it is impracticable to obtain a warrant when the search is

102 conducted in a mobile ship, aircraft or other motor vehicle since they can quickly be moved out of the locality or jurisdiction where the warrant must be sought.14 Verily, we rule that the Court of Appeals committed no reversible error in holding that the articles involved in the instant controversy were validly seized by the authorities even without a search warrant, hence, admissible in evidence against petitioner and his co-accused. On the second issue, petitioner faults the Court of Appeals for readily sustaining the trial courts finding that the witnesses for the prosecution were credible, notwithstanding that their testimonies contain glaring inconsistencies which tend to detract from their veracity. Petitioner submits that these inconsistencies create serious doubt which should have been resolved in his favor. We are not persuaded. After a careful examination of the purported inconsistencies mentioned by petitioner, we find that they do not relate with the elements of the offense charged. Rather, they tend to focus on minor and insignificant matters as for instance: which PAF operative was in possession of the hand-held radio; how the girdles (garters) were removed; and what time the aircraft in question arrived. It bears stressing that these inconsistencies detract from the fact that all members of the special PAF team who conducted the search positively identified the petitioner and his co-accused as the same persons who boarded the PAL plane; stayed therein for a significant length of time; disembarked in a manner which stirred suspicion from the team; and with unusually bulging uniforms, rode an aircraft tow truck towards Lima Gate where they were caught in flagrante delicto. As a rule, inconsistencies in the testimonies of witnesses which refer to trivial and insignificant details do not destroy their credibility.15 Moreover, minor inconsistencies serve to strengthen rather than diminish the prosecutions case as they tend to erase suspicion that the testimonies have been rehearsed, thereby negating any misgivings that the same were perjured.16 Section 3601 of the Tariff and Customs Code provides in part: "SEC. 3601. Unlawful Importation. Any person who shall fraudulently import or bring into the Philippines, or assist in so doing, any article contrary to law, or shall receive, conceal, buy, seal or in any manner facilitate the importation, concealment or sale of such article after importation, knowing the same to have been imported contrary to law, shall be guilty of smuggling xxx When, upon trial for violation of this section, the defendant is shown to have had possession of the article in question, possession shall be deemed sufficient evidence to authorize conviction, unless the defendant shall explain the possession to the satisfaction of the court: Provided, however, That payment of the tax due after apprehension shall not constitute a valid defense in any prosecution under this section." Smuggling is thus committed by any person who (1) fraudulently imports or brings into the Philippines or assists in importing or bringing into the Philippines any article, contrary to law, or (2) receives, conceals, buys, sells or in any manner facilitates the transportation, concealment, or sale of such article after importation, knowing the same to have been imported contrary to law.17 Importation commences when the carrying vessel or aircraft enters the jurisdiction of the Philippines with intention to unload and is deemed terminated upon payment of the duties, taxes and other charges due upon the articles and the legal permit for withdrawal has been issued, or where the articles are duty-free, once the articles have left the jurisdiction of the customs.18 In the instant case, the prosecution established by positive, strong, and convincing evidence that petitioner and his co-accused were caught red-handed by a team from the PAF Special Operations Squadron, while in the possession of highly dutiable articles inside the premises of the airport. The contraband items were taken by petitioner and his co-accused from a PAL plane which arrived from Hong Kong on the night of June 3, 1994. Petitioner and his colleagues then attempted to bring out these

103 items in the cover of darkness by concealing them inside their uniforms. When confronted by the PAF team, they were unable to satisfactorily explain why the questioned articles were in their possession. They could not present any document to prove lawful importation. Thus, their conviction must necessarily be upheld. Clearly, the Court of Appeals committed no reversible error in affirming the trial courts Decision convicting petitioner and his co-accused. WHEREFORE, the petition is DENIED. The appealed Decision and Resolution of the Court of Appeals in CA-G.R. CR No. 20186 are AFFIRMED IN ALL RESPECTS. Costs against the petitioner. SO ORDERED.

104 Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G. R. Nos. 102009-10 July 6, 1994 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO DE GRACIA, CHITO HENSON and JOHN DOES, accused. ROLANDO DE GRACIA, accusedappellant. The Solicitor General for plaintiff-appellee. Nicolas R. Ruiz, II for accused-appellant.

REGALADO, J.: The incidents involved in this case took place at the height of the coup d' etat staged in December, 1989 by ultra-rightist elements headed by the Reform the Armed Forces Movement-Soldiers of the Filipino People (RAM-SFP) against the Government. At that time, various government establishments and military camps in Metro Manila were being bombarded by the rightist group with their "toratora" planes. At around midnight of November 30, 1989, the 4th Marine Battalion of the Philippine Marines occupied Villamor Air Base, while the Scout Rangers took over the Headquarters of the Philippine Army, the Army Operations Center, and Channel 4, the government television station. Also, some elements of the Philippine Army coming from Fort Magsaysay occupied the Greenhills Shopping Center in San Juan, Metro Manila. 1 Accused-appellant Rolando de Gracia was charged in two separate informations for illegal possession of ammunition and explosives in furtherance of rebellion, and for attempted homicide, docketed as Criminal Cases Nos. Q-90-11755 and Q-90-11756, respectively, which were tried jointly by the Regional Trial Court of Quezon City, Branch 103. In Criminal Case No. Q-90-11755, Rolando de Gracia, Chito Henson and several John Does whose true names and identities have not as yet been ascertained, were charged with the crime of illegal possession of ammunition and explosives in furtherance of rebellion, penalized under Section 1, paragraph 3, of Presidential Decree No. 1866, allegedly committed as follows: That on or about the 5th day of DECEMBER, 1989, in QUEZON CITY, METRO MANILA, PHILIPPINES, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, and without authority of law, did then and there willfully, unlawfully, feloniously and knowingly have in their possession, custody and control, the following to wit: Five (5) bundles of C-4 or dynamites Six (6) cartoons of M-16 ammunition at 20 each One hundred (100) bottles of MOLOTOV bombs without first securing the necessary license and/or permit to possess the same from the proper authorities, and armed with said dynamites, ammunition and explosives and pursuant to their conspiracy heretofore agreed upon by them and prompted by common designs, come to an agreement and decision to commit the crime of rebellion, by then and there participating therein and publicly taking arms against the duly

105 constituted authorities, for the purpose of overthrowing the Government of the Republic of the Philippines, disrupting and jeopardizing its activities and removing from its allegiance the territory of the Philippines or parts thereof. 2 In Criminal Case No. Q-90-11756, Rolando de Gracia, Chito Henson, Lamberto Bicus, Rodolfo Tor and several John Does were charged with attempted homicide allegedly committed on December 1, 1989 in Quezon City upon the person of Crispin Sagario who was shot and hit on the right thigh. Appellant was convicted for illegal possession of firearms in furtherance of rebellion, but was acquitted of attempted homicide. During the arraignment, appellant pleaded not guilty to both charges. However, he admitted that he is not authorized to possess any firearms, ammunition and/or explosive. 3 The parties likewise stipulated that there was a rebellion during the period from November 30 up to December 9, 1989. 4 The records show that in the early morning of December 1, 1989, Maj. Efren Soria of the Intelligence Division, National Capital Region Defense Command, was on board a brown Toyota car conducting a surveillance of the Eurocar Sales Office located at Epifanio de los Santos Avenue in Quezon City, together with his team composed of Sgt. Crispin Sagario, M/Sgt. Ramon Briones, S/Sgt. Henry Aquino, one S/Sgt. Simon and a Sgt. Ramos. The surveillance, which actually started on the night of November 30, 1989 at around 10:00 P.M., was conducted pursuant to an intelligence report received by the division that said establishment was being occupied by elements of the RAM-SFP as a communication command post. Sgt. Crispin Sagario, the driver of the car, parked the vehicle around ten to fifteen meters away from the Eurocar building near P. Tuazon Street, S/Sgt. Henry Aquino had earlier alighted from the car to conduct his surveillance on foot. A crowd was then gathered near the Eurocar office watching the on-going bombardment near Camp Aguinaldo. After a while, a group of five men disengaged themselves from the crowd and walked towards the car of the surveillance team. At that moment, Maj. Soria, who was then seated in front, saw the approaching group and immediately ordered Sgt. Sagario to start the car and leave the area. As they passed by the group, then only six meters away, the latter pointed to them, drew their guns and fired at the team, which attack resulted in the wounding of Sgt. Sagario on the right thigh. Nobody in the surveillance team was able to retaliate because they sought cover inside the car and they were afraid that civilians or bystanders might be caught in the cross-fire. As a consequence, at around 6:30 A.M. of December 5, 1989, a searching team composed of F/Lt. Virgilio Babao as team leader, M/Sgt. Lacdao, Sgt. Magallion, Sgt. Patricio Pacatang, and elements of the 16th Infantry Battalion under one Col. delos Santos raided the Eurocar Sales Office. They were able to find and confiscate six cartons of M-16 ammunition, five bundles of C-4 dynamites, M-shells of different calibers, and "molotov" bombs inside one of the rooms belonging to a certain Col. Matillano which is located at the right portion of the building. Sgt. Oscar Obenia, the first one to enter the Eurocar building, saw appellant De Gracia inside the office of Col. Matillano, holding a C-4 and suspiciously peeping through a door. De Gracia was the only person then present inside the room. A uniform with the nametag of Col. Matillano was also found. As a result of the raid, the team arrested appellant, as well as Soprieso Verbo and Roberto Jimena who were janitors at the Eurocar building. They were then made to sign an inventory, written in Tagalog, of the explosives and ammunition confiscated by the raiding team. No search warrant was secured by the raiding team because, according to them, at that time there was so much disorder considering that the nearby Camp Aguinaldo was being mopped up by the rebel forces and there was simultaneous firing within the vicinity of the Eurocar office, aside from the fact that the courts were consequently closed. The group was able to confirm later that the owner of Eurocar office is a certain Mr. Gutierrez and that appellant is supposedly a "boy" therein. Appellant Rolando de Gracia gave another version of the incident. First, he claims that on November 30, 1989, he was in Antipolo to help in the birthday party of Col. Matillano. He denies that he was at the Eurocar Sales Office on December 1, 1989. Second, he contends that when the raiding team arrived at the Eurocar Sales Office on December 5, 1989, he was inside his house, a small nipa hut which is adjacent to the building. According to him, he was tasked to guard the office of Col. Matillano which is located at the right side of the building. He denies, however, that he was inside the room of Col.

106 Matillano when the raiding team barged in and that he had explosives in his possession. He testified that when the military raided the office, he was ordered to get out of his house and made to lie on the ground face down, together with "Obet" and "Dong" who were janitors of the building. He avers that he does not know anything about the explosives and insists that when they were asked to stand up, the explosives were already there. Appellant stated that he visited Col. Matillano in 1987 at the stockade of the Philippine ConstabularyIntegrated National Police (PC-INP), and that he knew Matillano was detained because of the latter's involvement in the 1987coup d' etat. In July, 1989, appellant again went to see Matillano because he had no job. Col. Matillano then told him that he could stay in the PC-INP stockade and do the marketing for them. From that time until his arrest at the Eurocar office, appellant worked for Matillano. De Gracia believes that the prosecution witnesses were moved to testify against him because "bata raw ako ni Col. Matillano eh may atraso daw sa kanila si Col. Matillano kaya sabi nila ito na lang bata niya ang ipitin natin." On February 22, 1991, the trial court rendered judgment 5 acquitting appellant Rolando de Gracia of attempted homicide, but found him guilty beyond reasonable doubt of the offense of illegal possession of firearms in furtherance of rebellion and sentenced him to serve the penalty of reclusion perpetua. Moreover, it made a recommendation that "(i)nasmuch as Rolando de Gracia appears to be merely executing or obeying orders and pursuant to the spirit contained in the 2nd paragraph of Art. 135, R. P. C., the court recommends that Rolando de Gracia be extended executive clemency after serving a jail term of five (5) years of good behavior. That judgment of conviction is now challenged before us in this appeal. Appellant principally contends that he cannot be held guilty of illegal possession of firearms for the reason that he did not have either physical or constructive possession thereof considering that he had no intent to possess the same; he is neither the owner nor a tenant of the building where the ammunition and explosives were found; he was merely employed by Col. Matillano as an errand boy; he was guarding the explosives for and in behalf of Col. Matillano; and he did not have actual possession of the explosives. He claims that intent to possess, which is necessary before one can be convicted under Presidential Decree No. 1866, was not present in the case at bar. Presidential Decree No. 1866 provides as follows: Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or intended to be Used in the Manufacture of Firearms or Ammunition. The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearms, part of firearms, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition. If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed. If the violation of this Section is in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion, the penalty of death shall be imposed. Presidential Decree No. 1866 was passed because of an upsurge of crimes vitally affecting public order and safety due to the proliferation of illegally possessed and manufactured firearms, ammunition and explosives, and which criminal acts have resulted in loss of human lives, damage to property and destruction of valuable resources of the country. The series of coup d' etats unleashed in the country during the first few years of the transitional government under then President Corazon P. Aquino attest to the ever-growing importance of laws such as Presidential Decree No. 1866 which seek to nip in the bud and preempt the commission of any act or acts which tend to disturb public peace and order.

107 I. The first issue to be resolved is whether or not intent to possess is an essential element of the offense punishable under Presidential Decree No. 1866 and, if so, whether appellant De Gracia did intend to illegally possess firearms and ammunition. The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual physical possession but also constructive possession or the subjection of the thing to one's control and management. 6 This has to be so if the manifest intent of the law is to be effective. The same evils, the same perils to public security, which the law penalizes exist whether the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this law the proprietary concept of the possession can have no bearing whatsoever. 7 But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession of firearms or must there be an intent to possess to constitute a violation of the law? This query assumes significance since the offense of illegal possession of firearms is a malum prohibitum punished by a special law, 8 in which case good faith and absence of criminal intent are not valid defenses. 9 When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to perpetrate the act must be distinguished. A person may not have consciously intended to commit a crime; but he did intend to commit an act, and that act is, by the very nature of things, the crime itself. In the first (intent to commit the crime), there must be criminal intent; in the second (intent to perpetrate the act) it is enough that the prohibited act is done freely and consciously. 10 In the present case, a distinction should be made between criminal intent and intent to possess. While mere possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still be shown that there was animus possidendi or an intent to possess on the part of the accused. 11 Such intent to possess is, however, without regard to any other criminal or felonious intent which the accused may have harbored in possessing the firearm. Criminal intent here refers to the intention of the accused to commit an offense with the use of an unlicensed firearm. This is not important in convicting a person under Presidential Decree No. 1866. Hence, in order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he intended to possess the same, even if such possession was made in good faith and without criminal intent. Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot be considered a violation of a statute prohibiting the possession of this kind of weapon, 12 such as Presidential Decree No. 1866. Thus, although there is physical or constructive possession, for as long as the animus possidendi is absent, there is no offense committed. Coming now to the case before us, there is no doubt in our minds that appellant De Gracia is indeed guilty of having intentionally possessed several firearms, explosives and ammunition without the requisite license or authority therefor. Prosecution witness Sgt. Oscar Abenia categorically testified that he was the first one to enter the Eurocar Sales Office when the military operatives raided the same, and he saw De Gracia standing in the room and holding the several explosives marked in evidence as Exhibits D to D-4. 13 At first, appellant denied any knowledge about the explosives. Then, he alternatively contended that his act of guarding the explosives for and in behalf of Col. Matillano does not constitute illegal possession thereof because there was no intent on his part to possess the same, since he was merely employed as an errand boy of Col. Matillano. His pretension of impersonal or indifferent material possession does not and cannot inspire credence. Animus possidendi is a state of mind which may be determined on a case to case basis, taking into consideration the prior and coetaneous acts of the accused and the surrounding circumstances. What exists in the realm of thought is often disclosed in the range of action. It is not controverted that appellant De Gracia is a former soldier, having served with the Philippine Constabulary prior to his separation from the service for going on absence without leave

108 (AWOL). 14 We do not hesitate, therefore, to believe and conclude that he is familiar with and knowledgeable about the dynamites, "molotov" bombs, and various kinds of ammunition which were confiscated by the military from his possession. As a former soldier, it would be absurd for him not to know anything about the dangerous uses and power of these weapons. A fortiori, he cannot feign ignorance on the import of having in his possession such a large quantity of explosives and ammunition. Furthermore, the place where the explosives were found is not a military camp or office, nor one where such items can ordinarily but lawfully be stored, as in a gun store, an arsenal or armory. Even an ordinarily prudent man would be put on guard and be suspicious if he finds articles of this nature in a place intended to carry out the business of selling cars and which has nothing to do at all, directly or indirectly, with the trade of firearms and ammunition. On the basis of the foregoing disquisition, it is apparent, and we so hold, that appellant De Gracia actually intended to possess the articles confiscated from his person. II. The next question that may be asked is whether or not there was a valid search and seizure in this case. While the matter has not been squarely put in issue, we deem it our bounden duty, in light of advertence thereto by the parties, to delve into the legality of the warrantless search conducted by the raiding team, considering the gravity of the offense for which herein appellant stands to be convicted and the penalty sought to be imposed. It is admitted that the military operatives who raided the Eurocar Sales Office were not armed with a search warrant at that time. 15 The raid was actually precipitated by intelligence reports that said office was being used as headquarters by the RAM. 16 Prior to the raid, there was a surveillance conducted on the premises wherein the surveillance team was fired at by a group of men coming from the Eurocar building. When the military operatives raided the place, the occupants thereof refused to open the door despite requests for them to do so, thereby compelling the former to break into the office. 17 The Eurocar Sales Office is obviously not a gun store and it is definitely not an armory or arsenal which are the usual depositories for explosives and ammunition. It is primarily and solely engaged in the sale of automobiles. The presence of an unusual quantity of high-powered firearms and explosives could not be justifiably or even colorably explained. In addition, there was general chaos and disorder at that time because of simultaneous and intense firing within the vicinity of the office and in the nearby Camp Aguinaldo which was under attack by rebel forces. 18 The courts in the surrounding areas were obviously closed and, for that matter, the building and houses therein were deserted. Under the foregoing circumstances, it is our considered opinion that the instant case falls under one of the exceptions to the prohibition against a warrantless search. In the first place, the military operatives, taking into account the facts obtaining in this case, had reasonable ground to believe that a crime was being committed. There was consequently more than sufficient probable cause to warrant their action. Furthermore, under the situation then prevailing, the raiding team had no opportunity to apply for and secure a search warrant from the courts. The trial judge himself manifested that on December 5, 1989 when the raid was conducted, his court was closed. 19 Under such urgency and exigency of the moment, a search warrant could lawfully be dispensed with. The view that we here take is in consonance with our doctrinal ruling which was amply explained in People vs. Malmstedt 20 and bears reiteration: While it is true that the NARCOM officers were not armed with a search warrant when the search was made over the personal effects of accused, however, under the circumstances of the case, there was sufficient probable cause for said officers to believe that accused was then and there committing a crime. Probable cause has been defined as such facts and circumstances which would lead a reasonable, discreet and prudent man to believe that an offense has been committed, and that the objects sought in connection with the offense are in the place sought to be searched. The required probable cause that will justify a warrantless search and seizure is not determined by any fixed formula but is resolved according to the facts of each case.

109 Warrantless search of the personal effects of an accused has been declared by this Court as valid, because of existence of probable cause, where the smell of marijuana emanated from a plastic bag owned by the accused, or where the accused was acting suspiciously, and attempted to flee. Aside from the persistent reports received by the NARCOM that vehicles coming from Sagada were transporting marijuana and other prohibited drugs, their Commanding Officer also received information that a Caucasian coming from Sagada on that particular day had prohibited drugs in his possession. Said information was received by the Commanding Officer of NARCOM the very same morning that accused came down by bus from Sagada on his way to Baguio City. When NARCOM received the information, a few hours before the apprehension of herein accused, that a Caucasian travelling from Sagada to Baguio City was carrying with him prohibited drugs, there was no time to obtain a search warrant. In the Tangliben case, the police authorities conducted a surveillance at the Victory Liner Terminal located at Bgy. San Nicolas, San Fernando, Pampanga, against persons engaged in the traffic of dangerous drugs, based on information supplied by some informers. Accused Tangliben who was acting suspiciously and pointed out by an informer was apprehended and searched by the police authorities. It was held that when faced with on-the-spot information, the police officers had to act quickly and there was no time to secure a search warrant. It must be observed that, at first, the NARCOM officers merely conducted a routine check of the bus (where accused was riding) and the passengers therein, and no extensive search was initially made. It was only when one of the officers noticed a bulge on the waist of accused, during the course of the inspection, that accused was required to present his passport. The failure of accused to present his identification papers, when ordered to do so, only managed to arouse the suspicion of the officer that accused was trying to hide his identity. For is it not a regular norm for an innocent man, who has nothing to hide from the authorities, to readily present his identification papers when required to do so? The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession, plus the suspicious failure of the accused to produce his passport, taken together as a whole, led the NARCOM officers to reasonably believe that the accused was trying to hide something illegal from the authorities. From these circumstances arose a probable cause which justified the warrantless search that was made on the personal effects of the accused. In other words, the acts of the NARCOM officers in requiring the accused to open his pouch bag and in opening one of the wrapped objects found inside said bag (which was discovered to contain hashish) as well as the two (2) teddy bears with hashish stuffed inside them, were prompted by accused's own attempt to hide his identity by refusing to present his passport, and by the information received by the NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession. To deprive the NARCOM agents of the ability and facility to act accordingly, including, to search even without warrant, in the light of such circumstances, would be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society. In addition, we find the principle enunciated in Umil, et al., vs. Ramos, et al., 21 applicable, by analogy, to the present case: The arrest of persons involved in the rebellion whether as its fighting armed elements, or for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which requires the determination by a judge of the existence of probable cause before the

110 issuance of a judicial warrant of arrest and the granting of bail if the offense is bailable. Obviously the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against government forces, or any other milder acts but really in pursuance of the rebellious movement. The arrest or capture is thus impelled by the exigencies of the situation that involves the very survival of society and its government and duly constituted authorities. If killing and other acts of violence against the rebels find justification in the exigencies of armed hostilities which (are) of the essence of waging a rebellion or insurrection, most assuredly so in case of invasion, merely seizing their persons and detaining them while any of these contingencies continues cannot be less justified. III. As earlier stated, it was stipulated and admitted by both parties that from November 30, 1989 up to and until December 9, 1989, there was a rebellion. Ergo, our next inquiry is whether or not appellant's possession of the firearms, explosives and ammunition seized and recovered from him was for the purpose and in furtherance of rebellion. The trial court found accused guilty of illegal possession of firearms in furtherance of rebellion pursuant to paragraph 2 of Article 135 of the Revised Penal Code which states that "any person merely participating or executing the command of others in a rebellion shall suffer the penalty of prision mayor in its minimum period." The court below held that appellant De Gracia, who had been servicing the personal needs of Col. Matillano (whose active armed opposition against the Government, particularly at the Camelot Hotel, was well known), is guilty of the act of guarding the explosives and "molotov" bombs for and in behalf of the latter. We accept this finding of the lower court. The above provision of the law was, however, erroneously and improperly used by the court below as a basis in determining the degree of liability of appellant and the penalty to be imposed on him. It must be made clear that appellant is charged with the qualified offense of illegal possession of firearms in furtherance of rebellion under Presidential Decree No. 1866 which, in law, is distinct from the crime of rebellion punished under Articles 134 and 135 of the Revised Penal Code. These are two separate statutes penalizing different offenses with discrete penalties. The Revised Penal Code treats rebellion as a crime apart from murder, homicide, arson, or other offenses, such as illegal possession of firearms, that might conceivably be committed in the course of a rebellion. Presidential Decree No. 1866 defines and punishes, as a specific offense, the crime of illegal possession of firearms committed in the course or as part of a rebellion. 22 As a matter of fact, in one case involving the constitutionality of Section 1 of Presidential Decree No. 1866, the Court has explained that said provision of the law will not be invalidated by the mere fact that the same act is penalized under two different statutes with different penalties, even if considered highly advantageous to the prosecution and onerous to the accused. 23 It follows that, subject to the presence of the requisite elements in each case, unlawful possession of an unlicensed firearm in furtherance of rebellion may give rise to separate prosecutions for a violation of Section 1 of Presidential Decree No. 1866, and also a violation of Articles 134 and 135 of the Revised Penal Code on rebellion. Double jeopardy in this case cannot be invoked because the first is an offense punished by a special law while the second is a felony punished by the Revised Penal Code, 24 with variant elements. It was a legal malapropism for the lower court to interject the aforestated provision of the Revised Penal Code in this prosecution for a crime under a special law. Consequently, there is no basis for its recommendation for executive clemency in favor of appellant De Gracia after he shall have served a jail term of five years with good behavior. In any event, this is a matter within the exclusive prerogative of the President whose decision thereon should be insulated against any tenuous importunity. Withal, we are duly convinced that the firearms, explosives and ammunition confiscated from appellant De Gracia were illegally possessed by him in furtherance of the rebellion then admittedly existing at that time. In the words of the court a quo: 2. the nature and quantity of the items 5 bundles of C-4 dynamites, 6 cartons of M-16 ammo and 100 bottles of molotov bombs indicate that the reports received by the military that the Eurocar Sales Building was being used by the rebels was not without

111 basis. Those items are clearly not for one's personal defense. They are for offensive operations. De Gracia admitted that per instruction of Col. Matillano he went down to Eurocar Sales Building from Antipolo to stay guard there. His manifestation of innocence of those items and what he has been guarding in that office is not credible for: (a) he was a former military personnel; (b) at the birthday party of Col. Matillano on November 30, 1989 many soldiers and ex-soldiers were present which self-evidently discloses that De Gracia, in the company of his boss, was still very much at home and constantly in touch with soldiers and the armed rebellion of November 30, 1989 to December 8 or 9, 1989 was a military coup d' etat; (c) it appears that he is the only person tasked with caretaking (sic) there in the Matillano office, which shows that he is a highly trusted right-hand man of Col. Matillano; and (d) as heretofore discussed, De Gracia was earlier seen with some men who fired upon a car of the AFP intelligence agents. 25 Presidential Decree No. 1866 imposes the death penalty where the illegal possession of firearms and ammunition is committed in furtherance of rebellion. At the time the offense charged in this case was committed under the governance of that law, the imposition of the death penalty was proscribed by the Constitution. Consequently, appellant De Gracia could only be sentenced to serve the penalty of reclusion perpetua which was correctly meted out by the trial court, albeit with an erroneous recommendation in connection therewith. WHEREFORE, the impugned judgment of the trial court is hereby AFFIRMED, but its recommendation therein for executive clemency and the supposed basis thereof are hereby DELETED, with costs against accused-appellant. SO ORDERED.

112 Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. Nos. 129756-58 January 28, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JULIAN DEEN ESCAO, VIRGILIO TOME USANA and JERRY CASABAAN LOPEZ, accused, VIRGILIO TOME USANA and JERRY CASABAAN LOPEZ, accused-appellants. DAVIDE, JR., C.J.: Accused-appellants Virgilio T. Usana and Jerry C. Lopez, together with Julian D. Escao, were charged before the Regional Trial Court of Makati City, Branch 64, in Criminal Case No. 95-936 with violation of Section 4, Article II of Republic Act No. 6425,1 as amended. Escao and Usana were also charged in Criminal Case No. 95-937 and No. 95-938 with illegal possession of firearms and ammunition in violation of Presidential Decree No. 1866. The accusatory portion of the Information in Criminal Case No. 95-936 reads as follows: That on or about the 5th day of April, 1995, in the City of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and all of them mutually helping and aiding one another, without being authorized by law, did then and there willfully, unlawfully and feloniously sell, distribute and transport 3.3143 kilograms of "HASHISH", a prohibited drug, in violation of the above-cited law.2 The charge against accused Julian D. Escao in Criminal Case No. 95-937 reads as follows: That on or about the 5th day of April, 1995, in the City of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully and feloniously have in his possession, direct custody and control one (1) pc. of cal. .45 pistol, government model with Serial No. 990255, with magazine containing 7 live ammos and two (2) more magazines for cal. .45 pistol containing 7 live ammos each, without first securing the necessary license or permit from the proper government authorities and which firearm and ammunitions he carried outside of his residence.3 The accusatory portion of the information against Virgilio Usana in Criminal Case No. 95-938 reads: That on or about the 5th day of April, 1995, in the City of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession, direct custody and control One (1) pc. of rifle carbine with Serial No. 7176644 with a banana type magazine loaded with 28 live ammunitions without first securing the necessary license or permit from the proper government authorities and which firearms and ammunitions he carried outside of his residence.4 The cases were consolidated and jointly tried. In its Decision of 30 May 1997,5 which was promulgated on 17 June 1997, the trial court convicted Escao and herein appellants in Criminal Case No. 95-936, Escao in Criminal Case No. 95-937, and appellant Usana in Criminal Case No. 95-938. Escao filed on 19 June 1997 a Notice of Appeal, but on 16 July 1997, he filed a Manifestation and Withdrawal of Appeal,6 which was granted by the trial court in its Order of 1 7 July 1997.7

113 Usana and Lopez filed a Notice of Appeal on 30 June 1997,8 manifesting therein that they were appealing to this Court and to the Court of Appeals. Considering the penalties imposed, the decision in Criminal Case No. 95-936 was appealed to this Court, while the Court of Appeals took cognizance of the appeal from Criminal Case No. 95-938. In its Order of 30 June 1997,9 the trial court gave due course to the appeal and ordered the transmittal of the record in Criminal Case No. 95-936 to this Court and the record of Criminal Case No. 95-938 to the Court of Appeals. Accordingly, it is only the appeal from the judgment in Criminal Case No. 95-936 that is now before this Court. Due to the differing versions of the parties, there is a need to narrate each of the testimonies of the key players in this case. The prosecution has this version of the events: On the 5th of April 1995 and during a COMELEC gun ban, some law enforcers of the Makati Police, namely, PO3 Eduardo P. Suba, PO3 Bernabe Nonato, SPO4 Juan de los Santos, and Inspector Ernesto Guico,10 were manning a checkpoint at the corner of Senator Gil Puyat Ave. and the South Luzon Expressway (SLEX).11 They were checking the cars going to Pasay City, stopping those they found suspicious, and imposing merely a running stop on the others. At about past midnight, they stopped a Kia Pride car with Plate No. TBH 493.12 PO3 Suba saw a long firearm on the lap of the person seated at the passenger seat, who was later identified as Virgilio Usana. They asked the driver, identified as Escao, to open the door. PO3 Suba seized the long firearm, an M-1 US Carbine, from Usana. When Escao, upon order of the police, parked along Sen. Gil Puyat Ave., the other passengers were search for more weapons. Their search yielded a .45 caliber firearm which they seized from Escao.13 The three passengers were thereafter brought to the police station Block 5 in the Kia Pride driven by PO3 Nonato.14 Upon reaching the precinct, Nonato turned over the key to the desk officer. Since SPO4 de los Santos was suspicious of the vehicle, he requested Escao to open the trunk.15 Escao readily agreed and opened the trunk himself using his key.16 They noticed a blue bag inside it,17 which they asked Escao to open. The bag contained a parcel wrapped in tape,18 which, upon examination by National Bureau of Investigation Forensic Chemist Emilia A. Rosaldos, was found positive for hashish weighing 3.3143 kilograms.19 A certification was issued by the Firearms and Explosive Office of the National Police Commission (NAPOLCOM) to the effect that Escao was not a licensed/registered firearms holder of any kind and caliber. Usana, however, according to the same certification is a licensed/registered holder of a pistol Colt .45 caliber with license issued on 14 October 1994 and to expire on April 1996. Usana also has an application for a pistol Uzi Cal. 9mm. Neither of the two guns seized were licensed/registered with the NAPOLCOM.20 For his part, Escao (or Jovy) testified that on the 4th of April 1995, between 11:00 and 11:30 in the morning, he was at the lobby of Legend Hotel, at Pioneer St., Mandaluyong City, to meet with his business partners, including Usana and Lopez. He saw his friend and erstwhile co-employee at Philippine Airlines, Ramon Cabrera, who had borrowed his wife's car. Since it was his wife's birthday the following day, he asked Cabrera if he could get back the car. Cabrera readily gave him the keys of the car.21 He left the hotel at around 11:45 in the evening with Usana and Lopez. Using his wife's car, they cruised southward along Epifanio de los Santos Avenue (EDSA) and turned right at Sen. Gil Puyat Avenue. They stopped before crossing SLEX because the traffic light turned red. From the other side of SLEX, he could see a group of policemen. Upon crossing SLEX, they were flagged down by one of the policemen, so he slowed down and stopped. PO3 Nonato asked him to roll down the window and demanded to see his license. He asked if he had committed any violation, but PO3 Nonato accused him of being drunk, which he denied. The policemen persisted in asking for his license, but he did not budge and instead reiterated that there was no reason for him to surrender his license for he had not committed any violation. A verbal tussle ensued resulting in the drawing of firearms by the policemen which prompted Usana to suggest that they go to the police station because the policemen were carrying guns and they have not done anything wrong.22

114 He stated further that he was the one who drove to the police station along Dian St. with his companions. He parked the car then they were brought to the office of the Deputy Station Commander, Lieutenant Eco.23 The policemen asked if they could search his car. He then inquired if he was not entitled to a lawyer and why they needed to conduct a search when they had not even told him what he had violated. Apparently, he thought they were there only for verification purposes. Lt. Eco explained that that was the reason why they were going to search his car, to see if he had done anything illegal. Although the police were insistent in asking for the keys to his car, he continuously refused. Lt. Eco asked his men to usher the trio into the detention cell.24 After two hours, he was brought back to Lt. Eco's office. Lt. Eco pointed to a bag, a rifle, a pistol and a package wrapped in masking tape or packing tape on his desk, and said these items constituted evidence of illegal possession of firearms and transporting of drugs. He was surprised that they found those items from his car because his key had been with him all the time. He was handcuffed, brought to his car, and again was surprised to see its trunk open.25 On the other hand, Lopez had a different story. He claimed he was the mechanic of Usana and they lived in the same subdivision.26 On 4 April 1995, he was working on Usana's pick-up truck at the latter's house when Escao dropped by at around 4:30 in the afternoon looking for Usana who was then working in Forbes Park.27 At around 5:30 p.m., they left Usana's house in Escao's metallic gray Kia Pride. Inside the car, he saw a .45 caliber pistol and two spare magazines tucked in the right side and left side of Escao's waist. He also saw a carbine under the right passenger seat. When he inquired about the guns, Escao replied that such did not pose any problem since they were licensed. Before going to Usana, they went to Pasay City to see a certain jerry.28 They met Usana at the Sen. Gil Puyat Station of the LRT at around 9:00 p.m. He gave his seat to Usana but was unaware if the latter noticed the rifle beneath the seat.29 They went home via Sen. Gil Puyat Avenue but were stopped at a checkpoint after crossing SLEX. The policemen directed their flashlights at them and one opened the front passenger door.30 The latter saw the rifle under Usana's seat. Usana and Escao were ordered to get out of the car. PO3 Nonato immediately saw the gun tucked in Escao's waist and asked if he was a policeman. Escao replied that everything would be explained at the police station. He was also asked to step out. No firearm was, however, found in his possession.31 When confronted about the guns, Escao tried to intercede for his two companions and said that ". . . these two don't know anything about it, I just took them for a drive." They subsequently went to police station Block 5. A certain Toto, a policeman, drove the Kia Pride to Block 5.32 Upon reaching the police station, Escao was immediately brought to the office of Lt. Eco while he and Usana were asked to sit on the bench. After a few minutes, PO3 de los Santos came out of the office of Lt. Eco to talk to him. He told him that all he knew about Escao is that he was a wealthy flight attendant with military connections. After returning to Lt. Eco's office, PO3 de los Santos went out of the police station with Lt. Eco and Escao. The three came back with a blue bag which he had never seen before. The bag was opened before the three suspects. Escao reiterated that his two companions had nothing to do with the bag.33 He and Usana stayed overnight in their cell and only saw Escao in the morning of April 5. At around 4:00 p.m., they were transferred to the CID and stayed in the office of a certain Inspector Sipin. Escao admitted he owned the bag/case.34 For his part, Usana testified that he was a duly licensed architect who was gainfully employed by Rolando de Asis and Taytay Management Corporation.35 He admitted owning a licensed .45 caliber pistol.36 In March 1995, he hired as mechanic Lopez, who lives in Bernabe Subdivision Phase II where he also lives. Escao on the other hand, was introduced to him by a certain Roberto Samparado, a neighbor of Lopez. Escao, an international flight attendant of Philippine Airlines and a businessman who owns Verge Enterprises, also supplied materials to the Philippine Army and planned to engage in a construction business.37 On 4 April 1995, at around 7:30 p.m., he paged Escao to talk about the materials for the five prototype gunship helicopters they were supposed to supply. They talked on the phone, agreeing to meet between

115 8:30 and 9:00 p.m. at the Sen. Gil Puyat Ave. Station of the Light Rail Transit,38 and met at around a quarter past nine. Escao was on board a metallic Kia Pride with Lopez on the passenger seat. Lopez vacated the seat for him. They went to Magallanes Village to meet a certain Norman Garcia and talk about the documents39 relating to the helicopter gunship of the Air Force. They arrived there at 11:30 p.m. While they were talking with Garcia, he noticed a gun and magazines tucked in Escao's waist. Upon inquiry, Escao said it was not a problem and only for his protection.40 On their way to Roxas Boulevard, they were stopped at a checkpoint along Sen. Gil Puyat Ave. Policemen knocked on the car windows so he and Escao rolled down their windows. A person in civilian clothes suddenly opened the right door, took something from the side of his seat and shouted, "There's a gun." He was surprised because he did not carry anything when he bearded the car; neither did he see anything inside the car because it was dark and he was not wearing his eyeglasses.41 The person who took the gun asked if he was a policeman, and he said he was an architect. He was then asked to alight from the car, then frisked. Escao was also asked to alight from a car. They saw a gun tucked in his waist, so they asked if he was a policeman, and Escao answered in the negative. Lopez was then ordered to get out of the car by the person in civilian clothes and was also searched. They rode the Anfra service vehicle of the police. One of the policemen asked Lopez to handcuff him and Escao. The policeman who asked Escao to get out of the car drove the Anfra van to Block 5 where they arrived at 1:30 in the morning of 5 April.42 He and Lopez waited outside the office of Lt. Eco while Escao was inside with the arresting officers. Lt. Eco came out of his office and urged Lopez to tell the truth. He heard Lopez say that they were both just with Escao and that they knew nothing about the guns; neither do they own any. SPO4 de los Santos entered the office of Lt. Eco and came out five minutes later with Escao, Lt. Eco, and the other arresting officers, Nonato, Suba and Erwin Eco, the person in civilian clothes. All six went out to the parking area and returned after about five minutes. Lt. Eco was carrying a bag which he placed on top his desk. Lopez and Escao were asked about the contents of the bag. The two replied it was the first time they saw that bag. Lt. Eco opened the bag before them. They all saw something in brown paper. He and Lopez simultaneously exclaimed that they knew nothing about the contents of the bag, and they implored Escao to tell the police that they had nothing to do with it.43 The trial court found the prosecution's version more credible than that of any one of the accused, and ruled that the evidence presented by the prosecution was sufficient to convict the accused as charged. It decreed: WHEREFORE, in view of the foregoing judgment is hereby rendered as follows: 1. In Criminal Case No. 95-936, accused JULIAN ESCAO y DEEN, VIRGILIO USANA y TOME and JERRY LOPEZ y CASABAAN are GUILTY as charged and are sentenced to suffer imprisonment ofRECLUSION PERPETUA, and to pay a fine of P500,000.00. The Branch Clerk of Court is directed to turn over to the Dangerous Drugs Board the 3.314 kilograms of Hashish (marijuana) for its appropriate disposition in accordance with law; and 2. In criminal Cases Nos. 95-937 and 95-938, accused JULIAN ESCAO y DEEN and VIRGILIO USANA y TOME are GUILTY as charged in the two separate informations respectively filed against them and are sentenced to suffer the indeterminate prison term from TEN (10) YEARS of PRISION MAYOR maximum, as minimum to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY ofRECLUSION TEMPORAL maximum as maximum.44 The firearms and ammunitions subject matter of these cases which are still with the City Prosecutor's Office are forfeited in favor of the Government are directed to be turned over to the Firearms and Explosive Unit, PNP, Camp Crame, Quezon City for its appropriate disposition. SO ORDERED.45 Accused-appellants Usana and Lopez anchor their appeal on the following arguments:

116 1. The trial court erred in admitting in evidence the hashish seized without search warrant when the police officers already had the opportunity to secure a search warrant before searching the bag found at the baggage compartment at the back of the car; 2. Assuming that the hashish is admissible in evidence, the trial court erred in finding appellants to have conspired with Escao in transporting the hashish when the evidence clearly shows that the hashish was owned and possessed solely by Escao; 3. The trial court erred in convicting appellants of illegal possession of hashish despite the fact that they were neither in actual nor constructive possession of the illegal drug; and 4. The trial court erred in not considering the exculpatory testimony of Julian Escao in favor of appellants. Before going any further, some words are in order regarding the establishment of checkpoints. Accused-appellants assail the manner by which the checkpoint in question was conducted. They contend that the checkpoint manned by elements of the Makati Police should have been announced. They also complain of its having been conducted in an arbitrary and discriminatory manner. We take judicial notice of the existence of the COMELEC resolution46 imposing a gun ban during the election period issued pursuant to Section 52(c) in relation to Section 26(q) of the Omnibus Election Code (Batas Pambansa Blg. 881). The national and local elections in 1995 were held on 8 May, the second Monday of the month. The incident, which happened on 5 April 1995, was well within the election period. This Court has ruled that not all checkpoints are illegal. Those which are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists are allowed.47 For, admittedly, routine checkpoints do intrude, to a certain extent, on motorists' right to "free passage without interruption," but it cannot be denied that, as a rule, it involves only a brief detention of travelers during which the vehicle's occupants are required to answer a brief question or two. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual's right against unreasonable search. In fact, these routine checks, when conducted in a fixed area, are even less intrusive.48 The checkpoint herein conducted was in pursuance of the gun ban enforced by the COMELEC. The COMELEC would be hard put to implement the ban if its deputized agents were limited to a visual search of pedestrians. It would also defeat the purpose for which such ban was instituted. Those who intend to bring a gun during said period would know that they only need a car to be able to easily perpetrate their malicious designs. The facts adduced do not constitute a ground for a violation of the constitutional rights of the accused against illegal search and seizure. PO3 Suba admitted that they were merely stopping cars they deemed suspicious, such as those whose windows are heavily tinted just to see if the passengers thereof were carrying guns. At best they would merely direct their flashlights inside the cars they would stop, without opening the car's doors or subjecting its passengers to a body search. There is nothing discriminatory in this as this is what the situation demands. We see no need for checkpoints to be announced, as the accused have invoked. Not only would it be impractical, it would also forewarn those who intend to violate the ban. Even so, badges of legitimacy of checkpoints may still be inferred from their fixed location and the regularized manner in which they are operated.49 Usana and Lopez also question the validity of the search. The trial court, in convicting the three accused for violation of R.A. No. 6425, accepted as aboveboard the search done by the Makati Police of the trunk of the car. Jurisprudence recognizes six generally accepted exceptions to the warrant requirement: (1)

117 search incidental to an arrest; (2) search of moving vehicles; (3) evidence in plain view; (4) customs searches; (5) consented warrantless search;50 and (6) stop-and-frisk situations.51 Even though there was ample opportunity to obtain a search warrant, we cannot invalidate the search of the vehicle, for there are indications that the search done on the car of Escao was consented to by him. Both Lopez and Usana testified that Escao was with the police officers when they searched the car.52 There was no apparent objection made by Escao as he seemed to have freely accompanied the police officers to the car. PO3 Suba, on the other hand, testified that "Escao readily agreed to open the trunk," upon request of SPO4 de los Santos.53But according to Escao, he refused the request of the police officers to search his car.54 We must give credence to the testimony of PO3 Suba. Not only is it buttressed by the testimony of Usana and Lopez that Escao freely accompanied the police officers to the car, it is also deemed admitted by Escao in failing to appeal the decision. The findings of fact of the trial court are thus deemed final as against him. Despite the validity of the search, we cannot affirm the conviction of Usana and Lopez for violation of R.A. No. 6425, as amended. The following facts militate against a finding of conviction: (1) the car belonged to Escao; (2) the trunk of the car was not opened soon after it was stopped and after the accused were searched for firearms; (3) the car was driven by a policeman from the place where it was stopped until the police station; (4) the car's trunk was opened, with the permission of Escao, without the presence of Usana and Lopez; and (5) after arrival at the police station and until the opening of the car's trunk, the car was in the possession and control of the police authorities. No fact was adduced to link Usana and Lopez to the hashish found in the trunk of the car. Their having been with Escao in the latter's car before the "finding" of the hashish sometime after the lapse of an appreciable time and without their presence left much to be desired to implicate them to the offense of selling, distributing, or transporting the prohibited drug. In fact, there was no showing that Usana and Lopez knew of the presence of hashish in the trunk of the car or that they saw the same before it was seized.1wphi1.nt IN VIEW WHEREOF, that portion of the challenged decision of 30 May 1997 of the Regional Trial Court, Makati, Branch 64, insofar as Criminal Case No. 95-936 is concerned with regard to accused-appellants VIRGILIO T. USANA and JERRY C. LOPEZ, holding them guilty of violation of Section 4, Article II of R.A. No. 6425, as amended, is hereby REVERSED and SET ASIDE and another is hereby rendered ACQUITTING them therein on ground of reasonable doubt and ORDERING their immediate release from confinement at the New Bilibid Prison, unless their further detention is justified for any lawful ground. The Director of the Bureau of Corrections is hereby directed to report to the Court the release of said accusedappellants within five (5) days from notice of this decision. SO ORDERED.

118 Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 141137 January 20, 2004

PEOPLE OF THE PHILIPPINES, Appellee, vs. VICTOR DIAZ VINECARIO; ARNOLD ROBLE and GERLYN WATES, Appellants. DECISION CARPIO-MORALES, J.: From the Decision of July 20, 1999, as amended by Order of September 9, 1999, of the Regional Trial Court of Davao City, Branch 16, finding appellants Victor Vinecario, Arnold Roble and Gerlyn Wates guilty beyond reasonable doubt of violation of Article IV of Republic Act No. 6425 (Dangerous Drugs Act of 1972, as amended by Republic Act No. 7659), and imposing upon them the penalty of reclusion perpetua, they lodged the present appeal. The Information dated April 25, 1995, filed against appellants reads as follows: The undersigned accuses the above-named accused for VIOLATION OF SECTION 4, ARTICLE II IN RELATION TO SECTION 21, ARTICLE IV OF R.A. 6425, committed as follows: That on or about April 10, 1995 in the City of Davao, Philippines and within the jurisdiction of this Honorable Court, the above-mentioned accused, conspiring, confederating and helping one another, without being authorized by law, willfully, unlawfully and feloniously transported, delivered and possessed 1.7 kilos dried marijuana leaves which are prohibited drugs. CONTRARY TO LAW.1 Upon arraignment on September 11, 1995, appellants, duly assisted by counsel, pleaded not guilty to the offense charged. The facts as established by the prosecution are as follows: On the night of April 10, 1995, at around 10:45 p.m., as about fifteen police officers were manning a checkpoint at Ulas, Davao City pursuant to COMELEC Resolution No. 2735, otherwise known as the COMELEC gun ban, a Honda TMX motorcycle with three men on board sped past them.2 One of the police officers blew his whistle3 and ordered them to return to the checkpoint. Obliging, the three men aboard the motorcycle returned to the checkpoint. SPO1 Haydenburge Goc-ong (SPO1 Goc-ong) of the 11th Regional Mobile Force 4th Company thereupon asked them why they sped away to which appellant Victor Vinecario (Vinecario), who was seated behind appellant Arnold Roble (Roble) and in front of appellant Gerlyn Wates (Wates) on the motorcycle, retorted that he is a member of the army.4 When asked by the law enforcers to produce an identification card, he could not, however, offer any. At this point, the police officers noticed that a big military backpack was slung over the right shoulder of Vinecario who was observed, as were his co-appellants, to be afraid and acting suspiciously.5 SPO1 Goc-ong thus asked Vinecario what the contents of the backpack were. Vinecario answered that it merely contained a mat and proceeded to pass it to Wates, who in turn passed it to Roble who, however, returned it to Vinecario.6 Suspecting that the backpack contained a bomb, SPO1 Goc-ong instructed his men to disperse, following which he ordered Vinecario to open the bag. Vinecario did as ordered and as SPO1 Goc-ong noticed

119 something wrapped in paper, he told Vinecario to take the same out. Again Vinecario obliged, albeit reiterating that it was only a mat. SPO1 Goc-ong then touched the stuff wrapped in paper upon which Vinecario grabbed it,7 resulting to the tearing off of the paper wrapper. Soon the smell of marijuana wafted in the air. Vinecario thereafter told SPO1 Goc-ong "let us talk about this,"8 but the latter ignored Vinecario and instead called his Commanding Officer and reported to him that marijuana was found in Vinecarios possession. On orders of the Commanding Officer, the other police officers brought appellants along with two bundles of marijuana, the backpack and the motorcycle to the battalion office at Camp Catitipan in Davao City and were turned over to one PO2 Cabalon, an investigator of Regional Mobile Force 11. Before proceeding to said battalion office, however, the incident was blottered9 by PO3 Edward Morado at the Buhangin Police Station.10 On April 11, 1995, SPO1 Goc-ong, PO1 Vicente Carvajal (PO1 Carvajal) and PO1 Pual Padasay brought the confiscated suspected marijuana to the camps crime laboratory for examination11 which determined it to weigh 1,700 grams12 and to be indeed positive therefor.13 As for appellants, their version of the incident follows: Vinecario, then a member of the 25th Infantry Battalion of the 6th Infantry Division of the Philippine army stationed at Pagakpak, Pantukan,14 approached motorcycle driver Wates at a terminal in Andile, Mawab and requested him to bring him to his elder brother at Parang, Maguindanao for a fee of P500.00 which he paid.15 The two thus proceeded to Carmen, Panabo where they picked up Roble to alternate with Wates as driver, and at 8:00 a.m., the three left for Parang.16 On reaching Parang at about 1:20 p.m., Vinecario borrowed P3,000.00 from his brother Teofanis to shoulder the medical expenses of his son. At about 4:30 p.m., after partaking of snacks at Teofanis residence, appellants left for Davao City. Along Parang Highway, Abdul Karim Datolarta, Vinecarios former co-employee at Emerson Plywood where he previously worked, blocked the motorcycle.17 Vinecario thus alighted from the motorcycle and shook hands with Datolarta18 who asked where they were headed for and requested that he ride with them. Vinecario turned Datolarta down as there was no longer any room in the motorcycle. Datolarta then asked if he (Vinecario) could take his bag of clothes and bring it to his cousin, one Merly, in Roxas, Tagum. Without examining its contents, Vinecario acquiesced, took Datolartas bag and left with his coappellants.19 On reaching Ulas in the evening of the same day, appellants, seeing that there was a checkpoint,20 sped past it. When they were about 50 to 60 meters away from the checkpoint, they heard a whistle, prompting Wates to tap Vinecario, telling him that the whistle came from the checkpoint. Vinecario then told Roble to go back to the checkpoint. While at the checkpoint, five police officers approached appellants and instructed them to alight from the motorcycle. One of the officers asked Vinecario who he was, and Vinecario identified himself as a member of the Philippine National Police.21 The officer asked for identification and when Vinecario could not produce any, the former got the backpack slung on Vinecarios shoulder. The same officer then asked Vinecario if they could open the bag, and as Vinecario acquiesced, two officers opened the bag upon which they shouted that it contained marijuana. Vinecario then grabbed the backpack to confirm if there was indeed marijuana. At that instant, the police officers held his hands and brought him, together with the other appellants, to the Buhangin Police Station, and later to Camp Catitipan. At the camp, appellants were investigated by police officials without the assistance of counsel, following which they were made to sign some documents which they were not allowed to read.22

120 The trial court, by Decision of July 20, 1999, found appellants guilty as charged. The dispositive portion of the decision reads, quoted verbatim: WHEREFORE, finding the evidence of the prosecution, more than sufficient to prove the guilt of all three accused beyond reasonable doubt of the offense charged, accused PFC Victor Vinecario, Arnold Roble and Gerlyn Wates, pursuant to Sec. 4, Art. II in relation to Art. IV or (sic) Rep. Act 6425 as amended by Rep. Act 7659, Sec. 20, par. 5 thereof, are jointly sentence (sic) to suffer the supreme penalty of death by lethal injection, under Rep Act 8177 in the manner and procedure therein provided, in relation to Sec. 24 of Rep. Act 7659, amending Art. 81 of the Revised Penal Code. Finally pursuant to Rep. Act 7659 Sec. 22 the Branch Clerk of Court of RTC 16 Davao City, is ordered to elevate the entire records of this case with the Clerk of Court, Supreme Court Manila, for the automatic review of this Decision, after its promulgation. SO ORDERED.23 (Underscoring supplied) By Order of September 9, 1999, the trial court set aside its decision of July 20, 1999 and disposed as follows, quoted verbatim: Accordingly, all accused (sic) motion for reconsideration on this aspect, on the imposition of the penalty against all accused, even if invoked only be accused Venecaio (sic) through his counsel de officio, will apply to all accused since there exists conspiracy of all in the commission of the offense charged. Judgment of this court, dated July 20, 1999, is accordingly set aside and reconsidered, only insofar as the imposition of the supreme penalty of death through lethal injection under Republic Act No. 8177, is concerned. All accused PFC Victor Venecario, Arnold Roble and Gerlyn Wates, are instead sentence (sic) to suffer the penalty of reclusion perpetua, pursuant to Art. IV, Sec. 21, in relation to Art. IV of Republic Act No. 6425 as amended by Republic Act No. 7659, Sec. 20, par. 5 thereof, in accordance with Art. 63 of the Revised Penal Code, as decided by the Supreme Court in the recent case of Peope (sic) vs. Ruben Montilla G.R. No. 123872 dated January 30, 1998. However, the findings of this court for the conviction of all aaccused (sic) of the offense charged, is (sic) sustained. The corresponding motion (sic) for reconsideration of all accused through their counsel for their acquittal of (sic) the offense charged, is denied, for lack of merit. SO ORDERED.24 (Emphasis and Underscoring supplied) The prosecution then filed a Motion for Reconsideration25 dated September 14, 1995 of the abovementioned Order of the trial court, it arguing that the commission of the offense charged against appellants was attended by an aggravating circumstance in that it was committed by an organized or syndicated crime group, thus warranting the imposition of the death penalty. In the meantime, Roble and Wates filed their Notice of Appeal26 on September 15, 1999. Vinecario followed suit and filed his Notice of Appeal.27 The trial court, by Order dated September 22, 1999, denied the prosecutions Motion. In their brief, Roble and Wates assign the following errors: 1. THE TRIAL COURTS OBSERVATION THAT APPELLANTS WATES AND ROBLE CONSPIRED WITH VICTOR VINECARIO IN TRANSPORTING MARIJUANA FROM PARANG, MAGUINDANAO IS NOT BORNE BY THE EVIDNECE (sic) ON RECORD AND SHOWS THAT THE TRIAL COURT GRAVELY ERRED IN MISAPPREHENDING FACTS IF NOT A COMPLETE DISREGARD OF THE EVIDENCE, BOTH DOCUMENTARY AND TESTIMONIAL.

121 2. THE TRIAL COURT GRAVELY ERRED IN FAILING TO AFFORD EVIDENTIARY WEIGHT TO THE RECANTATION MADE BY POLICE OFFICERS HAYDENBURG GOC-ONG AND VICENTE CARVAJAL THAT BOTH APPELLANTS WATES AND ROBLE WERE NOT NERVOUS AND APPREHENSIVE AT THE TME (sic) OF THE OPENING OF THE MILITARY PACK CONTAINING MARIJUANA NEAR THE CHECKPOINT. 3. THE TRIAL COURT GRAVELY ERRED IN NOT GIVING CREDENCE TO THE TESTIMONIES OF APPELLANTS WATES AND ROBLE THAT THEY WERE MERELY HIRED BY VICTOR VINECARIO TO BRING HIM TO PARANG, MAGUINDANAO FOR A FEE OF P500.00 WITH FREE FOOD AND GASOLINE. 4. THE TRIAL COURT GRAVELY ERRED IN DECLARING THE RENTAL OF P500.00 WHICH VINECARIO PAID TO THE OWNER OF THE [MOTORCYCLE] AS INADEQUATE BY TAKING JUDICIAL NOTICE OF THE BUS FARE OF P268.00 FROM MACO, DAVAO PROVINCE TO SUN WAY CROSSING, MAGUINDANAO DOWN TO PARANG, MAGUINDANAO.28 Wates and Roble argue that there is no iota of evidence to prove that they acted with unity of purpose and in the execution of any unlawful objective with Vinecario.29 They assert that they had no prior knowledge of Vinecarios plan to meet with a man who would give the backpack containing marijuana; that prosecution witnesses SPO1 Goc-ong and PO1 Carvajals declaration that they (appellants Wates and Roble) were not nervous, uneasy or apprehensive when the backpack was opened buttresses their claim that they did not conspire with Vinecario; and that the prosecutions theory of conspiracy was merely based on the testimony of PO1 Carvajal that they acted nervously when the backpack was ordered opened for inspection; that there was a "great variance" in the testimonies of SPO1 Goc-ong and PO1 Carvajal in the direct examination and their testimonies on rebuttal as to the events that transpired on April 10, 1995, thus casting serious doubts on the trial courts findings of guilt. On September 17, 2001, Vinecario filed an Urgent Motion to Withdraw Appeal,30 stating that he is "practically satisfied with the decision of the trial court"; that "he would not waste anymore the effort of the honorable Supreme Court Justices in further reviewing his case"; and that as he was "driven by the sincerest desire in renewing his life," he "irrevocably moves for the withdrawal of his appeal." On even date, Roble and Wates likewise filed an Urgent Motion to Withdraw Appeal,31 stating that they admit the commission of the offense for which they were convicted; that they are satisfied with the decision of the trial court; and that they are already serving the penalty for their offense and "realize the overt admittance of guilt as the only vehicle in [their] gradual renewal." By Resolution of November 27, 2001, this Court denied the Motions of appellants and directed Vinecario to file his brief within forty-five days from notice of the resolution. In a brief dated January 25, 2002, Vinecario attributes the following errors to the trial court: I. THE COURT A QUO GRAVELY ERRED IN HOLDING THAT THE SEARCH UPON THE PERSON OF ACCUSED-APPELLANT AND THE SEIZURE OF THE ALLEGED 1,700 GRAMS OF MARIJUANA AS (sic) VALID. II. THE COURT A QUO GRAVELY ERRED IN ADMITTING AS EVIDENCE AGAINST ACCUSEDAPPELLANT THE ALLEGED 1,700 GRAMS OF MARIJUANA AS IT WAS A PRODUCT OF AN ILLEGAL SEARCH. III. THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONY OF PROSECUTION WITNESSES AND IN GIVING THE POLICEMEN THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF DUTY DESPITE THE APPARENT IRREGULARITIES IN THE MANNER OF ARRESTING THE ACCUSED-APPELLANT. IV. THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSEDAPPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT.32

122 Vinecario argues that the prosecution failed to show that the search conducted by the police officers was incident to a lawful arrest; that he could not have been deemed to have consented to the search as any such consent was given under intimidating or coercive circumstances; and that there existed no probable cause to justify the search and seizure of the backpack, hence, the marijuana is inadmissible in evidence, it being a product of illegal search. Vinecario adds that the police officers who arrested and investigated him failed to inform him of his rights to remain silent and to have competent and independent counsel of his choice, thereby violating Section 12(1), Article III of the Constitution.33 The rule is constitutionally enshrined that no search and seizure can lawfully be conducted without a valid warrant issued by a competent judicial authority. Section 2, Article III of the Constitution so ordains: Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose, shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. And Section 3(2), Article III of the same Constitution mandates that any evidence obtained in violation of the right of the people under Section 2 shall be inadmissible for any purpose in any proceeding. The constitutional proscription against warrantless searches and seizures admits of certain exceptions, however. Search and/or seizure may be made without a warrant and the evidence obtained therefrom may be admissible in the following instances: (1) search incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of customs laws; (4) seizure of evidence in plain view; (5) when the accused himself waives his right against unreasonable searches and seizures; and (6) stop-andfrisk situations.34 Searches conducted in checkpoints are valid for as long as they are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists.35 For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individuals right against unreasonable search.36 x x x [Checkpoints are not illegal per se. Thus, under exceptional circumstances, as where the survival of organized government is on the balance, or where the lives and safety of the people are in grave peril, checkpoints may be allowed and installed by the government. xxx No one can be compelled, under our libertarian system, to share with the present government its ideological beliefs and practices, or commend its political, social and economic policies or performance. But, at least, one must concede to it the basic right to defend itself from its enemies and, while in power, to pursue its program of government intended for public welfare; and in the pursuit of those objectives, the government has the equal right, under its police power, to select the reasonable means and methods for best achieving them. The checkpoint is evidently one of such means it has selected. Admittedly, the routine checkpoint stop does intrude, to a certain extent, on motorists right to "free passage without interruption", but it cannot be denied that, as a rule, it involves only a brief detention of travelers during which the vehicles occupants are required to answer a brief question or two. x x x These routine checks, when conducted in a fixed area, are even less intrusive. As held by the U.S. Supreme Court: "Routine checkpoint stops do not intrude similarly on the motoring public. First, the potential interference with legitimate traffic is minimal. Motorists using these highways are not taken by surprise

123 as they know, or may obtain knowledge of, the location of the checkpoints and will not be stopped elsewhere. Second checkpoint operations both appear to and actually involve less discretionary enforcement activity. The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by official responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class, and since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than there was in the case of roving-patrol stops. Moreover, a claim that a particular exercise of discretion in locating or operating a checkpoint is unreasonable is subject to post-stop judicial review."37 Judicial notice is taken of the existence of COMELEC Resolution No. 2735 imposing a gun ban during an election period issued pursuant to Section 52(c) of the Omnibus Election Code (Batas Pambansa Blg. 881).38 The national and local elections in 1995 having been held on May 8, the present incident, which occurred on April 10, 1995, was well within the election period. Although the general rule is that motorists and their vehicles as well as pedestrians passing through checkpoints may only be subjected to a routine inspection, vehicles may be stopped and extensively searched when there is probable cause which justifies a reasonable belief of the men at the checkpoints that either the motorist is a law offender or the contents of the vehicle are or have been instruments of some offense.39 Probable cause has been defined as such facts and circumstances which could lead a reasonable, discreet and prudent man to believe that an offense has been committed, and that the objects sought in connection with the offense are in the place sought to be searched. The required probable cause that will justify a warrantless search and seizure is not detemined by any fixed formula but is resolved according to the facts of each case. Warrantless search of the personal effects of an accused has been declared by this Court as valid, because of existence of probable cause, where the smell of marijuana emanated from a plastic bag owned by the accused, or where the accused was acting suspiciously, and attempted to flee.40 (Emphasis supplied). That probable cause existed to justify the search conducted by the police officers at the checkpoint is gathered from the following testimony of SPO1 Goc-ong: Q: You said you saw three on board a motorcycle what did your unit do when these three persons approached? A: We were waiting for them. When they arrived they stopped and speeded away. Q: What was your reaction when you saw the motor speeding away? A: One of my men blew his whistle ordering to (sic) return back (sic). xxx Q: When they returned back (sic) what happened? A: When they returned back (sic) I asked them why they speeded away? Q: What did they answer? A: One of them said that he is a member of the army. Q: If that person who said that he is a member of the army is in court, can you point to him? A: (Witness went down from the witness stand and pointed to a man wearing yellow t-shirt who stood up and when asked about his name answered that he is Victor Venecario). xxx Q: What was your reaction when Venecario failed to show any identification papers to show that he is really a member of the army? A: We saw his big backpack and asked him what was inside. Q: Who was carrying that big backpack? A: Venecario. xxx

124 Q: You said you asked him what was (sic) the contents of that backpack, can you tell us why did you (sic) ask him? A: I asked about that because I observed them to be acting suspiciously as if they were afraid and different reactions (sic). Q: They were acting suspiciously? A: Yes. Q: That is what you have observed from their faces? A: Yes, sir. Q: What did Venecario do when you asked him about the contents of that backpack? A: He said that it is a mat and passed it on to his companion. Q: You said he passed it on to his companion, there were two (2) companions, to whom did he pass it on? A: He passed it on to Wates and Wates passed it on to Roble. Q: What did Roble do when Wates passed it to him? A: Roble returned it back (sic) to Venecario. Q: So what was your reaction when you saw the three passing the bag from one person to another? A: My suspicion was it was a bomb and ordered my men to scatter. Q: Tell us why are you (sic) concerned about explosives was there any incident prior to that checkpoint? A: Election was past (sic) approaching and there was a threat that Davao City will be bombed. Q: Prior to that was there any incident? xxx A: In Ipil, Zamboanga on April 4. Q: If you recall when was that? A: April 4 of the same year. Q: You said the bag was passed to Venecario and you told your men to scatter, what happened next? A: I ordered Venecario to open the backpack. Q: What did Venecario do when you ordered him to open? A: They opened the backpack..41 SPO1 Goc-ongs testimony was corroborated by PO1 Vicente Carvajal: Q: At about 10:45 in the evening of that date April 10, 1995 do you recall of any unusual incident while you were conducting that checkpoint? A: Yes, sir. Q: What was that incident all about? A: At that time, while we were conducting a checkpoint, we saw this motorcycle passing and flagged them to stop and there were three (3) persons and one was manning and they briefly stopped but speeded away. xxx Q: When these three (3) persons retured (sic) back (sic) what happened? A: The one riding introduced himself as a member of the army. xxx Q: You said these three persons were nervous and one of them introduced himself as an army man, what did you do? A: I asked for an ID. Q: Who among you asked for an ID? A: Sgt. Goc-ong. Q: Where were you at that time when Goc-ong asked for his ID? A: I was behind him because I backed him up. Q: What was the reaction of Venecario when he was asked to produce an ID? A: He answered that he has no ID. Q: What was the reaction of the group when Venecario failed to show any ID that he was an army man? A: Our other companion moved closer as security. Q: Why? A: We were on alert because on April 4 the one who attacked were (sic) in uniform. Q: At that time what was Venecario wearing? A: He was in camouflage and wearing sleepers (sic). xxx Q: After that what happened? A: We were able to observe that he was carrying a bag.

125 Q: What was the reaction of Venecario when he was asked what was (sic) the contents of the bag? A: He appeared to be hesitant and he said that it contained clothes. Q: Before that what did Venecario do? A: He placed it in (sic) his shoulder. Q: What did he do with the backpack? A: When asked he passed it to his other companions. Q: What did Venecario when he passed it to his companion? A: Venecario passed it to his companion and that companion passed it to his other companion. Q: After this companion received the backpack from his companion what did he do? A: He returned back (sic) to Venecario. Q: They passed it from one person to another until it was returned to Venecario? A: Yes, sir. xxx Q: You said that backpack was passed from one person to another and when he got hold of that backpack what happened? A: He opened the backpack. Q: Who told him to open the backpack? A: Sgt. Goc-ong.42 In light then of appellants speeding away after noticing the checkpoint and even after having been flagged down by police officers, their suspicious and nervous gestures when interrogated on the contents of the backpack which they passed to one another, and the reply of Vinecario, when asked why he and his co-appellants sped away from the checkpoint, that he was a member of the Philippine Army, apparently in an attempt to dissuade the policemen from proceeding with their inspection, there existed probable cause to justify a reasonable belief on the part of the law enforcers that appellants were offenders of the law or that the contents of the backpack were instruments of some offense. As to Vinecarios allegation that his constitutional rights were violated during the custodial investigation conducted by the police officers, the same is relevant and material only when an extrajudicial admission or confession extracted from an accused becomes the basis of his conviction.43 In the case at bar, the trial court convicted appellants on the basis of the testimonies of the prosecution witnesses, particularly those of SPO1 Haydenburge Goc-ong and PO1 Vicente Carvajal. Finally, Vinecario harps on his defense of denial which he recounted as follows: Q: After leaving the residence of your brother was there any unusual incident that took place? A: Yes, sir. Q: What was that? A: The moment we arrived there there was a person who blocked us. Q: Where? A: Parang Highway. Q: Coming here to Davao? A: Yes. Q: What happened after Crossing Parang? A: There was a person who blocked us. Q: A former companion of yours? A: Yes. Q: A former soldier? A: No, sir. Q: You said your former companion, am I correct? A: Before I became a soldier, I worked in Emerson Plywood. Q: So that person who flagged down you were (sic) your former companion? A: Yes. Q: You are familiar with him? A: I know him very well. Q: He was your close friend? A: Yes. Q: What is the name of that person who stopped you? A: Abdul Karim Datolarta. Q: He was alone when he stopped you? A: Yes, sir. Q: What happened when your friend Abdul Karin (sic) Datolarta stopped you?

126 A: When he stopped us, I immediately disembarked from the motor vehicle and shook hands with him. Q: He was the one who stopped you or you were the one who told the driver to stop? A: My friend. Q: You immediately recognized the face of that friend of yours? A: Not yet. Q: What else happened aside from shaking hands and greeting? A: He asked me where I was heading. Q: What was your answer? A: I told him that I am going back to Davao. Q: What else did he tell you? A: He told me if he can also ride with us. Q: What did you tell him? A: I told him we were already three. Q: What happened next? A: Since I refused he asked me if I could bring his bag and he mentioned the name of that cousin of his in Tagum. Q: He mentioned the name? A: Yes, Merly. Q: What is the family name? A: He just mentioned Merly who is residing in Tagum. Q: Where in Tagum? A: Roxas, Tagum. Q: What did you do when he asked you to bring that bag to his cousin in Tagum? A: I asked him what was (sic) the contents? Q: What did he answer you? A: He answered clothes. Q: What did you do? A: Because were (sic) were in a hurry I slung it in (sic) my shoulder. Q: You did not become suspicious? A: No more because I trusted the person and I have an emergency to take (sic) that time.44 Vinecarios account - that in the evening of April 10, 1995, while he and his co-appellants were cruising along the highway, a person whom he failed to recognize but who turned out to be an acquaintance, Abdul Karim Datolarta, flagged down45 the motorcycle, and as requested by Datolarta, he readily agreed to bring a backpack to Datolartas cousin without checking its contents - is incredible, contrary to human experience, and taxes credulity. Datolarta was not even apprehended nor presented at the trial, thus further eliciting serious doubts on Vinecarios tale. The defense of denial, like alibi, has invariably been viewed by the courts with disfavor for it can just as easily be concocted and is a common and standard defense ploy in most prosecutions of the Dangerous Drugs Act.46 The categorical and consistent testimonies, and the positive identification by prosecution witnesses SPO1 Goc-ong and PO1 Carvajal, against whom no ill motive to falsely charge appellants was shown, must thus then prevail over the unconvincing alibi and unsubstantiated denial of appellants. As for the challenged finding by the trial court of conspiracy among appellants, the same fails. Conspiracy exists when two or more persons come to an agreement concerning the commission of a crime and decide to commit it.47 Where the acts of the accused collectively and individually demonstrate the existence of a common design towards the accomplishment of the same unlawful purpose, conspiracy is evident, and all the perpetrators will be liable as principals.48 To exempt himself from criminal liability, the conspirator must have performed an overt act to dissociate or detach himself from the unlawful plan to commit the crime.49 In People v. Concepcion,50 this Court held: x x x Proof of agreement need not rest on direct evidence as the same may be inferred from the conduct of the parties indicating a common understanding among them with respect to the commission of the

127 offense. It is not necessary to show that two or more persons met together and entered into an explicit agreement setting out the details of an unlawful scheme or the details by which an illegal objective is to be carried out. It may be deduced from the mode and manner in which the offense was perpetrated or inferred from the acts of the accused evincing a joint or common purpose and design, concerted action and community of interest. In the case at bar, as established by the evidence, appellants connived in unlawfully transporting the subject marijuana. Roble, who was driving the motorcycle at Ulas, did not stop but instead sped away upon seeing the checkpoint in a clear attempt to avoid inspection by the police officers. When asked as to the contents of the backpack by SPO1 Goc-ong, appellants passed the same to one another, indicating that they knew its contents. These circumstances manifest appellants concerted efforts and cooperation towards the attainment of their criminal objective. Wates and Roble assail the credibility of prosecution witnesses SPO1 Goc-ong and PO1 Carvajal, they contending that these witnesses contradicted their testimonies-in-chief when they subsequently testified on rebuttal that appellants were not nervous or apprehensive at all when they were being inspected by the policemen. It bears noting, however, that the alleged conflicting observations of SPO1 Goc-ong and PO1 Carvajal referred to by Roble and Wates on their deportment pertain to different stages of the checkpoint inspection as a scrutiny of the records reveals. Thus, in his direct examination, SPO1 Goc-ong testified as follows: Q: You said you asked him what was (sic) the contents of that backpack, can you tell us why did you (sic) ask him? A: I asked about that because I observed them to be acting suspiciously as if they were afraid and different reactions (sic). Q: They were acting suspiciously? A: Yes. Q: That is what you observed in their faces? A: Yes, sir.51 PO1 Carvajal, on cross-examination, echoed Goc-ongs observations on appellants deportment upon returning to the checkpoint: Q: You said when these three (3) suspects riding the motorcycle returned and stopped you said you noticed one of them was nervous, did I get you right? A: Yes, sir. Q: Only one was nervous? A: All of them. Q: When you said they appeared to be nervous, could that mean that they were trembling? A: Yes, sir. Q: In fact they were pale, is that correct? A: Yes. Q: You noticed they were pale despite the fact that it was dark and it was 10:00 oclock in the evening? A: There was light. Q: The place was well-lighted? A: Yes, sir.52 On rebuttal, SPO1 Goc-ong stated that appellants were not anxious or apprehensive when he flagged them down as they crossed the checkpoint.53 PO1 Carvajal, on the other hand, testified on rebuttal that Wates was not nervous as Vinecarios backpack was being opened.54 As to the other alleged discrepancies pointed out by Wates and Roble, the following arguments of the Office of the Solicitor General, which are quoted with approval, should dispose of the same: It is incorrect to suggest that just because SPO1 Goc-ong testified that other vehicles passed through the checkpoint before the appellants arrived, the latter could not have sped away from the checkpoint. SPO1 Goc-ong did not give any testimony that other vehicles were still at the checkpoint at the time the appellants arrived. On the contrary, he testified there was no other vehicle ahead of the appellants at the checkpoint when the latter arrived on their motorcycle (TSN, June 17, 1999, p.7).

128 It is also incorrect to suggest that appellants may not have noticed the checkpoint just because SPO1 Goc-ong made no mention of using reflectorized objects at the checkpoint. As described earlier in his Brief, this witness explained that the checkpoint was visible because it had a sign board at the middle of the road that read, "COMELEC GUN BAN" (TSN, June 17, 1999, pp. 6 and 8). There is no way for appellants not to have noticed the checkpoint.55 In fine, appellants defenses fail in light of their clearly proven act of delivering or transporting marijuana. The evidence shows that accused-appellant was apprehended in the act of delivering or transporting illegal drugs. "Transport" as used under the Dangerous Drugs Act is defined to mean: "to carry or convey from one place to another." When accused-appellant used his vehicle to convey the package containing marijuana to an unknown destination, his act was part of the process of transporting the said prohibited substance. Inherent in the crime of transporting the prohibited drug is the use of a motor vehicle. The very act of transporting a prohibited drug, like in the instant case, is a malum prohibitum since it is punished as an offense under a special law. The mere commission of the act constitutes the offense and is sufficient to validly charge and convict an individual committing the act, regardless of criminal intent. Since the appellant was caught transporting marijuana, the crime being mala prohibita, accusedappellants intent, motive, or knowledge, thereof need not be shown.56(Underscoring supplied) A word on the penalty. As provided in Section 4 of the Dangerous Drugs Act, the penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall transport any prohibited drug. Section 20, Article IV of the same act provides that the penalty imposed in Section 4 shall be applied if the dangerous drug is, with respect to marijuana, 750 grams or more. In the case at bar, the marijuana involved weighed 1,700 grams. Since the law prescribes two indivisible penalties, a resort to Article 63 of the Revised Penal Code57 is necessary. There being no mitigating nor aggravating circumstance that attended the commission of the offense, the lesser penalty of reclusion perpetua was properly imposed by the trial court. A fine of P500,000.00 should, however, been likewise imposed on the appellants in solidum in accordance with the law. WHEREFORE, the decision of the Regional Trial Court, Davao City, Branch 16, in Criminal Case No. 35233-95 finding appellants Victor Vinecario, Arnold Roble and Gerlyn Wates guilty beyond reasonable doubt of illegally transporting marijuana under Section 4, Article II of Republic Act No. 6425, as amended, is hereby AFFIRMED with MODIFICATION. As modified, appellants are sentenced to each suffer the penalty of reclusion perpetua and solidarity pay a fine of P500,000.00. SO ORDERED.

129 Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 81567 July 9, 1990 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA. MANOLITA O. UMIL, and NICANOR P. DURAL, FELICITAS V. SESE, petitioners, vs. FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO, BRIG. GEN. ALEXANDER AGUIRRE, respondents. G.R. Nos. 84581-82 July 9, 1990 AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners, vs. GEN. RENATO DE VILLA and GEN. RAMON MONTANO, respondents. G.R. Nos. 84583-84 July 9, 1990 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T. ANONUEVO and RAMON CASIPLE. DOMINGO T. ANONUEVO and RAMON CASIPLE, petitioners, vs. HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARINO, LT. COL. REX D. PIAD, T/SGT. CONRADO DE TORRES, S/SGT. ARNOLD DURIAN, and Commanding Officer, PC-INP Detention Center, Camp Crame, Quezon City, respondents. G.R. No. 83162 July 9, 1990 IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A. OCAYA AND DANNY RIVERA. VIRGILIO A. OCAYA, petitioner, vs. BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL. NESTOR MARIANO, respondents. G.R. No. 85727 July 9, 1990 IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF: DEOGRACIAS ESPIRITU, petitioner, vs. BRIG. GEN. ALFREDO S. LIM, COL. RICARDO REYES, respondents. G.R. No. 86332 July 9, 1990 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B. NAZARENO. ALFREDO NAZARENO, petitioner, vs. THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION, Muntinglupa, Metro Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and P/SGT. MAURO AROJADO,respondents. Efren H. Mercado for petitioners in G.R. No. 81567. Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82. Ramon S. Esguerra, Barbara Anne C. Migallos and Agripino G. Morga for petitioners in G.R. Nos. 8458384.

130 Efren H. Mercado for petitioner in G.R. No. 83162. Banzuela, Flores, Miralles, Raneses, Sy, Taquio & Association for petitioner in G.R. No. 85727. Josefina G. Campbell-Castillo for petitioners in G.R. No. 86332. The Solicitor General for the respondents.

PER CURIAM: The are eight (8) petitioners for habeas corpus filed before the Court, which have been consolidated because of the similarity of issues raised, praying for the issuance of the writ of habeas corpus, ordering the respective respondents to produce the bodies of the persons named therein and to explain why they should not be set at liberty without further delay. In their respective Returns, the respondents uniformly assert that the privilege of the writ of habeas corpus is not available to the petitioners as they have been legally arrested and are detained by virtue of valid informations filed in court against them. The petitioners counter that their detention is unlawful as their arrests were made without warrant and, that no preliminary investigation was first conducted, so that the informations filed against them are null and void. The Court has carefully reviewed the contentions of the parties in their respective pleadings, and it finds that the persons detained have not been illegally arrested nor arbitrarily deprived of their constitutional right to liberty, and that the circumstances attending these cases do not warrant their release on habeas corpus. The arrest of a person without a warrant of arrest or previous complaint is recognized in law. The occasions or instances when such an arrest may be effected are clearly spelled out in Section 5, Rule 113 of the Rules of Court, as amended, which provides: Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit 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. An arrest without a warrant of arrest, under Section 5 paragraphs (a) and (b) of Rule 113 of the Rules of Court, as amended, is justified when the person arrested is caught in flagranti delicto, viz., in the act of committing an offense; or when an offense has just been committed and the person making the arrest has personal knowledge of the facts indicating that the person arrested has committed it. The rationale behind lawful arrests, without warrant, was stated by this Court in the case of People vs. Kagui Malasugui 1 thus:

131 To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many instances. The record of the instant cases would show that the persons in whose behalf these petitions for habeas corpushave been filed, had freshly committed or were actually committing an offense, when apprehended, so that their arrests without a warrant were clearly justified, and that they are, further, detained by virtue of valid informations filed against them in court. A brief narration of the facts and events surrounding each of the eight (8) petitions is in order. I In G.R. No. 81567 (Umil vs. Ramos), the record shows that, on 1 February 1988, the Regional Intelligence Operations Unit of the Capital Command (RIOU-CAPCOM) received confidential information about a member of the NPA Sparrow Unit (liquidation squad) being treated for a gunshot wound at the St. Agnes Hospital in Roosevelt Avenue, Quezon City. Upon verification, it was found that the wounded person, who was listed in the hospital records as Ronnie Javelon, is actually Rolando Dural, a member of the NPA liquidation squad, responsible for the killing of two (2) CAPCOM soldiers the day before, or on 31 January 1988, in Macanining Street, Bagong Barrio, Caloocan City. In view of this verification, Rolando Dural was transferred to the Regional Medical Services of the CAPCOM, for security reasons. While confined thereat, or on 4 February 1988, Rolando Dural was positively identified by eyewitnesses as the gunman who went on top of the hood of the CAPCOM mobile patrol car, and fired at the two (2) CAPCOM soldiers seated inside the car identified as T/Sgt. Carlos Pabon and CIC Renato Manligot. As a consequence of this positive identification, Rolando Dural was referred to the Caloocan City Fiscal who conducted an inquest and thereafter filed with the Regional Trial Court of Caloocan City an information charging Rolando Dural alias Ronnie Javelon with the crime of "Double Murder with Assault Upon Agents of Persons in Authority." The case was docketed therein as Criminal Case No. C-30112 and no bail was recommended. On 15 February 1988, the information was amended to include, as defendant, Bernardo Itucal, Jr. who, at the filing of the original information, was still unidentified. Meanwhile, on 6 February 1988, a petition for habeas corpus was filed with this Court on behalf of Roberto Umil,Rolando Dural, and Renato Villanueva. The Court issued the writ of habeas corpus on 9 February 1988 and the respondents filed a Return of the Writ on 12 February 1988. Thereafter, the parties were heard on 15 February 1988. On 26 February 1988, however, Roberto Umil and Renato Villanueva posted bail before the Regional Trial Court of Pasay City where charges for violation of the Anti-Subversion Act had been filed against them, and they were accordingly released. The petition for habeas corpus, insofar as Umil and Villanueva are concerned, is now moot and academic and is accordingly dismissed, since the writ of habeas corpus does not lie in favor of an accused in a criminal case who has been released on bail. 2 As to Rolando Dural, it clearly appears that he was not arrested while in the act of shooting the two (2) CAPCOM soldiers aforementioned. Nor was he arrested just after the commission of the said offense for his arrest came a day after the said shooting incident. Seemingly, his arrest without warrant is unjustified. However, Rolando Dural was arrested for being a member of the New Peoples Army (NPA), an outlawed subversive organization. Subversion being a continuing offense, the arrest of Rolando Dural without warrant is justified as it can be said that he was committing an offense when arrested. The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct assaults against the State and are in the nature of continuing crimes. As stated by the Court in an earlier case: From the facts as above-narrated, the claim of the petitioners that they were initially arrested illegally is, therefore, without basis in law and in fact. The crimes of

132 insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance, on the occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside from their essentially involving a massive conspiracy of nationwide magnitude. Clearly then, the arrest of the herein detainees was well within the bounds of the law and existing jurisprudence in our jurisdiction. 2. The arrest of persons involved in the rebellion whether as its fighting armed elements, or for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which requires the determination by a judge of the existence of probable cause before the issuance of a judicial warrant of arrest and the granting of bail if the offense is bailable. Obviously, the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against government forces, or any other milder acts but equally in pursuance of the rebellious movement. The arrest or capture is thus impelled by the exigencies of the situation that involves the very survival of society and its government and duly constituted authorities. If killing and other acts of violence against the rebels find justification in the exigencies of armed hostilities which is of the essence of waging a rebellion or insurrection, most assuredly so in case of invasion, merely seizing their persons and detaining them while any of these contingencies continues cannot be less justified. . . . 3 The record, moreover, shows that the criminal case filed against Rolando Dural and Bernardo Itucal, Jr. for "Double Murder, etc." was tried in the court below and at the conclusion thereof, or on 17 August 1988, Rolando Dural and Bernardo Itucal, Jr. were found guilty of the charge and sentenced accordingly. Rolando Dural is now serving the sentence imposed upon him by the trial court. Thus, the writ of habeas corpus is no longer available to him. For, as held in the early case of U.S. vs. Wilson: 4 In this case, whatever may be said about the manner of his arrest, the fact remains that the defendant was actually in court in the custody of the law on March 29, when a complaint sufficient in form and substance was read to him. To this he pleaded not guilty. The trial followed, in which, and in the judgment of guilty pronounced by the court, we find no error. Whether, if there were irregularities in bringing him personally before the court, he could have been released on a writ of habeas corpus or now has a civil action for damages against the person who arrested him we need not inquire. It is enough to say that such irregularities are not sufficient to set aside a valid judgment rendered upon a sufficient complaint and after a trial free from error. II In G.R. Nos. 84581-82 (Roque vs. De Villa), the arrest of Amelia Roque and Wilfredo Buenaobra, without warrant, is also justified. When apprehended at the house of Renato Constantino in Marikina Heights, Marikina, Metro Manila, Wilfredo Buenaobra admitted that he was an NPA courier and he had with him letters to Renato Constantino and other members of the rebel group. Amelia Roque, upon the other hand, was a member of the National United Front Commission, in charge of finance, and admitted ownership of subversive documents found in the house of her sister in Caloocan City. She was also in possession of ammunition and a fragmentation grenade for which she had no permit or authority to possess. The record of these two (2) cases shows that on 27 June 1988, one Rogelio Ramos y Ibanes, a member of the NPA, who had surrendered to the military authorities, told military agents about the operations of the Communist Party of the Philippines (CPP) and the New Peoples Army (NPA) in Metro Manila. He identified some of his former comrades as "Ka Mong", a staff member of the Communications and Transportation Bureau; "Ka Nelia", a staff member in charge of finance; "Ka Miller", an NPA courier from Sorsogon and Lopez, Quezon; "Ka Ted", and "Ka Totoy". He also pointed to a certain house occupied by

133 Renato Constantino located in the Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro Manila, which is used as a safehouse of the National United Front Commission (NUFC) of the CPP-NPA. In view of these revelations, the Constantino house was placed under military surveillance and on 12 August 1988, pursuant to a search warrant issued by Judge Eutropio Migrino of the Regional Trial Court of Pasig, a search of the house was conducted at about 5:00 o'clock in the afternoon, by a combined team of the Criminal Investigation Service, National Capital District (CIS-NCD) and the Constabulary Security Group (CSG). In the course of the search, the following articles were found and taken under proper receipt: a) One (1) Colt M16A1 long rifle with defaced serial number; b) One (1) Cal. .380 ACT/9mm Model PPK/8 SN: 260577 & 2605778; c) Two (2) fragmentation hand grenades; d) Fifty-six (56) live ammunition for Cal. 5.56 mm; e) Five (5) live ammunition for Cal. .380; f) One (1) ICOM VHF FM Radio Transciever SN: 14903 g) One (1) Regulated power supply 220V AC; h) One (1) Antennae (adjustable); i) One (1) Speaker with cord ALEXAR; j) Voluminous Subversive documents. When confronted, Renato Constatino could not produce any permit or authority to possess the firearms, ammunition, radio and other communications equipment. Hence, he was brought to the CIS Headquarters for investigation. When questioned, he refused to give a written statement, although he admitted that he was a staff member of the executive committee of the NUFC and a ranking member of the International Department of the Communist Party of the Philippines (CPP). At about 8:00 o'clock in the evening of the same day (12 August 1988), Wilfredo Buenaobra arrived at the house of Renato Constantino in the Villaluz Compound. When accosted, he readily admitted to the military agents that he is a regular member of the CPP/NPA and that he went to the place to deliver letters to "Ka Mong", referring to Renato Constatino, and other members of the rebel group. On further questioning, he also admitted that he is known as "Ka Miller" and that he was from Barangay San Pedro, Lopez, Quezon. Among the items taken from him were the following: (1) Handwritten letter addressed to "Ka Bing & Co. from A & Co." dated August 11, 1988; (2) Handwritten letter addressed to "ROD from VIC (Schell datre)" dated August 11, 1988; (3) Handwritten letter addressed to "Suzie" from "Vic", dated August 11, 1988. Also found Buenaobra's possession was a piece of paper containing a written but jumbled telephone number of Florida M. Roque, sister of Amelia Roque alias "Ka Nelia", at 69 Geronimo St., Caloocan City. Acting on the lead provided as to the whereabouts of Amelia Roque, the military agents went to the given address the next day (13 August 1988). They arrived at the place at about 11:00 o'clock in the morning. After identifying themselves as military agents and after seeking permission to search the place, which was granted, the military agents conducted a search in the presence of the occupants of the house and the barangay captain of the place, one Jesus D. Olba.

134 The military agents found the place to be another safehouse of the NUFC/CPP. They found ledgers, journals, vouchers, bank deposit books, folders, computer diskettes, and subversive documents as well as live ammunition for a .38 SPL Winchester, 11 rounds of live ammunition for a cal. .45, 19 rounds of live ammunition for an M16 Rifle, and a fragmentation grenade. As a result, Amelia Roque and the other occupants of the house were brought to the PC-CIS Headquarters at Camp Crame, Quezon City, for investigation. Amelia Roque admitted to the investigators that the voluminous documents belonged to her and that the other occupants of the house had no knowledge of them. As a result, the said other occupants of the house were released from custody. On 15 August 1988, Amelia Roque was brought to the Caloocan City Fiscal for inquest after which an information charging her with violation of PD 1866 was filed with the Regional Trial Court of Caloocan City. The case is docketed therein as Criminal Case No. C-1196. Another information for violation of the Anti-Subversion Act was filed against Amelia Roque before the Metropolitan Trial Court of Caloocan City, which is docketed therein as Criminal Case No. C-150458. An information for violation of the Anti-Subversion Act was filed against Wilfredo Buenaobra before the Metropolitan Trial Court of Marikina, Metro Manila. The case is docketed therein as Criminal Case No. 23715. Bail was set at P4,000.00. On 24 August 1988, a petition for habeas corpus was filed before this Court on behalf of Amelia Roque and Wilfredo Buenaobra. At the hearing of the case, however, Wilfredo Buenaobra manifested his desire to stay in the PC-INP Stockade at Camp Crame, Quezon City. According, the petition for habeas corpus filed on his behalf is now moot and academic. Only the petition of Amelia Roque remains for resolution. The contention of respondents that petitioners Roque and Buenaobra are officers and/or members of the National United Front Commission (NUFC) of the CPP was not controverted or traversed by said petitioners. The contention must be deemed admitted. 5 As officers and/or members of the NUFC-CPP, their arrest, without warrant, was justified for the same reasons earlier stated vis-a-vis Rolando Dural. The arrest without warrant of Roque was additionally justified as she was, at the time of apprehension, in possession of ammunitions without license to possess them. III In G.R. Nos. 84583-84 (Anonuevo vs. Ramos), the arrest of Domingo Anonuevo and Ramon Casiple, without warrant, is also justified under the rules. Both are admittedly members of the standing committee of the NUFC and, when apprehended in the house of Renato Constatino, they had a bag containing subversive materials, and both carried firearms and ammunition for which they had no license to possess or carry. The record of these two (2) cases shows that at about 7:30 o'clock in the evening of 13 August 1988, Domingo T. Anonuevo and Ramon Casiple arrived at the house of Renato Constatino at Marikina Heights, Marikina, which was still under surveillance by military agents. The military agents noticed bulging objects on their waist lines. When frisked, the agents found them to be loaded guns. Anonuevo and Casiple were asked to show their permit or license to possess or carry firearms and ammunition, but they could not produce any. Hence, they were brought to PC Headquarters for investigation. Found in their possession were the following articles: a) Voluminous subversive documents b) One (1) Cal. 7.65 MOD 83 2C Pistol SN: 001412 with one (1) magazine for Cal. 7.65 containing ten (10) live ammunition of same caliber; c) One (1) Cal. 7.65 Pietro Barreta SN; A18868 last digit tampered with one (1) magazine containing five (5) live ammunition of same caliber. At the PC Stockade, Domingo Anonuevo was identified as "Ka Ted", and Ramon Casiple as "Ka Totoy" of the CPP, by their comrades who had previously surrendered to the military.

135 On 15 August 1988, the record of the investigation and other documentary evidence were forwarded to the Provincial Fiscal at Pasig, Metro Manila, who conducted an inquest, after which Domingo Anonuevo and Ramon Casiple were charged with violation of Presidential Decree No. 1866 before the Regional Trial Court of Pasig, Metro Manila. The cases are docketed therein as Criminal Cases Nos. 74386 ad 74387, respectively. No bail was recommended. On 24 August 1988, a petition for habeas corpus was filed with this Court on behalf of Domingo Anonuevo and Ramon Casiple, alleging that the said Anonuevo and Casiple were unlawfully arrested without a warrant and that the informations filed against them are null and void for having been filed without prior hearing and preliminary investigation. On 30 August 1988, the Court issued the writ of habeas corpus, and after the respondents had filed a Return of the Writ, the parties were heard. The petitioners' (Anonuevo and Casiple) claim that they were unlawfully arrested because there was no previous warrant of arrest, is without merit The record shows that Domingo Anonuevo and Ramon Casiple were carrying unlicensed firearms and ammunition in their person when they were apprehended. There is also no merit in the contention that the informations filed against them are null and void for want of a preliminary investigation. The filing of an information, without a preliminary investigation having been first conducted, is sanctioned by the Rules. Sec. 7, Rule 112 of the Rules of Court, as amended, reads: Sec. 7. When accused lawfully arrested without a warrant. When a person is lawfully arrested without a warrant for an offense cognizable by the Regional Trial Court the complaint or information may be filed by the offended party, peace officer or fiscal without a preliminary investigation having been first conducted, on the basis of the affidavit of the offended party or arresting officer or person. However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of non-availability of a lawyer, a responsible person of his choice. Notwithstanding such waiver, he may apply for bail as provided in the corresponding rule and the investigation must be terminated within fifteen (15) days from its inception. If the case has been filed in court without a preliminary investigation having been first conducted, the accused may within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduced evidence in his favor in the manner prescribed in this Rule. The petitioners Domingo Anonuevo and Ramon Casiple, however, refused to sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended. In the informations filed against them, the prosecutor made identical certifications, as follows: This is to certify that the accused has been charged in accordance with Sec. 7, Rule 112 of the 1985 Rules on Criminal Procedure, that no preliminary investigation was conducted because the accused has not made and signed a waiver of the provisions of Art. 125 of the Revised Penal Code, as amended; that based on the evidence presented, there is reasonable ground to believe that the crime has been committed, and that the accused is probably guilty thereof. Nor did petitioners ask for a preliminary investigation after the informations had been filed against them in court. Petitioners cannot now claim that they have been deprived of their constitutional right to due process. IV

136 In G.R. No. 83162 (Ocaya vs. Aguirre), the arrest without warrant, of Vicky Ocaya is justified under the Rules, since she had with her unlicensed ammunition when she was arrested. The record of this case shows that on 12 May 1988, agents of the PC Intelligence and Investigation of the Rizal PC-INP Command, armed with a search warrant issued by Judge Eutropio Migrino of the Regional Trial Court of Pasig, Metro Manila, conducted a search of a house located at Block 19, Phase II, Marikina Green Heights, Marikina, Metro Manila, believed to be occupied by Benito Tiamson, head of the CPP-NPA. In the course of the search, Vicky Ocaya arrived in a car driven by Danny Rivera. Subversive documents and several rounds of ammunition for a .45 cal. pistol were found in the car of Vicky Ocaya. As a result, Vicky Ocaya and Danny Rivera were brought to the PC Headquarters for investigation. When Vicky Ocaya could not produce any permit or authorization to possess the ammunition, an information charging her with violation of PD 1866 was filed with the Regional Trial Court of Pasig, Metro Manila. The case is docketed therein as Criminal Case No. 73447. Danny Rivera, on the other hand, was released from custody. On 17 May 1988, a petition for habeas corpus was filed, with this Court on behalf of Vicky Ocaya and Danny Rivera. It was alleged therein that Vicky Ocaya was illegally arrested and detained, and denied the right to a preliminary investigation. It would appear, however, that Vicky Ocaya was arrested in flagranti delicto so that her arrest without a warrant is justified. No preliminary investigation was conducted because she was arrested without a warrant and she refused to waive the provisions of Article 125 of the Revised Penal Code, pursuant to Sec. 7, Rule 112 of the Rule of Court, as amended. V The petitioners Vicky Ocaya, Domingo Anonuevo, Ramon Casiple, and Amelia Roque claim that the firearms, ammunition and subversive documents alleged to have been found in their possession when they were arrested, did not belong to them, but were "planted" by the military agents to justify their illegal arrest. The petitioners, however, have not introduced any evidence to support their aforesaid claim. On the other hand, no evil motive or ill-will on the part of the arresting officers that would cause the said arresting officers in these cases to accuse the petitioners falsely, has been shown. Besides, the arresting officers in these cases do not appear to be seekers of glory and bounty hunters for, as counsel for the petitioners Anonuevo and Casiple say, "there is absolutely nothing in the evidence submitted during the inquest that petitioners are on the 'AFP Order of Battle with a reward of P150,000.00 each on their heads.'" 6 On the other hand, as pointed out by the Solicitor General, the arrest of the petitioners is not a product of a witch hunt or a fishing expedition, but the result of an in-depth surveillance of NPA safehouses pointed to by no less than former comrades of the petitioners in the rebel movement. The Solicitor General, in his Consolidated Memorandum, aptly observes: . . . . To reiterate, the focal point in the case of petitioners Roque, Buenaobra, Anonuevo and Casiple, was the lawful search and seizure conducted by the military at the residence of Renato Constantino at Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro Manila. The raid at Constantino's residence, was not a witch hunting or fishing expedition on the part of the military. It was a result of an in-depth military surveillance coupled with the leads provided by former members of the underground subversive organizations. That raid produced positive results. to date, nobody has disputed the fact that the residence of Constantino when raided yielded communication equipment, firearms and ammunitions, as well as subversive documents. The military agents working on the information provided by Constantino that other members of his group were coming to his place, reasonably conducted a "stake-out" operation whereby some members of the raiding team were left behind the place. True enough, barely two hours after the raid and Constantino's arrest, petitioner Buenaobra arrived at Constantino's residence. He acted suspiciously and when frisked and searched by the military authorities, found in his person were letters. They are no ordinary letters,

137 as even a cursory reading would show. Not only that, Buenaobra admitted that he is a NPA courier and was there to deliver the letters to Constantino. Subsequently, less than twenty four hours after the arrest of Constantino and Buenaobra, petitioners Anonuevo and Casiple arrived at Constantino's place. Would it be unreasonable for the military agents to believe that petitioners Anonuevo and Casiple are among those expected to visit Constantino's residence considering that Constatino's information was true, in that Buenaobra did come to that place? Was it unreasonable under the circumstances, on the part of the military agents, not to frisk and search anyone who should visit the residence of Constantino, such as petitioners Anonuevo and Casiple? Must this Honorable Court yield to Anonuevo and Casiple's flimsy and bare assertion that they went to visit Constantino, who was to leave for Saudi Arabia on the day they were arrested thereat? As to petitioner Roque, was it unreasonable for the military authorities to effect her arrest without warrant considering that it was Buenaobra who provided the leads on her identity? It cannot be denied that Buenaobra had connection with Roque. Because the former has the phone number of the latter. Why the necessity of jumbling Roque's telephone number as written on a piece of paper taken from Buenaobra's possession? Petitioners Roque and Buenaobra have not offered any plausible reason so far. In all the above incidents, respondents maintain that they acted reasonably, under the time, place and circumstances of the events in question, especially considering that at the time of petitioner's arrest, incriminatory evidence, i.e, firearms, ammunitions and/or subversive documents were found in their possession. Petitioners, when arrested, were neither taking their snacks nor innocently visiting a camp, but were arrested in such time, place and circumstances, from which one can reasonably conclude tat they were up to a sinister plot, involving utmost secrecy and comprehensive conspiracy. IV In. G.R. No. 85727 (Espiritu vs. Lim), the release on habeas corpus of the petitioner Deogracias Espiritu, who is detained by virtue of an Information for Violation of Article 142 of the Revised Penal Code (Inciting to Sedition) filed with the Regional Trial Court of Manila, is similarly not warranted. The record of the case shows that the said petitioner is the General Secretary of the Pinagkaisahang Samahan ng Tsuper at Operators Nationwide (PISTON), an association of drivers and operators of public service vehicles in the Philippines, organized for their mutual aid and protection. Petitioner claims that at about 5:00 o'clock in the morning of 23 November 1988, while he was sleeping in his home located at 363 Valencia St., Sta. Mesa, Manila, he was awakened by his sister Maria Paz Lalic who told him that a group of persons wanted to hire his jeepney. When he went down to talk to them, he was immediately put under arrest. When he asked for the warrant of arrest, the men, headed by Col. Ricardo Reyes, bodily lifted him and placed him in their owner-type jeepney. He demanded that his sister, Maria Paz Lalic, be allowed to accompany him, but the men did not accede to his request and hurriedly sped away. He was brought to Police Station No. 8 of the Western Police District at Blumentritt, Manila where he was interrogated and detained. Then, at about 9:00 o'clock of the same morning, he was brought before the respondent Lim and, there and then, the said respondent ordered his arrest and detention. He was thereafter brought to the General Assignment Section, Investigation Division of the Western Police District under Police Capt. Cresenciano A. Cabasal where he was detained, restrained and deprived of his liberty. 7 The respondents claim however, that the detention of the petitioner is justified in view of the Information filed against him before the Regional Trial Court of Manila, docketed therein as Criminal

138 Case No. 88-683-85, charging him with violation of Art. 142 of the Revised Penal Code (Inciting to Sedition). The respondents also claim that the petitioner was lawfully arrested without a judicial warrant of arrest since petitioner when arrested had in fact just committed an offense in that in the afternoon of 22 November 1988, during a press conference at the National Press Club. Deogracias Espiritu through tri-media was heard urging all drivers and operators to go on nationwide strike on November 23, 1988, to force the government to give into their demands to lower the prices of spare parts, commodities, water and the immediate release from detention of the president of the PISTON (Pinag-isang Samahan ng Tsuper Operators Nationwide). Further, we heard Deogracias Espiritu taking the place of PISTON president Medardo Roda and also announced the formation of the Alliance Drivers Association to go on nationwide strike on November 23, 1988. 8 Policemen waited for petitioner outside the National Pres Club in order to investigate him, but he gave the lawmen the slip. 9 He was next seen at about 5:00 o'clock that afternoon at a gathering of drivers and symphatizers at the corner of Magsaysay Blvd. and Valencia Street, Sta. Mesa, Manila where he was heard to say: Bukas tuloy ang welga natin, sumagot na ang Cebu at Bicol na kasali sila, at hindi tayo titigil hanggang hindi binibigay ng gobyerno ni Cory ang gusto nating pagbaba ng halaga ng spare parts, bilihin at and pagpapalaya sa ating pinuno na si Ka Roda hanggang sa magkagulo na. 10 (emphasis supplied) The police finally caught up with the petitioner on 23 November 1988. He was invited for questioning and brought to police headquarters after which an Information for violation of Art. 142 of the Revised Penal Code was filed against him before the Regional Trial Court of Manila. 11 Since the arrest of the petitioner without a warrant was in accordance with the provisions of Rule 113, Sec. 5(b) of the Rules of Court and that the petitioner is detained by virtue of a valid information filed with the competent court, he may not be released on habeas corpus. He may, however be released upon posting bail as recommended. However, we find the amount of the recommended bail (P60,000.00) excessive and we reduce it to P10,000.00 only. VII In G.R. No. 86332 (Nazareno vs. Station Commander), we also find no merit in the submission of Narciso Nazareno that he was illegally arrested and is unlawfully detained. The record of this case shows that at about 8:30 o'clock in the morning of 14 December 1988, one Romulo Bunye II was killed by a group of men near the corner of T. Molina and Mendiola Streets in Alabang, Muntinglupa, Metro Manila. One of the suspects in the killing was Ramil Regal who was arrested by the police on 28 December 1988. Upon questioning, Regal pointed to Narciso Nazareno as on of his companions in the killing of the said Romulo Bunye II. In view thereof, the police officers, without warrant, picked up Narciso Nazareno and brought him to the police headquarters for questioning. Obviously, the evidence of petitioner's guilt is strong because on 3 January 1989, an information charging Narciso Nazareno, Ramil Regala, and two (2) others, with the killing of Romulo Bunye II was filed with the Regional Trial Court of Makati, Metro Manila. The case is docketed therein as Criminal Case No. 731. On 7 January 1989, Narciso Nazareno filed a motion to post bail, but the motion was denied by the trial court in an order dated 10 January 1989, even as the motion to post bail, earlier filed by his co-accused, Manuel Laureaga, was granted by the same trial court. On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of Narciso Nazareno and on 13 January 1989, the Court issued the writ of habeas corpus, returnable to the Presiding Judge of the Regional Trial Court of Bian, Laguna, Branch 24, ordering said court to hear the case on 30 January 1989 and thereafter resolve the petition.

139 At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the Regional Trial Court of Bian, Laguna issued a resolution denying the petition for habeas corpus, it appearing that the said Narciso Nazareno is in the custody of the respondents by reason of an information filed against him with the Regional Trial Court of Makati, Metro Manila which had taken cognizance of said case and had, in fact, denied the motion for bail filed by said Narciso Nazareno (presumably because of the strength of the evidence against him). The findings of the Presiding Judge of the Regional Trial Court of Bian, Laguna are based upon the facts and the law. Consequently, we will not disturb the same. Evidently, the arrest of Nazareno was effected by the police without warrant pursuant to Sec. 5(b), Rule 113, Rules of Court after he was positively implicated by his co-accused Ramil Regala in the killing of Romulo Bunye II; and after investigation by the police authorities. As held in People vs. Ancheta: 12 The obligation of an agent of authority to make an arrest by reason of a crime, does not presuppose as a necessary requisite for the fulfillment thereof, the indubitable existence of a crime. For the detention to be perfectly legal, it is sufficient that the agent or person in authority making the arrest has reasonably sufficient grounds to believe the existence of an act having the characteristics of a crime and that the same grounds exist to believe that the person sought to be detained participated therein. VIII It is to be noted that, in all the petitions here considered, criminal charges have been filed in the proper courts against the petitioners. The rule is, that if a person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court judge, and that the court or judge had jurisdiction to issue the process or make the order, of if such person is charged before any court, the writ of habeas corpus will not be allowed. Section 4, Rule 102, Rules of Court, as amended is quite explicit in providing that: Sec. 4. When writ is allowed or discharge authorized. If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with a convicted of an offense in the Philippines or of a person suffering imprisonment under lawful judgment. (emphasis supplied) At this point, we refer to petitioner's plea for the Court of re-examine and, thereafter, abandon its pronouncement in Ilagan vs. Enrile, 13 that a writ of habeas corpus is no longer available after an information is filed against the person detained and a warrant of arrest or an order of commitment, is issued by the court where said information has been filed. 14 The petitioners claim that the said ruling, which was handed down during the past dictatorial regime to enforce and strengthen said regime, has no place under the present democratic dispensation and collides with the basic, fundamental, and constitutional rights of the people. Petitioners point out that the said doctrine makes possible the arrest and detention of innocent persons despite lack of evidence against them, and, most often, it is only after a petition for habeas corpus is filed before the court that the military authorities file the criminal information in the courts of law to be able to hide behind the protective mantle of the said doctrine. This, petitioners assert, stands as an obstacle to the freedom and liberty of the people and permits lawless and arbitrary State action. We find, however, no compelling reason to abandon the said doctrine. It is based upon express provision of the Rules of Court and the exigencies served by the law. The fears expressed by the petitioners are not really unremediable. As the Court sees it, re-examination or reappraisal, with a view to its abandonment, of the Ilagan case doctrine is not the answer. The answer and the better practice would be, not to limit the function of thehabeas corpus to a mere inquiry as to whether or not the court which issued the process, judgment or order of commitment or before whom the detained person is

140 charged, had jurisdiction or not to issue the process, judgment or order or to take cognizance of the case, but rather, as the Court itself states in Morales, Jr. vs. Enrile, 15 "in all petitions for habeas corpus the court must inquire into every phase and aspect of petitioner's detention-from the moment petition was taken into custody up to the moment the court passes upon the merits of the petition;" and "only after such a scrutiny can the court satisfy itself that the due process clause of our Constitution has in fact been satisfied." This is exactly what the Court has done in the petitions at bar. This is what should henceforth be done in all future cases of habeas corpus. In Short, all cases involving deprivation of individual liberty should be promptly brought to the courts for their immediate scrutiny and disposition. WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No. 85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional liberty is hereby ordered reduced from P60,000.00 to P10,000.00. No costs. SO ORDERED.

141 Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 93239 March 18, 1991 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDISON SUCRO, accused-appellant. The Solicitor General for plaintiff-appellee. Fidencio S. Raz for accused-appellant.

GUTIERREZ, JR., J.:p Edison Sucro was charged with and convicted of violation of Section 4, Article II of the Dangerous Drugs Act, under an Information which reads: That on or about the 21st day of March, 1989, in the evening, in the Poblacion, Municipality of Kalibo, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, acting as a pusher or broker in the business of selling, administering, delivery, giving away to another and/or distributing prohibited drugs, did then and there wilfully, unlawfully and feloniously and without authority of law have in his possession and control nineteen (19) pieces of marijuana cigarette sticks and four (4) tea bags of dried marijuana leaves which were confiscated from him by the police authorities of Kalibo, Aklan, shortly after having sold one tea bag of dried marijuana leaves to a customer. (Rollo, p. 9) Upon arraignment, the accused-appellant, assisted by counsel, entered a plea of "not guilty" to the offense charged. Trial ensued and a judgment of conviction was rendered, the pertinent portion of which reads: WHEREFORE, judgment is rendered finding the accused Edison Sucro guilty of the sale of prohibited drug under Section 4, Article II of the Dangerous Drug Act, as amended, and sentencing him to suffer the penalty of life imprisonment, and pay a fine of P20,000, and costs. He shall be entitled to full credit in the service of his sentence with the period for which he has undergone preventive imprisonment to the date of promulgation of this judgment. All the items of marijuana confiscated in this case are declared forfeited in favor of the State. (Rollo, p. 41) From the foregoing judgment of conviction, accused-appellant interposes this appeal, assigning the following as errors allegedly committed by the court a quo, to wit: I THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE FOR THE PROSECUTION EXHIBITS "E"-"E-4", TEA BAGS OF ALLEGED MARIJUANA, TO BE THE CORPUS DELICTI; FURTHERMORE, THAT THE SAME WERE TAKEN WITHOUT THE REQUIRED WARRANT OF SEARCH AND ARREST SINCE THE ACCUSED WAS NOT IN THE ACT OF COMMITTING ANY OFFENSE AT THE TIME OF HIS ARREST.

142 II THE LOWER COURT ERRED IN FINDING THE ACCUSED EDISON SUCRO GUILTY OF THE SALE OF PROHIBITED DRUGS UNDER SECTION 4, ARTICLE II, OF THE DANGEROUS DRUGS ACT AND SENTENCING HIM TO SUFFER A PENALTY OF LIFE IMPRISONMENT AND TO PAY A FINE OF P 20,000.00. (Appellant's Brief, p. 1) The antecedent facts of the case as summarized by the Solicitor General are as follows: On March 21, 1989, Pat. Roy Fulgencio, a member of the INP, Kalibo, Aklan, was instructed by P/Lt. Vicente Seraspi, Jr. (Station Commander of the INP Kalibo, Aklan) to monitor the activities of appellant Edison Sucro, because of information gathered by Seraspi that Sucro was selling marijuana. (p. 6, TSN, May 2,1989). As planned, at about 5:00 P.M. on said date, Pat. Fulgencio Positioned himself under the house of a certain Arlie Regalado at C. Quimpo Street. Adjacent to the house of Regalado, about 2 meters away, was a chapel. Thereafter, Pat. Fulgencio saw appellant enter the chapel, taking something which turned out later to be marijuana from the compartment of a cart found inside the chapel, and then return to the street where he handed the same to a buyer, Aldie Borromeo. After a while appellant went back to the chapel and again came out with marijuana which he gave to a group of persons. (pp. 68, 15-18, Ibid). It was at this instance that Pat. Fulgencio radioed P/Lt. Seraspi and reported the activity going on. P/Lt. Seraspi instructed Pat. Fulgencio to continue monitoring developments. At about 6:30 P.M., Pat. Fulgencio again called up Seraspi to report that a third buyer later Identified as Ronnie Macabante, was transacting with appellant. (pp. 18-19, Ibid) At that point, the team of P/Lt. Seraspi proceeded to the area and while the police officers were at the Youth Hostel at Maagma St., Pat. Fulgencio told P/Lt. Seraspi to intercept Macabante and appellant. P/Lt. Seraspi and his team caught up with Macabante at the crossing of Mabini and Maagma Sts. in front of the Aklan Medical Center. Upon seeing the police, Macabante threw something to the ground which turned out to be a tea bag of marijuana. (pp. 6-8, TSN, June 19, 1989) When confronted, Macabante readily admitted that he bought the same from appellant (Edison Sucro) in front of the chapel. (p. 6, TSN, May 24, 1989) The police team was able to overtake and arrest appellant at the corner of C. Quimpo and Veterans Sts. The police recovered 19 sticks and 4 teabags of marijuana from the cart inside the chapel and another teabag from Macabante, The teabags of marijuana were sent to the PC-INP Crime Laboratory Service, at Camp Delgado, Iloilo City for analysis. The specimens (Exhibits "G" to "G-18", Exhibits "E" to "E-4") were all found positive of marijuana. (pp. 47, TSN, Sept. 4, 1989)" (Appellee's Brief, pp. 3-6) As can be seen from the facts, the issue hinges mainly on whether or not the arrest without warrant of the accused is lawful and consequently, whether or not the evidence resulting from such arrest is admissible. We rule in the affirmative. The accused-appellant contends that his arrest was illegal, being a violation of his rights granted under Section 2, Article III of the 1987 Constitution. He stresses that there was sufficient time for the police officers to apply for a search and arrest warrants considering that Fulgencio informed his Station Commander of the activities of the accused two days before March 21, 1989, the date of his arrest. This contention is without merit. Section 5, Rule 113 of the Rules on Criminal Procedure provides for the instances where arrest without warrant is considered lawful. The rule states:

143 Arrest without warrant, when lawful. A peace officer or private person may, without warrant, arrest a person: (a) When in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; (Emphasis supplied) An offense is committed in the presence or within the view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or hears the disturbances created thereby and proceeds at once to the scene thereof. (U.S. v. Fortaleza, 12 Phil. 472 [1909]; and U.S. v. Samonte, 16 Phil. 516 [1910]) The records show that Fulgencio went to Arlie Regalado's house at C. Quimpo Street to monitor the activities of the accused who was earlier reported to be selling marijuana at a chapel two (2) meters away from Regalado's house. Fulgencio, within a distance of two meters saw Sucro conduct his nefarious activity. He saw Sucro talk to some persons, go inside the chapel, and return to them and exchange some things. These, Sucro did three times during the time that he was being monitored. Fulgencio would then relay the on-going transaction to P/Lt. Seraspi. Anent the second requirement, the fact that Macabante, when intercepted by the police, was caught throwing the marijuana stick and when confronted, readily admitted that he bought the same from accused-appellant clearly indicates that Sucro had just sold the marijuana stick to Macabante, and therefore, had just committed an illegal act of which the police officers had personal knowledge, being members of the team which monitored Sucro's nefarious activity. The court earlier indicated in the case of People v. Bati (G.R. No. 87429, August 27, 1990) that police officers have personal knowledge of the actual commission of the crime when it had earlier conducted surveillance activities of the accused. Thus, it stated: When Luciano and Caraan reached the place where the alleged transaction would take place and while positioned at a street comer, they saw appellant Regalado Bati and Warner Marquez by the side of the street about forty to fifty meters away from them (the public officers). They saw Marquez giving something to Bati, who, thereafter handed a wrapped object to Marquez who then inserted the object inside the front of his pants in front of his abdomen while Bati, on his part, placed the thing given to him inside his pocket. (p. 2) xxx xxx xxx . . . Both Patrolman Luciano and Caraan actually witnessed the same and their testimonies were based on their actual and personal knowledge of the events that took place leading to appellant's arrest. They may not have been within hearing distance, specially since conversation would expectedly be carried on in hushed tones, but they were certainly near enough to observe the movements of the appellant and the buyer. Moreover, these prosecution witnesses are all law enforcers and are, therefore, presumed to have regularly performed their duties in the absence of proof to the contrary (People v. Bati, supra citing People v. Agapito, G.R. No. 73786, October 12, 1987) The accused questions the failure of the police officers to secure a warrant considering that Fulgencio himself knew of Sucro's activities even prior to the former's joining the police force. Fulgencio reported Sucro's activities only three days before the incident.

144 As the records reveal, Fulgencio and Sucro had known each other since their childhood years and that after Fulgencio joined the police force, he told the accused-appellant not to sell drugs in their locality. Hence, it is possible that because of this friendship, Fulgencio hesitated to report his childhood friend and merely advised him not to engage in such activity. However, because of reliable information given by some informants that selling was going on everyday, he was constrained to report the matter to the Station Commander. On the other hand, the failure of the police officers to secure a warrant stems from the fact that their knowledge acquired from the surveillance was insufficient to fulfill the requirements for the issuance of a search warrant. What is paramount is that probable cause existed. Thus, it has been held in the case of People v. Lo Ho Wing, et al. (G.R. No. 88017, January 21, 1991): In the instant case, it was firmly established from the factual findings of the trial court that the authorities had reasonable ground to believe that appellant would attempt to bring in contraband and transport it within the country. The belief was based on intelligence reports gathered from surveillance activities on the suspected syndicate, of which appellant was touted to be a member. Aside from this, they were also certain as to the expected date and time of arrival of the accused from China. But such knowledge was clearly insufficient to enable them to fulfill the requirements for the issuance of a search warrant. Still and all, the important thing is that there was probable cause to conduct the warrantless search, which must still be present in such a case. As the Solicitor General has pointed out: There are several instances when a warrantless search and seizure can be effected without necessarily being preceded by an arrest provided the same is effected on the basis of probable cause (e.g. stop and search without warrant at checkpoints). Between warrantless searches and seizures at checkpoints and in the case at bar the latter is more reasonable considering that unlike in the former, it was effected on the basis of probable cause. Under the circumstances (monitoring of transactions) there existed probable cause for the arresting officers, to arrest appellant who was in fact selling marijuana and to seize the contraband. That searches and seizures must be supported by a valid warrant is not an absolute rule (Manipon, Jr. v. Sandiganbayan, 143 SCRA 267 [1986]). Among the exceptions granted by law is a search incidental to a lawful arrest under Sec. 12, Rule 126 of the Rules on Criminal Procedure, which provides that a person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant. (People v. Castiller, G.R. No. 87783, August 6, 1990) The accused-appellant claims that the arrest having been done without warrant, it follows that the evidence obtained therefrom is inadmissible. As earlier discussed, there is nothing unlawful about the arrest considering its compliance with the requirements of a warrantless arrest. Ergo, the fruits obtained from such lawful arrest are admissible in evidence. Edison Sucro assails the trial court's reliance on the statement of Macabante whose reason for testifying could be merely to escape prosecution. We quote the trial court's finding as to the testimony of Macabante: The non-filing of a complaint against him for possession of marijuana may have been the reason of (sic) his willingness to testify in court against the accused. But this does not necessarily taint the evidence that proceeds from his lips. As explained by Lt. Seraspi, the best sources of information against drug pushers are usually their customers, especially if as in this case, there is no other direct evidence of the selling except the testimony of the buyer. We accept this observation as a realistic appraisal of a situation

145 in which drug users are, and should be employed by law enforcement authorities to bolster the drive against pushers who are the real felons in our society. We have observed the demeanor of the witness in court, and found him to be straightforward, unhesitating, and spontaneous in his declarations, so that we are satisfied as to his intention and disposition to tell the truth (Rollo, p. 40) Time and again it has been held that the findings of the trial court are entitled to great weight and should not be disturbed on appeal unless it is shown that the trial court had overlooked certain facts of weight and importance, it being acknowledged. that the court below, having seen and heard the witnesses during the trial, is in a better position to evaluate their testimonies (People v. Umali, et al., G.R. No. 84450, February 4, 1991 citing People v. Alvarez, 163 SCRA 745 [1988]; People v. Dorado, 30 SCRA 53 [1969]; and People v. Espejo, 36 SCRA 400 [1970]). Furthermore, the testimony of Macabante was corroborated on material points by public officers Fulgencio and Seraspi. There is nothing in the record to suggest that the police officers were compelled by any motive than to accomplish their mission to capture a drug pusher in the execution of the crime, the presumption being that police officers perform their duties regularly in the absence of any evidence to the contrary (Rule 131, Sec. 3(m), Revised Rules on Evidence; People v. Castiller, supra citing People v. Natipravat, 145 SCRA 483 [1986]). The prosecution evidence was further bolstered by the findings of the Forensic Chemist that the items seized were all positive for marijuana. In contrast to the evidence presented by the prosecution, accused-appellant's defense is alibi which is unavailing considering that he was positively identified by Macabante to be the person from whom he bought marijuana. Sucro alleges that he could not have committed the crime since he was with his uncle and cousin distributing handbills for his Auntie's candidacy. The fact, however, remains that it does not preclude the possibility that he was present in the vicinity as established by his admission that he moved a lot and even had the occasion to meet Macabante on the street. It is well-settled that mere denials cannot prevail against the positive identification of the appellant as the seller of the prohibited substances. (People v. Khan, 161 SCRA 406 [1988]; and People v. Paco, 170 SCRA 681 [1989]) Premises considered, this Court is convinced that appellant Edison Sucro had indeed committed the offense charged. The trial court's decision must be upheld. WHEREFORE, the decision appealed from is hereby AFFIRMED. SO ORDERED.

146 Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 87059 June 22, 1992 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGELIO MENGOTE y TEJAS, accused-appellant.

CRUZ, J.: Accused-appellant Rogelio Mengote was convicted of illegal possession of firearms on the strength mainly of the stolen pistol found on his person at the moment of his warrantless arrest. In this appeal, he pleads that the weapon was not admissible as evidence against him because it had been illegally seized and was therefore the fruit of the poisonous tree. The Government disagrees. It insists that the revolver was validly received in evidence by the trial judge because its seizure was incidental to an arrest that was doubtless lawful even if admittedly without warrant. The incident occurred shortly before noon of August 8, 1987, after the Western Police District received a telephone call from an informer that there were three suspicious-looking persons at the corner of Juan Luna and North Bay Boulevard in Tondo, Manila. A surveillance team of plainclothesmen was forthwith dispatched to the place. As later narrated at the trial by Patrolmen Rolando Mercado and Alberto Juan, 1 they there saw two men "looking from side to side," one of whom was holding his abdomen. They approached these persons and identified themselves as policemen, whereupon the two tried to run away but were unable to escape because the other lawmen had surrounded them. The suspects were then searched. One of them, who turned out to be the accused-appellant, was found with a .38 caliber Smith and Wesson revolver with six live bullets in the chamber. His companion, later identified as Nicanor Morellos, had a fan knife secreted in his front right pants pocket. The weapons were taken from them. Mengote and Morellos were then turned over to police headquarters for investigation by the Intelligence Division. On August 11, 1987, the following information was filed against the accused-appellant before the Regional Trial Court of Manila: The undersigned accuses ROGELIO MENGOTE y TEJAS of a violation of Presidential Decree No. 1866, committed as follows: That on or about August 8, 1987, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and knowingly have in his possession and under his custody and control a firearm, to wit: one (1) cal. 38 "S & W" bearing Serial No. 8720-T without first having secured the necessary license or permit therefor from the proper authorities. Besides the police officers, one other witness presented by the prosecution was Rigoberto Danganan, who identified the subject weapon as among the articles stolen from him during the robbery in his house in Malabon on June 13, 1987. He pointed to Mengote as one of the robbers. He had duly reported the robbery to the police, indicating the articles stolen from him, including the revolver. 2 For his part,

147 Mengote made no effort to prove that he owned the firearm or that he was licensed to possess it and claimed instead that the weapon had been "Planted" on him at the time of his arrest. 3 The gun, together with the live bullets and its holster, were offered as Exhibits A, B, and C and admitted over the objection of the defense. As previously stated, the weapon was the principal evidence that led to Mengote's conviction for violation of P.D. 1866. He was sentenced to reclusion perpetua. 4 It is submitted in the Appellant's Brief that the revolver should not have been admitted in evidence because of its illegal seizure. no warrant therefor having been previously obtained. Neither could it have been seized as an incident of a lawful arrest because the arrest of Mengote was itself unlawful, having been also effected without a warrant. The defense also contends that the testimony regarding the alleged robbery in Danganan's house was irrelevant and should also have been disregarded by the trial court. The following are the pertinent provision of the Bill of Rights: Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Sec. 3 (1). The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. There is no question that evidence obtained as a result of an illegal search or seizure is inadmissible in any proceeding for any purpose. That is the absolute prohibition of Article III, Section 3(2), of the Constitution. This is the celebrated exclusionary rule based on the justification given by Judge Learned Hand that "only in case the prosecution, which itself controls the seizing officials, knows that it cannot profit by their wrong will the wrong be repressed." The Solicitor General, while conceding the rule, maintains that it is not applicable in the case at bar. His reason is that the arrest and search of Mengote and the seizure of the revolver from him were lawful under Rule 113, Section 5, of the Rules of Court reading as follows: Sec. 5. Arrest without warrant when lawful. A peace officer or private person may, without a warrant, arrest a person; (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 failing under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7.

148 We have carefully examined the wording of this Rule and cannot see how we can agree with the prosecution. Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee from a penal institution when he was arrested. We therefore confine ourselves to determining the lawfulness of his arrest under either Par. (a) or Par. (b) of this section. Par. (a) requires that the person be arrested (1) after he has committed or while he is actually committing or is at least attempting to commit an offense, (2) in the presence of the arresting officer. These requirements have not been established in the case at bar. At the time of the arrest in question, the accused-appellant was merely "looking from side to side" and "holding his abdomen," according to the arresting officers themselves. There was apparently no offense that had just been committed or was being actually committed or at least being attempted by Mengote in their presence. The Solicitor General submits that the actual existence of an offense was not necessary as long as Mengote's acts "created a reasonable suspicion on the part of the arresting officers and induced in them the belief that an offense had been committed and that the accused-appellant had committed it." The question is, What offense? What offense could possibly have been suggested by a person "looking from side to side" and "holding his abdomen" and in a place not exactly forsaken? These are certainly not sinister acts. And the setting of the arrest made them less so, if at all. It might have been different if Mengote bad been apprehended at an ungodly hour and in a place where he had no reason to be, like a darkened alley at 3 o'clock in the morning. But he was arrested at 11:30 in the morning and in a crowded street shortly after alighting from a passenger jeep with I his companion. He was not skulking in the shadows but walking in the clear light of day. There was nothing clandestine about his being on that street at that busy hour in the blaze of the noonday sun. On the other hand, there could have been a number of reasons, all of them innocent, why his eyes were darting from side to side and be was holding his abdomen. If they excited suspicion in the minds of the arresting officers, as the prosecution suggests, it has nevertheless not been shown what their suspicion was all about. In fact, the policemen themselves testified that they were dispatched to that place only because of the telephone call from the informer that there were "suspicious-looking" persons in that vicinity who were about to commit a robbery at North Bay Boulevard. The caller did not explain why he thought the men looked suspicious nor did he elaborate on the impending crime. In the recent case of People v. Malmstedt, 5 the Court sustained the warrantless arrest of the accused because there was a bulge in his waist that excited the suspicion of the arresting officer and, upon inspection, turned out to be a pouch containing hashish. In People v. Claudio, 6 the accused boarded a bus and placed the buri bag she was carrying behind the seat of the arresting officer while she herself sat in the seat before him. His suspicion aroused, be surreptitiously examined the bag, which he found to contain marijuana. He then and there made the warrantless arrest and seizure that we subsequently upheld on the ground that probable cause had been sufficiently established. The case before us is different because there was nothing to support the arresting officers' suspicion other than Mengote's darting eyes and his hand on his abdomen. By no stretch of the imagination could it have been inferred from these acts that an offense had just been committed, or was actually being committed, or was at least being attempted in their presence. This case is similar to People v. Aminnudin, 7 where the Court held that the warrantless arrest of the accused was unconstitutional. This was effected while be was coming down a vessel, to all appearances no less innocent than the other disembarking passengers. He had not committed nor was be actually committing or attempting to commit an offense in the presence of the arresting officers. He was not even acting suspiciously. In short, there was no probable cause that, as the prosecution incorrectly suggested, dispensed with the constitutional requirement of a warrant. Par. (b) is no less applicable because its no less stringent requirements have also not been satisfied. The prosecution has not shown that at the time of Mengote's arrest an offense had in fact just been

149 committed and that the arresting officers had personal knowledge of facts indicating that Mengote had committed it. All they had was hearsay information from the telephone caller, and about a crime that had yet to be committed. The truth is that they did not know then what offense, if at all, had been committed and neither were they aware of the participation therein of the accused-appellant. It was only later, after Danganan had appeared at the Police headquarters, that they learned of the robbery in his house and of Mengote's supposed involvement therein. 8 As for the illegal possession of the firearm found on Mengote's person, the policemen discovered this only after he had been searched and the investigation conducted later revealed that he was not its owners nor was he licensed to possess it. Before these events, the Peace officers had no knowledge even of Mengote' identity, let alone the fact (or suspicion) that he was unlawfully carrying a firearm or that he was involved in the robbery of Danganan's house. In the landmark case of People v. Burgos, 9 this Court declared: Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personal knowledge of the fact. The offense must also be committed in his presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859). (Emphasis supplied) xxx xxx xxx In arrests without a warrant under Section 6(b), however, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. That a crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator. (Emphasis supplied) This doctrine was affirmed in Alih v. Castro, 10 thus: If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection with a crime about to be committed, being committed, or just committed, what was that crime? There is no allegation in the record of such a falsification. Parenthetically, it may be observed that under the Revised Rule 113, Section 5(b), the officer making the arrest must have personal knowledge of the ground therefor as stressed in the recent case of People v. Burgos. (Emphasis supplied) It would be a sad day, indeed, if any person could be summarily arrested and searched just because he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a peace officer could clamp handcuffs on any person with a shifty look on suspicion that he may have committed a criminal act or is actually committing or attempting it. This simply cannot be done in a free society. This is not a police state where order is exalted over liberty or, worse, personal malice on the part of the arresting officer may be justified in the name of security. There is no need to discuss the other issues raised by the accused-appellant as the ruling we here make is sufficient to sustain his exoneration. Without the evidence of the firearm taken from him at the time of his illegal arrest, the prosecution has lost its most important exhibit and must therefore fail. The testimonial evidence against Mengote (which is based on the said firearm) is not sufficient to prove his guilt beyond reasonable doubt of the crime imputed to him. We commend Atty. Violeta Calvo-Drilon for her able and spirited defense of the accused-appellant not only in the brief but also in the reply brief, which she did not have to file but did so just the same to stress the constitutional rights of her client. The fact that she was acting only as a counsel de oficio with no expectation of material reward makes her representation even more commendable.

150 The Court feels that if the peace officers had been more mindful of the provisions of the Bill of Rights, the prosecution of the accused-appellant might have succeeded. As it happened, they allowed their over-zealousness to get the better of them, resulting in their disregard of the requirements of a valid search and seizure that rendered inadmissible the vital evidence they had invalidly seized. This should be a lesson to other peace officers. Their impulsiveness may be the very cause of the acquittal of persons who deserve to be convicted, escaping the clutches of the law because, ironically enough, it has not been observed by those who are supposed to enforce it. WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The accused-appellant is ACQUITTED and ordered released immediately unless he is validly detained for other offenses. No costs. SO ORDERED.

151 EN BANC [G.R. No. 125025. January 23, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BALTAZAR BONGALON y MATEOS, accusedappellant. DECISION PER CURIAM: This case involves the unlawful sale of 250.70 grams of Methamphetamine Hydrochloride (shabu), a regulated drug, in violation of Section 15, Article III of Republic Act No. 6425, as amended, otherwise known as The Dangerous Drugs Act of 1972. The crime was allegedly committed as follows:[1] That on or about the 8th day of December 1994, in the Municipality of Paraaque, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused (Baltazar Bongalon), not being lawfully authorized by law, and by means of motor vehicle, did then and there willfully, unlawfully and feloniously sell, deliver and give away to another, one (1) heat-sealed transparent plastic bag/sachet containing brown crystalline substance weighing 250.70 grams, which was found positive to the test for Methamphetamine Hydrochloride (shabu), a regulated drug, in violation of the above-cited law. CONTRARY TO LAW. (emphases ours) When arraigned, the accused pled not guilty.[2] Trial ensued. The prosecution presented the following witnesses, to wit: (1) PO3 Noel Castaeto, the poseurbuyer; (2) PO3 Rogelio Galos, member of the buy-bust operation team; and (3) Police Senior Inspector Julita de Villa, the forensic chemist. The presentation of PO2 Felipe Metrillo, member of the buy-bust team, was dispensed with after the prosecution and the defense had stipulated at the trial that he would merely corroborate the testimony of PO3 Galos. The prosecution evidence reveals that in the morning of December 7, 1994, a confidential informant reported to the Special Operations Group (SOG) of the Narcotics Command (NARCOM) in Camp Ricardo Papa, Bicutan, Taguig, Metro Manila, that a certain Baldo (the accused) was engaged in selling shabu, a regulated drug. Police Senior Inspector Franklin Moises Mabanag immediately formed a buy-bust operation team with PO3 Noel Castaeto as the poseur-buyer and PO3 Rogelio Galos and PO2 Felipe Metrillo as members.[3] That same day, the confidential informant contacted the accused through a mobile phone and introduced PO3 Castaeto to him as a friend who wanted to buy shabu. The accused and PO3 Castaeto negotiated the terms of the transaction over the mobile phone. PO3 Castaeto told the accused that he needed 250 grams of shabu. The accused pegged the cost atP1,000/gram of shabu, for a total sum of P250,000.00. The accused then instructed PO3 Castaeto to call the following morning to confirm the sale.[4] P/Sr. Insp. Mabanag briefed the buy-bust operation team members on their respective roles in the sting and gave to PO3 Castaeto two (2) P500.00 bills bearing serial numbers BT423424 and BQ352570 and five (5) bundles of boodle money to be used as buy-bust money. P03 Castaeto affixed his signature at the bottom right corner of each bill for identification purposes.[5] They placed one genuine P500.00 bill on top, and another one at the bottom, of the boodle money. The bundles were first secured with money straps with markings P50,000.00, United Coconut Planters Bank and wrapped in a transparent plastic then placed inside a brown envelope.[6] At 9:00 a.m., December 8, 1994, PO3 Castaeto talked again to the accused through the mobile phone to confirm if their transaction would push through. The appellant told him that they would meet at 3:30 p.m. that same day, near the Burger Machine stall along Doa Soledad in Better Living, Paraaque.[7]

152 PO3 Castaetos team and the confidential informant arrived at the designated place at 3:00 p.m. using a private vehicle. He and the confidential informant parked their car near the Burger Machine stall and waited for the accused to arrive. P03 Galos and P02 Metrillo, on the other hand, parked just a few meters behind the car used by PO3 Castaeto.[8] At 3:30 p.m., the red Nissan Sentra sedan driven by the accused, with plate No. TPL 488, parked in front of the car of PO3 Castaeto. The accused was alone. The confidential informant and PO3 Castaeto approached the Nissan Sentra and talked to the accused. After a brief conversation, the accused asked for the money. PO3 Castaeto showed him the buy-bust money.[9]Satisfied, the accused immediately handed over to PO3 Castaeto a package wrapped in a newspaper. After PO3 Castaeto had checked out that the package contained the suspected regulated substance, he gave the prearranged signal to his team by waiving his hand. The back-up team members immediately announced that they were NARCOM agents and arrested the accused.[10] They informed the accused of his constitutional rights and brought him to Camp Papa for investigation.[11] On December 9, 1995, the confiscated substance was brought to the Philippine National Police (PNP) Crime Laboratory for examination.[12] P/Sr. Insp. Julita de Villa, forensic chemist of the PNP Crime Laboratory Services, conducted a physical, chemical and chromatographic examination on the substance to determine the presence of Methamphetamine Hydrochloride. The result is as follows:[13] SPECIMEN SUBMITTED: Exh. A- One (1) light blue China Station bag containing one (1) heat-sealed transparent plastic bag marked as Exh. A-1 with 250.70 grams of brown crystalline substance. xxx PURPOSE OF LABORATORY EXAMINATION: To determine the presence of prohibited and/or regulated drug. FINDINGS: Qualitative examinations conducted on the above-stated specimen gave POSITIVE result to the tests for Methamphetamine hydrochloride (Shabu). P/Sr. Insp. De Villa testified that the package containing the shabu was completely sealed when she received it and she was the one who opened it to examine its contents.[14] For its part, the defense presented the accused himself, Baltazar Bongalon. He tried to refute the claim of the prosecution witnesses that he was alone when the NARCOM agents arrested him for the alleged unlawful sale of shabu. Allegedly, the buy-bust operation was bogus and the NARCOM agents framed him for extortion. The accused testified that in the morning of December 8, 1994, he was cleaning his house in United Paraaque. Just before noon that same day, his brother, Melchor Bongalon, arrived and told him that their friend, Boyet, rang him and asked to tell the accused to return the Sega tapes he borrowed. Boyet, whose real name is Juancho Tangsengco, lives in Syria Street, Better Living Subdivision, Paraaque. Melchor Bongalon, on the other hand, lives in Tondo, Manila.[15] As the accused had previously planned to take his then 4-year old son, Mark Anthony, to Star City, he decided to go to Better Living at 2:00 p.m. to return the Sega tapes first. Melchor allegedly accompanied the accused and his son to Boyets house. They used the red Nissan Sentra sedan owned by their sister.[16] The accused was at the drivers seat, Melchor was at the passenger side in front and Mark Anthony was at the back. He passed via Doa Soledad and Russia Streets. While cruising along Russia Street, he slowed down a bit because he had to turn right to United Nations Street. Suddenly, about eight (8) men in civilian clothes bearing armalite automatic rifles and .45 caliber firearms intercepted him.[17] (He learned later that the armed men were NARCOM agents led by PO3 Castaeto). The firearms were pointed at the car he was driving. He rolled down the cars window and asked what his violation was and if they had a warrant of arrest against him. They ignored him and instead, ordered them to get out of the car. He persisted in verifying what his violation was but did not get any reply from them. Thereafter, they were ordered to board the car again. Two (2) men boarded his carPO3 Galos sat at his left side, taking the drivers seat, while the other sat at his right sideand

153 sandwiched him. PO3 Castaeto and PO2 Metrillo also boarded the car and sat at the back seats, beside Melchor and Mark Anthony. The rest of the arresting team headed towards their vehicle.[18] The accused and his alleged companions were taken to Camp Papa for investigation. When told that he was carrying shabu in his car, he asked if he could see the substance. Allegedly, the NARCOM agents refused. After the investigation, P/Sr. Insp. Mabanag asked him if they could go to their house to check if he stashed any shabu in his house. He agreed.[19] They reached his house in United Paraaque by 7:00 p.m. that same night. About seven (7) policemen entered his house. PO3 Galos was left in the car to guard him and his son. His brother, Melchor, was left in the custody of NARCOM in Camp Papa.[20] Fifteen (15) minutes later, the police let the accused and his son enter their house as the NARCOM agents continued searching his house. His wife and his son were seated beside him in the living room. His wife asked for a search warrant which elicited a cold reply from the NARCOM agents that it was not necessary (hindi na uso yon). The search lasted for two (2) hours and yielded negative results. The NARCOM agents tried to take the wife of the accused to Camp Papa, but she became hysterical. They left her behind and instead brought the accused and his son back to the camp.[21] At Camp Papa, the accuseds son was handed over to Melchor as the accused was brought to another room. It was already late in the evening when his mother arrived at the camp. His son and his brother were allowed to leave with his mother.[22] The accused claimed that the NARCOM agents were trying to extort money from them but he told his mother not to report the matter to the National Bureau of Investigation because he feared for his life. He also alleged that several agents had threatened him that P/Sr. Insp. Mabanag would kill if the latter could not get what he wanted. He accused them of manhandling him. He allegedly sustained abrasions and contusions, but the NARCOM agents denied his request for a medical treatment.[23] On December 13, 1995, he was brought to Camp Crame in Quezon City. Again, he requested for medical treatment. His request was also denied because, according to the police, he already had a medical certificate, referring to the one that was taken before he was mauled.[24] The accused denied that he talked to the confidential informant and to PO3 Castaeto at 5:00 p.m. on December 7, 1994. He claimed they could not have talked to him because he did not own a mobile phone and he did not have a telephone in his house. Allegedly, at that time, he was driving the red Nissan Sentra along MIA Road which he borrowed from his sister. He also denied that he gave the shabu to or received any money from PO3 Castaeto because he did not know the latter or any of the NARCOM agents prior to his arrest. He insisted that he was intercepted at the corner of Russia and United Nations Streets, and not along Doa Soledad. He could not, however, think of any reason why they did so. Allegedly, except for Boyet, no one knew that he was going to Boyets house in Syria Street. He claimed he would lodge a complaint against the arresting officers for his unlawful arrest and the illegal search of his house once his case is finished. Thereafter, with the courts approval, the defense and the prosecution stipulated that, if called on the stand, the following witnesses, to wit: (1) Melchor Bongalon, brother of the accused; (2) Nonoy Ducca, a construction worker who allegedly witnessed the arrest of the accused; (3) Hilda Capuslanan, housemaid of the Bongalons; and (4) Marcela Bongalon, wife of the accused, would testify as follows: Melchor Bongalon would testify that, on December 8, 1994, he went to the house of the accused and told the latter to return the Sega tapes that the accused borrowed from their friend, Boyet; that he and the son of the accused accompanied the latter in going to Boyets house in Better Living, Paraaque; that NARCOM agents intercepted their vehicle at the corner of Ethi(o)pia Street and Doa Soledad Avenue; that there were no prohibited drugs taken from the accused; that they were brought to the NARCOM office in Bicutan and that in the evening of December 8, 1994, the NARCOM agents went to the house of the accused.[25] Nonoy Ducca would testify that at about 3:00 p.m., on December 8, 1994, he was taking a snack along Russia Street in Better Living, Paraaque; that he was a worker at a nearby construction site; that he noticed armed men pointing their firearms at a vehicle and they forced its occupants to alight; that the occupants of the vehicle were asked again to board the same and one (1) of the armed men took the wheel and sped away; that he was twenty (20) meters away from the incident and that he recognized the driver of the vehicle who was intercepted by the armed men.[26]

154 Hilda Capuslanan would testify that on the night the accused was arrested, the NARCOM agents went to the house of the accused and ransacked the same; that they returned to the house of the accused on December 10, 1994 and did the same thing and that a case was then filed against the NARCOM agents before the PLEB.[27] Marcela Bongalon, the wife of the accused, would testify that on December 8, 1994, at about 7:00 p.m., she was in their house when her husband, the accused, and the NARCOM agents arrived; that the NARCOM agents ransacked their house and took their personal belongings; that said officers returned on December 10, 1994 and did the same thing but she was not around at that time; that on December 8, 1994, Melchor Bongalon came to inform the accused to return the Sega tapes and that her son, the accused and Melchor Bongalon left their house after lunch.[28] Finally, the defense presented as documentary exhibits the sketches of the scene of the incident prepared by PO3 Castaeto, PO3 Galos and the accused, marked as Exhibits 1, 2 and 3, respectively. Thereafter, the defense rested its case. After the trial, the trial court found the accused guilty as charged. He was sentenced to suffer the death penalty and ordered to pay a fine of P1,000,000.00. The dispositive portion of its decision[29] reads: WHEREFORE, premises considered, judgment is hereby rendered finding the accused BALTAZAR BONGALON y MATEOS guilty beyond reasonable doubt of the offense of Violation of Section 15, Article III, of R.A. 6425, as amended by R.A. 7659, Section 15 in relation to number 3 Section 20 thereof, he is hereby sentenced to suffer the supreme penalty of DEATH and to pay a fine of ONE MILLION (P1,000,000.00) PESOS and to pay the costs. The Methamphetamine Hydrochloride (Shabu) confiscated from the accused is ordered forfeited in favor of the Government and the Clerk of Court is directed without delay to turn over said item to the Dangerous Drug Board. SO ORDERED. The accused filed a Notice of Appeal.[30] Thereafter, he filed a Motion for Reconsideration/New Trial to present additional witnesses that included his 4-year old son, Mark Anthony.[31] The motion was denied by the trial court on the ground that the additional witnesses he offered to present were available during the trial proper of the case.[32] Subsequently, the accused filed several motions,[33] including a motion to inhibit,[34] but they were all denied. The trial court ordered the transmittal of the records of the case to this Court for automatic review.[35] In the meantime, the accused filed a MOTION FOR NEW TRIAL with this Court.[36] Pursuant to our directive, the Office of the Solicitor General filed its Comment.[37] After considering their pleadings, we denied the motion for new trial for lack of merit.[38] The accuseds motion for reconsideration was also denied.[39] Finally, the appellant and the Solicitor General filed their respective briefs.[40] The appellant contends that: I. THE TRIAL COURT ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION IN RULING THAT THERE WAS A BUY-BUST OPERATION CONDUCTED BY THE NARCOM AGENTS AGAINST BONGALON AND THAT IT WAS A VALID ONE. A. THE TESTIMONIES OF PROSECUTION WITNESSES NOEL CASTAETO AND ROGELIO GALOS ON THE BUY-BUST OPERATION AGAINST BONGALON ARE NOT CREDIBLE. B. THE EVENTS AS BORNE OUT BY THE RECORDS OF THE CASE BELIE THE EXISTENCE OF A VALID BUYBUST OPERATION. C. THERE WAS NO SHABU CONFISCATED FROM BONGALON AT THE TIME OF HIS UNLAWFUL WARRANTLESS ARREST. D. THE WARRANTLESS ARREST OF BONGALON IS (sic) UNLAWFUL AND THE TWO SEARCHES MADE ON HIS HOUSE ARE (sic) ALSO UNLAWFUL.

155 E. THERE WAS NO BUY-BUST OPERATION BUT ONLY A PLAN TO EXTORT MONEY FROM BONGALON AND HIS FAMILY AND ROB THEM OF THEIR VALUABLES. F. THE PRESENCE OF MELCHOR BONGALON AND MARK ANTHONY BONGALON AT THE TIME OF THE WARRANTLESS ARREST OF BONGALON BELIE THE CLAIM OF THE NARCOM AGENTS THAT BONGALON WAS DEALING SHABU AT THE TIME OF SUCH ARREST. G. THE TESTIMONY OF BONGALON IS CREDIBLE BECAUSE IT WAS GIVEN IN A STRAIGHTFORWARD MANNER. II. THE TRIAL COURT ERRED IN CONVICTING BONGALON OF THE VIOLATION OF SECTION 15, ARTICLE III, R.A. 6425, AS AMENDED BY R.A. 7659. A. THE SHABU ALLEGEDLY CONFISCATED FROM BONGALON AT THE TIME OF HIS UNLAWFUL WARRANTLESS ARREST IS INADMISSIBLE AS EVIDENCE. B. THE ACTS OF THE NARCOM AGENTS CONSTITUTE INSTIGATION RATHER THAN AN ENTRAPMENT. C. THE PROSECUTION HAS FAILED TO PROVE THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT. III. THE HONORABLE PRESIDING JUDGE OF THE TRIAL COURT SHOULD HAVE INHIBITED HIMSELF FROM FURTHER HANDLING THE CASE IN ORDER THAT BONGALONS MOTION FOR RECONSIDERATION/NEW TRIAL SHOULD HAVE BEEN RESOLVED BY A NEUTRAL AND IMPARTIAL JUDGE. IV. THE TRIAL COURT SHOULD HAVE APPROVED THE CONDUCT OF A NEW TRIAL IN ORDER THAT THE FACTS EVIDENCING THE EXTORTION AND ROBBERY PLAN OF MABANAG AND HIS MEN COULD HAVE BEEN TAKEN INTO CONSIDERATION IN DETERMINING THE GUILT OF BONGALON. V. THE PENALTY OF DEATH AND FINE OF P1 MILLION IMPOSED BY THE HONORABLE COURT ON BONGALON ARE NOT THE PROPER PENALTIES TO BE IMPOSED. We affirm the judgment of the trial court, with modification as to the fine imposed. The appeal hangs mainly on the alleged lack of credibility of the prosecution witnesses and the frame-up-for-extortion theory. It is a settled rule that in cases involving violations of the Dangerous Drugs Act, credence is given to prosecution witnesses who are police officers for they are presumed to have performed their duties in a regular manner, unless there is evidence to the contrary.[41] To discredit the NARCOM agents involved in the buy-bust operation, the appellant points to certain facts that would allegedly prove that the operation was bogus, to wit: (1) There was no prior transaction between him and the poseur-buyer for him to immediately trust and do business with the latter, particularly when it involved a huge quantity of shabu. (2) The meeting place chosen, Doa Soledad Street, was very risky for a drug-dealer because it is a very busy street where people could easily observe and report to the police the exchange of shabu for money and the counting of money. (3) The NARCOM agents did not take certain measures in the conduct of the buy-bust operation, namely: (a) the buy-bust operation was not entered in NARCOMs blotter to prove that such plan exists; (b) there was no documentary proof that the informant and the poseur-buyer transacted with him through his mobile phone; (c) and despite the fact that the NARCOM agents had ample time to prepare for the operation, the buy-bust money was not treated with ultra-violet powder, thus, there was no fool-proof evidence of his receipt of the money.

156 (4) The NARCOM agents who conducted the buy-bust operation committed material inconsistencies in their testimonies, particularly on the following: (a) the respective positions of their cars during the operation and how many vehicles were actually used; and (b) the buy-bust money used. (5) It was inconsistent with human behavior for him (the appellant) not to count the money at the time of the exchange since he had no prior transaction with the poseur-buyer and, conversely, for the poseur-buyer to just touch the package and conclude that it was shabu. (6) In his Affidavit, PO3 Castaeto stated that the operation in Doa Soledad was planned on December 7, 1994, however, in his testimony in court, he claimed that the meeting place and time was only set on December 8, 1994. (7) He was not alone during the arrest, thus negating the NARCOM agents claim that he was dealing drugs at that time. The factual issues raised by the appellant would not exculpate him. At the outset, bare denials cannot prevail over the positive identification by the prosecution witnesses of the appellant as the person who was in possession of, and who delivered themethamphetamine hydrochloride (shabu) to the poseur-buyer.[42] The prosecution witnesses, namely, PO3 Castaeto and PO3 Galos, testified that the Narcotics Command in Camp Ricardo Papa in Taguig received a report from an informant that the appellant was engaged in the illegal sale of shabu. Acting on the said tip, PO3 Castaeto was designated by P/Sr. Insp. Mabanag to lead the buybust operation team against the appellant. With the informants help, PO3 Castaeto negotiated with the appellant the possible purchase of 250 grams of shabu for P250,000.00. The next day, PO3 Castaeto called the appellant to confirm if their transaction would push through and the latter agreed to deliver the subject 250 grams of shabu. The appellant set their meeting place and time. As PO3 Castaeto did not know the appellant before the buy-bust operation, the informant accompanied him to the meeting place. The informant identified the red Nissan Sentra sedan driven by the appellant. It parked right in front of their car. The informant and PO3 Castaeto approached the appellant, had a brief conversation with the latter and, upon his request, showed him the money. The appellant gave the package containing the shabu to PO3 Castaeto upon receiving the boodle money. The sale of the shabu was consummated. PO3 Castaeto then gave the pre-arranged signal by waiving his left hand to the other members of the buy-bust team who immediately apprehended the appellant. Clearly, the appellant was arrested by virtue of a valid buy-bust operation. A buy-bust operation is a form of entrapment that is resorted to for trapping and capturing felons in the execution of their criminal plan. The operation is sanctioned by law and has consistently proved to be an effective method of apprehending drug peddlers. Unless there is a clear and convincing evidence that the members of the buy-bust team were inspired by any improper motive or were not properly performing their duty, their testimonies on the operation deserve full faith and credit.[43] We reject the frame-up theory of the appellant. It is incredible. The appellant did not offer any satisfactory explanation on why the NARCOM agents would single him out from among the many vehicles that passed via Doa Soledad and Russia Streets on that particular day just to frame him up and extort money from him. The records show that there was no prior surveillance conducted against the appellant. No evidence was presented if the NARCOM agents knew before his arrest that he could give a huge sum of money for the agents alleged extortion activity. What was established was that PO3 Castaeto became aware of the appellants illegal trade only a day before the buy-bust operation. In fact, the informant had to introduce first PO3 Castaeto to the appellant before the said poseur-buyer managed to negotiate the shabu deal with him. Even the appellant admitted that he did not know the NARCOM agents prior to his arrest. There was, therefore, no motive for them to frame him up. Without proof of motive to falsely impute such a serious crime against an accused, the presumption of regularity in the performance of official duty and the findings of the trial court on the credibility of witnesses shall prevail over the appellants claim of having been framed.[44] Even the claim that the appellant went to Better Living Subdivision in Paraaque to return the Sega tapes to his friend, Boyet, is unbelievable. In these times of electronic gizmos, the appellant would like us to believe that his brother, Melchor, came all the way from his house in Tondo just to tell him that Boyet, whose house was just a few minutes away from the appellants, would like to have his Sega tapes back. Although the appellant denied that he owned a mobile phone or a phone landline in his house, he admitted he has a pager. Inexplicably, Boyet opted to contact Melchor to relay the message

157 to the appellant instead of just relaying it straight to the latter. The same holds true for Melchor, assuming that he did go to the appellants house. We note, too, that despite the claim that Melchor was also in the car during the buy-bust operation, Melchor was inexplicably not charged in court along with his brother, the appellant. More perplexing is the allegation that the NARCOM agents would also take the appellants 4-year old son in Camp Papa while the latter was under investigation and, after they had searched his house, the NARCOM agents again took the child to Camp Papa and not leave the child with his mother. To be sure, the appellants scenario was so contrived that it goes against standard human behavior and experience. As shown in the records, the prosecution has established with moral certainty all the elements necessary in every prosecution for the illegal sale of shabu, namely, (1) the identity of the buyer and the seller, the object and the consideration, and (2) the delivery of the thing sold and the payment therefor. The use of dusted money is not indispensable to prove the illegal sale of shabu. In fact, the absence of marked money does not create a hiatus in the evidence for the prosecution provided that the prosecution has adequately proved the sale.[45] Moreover, the fact that the appellant did not count the money first when he gave the shabu to PO3 Castaeto does not necessarily mean that the buy-bust operation was a sham. The NARCOM agent explained that after showing the boodle money with the genuine P500 bills to the appellant, the latter was satisfied that he readily gave the package of shabu to the former. The trial court correctly believed the NARCOM agent. We are convinced that what actually took place during the operation was, in street parlance, a kaliwaan. There was nothing unusual about how the said transaction was consummated. It was done hurriedlythe giving of the shabu upon receipt of the moneyprecisely because the place of the exchange was a busy street and it would arouse the suspicion of bystanders and passersby if the appellant would be seen counting a huge sum of money. For his exculpation, the appellant also points out that it was only in the morning of December 8, 1994 when PO3 Castaeto got the information on the price of the shabu and the place and time of the delivery. Thus, it was allegedly incredible that P/Sr. Insp. Mabanag could already organize the buy-bust team on December 7, 1994 and give details about the operation to be held in Doa Soledad on December 8, 1994. The appellant also focuses on certain inconsistencies in the sketches[46] drawn by PO3 Castaeto and PO3 Galos as to where they parked their respective cars and how many were used during the operation. The appellant fails to persuade us. The records show that the December 8 conversation between the appellant and PO3 Castaeto was just a confirmation of their agreement regarding the sale of the shabu. Prior to that, the confidential informant had been talking to PO3 Castaetos superior officer, P/Sr. Insp. Mabanag, regarding the illegal trade of the appellant and, on account of such report and the initial negotiations between the appellant and PO3 Castaeto, the buy-bust team was formed and briefed accordingly.[47] As for the locations of the vehicles used by the NARCOM agents when it parked along Doa Soledad Street, such is a trivial matter that would not affect the their credibility. Such a minor inconsistency strengthens, rather than weakens, the credibility of the witnesses as it erases any suspicion of a rehearsed testimony.[48] We deemed it more important that the prosecution witnesses testimonies tallied on material points. The appellant also cannot assail the validity of his arrest on account of the absence of a warrant. He was caught in flagrante delicto[49] selling shabu.[50] There was, therefore, no need for a warrant to effect his arrest pursuant to Section 5 (a), Rule 113 of the Revised Rules on Criminal procedure.[51] Said section provides: Sec. 5. Arrest, without warrant; when lawfulA peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; xxx xx. xxx x

158 Moreover, the rule is that an accused is estopped from assailing the legality of his arrest if he failed to move to quash the information against him before his arraignment. Any objection involving the arrest or the procedure in the acquisition by the court of jurisdiction over the person of an accused must be made before he enters his plea, otherwise, the objection is deemed waived.[52] Even in the instances not allowed by law, a warrantless arrest is not a jurisdictional defect, and objection thereto is waived where the person arrested submits to arraignment without objection. The subsequent filing of the charges and the issuance of the corresponding warrant of arrest against a person illegally detained will cure the defect of that detention.[53] Next, the appellant claims that the search conducted in his house was unlawful. He also laments that the NARCOM agents robbed him of his personal properties during the search and they received money from his relatives after his arrest. This Court need not tarry on the validity of the said search for the appellant consented to the search. He admitted that he voluntarily accompanied the policemen to his house.[54] As for the charges of robbery and extortion, as in the alleged unlawful search made in his house, those incidents transpired after his arrest. Whether true or not, his liability for the unlawful sale of shabu remains. As we have earlier stated, the appellants denial cannot prevail over the positive testimonies of the prosecution witnesses. We are not unaware of the perception that, in some instances, law enforcers resort to the practice of planting evidence to extract information or even to harass civilians. However, like alibi, frame-up is a defense that has been viewed by the Court with disfavor as it can easily be concocted, hence, commonly used as a standard line of defense in most prosecutions arising from violations of the Dangerous Drugs Act. We realize the disastrous consequences on the enforcement of law and order, not to mention the well-being of society, if the courts, solely on the basis of the policemens alleged rotten reputation, accept in every instance this form of defense which can be so easily fabricated. It is precisely for this reason that the legal presumption that official duty has been regularly performed exists.[55] The third and fourth issues need not be discussed at length as the same were already passed upon by this Court when it denied the appellants Motion for New Trial for lack of merit.[56] We reiterate that the trial court did not err in denying the motion for new trial. Section 14, Rule 124 of the 1985 Rules on Criminal Procedure provides: Sec. 14. Motion for new trial.At any time after the appeal from the lower court has been perfected and before the judgment of the appellate court convicting the accused becomes final, the latter may move for a new trial on the ground of newly discovered evidence material to his defense, the motion to conform to the provisions of Section 4, Rule 121. A motion for new trial must be based on newly discovered evidence, [57] that is, the following must concur: (a) the evidence is discovered after trial; (b) such evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence; and (c) the evidence is material, not merely cumulative, corroborative, or impeaching and of such weight that, if admitted, could probably change the judgment. As aptly stated by the trial court, the testimony of the witness sought to be presented would serve only as impeaching and corroborative evidence. A new trial is justifiably denied where only impeaching evidence is sought to be introduced as the court had already passed upon the issue of credibility at the trial and where only corroborative evidence is to be offered as it would not change the result of the case.[58] The fifth issue refers to the correctness of the death penalty imposed against the appellant. To avoid any injustice, we re-read the voluminous records of the case. We find that the records support the findings of the trial court. Section 15 of Republic Act No. 7659 provides: Sec. 15. Sale, Administration, Dispensation, Delivery, Transportation and Distribution of Regulated Drugs.The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, dispense, deliver, transport or distribute any regulated drug. xxx xx. xxx x

159 Section 20, Article IV of R.A. No. 6425 was amended by Section 17 of R.A. No. 7659. It now provides as follows: Sec. 20. Application of Penalties, Confiscation and Forfeiture of Proceeds or Instrument of the Crime. The penalties for offenses under xxx Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the following quantities: xxx xx 3. 200 grams or more of shabu or methylamphetamine hydrochloride; xxx xx xxx x xxx x

Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity. It was established that the appellant sold 250.70 grams of shabu. The crime, according to the Information, was committed with the aggravating circumstance of use of motor vehicle.[59] It has been established that the appellant used a car in going to their meeting place and to transport the subject substance thus facilitating the commission of the crime.[60] There was no mitigating circumstance. Applying Section 15 in relation to Section 20 of R.A. No. 7659 and Article 63 of the Revised Penal Code, the penalty of death and a fine ranging from P500,000.00 toP10,000,000.00 should be imposed upon the appellant. Considering the quantity of the shabu involved in the case at bar, the fine of P1,000,000.00 is reduced to P500,000.00.[61] Four (4) members of the Court maintain their position that R.A. No. 7659, insofar as it prescribes the death penalty, is unconstitutional. Nevertheless, they submit to the ruling of the Court, by a majority vote, that the law is constitutional and that the death penalty should be imposed accordingly. IN VIEW WHEREOF, the decision of the Regional Trial Court of Paraaque (Branch 258) in Criminal Case No. 95-0973, sentencing appellant Baltazar Bongalon y Mateos to death for violating Section 15, Article III of R.A. No. 6425, as amended, is AFFIRMED, with modification that the fine imposed shall be reduced to P500,000.00. Costs against the appellant. Pursuant to Section 25 of R.A. No. 7659, amending Section 83 of the Revised Penal Code, upon finality of this Decision, let the records of this case be forthwith forwarded to the Office of the President for possible exercise of pardoning power. SO ORDERED.

160 EN BANC [G.R. No. 141943-45. November 13 ,2002]

THE PEOPLE OF THE PHILIPPINES, appellee, vs. DIOSDADO RECEPCION Y PALASO (deceased), FELIPE DELA CRUZ Y REYES, AUDIE DONA Y BINAN, ALFREDO BARACAS Y CONCEPCION, EDUARDO PALACPAC Y ROSALES, BERNARDO RANARA Y MORATALLA (at large), JOEMARI DELOS REYES Y CONCEPCION, DOMINADOR RECEPCION Y PALASO and ROBERT ALFONSO Y MARTIZANO, appellants. DECISION VITUG, J.: Five innocent men met their sudden death at a not-so-forlorn corner of Caloocan City when a group of malefactors, without apparent provocation or reason, had cast their terror on the early morning of 28 July 1999. Eight1 persons were charged with multiple murder, violation of Presidential Decree (P.D.) No. 1866,2 and robbery in band in three separate accusatory Informations that read: In Criminal Case No. 57208 That on or about 1:15 oclock a.m. of July 28, 1999 in Caloocan City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping each other, did then and there willfully, unlawfully and feloniously, with intent to kill, evident premeditation and treachery after posing as customers and armed with unlicensed handguns entered Sabungan Fastfood & Videoke and once inside, without any provocation from anyone suddenly, unexpectedly and in totally senseless and surprising act or rampage attacked, assaulted and shot five (5) customers, namely: Benjamin E. Valdez, Rodolfo O. Ortega, Augusto A. Billodo, Ruperto S. San Juan and Renato T. Cleofas, Sr., thereby hitting and mortally wounding the said five (5) persons causing their instantaneous death.3 In Criminal Case No. 57209 -That on or about 1:00 to 3:00 A.M. or thereabout, on July 28, 1999 in Caloocan City, Philippines, and within the jurisdiction of this Honorable court, the above-named accused had in their possession, custody and control the following firearms/handguns loaded with ammunitions to wit: a. One (1) Cal. 38 Armscor SN-760006; b. One (1) Cal. 38 Armscor SN-51 900; c. One (1) Cal. 38 Armscor SN-51952; d. One (1) Cal. 38 Squires Bingham SN-1095906; e. One (1) Pistol 9mm Noringco SN-861406966; f. Fifty-two (52) pcs. Cal. 38 live ammunitions; g. Twenty eight (28) pcs. 9 MM live ammunitions; h. Eight (8) pcs. Cal. 38 empty shells, without the necessary license or authority as required by law and which firearms were used in the commission of multiple murder (killing of five persons, namely: Benjamin E. Valdez, Rodolfo D. Ortega, Augusto A. Billodo, Ruperto S. San Juan and Renato T. Cleofas, Sr. at Sabungan Fastfood & Videoke, which is within the jurisdiction of this Honorable Court).4 In Criminal Case No. 57210 That on or about 1:15 A.M. on July 28, 1999 in Caloocan City, Philippines, and within the jurisdiction of this Honorable court, the above-named accused, acting in concert, conspiring, confederating and mutually helping one another, with intent of gain, by means of force, threats, violence or intimidation, and immediately after accused totally unprovoked and unexpected shooting rampage, which resulted in the death of several customers, did then and there willfully, unlawfully and feloniously, with the use of

161 their unlicensed firearm, forcibly and violently take, divest, and carry away from LENY GATICA, FREDEBERT DADON, DENNIS SERRANO and RODEL FESARIT, the following cash and personal belongings, namely: a lady bracelet worth P3,500.00, three (3) men wristwatches worth P7,500.00 and the establishment earnings of P5,000.00, to the loss, damage and prejudice of the above-named owner/s.5 The indictees, when arraigned, pled not guilty to all the charges. The cases were tried jointly. The Version of the Prosecution Marie Flamiano was a waitress at Sabungan Fastfood and Videoke Pub, located along Samson Road, in Caloocan City. At about one-thirty on the morning of 28 July 1999, she was attending to customers when seven men, she identified to be Diosdado Recepcion, Alfredo Baracas, Joemari delos Reyes, Bernardo Ranara, Dominador Recepcion, Robert Alfonso and Audie Dona, entered the pub while one was tailing behind at the entrance. The men occupied table 12 and ordered beer from waitress Eliza Bautista. A few minutes later, three men from the group transferred to table 10. Just as Marie was approaching table 13 to get the microphone from a customer, one of the men stood up and fired his gun at another customer. Marie identified this gunman to be Alfredo Baracas. Eliza Bautista, the waitress who served the group, among them Diosdado Recepcion, Robert Alfonso, Audie Dona, Alfredo Baracas, Eduardo Palacpac, Joemari delos Reyes and Dominador Recepcion, saw another man pull out a gun and shot a customer, Rodolfo Ortega, while on his knees. The women later identified the gunman to be Diosdado Recepcion. Rosalia Juanica, a co-waitress who had meanwhile dashed out and hid at the nearby St. Joseph Store, saw Rodolfo Ortega, kneeling with both hands raised in plea, but one of the men, she likewise identified to be Diosdado Recepcion, fired his gun at pointblank range. Jojo Paraiso was with his co-security guards having a drinking spree when a group of armed men, started shooting. Some of the men shouted, dapa, but Jojos companion, Benjamin Valdez, unfortunately took a bullet shot before he could get the chance to heed the warning. Jojo identified the person who fired at Valdez to be Robert Alfonso. He hid under the table and could only watch the men gone berserk. The last of the gunmen who left the pub, still firing his gun, was Joemari delos Reyes. Jhosa Reyes, a waitress at the A & E Kitchenette just across the Sabungan, saw the gunmen and their cohorts scamper away after the shooting incident. She recognized three of the gunmen, Robert Alfonso, Joemari delos Reyes and Eduardo Palacpac, as being regular customers at the A & E Kitchenette. Shortly before the shooting, Alfonso, delos Reyes, Palacpac and another companion were drinking at the kitchenette but soon headed towards the alley near the pub. Found sprawled on the floor, when the shooting finally stopped, were the lifeless bodies of five men - Benjamin Valdez, Augusto Billodo, Renato Cleofas, Rodolfo Ortega and Ruperto San Juan. Ruben Labjata, a jeepney driver, was waiting for passengers at Dagohoy Street, Caloocan City, when he heard gunshots. He was about to leave with only a few passengers when, unexpectedly, three men arrived and ordered all the passengers to get off the vehicle. The men menacingly pointed their guns at Labjata and ordered him to drive. Moments later, five more men boarded his jeepney. Three of the men stayed with the driver at the front seat while the other five sat at the rear. The group directed Labjata to drive towards Monumento and then to EDSA. After stopping briefly at Petron Station to refuel, the group proceeded to Quezon City. At a 7-11 convenience store in Tandang Sora, some of the men alighted from the vehicle. More gunshots were fired. Boarding once again the jeepney, the men told Labjata to go north until they finally reached, hours later, Paniqui, Tarlac. At Paniqui, the men debated on the drivers fate. After hearing one suggest that he should be killed (tumba), Labjata panicked and begged the group to spare him -maawa po kayo, may pamilya po ako. One of the men allowed him to go home with a warning that he should not report the incident to the police. In open court, he identified the malefactors to be Audie Dona, Alfredo Baracas, Diosdado Recepcion, Bernardo Ranara, Eduardo Palacpac, Dominador Recepcion, Joemari delos Reyes and Robert Alfonso. Conrado Marquez, a tricycle driver, was waiting for passengers along the highway of Paniqui, Tarlac, when he saw a group of men alight from a dirty jeepney. Four of the men rode in his tricycle, while the other four took two more tricycles. Marquez brought the group to Brgy. Coral, Ramos, Tarlac. Around lunchtime on 29 July 1999, the Bulacan Police invited Ruben Labjata for questioning. Taken by police authorities to Tarlac, he pointed to the exact place where the armed men got off from his

162 vehicle. Conrado Marquez, likewise invited by the police for interrogation, readily informed the police of the place where he brought the men who hired his tricycle. The police promptly cordoned the area and the group, along with FO1 Felipe dela Cruz, surrendered after several calls by the police. Taken into custody were Felipe dela Cruz, Joemari delos Reyes, Audie Dona, Alfredo Baracas, Eduardo Palacpac, Bernardo Ranara, Robert Alfonso, and Dominador Recepcion. Diosdado Recepcion, then a special agent of the Narcotics Command, was intercepted at the national highway of Cuyapo, Nueva Ecija, on board a tricycle. At the Tarlac Police Station, Labjata identified his passengers, namely, Audie Dona, Alfredo Baracas, Diosdado Recepcion, Bernardo Ranara, Eduardo Palacpac, Dominador Recepcion, Joemari delos Reyes and Robert Alfonso. Diosdado Recepcion, Felipe dela Cruz, Audie Dona, Alfredo Baracas, Eduardo Palacpac, Bernardo Ranara, Joemari delos Reyes, Dominador Recepcion, and Roberto Alfonso were charged with multiple murder, violation of P.D. No. 1866, and robbery in band before the Regional Trial Court, National Capital Region, Branch 129, Caloocan City. The incident that occurred at the 7-11 convenience store also spawned several separate criminal informations (not involved in the instant cases under review). During the trial, Diosdado Recepcion died in an escape attempt, while accused Bernardo Ranara escaped and remained at large. The Version of the Defense The defense interposed alibi. According to Dominador Recepcion, he was, at the time of the reported shooting incident, fast asleep at Greenwoods Subdivision in Cainta, Rizal, where he was a construction worker. His co-workers were Eduardo Palacpac and Robert Alfonso. On the evening of 27 July 1999, the trio went to Pansi, Paniqui, Tarlac, to help Dominador Recepcions nephew, Joemari delos Reyes, find a job. It was after one oclock in the afternoon when Joemari brought them to the house of his cousin FO1 Felipe dela Cruz. Joemari delos Reyes testified that, on the afternoon of 28 July 1999, he was at home when his uncle Dominador Recepcion arrived with Robert Alfonso and Eduardo Palacpac. He brought his guests to the house of Felipe dela Cruz where they partook of beer. Felipe dela Cruz stated that on 28 July 1999, about one oclock in the afternoon, his father fetched him from a cousins house. When he arrived home, he was met by Joemari delos Reyes along with the latters companions, namely, Eduardo Palacpac, Robert Alfonso, and Dominador Recepcion. In the evening of the same day, about eight oclock, he invited his visitors to join him in attending a wake just a few meters away, and they stayed there until dawn. The following morning of 29 July 1999, policemen arrived and cordoned his house. He was arrested together with Joemari delos Reyes, Audie Dona and Alfredo Baracas. During a series of questioning at the Caloocan Police Station, dela Cruz insisted that he was attending a wake at the time the shooting incident occurred in Caloocan City. Audie Dona said that on 28 July 1999, he and his friend Alfredo Baracas, went to Pansi, Ramos, Tarlac, to visit his cousin Joemari delos Reyes and to get some fresh fish and vegetables. When he did not find Joemari at his house, he and Baracas proceeded to the place of dela Cruz where they were invited to join the group of Felipe dela Cruz, Joemari delos Reyes, Eduardo Palacpac, and Dominador Recepcion in a drinking spree. Dona and Baracas stayed until nine oclock in the evening when they repaired to the house of Joemari to spend the night. On 29 July 1999, he and Baracas went back to see dela Cruz but found Joemari still sleeping. The two dozed off while waiting for Joemari to wake up until they all found themselves surrounded by the police. When the trial was over and weighing the evidence before it, the court a quo found the several accused guilty in Criminal Case No. C-57208 for multiple murder but acquitted them in Criminal Case No. C-57209 for the charge of illegal possession of firearm and Criminal Case No. 57210 for robbery in band because of insufficiency of evidence. The trial court adjudged thusly: WHEREFORE, premises considered, this Court finds the following accused GUILTY beyond reasonable doubt of Multiple Murder in Criminal Case No. C-57208, as defined and penalized under Art. 248 of the Revised Penal Code, as amended by Section 6 of Rep. Act No. 7659: 1. Audie Dona

163 2. Alfredo Baracas 3. Bernardo Ranara (escaped) 4. Eduardo Palacpac 5. Dominador Recepcion 6. Joemari delos Reyes 7. Robert Alfonso Accordingly, the 7 above-named accused shall each serve the penalty of DEATH FIVE (5) TIMES OVER corresponding to the 5 victims they murdered. By way of civil liabilities, the 7 above-named accused shall jointly and severally pay the following amounts of money to the following complaining witnesses, without subsidiary imprisonment in case of insolvency: 1. a) b) c) Divina Ortega Death Indemnity Moral Damages Funeral expense TOTAL 2. a) b) c) Virginia Cleofas Death Indemnity Moral Damages Funeral expense P 50,000.00 100,000.00 20,000.00 P 50,000.00 100,000.00 20,000.00 170,000.00

TOTAL 3. a) b) c)

170,000.00

Jocelyn Valdez Death Indemnity Moral Damages Funeral expense 186,000.00 P 50,000.00 100,000.00 36,000.00

TOTAL 4. a) b) c)

Estella Ablong San Juan Death Indemnity Moral Damages Funeral expense 167,500.00 P 50,000.00 100,000.00 17,500.00

TOTAL 5. a)

Heirs of Augusto Billodo Death Indemnity P 50,000.00

164 b) Moral Damages 100,000.00

TOTAL - 150,000.00 or the aggregate amount of P843,500.00. Considering that the accused Diosdado Recepcion is now deceased, he is hereby dropped from these cases, pursuant to Article 89 of the Revised Penal Code. Considering also that the accused Bernardo Ranara is now at large after having escaped on November 22, 1999, let an Order of Arrest be issued against him for the service of his sentence in Criminal Case No. C-57208 for Multiple Murder. As an Accessory to Multiple Murder under Article 19 of the Revised Penal Code, the accused FOl Felipe dela Cruz shall serve the indeterminate penalty of imprisonment from 10 years and 1 day of Prision Mayor, as minimum, to 17 years, 4 months and 1 day of Reclusion Temporal, as maximum, with all the accessory penalties under the law and shall pay the costs. Criminal Case No. C-57209 for Illegal Possession of Firearms is ordered dismissed, the filing thereof being unnecessary, pursuant to Section 1 of Rep. Act No. 8294. Criminal Case No. C-57210 for Robbery in Band is likewise ordered dismissed for insufficiency of evidence. The Branch Clerk of this Court shall now issue the corresponding Commitment Order to the Director, Bureau of Corrections, thru the City Jail Warden of Quezon City. Pursuant to Section 22 of Rep. Act 7659, the Branch Clerk shall elevate the complete records of this case to the Honorable Supreme Court within 20 days but not earlier than 15 days after this promulgation, for automatic review.6 The capital punishment having been imposed on herein appellants for the crime of multiple murder, the case was elevated to this Court for automatic review. In their brief, appellants ascribed to the trial court a number of alleged errors but, by and large, they focused on the issue of credibility of the witnesses and the imposition of the death penalty. Appellants argue that the witnesses presented by the prosecution have committed several inconsistencies, mainly on the identities of the gunmen, said to be well enough to discredit their testimony. The poor lighting condition of the pub, they claim, could have easily blurred the vision of the witnesses frustrating any clear identification of the assailants. The defense also belabors the finding of conspiracy and, in general, of their conviction by the trial court. In criminal cases, particularly where the capital punishment is imposed, this Court takes a most painstaking effort to ascertain the guilt or innocence of the convicted accused. Nevertheless, it has long been a standing rule that the findings on the credibility of witnesses by the trial court are hardly disturbed on appeal. The appellate court adheres to such deference in view of the vantage that a trial court enjoys in its reception of testimonial evidence, It is only when there evidently are matters of substance that have been overlooked that an appellate court would feel justified to ignore the evaluation and assessment made by the trial court on such evidence. Looking closely at the records, nothing significant is disclosed to warrant a reversal of the rule. Observe thusly Testimony of Eliza Bautista Q Miss Bautista, you said you are a waitress of Sabungan Fastfood and Videoke? A Yes, sir. Q And as such, one of your duties is to serve food, drinks or whatever to your customers? A Yes, sir. Fiscal Daosos

165 Q Did you recall if you reported for work sometime at around 12 to 1:00 oclock midnight at Sabungan Fastfood on July 28, 1999? A Yes, sir. I was there, sir. xxx Fiscal Daosos Q Alright. You said you have 2 customers in the name of San Juan and Ortega. And then, you said also you pointed to the group of the accused and you said that they were [y]our last customers. Alright, more or less, what time did [these] new customers or last customers of yours arrived? A 1:15 a.m., sir. xxx xxx xxx xxx xxx

Q Now, when you saw them entering the Sabungan Restaurant, what if any did you do being a waitress? A After they entered together, they ordered 7 beers. So, I served 7 beers and then occupied a table and after occupying the table, the 3 transferred to another table, sir. xxx xxx xxx

Q Lets go back Miss Bautista to your last customers. You said that you served beer to 7 customers and you said they were your last and in fact, you just pointed them because they are here, is that correct? A Yes, sir. Interpreter Witness pointing to the accused. Fiscal Daosos Q Alright. How are you so sure that they were the last customers on that early morning of July 28, 1999 at around 1:20 in the morning? A Because I was the one serving them and I was able to talk to them, sir. Q Can you recall who among the 7 whom you talked with first? A That one, sir. Interpreter As witness pointing to the person who identified himself as Robert Alfonso when asked. Fiscal Daosos Q Was he also the one who ordered beer from you? A That one, sir. He was the one who ordered the 7 beers. Interpreter As witness pointing to the person who ordered 7 beers and identified himself as Audie Dona. xxx Fiscal Daosos Q Is there anything unusual that happened? Court Answer. A I did not notice anything unusual when I served beer, sir. Because after I gave them a bottle of beer, after that they have put their beers on a glass, sir. xxx xxx

166 xxx xxx xxx Q After pouring beer to their glass, what else happened? A Nothing happened, sir. They just sat *there+. Q Alright. You said that Ortega and San Juan [were] shot dead. Now, would you know or recall who shot Ortega and San Juan? A I know who shot Ortega. But I dont know who shot San Juan, sir. Q Alright, who shot Ortega? A That man, sir. Interpreter Witness pointing to a person who identified himself as Diosdado Recepcion when asked. xxx xxx xxx Fiscal Daosos Q Alright. We go back Miss Witness to the 7 customers that you served beer. Now, [these] 7 customers that you [said] became your last customer[s] that evening, would you be able to identify or recognize their faces if you see them again? A Yes, sir. xxx xxx xxx Court Teka, isa-isahin mo. Sige. Interpreter As witness pointing to Diosdado Recepcion, Alfredo Baracas, Audie Dona, Robert Alfonso, Eduardo Palacpac, Joemari delos Reyes, Dominador Recepcion. Fiscal Daosos Q Thank you Miss Witness. Alright, Miss Bautista, do you recall if all or anyone of these 7 customers that you have just identified were old or former customers of Sabungan Restaurant? A Not our former customers, sir.7 Testimony of Marie Flamiano Asst. Chief Pros. Mariano Ms. Witness, you said you are a waitress at Sabungan Restaurant, how long have you been a waitress thereat? A For 7 months, now, sir. Q Do you remember having reported for work on the evening of July 27, 1999? A Yes, sir. Q And what is your working hours at the Sabungan Restaurant? A From 6:00 p.m., sir. Q In the evening of July 27, 1999? A 6:00 p.m., sir. Q Up to what time? A Up to 2:00 a.m., sir. Q In the early morning of July 28, 1999 at about 1:20, do you recall of any unusual incident that occurred in Sabungan Restaurant? A Yes, sir. Q What was that incident? A They shot somebody, sir. Q Who shot somebody? A They are here in Court, sir. Q Whom did you see shooting somebody at that time? A Para silang walang awang namaril.. Atty. Ongteco Your Honor, the answer is irresponsive. Court Let it remain, just answer what is being asked of you. Asst. Chief Pros. Mariano You said that there were persons who shot individuals in Sabungan, how many were they? A Seven (7), sir. Q Now, if they are here in Court, will you be able to recognize them? A Yes, sir.

167 Q Will you point to them if they are here in Court? Interpreter Witness is pointing to 7 male persons inside this Courtroom, who when asked their names, answered..Diosdado Recepcion, Alfredo Baracas, Joemari delos Reyes, Bernardo Ranara, Dominador Recepcion, Robert Alfonso and Audie Dona. Asst. Chief Pros. Mariano These 7 persons whom you identified, do you know what particular acts they did at the Sabungan incident? A They were shooting. xxx xxx xxx Q Aside from the fact that you saw them with guns, what else did you see? A I saw the dead person outside, that person was already kneeling and begging for life but they still killed that person. Q And do you know who shot that person who was already kneeling? A The first person I pointed out in Court. Q And you are referring to? A Diosdado Recepcion, sir.8 On cross-examination, this witness elaborated: Q And what could be your basis in pointing to Diosdado Recepcion as well as to accused Alfredo Baracas and the rest, when you did not see who shot whom? A Because I saw them, sir. Q How far were you from these two accused that I mentioned during the shooting incident? A About 7 to 8 meters, sir. Q At that time the shooting incident occurred, what was your duty, if ever? A Because it was almost our closing time, I was just sitting, I have nobody to serve. Q When these 7 persons entered, were there other customers in the establishment? A Yes, sir. xxx xxx xxx Q In other words, when you scampered outside, you did not see with particularity the accused shooting the victim, is that correct? A While I was running, I saw them, they were shooting the victims, sir. Q You mean to tell me that during the time you were running outside, your head was turning back to where the accused were situated shooting? A Yes, sir. (Witness is pointing as to the direction of the door of the restaurant) Q With that distance you are pointing to, to the corner of this room, you could have not ascertain[ed] Mr. Diosdado Recepcion holding a gun and shooting at somebody, is that correct? A I saw him, sir. Q In fact in your testimony, you cannot identify whether it was a short gun or a long gun? A Yes, sir, I could not identify the kind of guns they were using. Q Because you became very scared, frightened and nervous that is why you scampered outside? A Yes, sir. Q And also because of that nervousness and fright that you experienced, you are in doubt whether it was really Diosdado Recepcion whom you saw? A I saw him sir. (Siya po). Q That incident on July 28, 1999 was the first time that you saw this person whom you pointed as Diosdado Recepcion, is that right? A Yes, sir. Q So, how can you be very sure that it was him who was holding a gun and shooting at somebody when you said that was the first time that you saw him and your distance was quite far and likewise you cannot determine or ascertain whether he was holding a long gun or short gun? A Because I saw them standing, sir. Q You mean to tell me that aside from Diosdado Recepcion, all the 7 accused were all standing? A Yes, sir, they were all standing. Q And you also would like to impress before this Court that all the 7 accused were holding a gun and were all standing and were all shooting at somebody?

168 A I am not sure but all of them stood up and shot somebody.9 Testimony of Jojo Paraiso Q Now, on the said date, July 28, 1999 at around 1:30 in the morning, do you still remember your whereabouts? A Yes, sir. Q Where were you? A I was at Sabungan Restaurant, sir. Q Accordingly, you were on duty on said date, July 28, 1999. Why were you at Sabungan Fastfood? A I was already off-duty at that time, sir. Q Now, who were with you at Sabungan Restaurant, if any? A We were 5, sir. Q Please tell us their names or some of them? A Our Asst. OIC, Benjamin Valdez, Fisaret, Daniel Aycardo, Jimmy Serrano and myself, sir. Q Would I get from you that all these companions of yours were also security guards? A Yes, sir. Fiscal Bajar While you and your 4 other companions were inside the Sabungan Restaurant on July 28, 1999 at around 1:30 in the early morning, do you remember any unusual incident that happened inside or outside thereat? A Yes, sir. Q But before that, what were you and your other 4 companions doing at the Sabungan Restaurant on the wee-hours of July 28, 1999? A We were having a drinking spree, sir. Q What was that unusual incident that happened inside the Sabungan Restaurant? A A shooting incident suddenly took place and then we dropped ourselves on the ground because of that shooting incident, sir. Q But before that shooting incident, do you recall what particular place inside the Sabungan Restaurant were you seated? A Yes, sir. Q Where were you particularly seated? A Near the side of the Sabungan Fastfood and we were in front of the videoke machine, sir. Q When you said in front you were just very near? A Yes, sir. Q Now, [was] there any other persons inside the Sabungan Fastfood aside from you and your companions? A Yes, sir. Q How many, if you remember? A We were 9, sir. Court And aside from the 5 of them? A There were 9 customers in all in that restaurant, sir. Court Q Including you or excluding you? A Including me, sir. We were 9 customers. Fiscal Bajar Q How about the non-customers? A 7, sir. Q And what were [these] non-customers doing inside the Sabungan Restaurant? A They also ordered beer and they also posed as customers, sir. But they were not able to drink beer and when they ordered they already fired their guns, sir. Fiscal Bajar Q Now, where were [these] other non-customers who were ordering beers situated inside the Sabungan Restaurant in relation to where you were seated? A They positioned themselves at the center of the videoke machine but at first they were together and then they ordered, the 3 separated from the group, sir. Q And how far was your table from this table of the non-customers? A About 3 meters away from our table, sir.

169 xxx xxx xxx Fiscal Bajar Q Okay. Now, after the group parted ways and the 3 occupied another table, what happened? A 3 minutes after, the 3 separated from the group and the shooting started, sir. Q And where did the shooting come from? A From the 3 persons who separated from the group, sir. Q Why did you say that it came from the 3 persons? A Because after hearing the first shot, I looked at that direction, sir. Q And were you able to see the firearms used in firing the shots? A I saw a light or spark that came out from the nozzle of the gun after I heard the shot, sir. Q And to what direction does the firing directed or pointed to? A To the persons they shot, sir. Q Where were *these+ persons firing located? A They were seated because they were also drinking, sir. Q In relation to where you were seated and drinking, where were these persons located? A They were at the side of the restaurant and near the table who fired the shots, sir. Q And how many table[s] were [occupied by these] persons and to where the firing was directed? A Only one (1), sir. xxx xxx xxx Fiscal Bajar Q Now, how many shots did you hear? A Many, sir. And I could not count it, sir. Q And how about you, what did you do when you heard this successive shots from the table of this 3 persons? A One of them shouted dapa, that is why I hid myself under the table, sir. Q Now, how about your other 4 companions, what did they do after you dropped yourself [on] the ground? A The other one who was shot remained seated in front of his table. But my other 3 companions docked on the table, sir. Q And what happened to that person who was shot? That *lone+ person that according to you who was shot? A He died, sir. Q And after you have yuko, did you notice what happened next? A I looked outside, sir. And then I found out that my [companion was] shot and then the one beside him was shot next, sir. Q Now, where did this person who shot your companions come from because, according to you, you were looking outside? A That person who shot my companion was near the table of my other companion that was shot and the distance of my companion from the one who shot him was only about a meter away, sir. Q When you said companion who was shot, you referring to the one who transferred to another table? A Yes, sir. Our companion, sir. xxx xxx xxx Q So, after you saw your companions shot, what did you do, if any? A I remained there under the table but sometimes I would look and sometimes I would bow my head. Q And to whom were you looking at? A To our companions, sir. Q And do you remember how many times [you performed] that yuko, tingin, yuko, tingin? A Whenever I noticed that they were looking at me, I [would] look down or bow my head, sir. Court What do you mean they? A The one who *shot+ my companions, your Honor. Fiscal Bajar

170 Q And how far was this person who [shot] your companions from you who was looking at him and to the one who looked at you? A About 4 meters, sir. Q Now, if that person is in Court, would you be able to identify him? A Yes, sir. Q Please point to him if he is around? You [tap] his shoulder, if you want? A Yes, sir. This one, sir. Interpreter Witness tapped the shoulder of Robert Alfonso. xxx xxx xxx Q Could you recognize anyone of them? A The one who shot our companions and he was with the 4 persons in that table, sir. Q So, the question is if you have recognized anyone of the persons who remained in the table? A Yes, sir. The one who came out last after the shooting, sir. But when he came out he fired a gun. Q If that last person you saw was on their way out from the Sabungan Restaurant is in Court, can you point to him? Please step down and tap the shoulder if he is around? A Yes, sir. This one, sir. Interpreter As witness stepped down from the witness stand and tapped the shoulder of the accused Joemari Delos Reyes. xxx xxx xxx Q Now, please demonstrate to us how your companion was shot by Robert Alfonso? A Like this, sir. The accused was in the standing position when he fired [at] my companion at a distance of one (1) meter. And after shooting my companion, that gun man fired again at a man beside my companion, sir. Q And what was the position of your companion when he was fired upon? A He was seated, sir. Q And what was then your position when you saw your companion being shot? A I was under the table but I was looking at their direction, sir.10 On cross-examination, Paraiso continued: Q Mr. Witness, you said that the shooting incident happened at 1:30 in the early morning of July 28, 1999. What time did you start drinking at the Sabungan Restaurant? A About 12:45 a.m., sir. Q How many bottles of what were you drinking? A Beer, sir. Q How many bottles of beer have you already consumed? A During the shooting incident 2 bottles, sir. Q Now, according also to you it was the 3 men who separated from the larger group [who] transferred to another table? A Yes, sir. Q And it was after about 15 minutes that one of them started shooting? A Yes, sir. xxx xxx xxx Q How did you position yourself when you hid yourself under the table? How did you position yourself? Did the table completely cover you? A The table completely covered me, sir. Q Could you say that you were not shot because you were not seen by the gunman? A Yes, sir. I know that they did not notice me there under the table, sir. Maybe if they noticed me that I was there under the table looking at them, maybe they would shoot me, sir. Q So, we can presume that you were not shot because you were not seen by the gunman? A Yes, sir. Q You were not seen because the table was about 3 x 3 ft. Do you mean to tell us Mr. Witness that 3 ft. x 3 ft. table was able to accommodate all 5 of you? A Yes, sir.

171 Q Now, you were also not seen by the gunman because the table was covered by the table cloth? A No cover, sir. Q You felt that at that time that you present yourself under the table was not detected by the gunman because none of them noticed you under the table? A I know that I was [not] noticed by them, sir. Because they have noticed me under the table and they know that I was looking at them, they will shoot me, sir.11 Testimony of Jhosa Reyes Q In the early morning of July 28, 1999, do you remember of any unusual incident that happened at your place of work? A Yes, sir. Q What was that incident, if you can still recall? A There was a shooting incident, sir. Q Where was that shooting incident? A In Sabungan, sir, in front of the place where I work. Q How far is that Sabungan from your place of work? A Across the highway, sir. Q Do you know who were the persons who fired their guns at Sabungan? A Yes, sir. Q Why do you know these persons? A Because the persons who fired their guns were our customers first before they transferred to Sabungan, sir. Q How often do you see these persons at your dining place? A Twice, sir. Q When was the first time that you saw them? A Every week, sir. Q What were they doing when they *went+ to your place? A They *drank+, sir. Q How many are these persons, if your can remember? A Because the 3 persons used to go to our place but recently they were 4 already but the other one was not drinking, sir, just [went] back and forth. Q These customers whom you said were the ones who started shooting at Sabungan, who were these persons, if you know? A I was able to recognize Ricky, Edwin. Q Who else? I thought you said there were 4 of them. Court The question [was], who fired the gun? FISCAL MARIANO Q Who were these persons who fired the gun? Court Ricky, Edwin, sino pa? Witness Those are the only two but almost all of them, Your Honor. Fiscal Mariano If they are in Courtroom, will you be able to identify them? A Yes, sir. Q Please point them out. Atty. Ongteco May we request that the witness tell the Court who is Ricky, Edwin? Court Unahin si Ricky. Tumayo ang itinuro. Mr. dela Cruz Witness pointed to a person who when asked of his name, answered to the name of Robert Alfonso. Court Sino pa? Iyong bumaril, ha? Mr. dela Cruz Witness pointed to a person who when asked of his name answered to the name of Joemari delos Reyes.

172 Court Sino pa? Mr. dela Cruz Witness pointed to a person who when asked of his name answered to the name of Eduardo Palacpac.12 Testimony of Ruben Labiata Q Mr. Labjata, will you tell this Honorable Court where were you in the early morning of July 28, 1999? A I was in Dagohoy with my jeepney waiting for passengers, sir. Q More or less, what time was that when you were with your jeep and waiting for passengers? A Between twelve and one a.m., sir. Q Do you recall, Mr. Labjata, of any unusual incident that occurred while waiting for passengers inside your jeepney? A While my jeep was parked there, I heard gunshots, sir. Q What else, if any, happened? A I was about to leave then and I have already passengers when some people suddenly arrived, sir. xxx xxx xxx Q Did you, if you did notice if the 3 men who ordered immediately to let your passengers get off the jeep, if they were armed? Atty. Ongteco The same objection. Court Same ruling, you are practically telling the witness that they were armed. Fiscal Daosos Q Alright, while the 3 ordered you, did you notice anything, if you did any? A They were armed with guns, sir. Q What kind of guns, are they long arms or short arms? A Short arms, sir. xxx xxx xxx Q Other than the 3 were there other persons who boarded your jeep? Atty. Ongteco Same objection. Court I will allow that. Atty. Ongteco But that is the same banana because according to the witness, the 3 persons ordered the other passengers of the jeep to alight. Court That was ordering the passengers to alight. The question now is, were there other persons who boarded your jeep. I will allow that. Answer that. Witness When they told me to start the jeep, there were some persons who boarded the jeep, sir. Fiscal Daosos Q Can you also tell the Honorable Court briefly what was the condition of this other group who also boarded? A They were also holding guns, sir. Q More or less, how many of them, the one[s] that boarded again? A When I start[ed] the engine or already driving the jeep I saw 8, sir. xxx xxx xxx Fiscal Daosos Q When you were ordered to go, what did you do, if any? A I drove the jeep and then we made a turn near the Monumento Circle and proceeded to Edsa, sir. Q While you were proceeding to Edsa, did you notice anything unusual again? A Yes, sir, I noticed something unusual because while they were conversing to each other, I heard somebody said that hindi ako ang bumaril.

173 xxx xxx xxx Q From Petron Gas Station after you have gassed up, where did you go, if you went somewhere else? A We proceeded to the highway and then when we were already far from Petron, we made a left turn, sir. Q In what direction was this left *turn+ going towards? A I am not familiar with that route, sir. Q By the way, who among the group ordered you to what direction you [were] going to? A The one on my left side, sir. Q At that point of time, did the group tell you where you [were] going? A I do not know where to go but they ordered me and I followed them. Q Now, as a jeepney driver from Bulacan, can you tell the Honorable Court to what direction or route you were going? A After making a left turn, we passed by a 711 store, sir. xxx xxx xxx Q While you were driving your jeep from Caloocan City to Tarlac, was there a time whether one of the group told you what to do? A Yes, sir. They poked a gun at me and told me to follow them whatever they wanted me to do, sir. xxx xxx xxx Q While you were so scared because you were ordered and you realized that you reached Paniqui, was there at any moment while driving your jeep that you [felt] that you might be killed by this armed men? Atty. Ongteco Leading. Fiscal Daosos I am asking for his feelings. Court Did you ever feel that you might be killed? I will allow it. Witness Because when we arrived [at] Tarlac, I heard one of them said tumba. xxx xxx xxx Court What did you do after hearing tumba? Witness may answer. Witness I told them, Sir, maawa naman po kayo. Fiscal Daosos Q To whom did you address your words? A I just said, Maawa naman po kayo, huwag ninyo po akong itumba because, I have a family. Q After you told the group of the accused that, Sir, huwag naman ninyo akong itumba, what else transpired? A One of them said, in behalf of your family, bubuhayin ka namin for the sake of your family. (Alang-alang sa pamilya mo). Q What else, if any, after one of them told you that for the sake of your family, we will not kill you. A They told me that after reaching Tarlac, I will return back and without turning my head and do not report to the police or else they will shoot me. Q So, after you received those orders, what did you do, if any? A When they alighted from the jeep, I did not look at them. Once they alighted, I proceeded or went back to Bulacan, sir. Q You said that after hearing their orders and reaching Paniqui, Tarlac, they went down. They alighted. Did all of them alight at the same time? A They alighted one after the other, sir. Q After they have alighted, what else if any transpired? A I left at a place where they alighted and then I went back to Bulacan, sir. xxx xxx xxx Q When did you see them again?

174 A After they were arrested from their hideout, sir. Q Where exactly did you meet them at Paniqui, Tarlac? A At the Municipal Hall of Paniqui, Tarlac, sir. Q More or less, what time was that already? A About past eight in the morning, sir. Q You said that at around past eight, you saw the group again who commandeered your jeep. How did you know that they were the same persons who commandeered your jeep that early morning of July 28, 1999? A Because I was able to recognize the faces of the others, sir. Q Mr. Witness, if you can see the faces of this group of persons who commandeered your jeep and who threatened to kill you and who ordered you to stop at Paniqui, Tarlac, and which you saw again the following day in the morning at Paniqui, Tarlac, would you be able to recognize their faces again if you will see these people? A Yes, sir. Q Now, will you please stand, Mr. Witness, and look around this courtroom and then point to the faces of those people whom you said commandeered your jeep in that early morning? Mr. Nestor dela Cruz The witness pointed to a man, who when asked of his name, answered to the name of Audie Dona. Fiscal Daosos Who else? Mr. dela Cruz The witness pointed to a man, who when asked of his name, answered to the name of Alfredo Baracas. Fiscal Daosos Who else? Mr. dela Cruz The witness pointed to a man, who when asked of his name, answered to the name of Diosdado Recepcion. Fiscal Daosos Who else? Mr. dela Cruz The witness pointed to a man, who when asked of his name, answered to the name of Bernardo Ranara. Fiscal Daosos Who else? Mr. dela Cruz The witness pointed to a man, who when asked of his name, answered to the name of Eduardo Palacpac. Fiscal Daosos Who else? Mr. dela Cruz The witness pointed to a man, who when asked of his name, answered to the name of Dominador Recepcion. Fiscal Daosos Who else? Mr. dela Cruz The witness pointed to a man, who when asked of his name, answered to the name of Joemari delos Reyes. Fiscal Daosos Who else? Mr. dela Cruz The witness pointed to a man, who when asked of his name, answered to the name of Robert Alfonso.13 The eyewitnesses categorically identified the malefactors. The alleged discrepancies in the testimony of the witnesses could easily be explained by the fact that they saw the incident from different angles of the shooting. The impact of events, as well as the unconscious working of the mind, it

175 is said, could readily warp the human perception in varying ways and degrees. Empiric data is yet to be found in order to accurately measure the value of testimony of a witness other than its conformity to human behavior and the common experience of mankind.14 The defense of alibi proffered by appellants is much too weak against the positive identification made by the eyewitnesses. It is not enough for an alibi to prosper to prove that the person raising it has been somewhere else when the crime is committed; it must likewise be demonstrated that it would have been physically impossible for him to be at the scene of the crime.15 Where there is the least chance to be present at the locus criminis, alibi will not hold much water.16 The bare evidence given by appellants to vouch their individual claims and establish alibi is far from being iron-clad against the possibility of their having been at the crime scene. Article 24817 of the Revised Penal Code, as amended by Republic Act (R.A.) No. 7659, makes a person guilty of murder if the killing is attended by, among other circumstances (but not here appurtenant), treachery or evident premeditation. An essence of treachery is not only the swiftness and the surprise in the attack upon an unsuspecting victim but also the attendance of two concurring conditions, i.e., that the malefactor must have employed means, method or manner of execution that would insure his safety from the retaliatory act of the victim, and such means, method or form of execution are consciously and deliberately adopted by the malefactor. The qualifying circumstance of evident premeditation, on the other hand, requires that the execution of the criminal act be preceded by cool thought and reflection upon a resolution to carry out the criminal intent during the space of time sufficient to arrive at a calm judgment.18 Evident premeditation needs proof of the time when the intent to commit the crime is engendered in the mind of the accused, the motive which gives rise to it, and the means which are beforehand selected to carry out that intent. All such facts and antecedents which make notorious the pre-existing design to accomplish the criminal purpose must be proven to the satisfaction of the court.19 A scrutiny of the facts in evidence would indicate a scanty showing of the requirements to qualify the senseless killing of the five victims, either by treachery or by evident premeditation, to murder. While the attack upon the victims could be described as being unexpected, somehow voiding any risk to the perpetrators thereof, there, is, however, insufficient evidence to indicate that the means adopted by the appellants have consciously been adopted. Mere suddenness of the attack is not enough to show treachery; it should also be shown that the mode of attack has knowingly been intended to accomplish the wicked intent.20 Neither would evident premeditation qualify the offense to murder in the absence of clear substantiation that the appellants have definitely resolved to commit the offense and have reflected on the means to bring about the execution following an appreciable length of time. The trial court, however, correctly appreciated conspiracy. The presence of conspiracy could be revealed by the acts done before, during and after the commission of the crime that made evident a joint purpose, concerted action and concurrence of sentiments.21 The several acts of appellants during and after the shooting rampage disclosed a unison of objectives. Not one tried to stop the other in the perpetration of the crime. All were clearly in it together, performing specific acts with such closeness and coordination as would unmistakably show a common scheme. The attendance of treachery would thus render it unnecessary for the prosecution to show who among the conspirators actually hit and killed their victims, each of them being equally liable with the other in the perpetration of the crime. Without proof of any circumstance that would qualify it, the killing could not amount to murder. Appellants should thus be held liable only for homicide for the death of each of the victims. It was alleged in the accusatory information and shown in evidence that the crimes were indeed perpetrated with the use of unlicensed firearms. Pursuant to Republic Act 829422 (amending Presidential Decree No. 1866), which was already in effect when the killing spree occurred, if homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. The trial court has convicted FOl Felipe dela Cruz as an accessory. This Court, however, finds no evidence to convict him as such accessory. Under Article 19 of the Revised Penal Code, the actual knowledge of the commission of the crime is an important element to being an encubridor, and the records are bereft of sound proof that dela Cruz has had knowledge of any or all of the nefarious deeds earlier committed by his guests. The arrest of appellants has been made in hot pursuit, an exception from the rule that warrantless arrests are illegal. In any event, appellants can no longer assail the illegality of their arrest

176 since such a claim has not been brought up before or during the arraignment. The failure to timely move for the quashal of the Information on this basis operates as a waiver of the right to question the supposed irregularity of the arrest.23 The crime of homicide is punishable under Article 249 of the Revised Penal Code by reclusion temporal with a duration of 12 years and 1 day to 20 years. Applying the Indeterminate Sentence Law, the appellants may be held to suffer imprisonment, as minimum, of anywhere within the full range of prision mayor of from 6 years and 1 day to 12 years and, as maximum, to anywhere within the range of reclusion temporal in its maximum period, considering the attendance of the aggravating circumstance of use of an unlicensed firearm, of from 14 years, 8 months and 1 day to 20 years. The damages awarded by the trial court accord with prevailing jurisprudence except for the grant of P100,000.00 moral damages to the heirs of each of the victims which amount should be reduced to P50,000.00. WHEREFORE, the assailed judgment of the court a quo convicting appellants is AFFIRMED subject to the following MODIFICATIONS, to wit: Appellants Dominador Recepcion, Audie Dona, Alfredo Baracas, Eduardo Palacpac, Bernardo Ranara, Joemari delos Reyes and Robert Alfonso are all hereby found guilty of homicide, on five counts, and each of them shall suffer five imprisonment terms, each for the death of their five victims, of the indeterminate penalty of 9 years and 1 day of prision mayor, as minimum, to 16 years and 1 day of reclusion temporal in its maximum period, as maximum, and shall pay, jointly and severally, the sums adjudged by the trial court except that the P100,000.00 moral damages to each victim is reduced, correspondingly, to P50,000.00. Appellant Felipe dela Cruz is ACQUITTED for insufficiency of evidence. Costs de oficio. SO ORDERED.

177 Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 95847-48. March 10, 1993. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GABRIEL GERENTE y BULLO, accused-appellant. The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT; LAWFUL WHEN ARRESTING OFFICER HAS PERSONAL KNOWLEDGE THAT THE PERSON TO BE ARRESTED HAS COMMITTED THE CRIME; CASE AT BAR. The policemen arrested Gerente only some three (3) hours after Gerente and his companions had killed Blace. They saw Blace dead in the hospital and when they inspected the scene of the crime, they found the instruments of death: a piece of wood and a concrete hollow block which the killers had used to bludgeon him to death. The eye-witness, Edna Edwina Reyes, reported the happening to the policemen and pinpointed her neighbor, Gerente, as one of the killers. Under those circumstances, since the policemen had personal knowledge of the violent death of Blace and of facts indicating that Gerente and two others had killed him, they could lawfully arrest Gerente without a warrant. If they had postponed his arrest until they could obtain a warrant, he would have fled the law as his two companions did. 2. ID.; ID.; SEARCH AND SEIZURE; VALID EVEN WITHOUT A WARRANT WHEN MADE AS AN INCIDENT TO LAWFUL ARREST; RATIONALE. The search conducted on Gerente's person was likewise lawful because it was made as an incident to a valid arrest. This is in accordance with Section 12, Rule 126 of the Revised Rules of Court which provides: "Section 12. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant." The frisk and search of appellant's person upon his arrest was a permissible precautionary measure of arresting officers to protect themselves, for the person who is about to be arrested may be armed and might attack them unless he is first disarmed. In Adams vs. Williams, 47 U.S. 143, cited in Justice Isagani A. Cruz's Constitutional Law, 1991 Edition, p. 150, it was ruled that "the individual being arrested may be frisked for concealed weapons that may be used against the arresting officer and all unlawful articles found his person, or within his immediate control may be seized." 3. CRIMINAL LAW; CONSPIRACY; LIABILITY OF CONSPIRATORS; RULE; CASE AT BAR. There is no merit in appellant's allegation that the trial court erred in convicting him of having conspired and cooperated with Fredo and Totoy Echigoren to kill Blace despite the testimony of Dr. Valentin Bernales that the fracture on the back of the victim's skull could have been inflicted by one person only. what Dr. Bernales stated was a mere possibility that only one person dropped the concrete hollow block on the head of the victim, smashing it. That circumstance, even if true, does not absolve the other two co-conspirators in the murder of Blace for when there is a conspiracy to commit a crime, the act of one conspirator is the act of all. The conspiracy was proven by the eyewitness-testimony of Edna Edwina Reyes, that she overheard the appellant and his companions conspire to kill Blace, that acting in concert, they attacked their victim with a piece of wood and a hollow block and caused his death. "When there is no evidence indicating that the principal witness for the prosecution was moved by improper motive, the presumption is that he was not so moved and his testimony is entitled to full faith and credit" (People

178 vs. Belibet, 199 SCRA 587, 588). Hence, the trial court did not err in giving full credit to Edna Reyes' testimony. 4. ID.; CIVIL INDEMNITY FOR DEATH; INCREASED TO P50,000.00. The Solicitor General correctly pointed out in the appellee's brief that the award of P30,000.00 as civil indemnity for the death of Clarito Blace should be increased to P50,000.00 in accordance with our ruling in People vs. Sison, 189 SCRA 643. DECISION GRIO-AQUINO, J p: This is an appeal from the decision of the Regional Trial Court of Valenzuela, Metro Manila, Branch 172, which found the appellant guilty of Violation of Section 8 of Republic Act 6425 (Dangerous Drugs Act of 1972) and sentenced him to suffer the penalty of imprisonment for a term of twelve (12) years and one (1) day, as minimum, to twenty (20) years, as maximum; and also found him guilty of Murder for which crime he was sentenced to suffer the penalty of reclusion perpetua. The dispositive portion of the appealed decision reads: "WHEREFORE, in view of the foregoing the Court finds the accused Gabriel Gerente in Criminal Case No. 10255-V-90 guilty beyond reasonable doubt of Violation of Section 8 of R.A. 6425 and hereby sentences him to suffer the penalty of imprisonment of twelve years and one day as minimum to twenty years as maximum, and a fine of twelve thousand, without subsidiary imprisonment in case of insolvency, and to pay the costs. "In Criminal Case No. 10256-V-90, the Court finds the accused Gabriel Gerente guilty beyond reasonable doubt of the crime of Murder, and there by (sic) no aggravating circumstances nor mitigating circumstances, is hereby sentenced to suffer the penalty of reclusion perpetua; to indemnify the heirs of the victim in the sum of P30,000.00, and in the amount of P17,609.00 as funeral expenses, without subsidiary imprisonment in case of insolvency, and to pay the costs. The accused Gabriel Gerente shall be credited with the full term of his preventive imprisonment." (p. 25, Rollo.) Appellant Gabriel Gerente y Bullo was charged with Violation of Section 8, Art. II of R.A. 6425, which was docketed as Criminal Case No. 10255-V-90 of the Regional Trial Court of Valenzuela, Metro Manila. The Information reads: "That on or about the 30th day of April, 1990, in the municipality of Valenzuela, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without justification, did then and there wilfully, unlawfully and feloniously have in his possession and control dried flowering tops wrapped in foil with markings and place in a transparent plastic bag which are considered prohibited drugs." (p. 2, Rollo.) The same accused, together with Totoy and Fredo Echigoren who are both at large, was charged with Murder in Criminal Case No. 10256-V-90 in an information of the same date and signed by the same Assistant Provincial Prosecutor, as follows: "That on or about the 30th day of April, 1990, in the municipality of Valenzuela, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused together with two (2) others who are still at large and against whom the preliminary investigation has not yet been terminated by the Office of the Provincial Prosecutor of Bulacan, conspiring, confederating together and mutually helping one another, armed with a piece of wood and hallow (sic) block and with intent to kill one Clarito B. Blace, did then and there wilfully, unlawfully and feloniously, with evident premeditation and treachery, attack, assault and hit with the said piece of wood and hollow block the said Clarito B. Blace, hitting the latter on the different parts of his body, thereby inflicting serious physical injuries which directly caused the death of the said victim." (p. 3, Rollo.) Edna Edwina Reyes testified that at about 7:00 a.m. of April 30, 1990, appellant Gabriel Gerente, together with Fredo Echigoren and Totoy Echigoren, started drinking liquor and smoking marijuana in

179 the house of the appellant which is about six (6) meters away from the house of the prosecution witness who was in her house on that day. She overheard the three men talking about their intention to kill Clarito Blace. She testified that she heard Fredo Echigoren saying, "Gabriel, papatayin natin si Clarito Blace," and Totoy Echigoren allegedly seconded Fredo's suggestion saying: "Papatayin natin 'yan mamaya." Appellant allegedly agreed: "Sigue, papatayin natin mamaya." (pp. 3-4, tsn, August 24, 1990.) Fredo and Totoy Echigoren and Gerente carried out their plan to kill Clarito Blace at about 2:00 p.m. of the same day. The prosecution witness, Edna Edwina Reyes, testified that she witnessed the killing. Fredo Echigoren struck the first blow against Clarito Blace, followed by Totoy Echigoren and Gabriel Gerente who hit him twice with a piece of wood in the head and when he fell, Totoy Echigoren dropped a hollow block on the victim's head. Thereafter, the three men dragged Blace to a place behind the house of Gerente. At about 4:00 p.m. of the same day, Patrolman Jaime Urrutia of the Valenzuela Police Station received a report from the Palo Police Detachment about a mauling incident. He went to the Valenzuela District Hospital where the victim was brought. He was informed by the hospital officials that the victim died on arrival. The cause of death was massive fracture of the skull caused by a hard and heavy object. Right away, Patrolman Urrutia, together with Police Corporal Romeo Lima and Patrolman Alex Umali, proceeded to Paseo de Blas where the mauling incident took place. There they found a piece of wood with blood stains, a hollow block and two roaches of marijuana. They were informed by the prosecution witness, Edna Edwina Reyes, that she saw the killing and she pointed to Gabriel Gerente as one of the three men who killed Clarito. The policemen proceeded to the house of the appellant who was then sleeping. They told him to come out of the house and they introduced themselves as policemen. Patrolman Urrutia frisked appellant and found a coin purse in his pocket which contained dried leaves wrapped in cigarette foil. The dried leaves were sent to the National Bureau of Investigation for examination. The Forensic Chemist found them to be marijuana. Only the appellant, Gabriel Gerente, was apprehended by the police. The other suspects, Fredo and Totoy Echigoren, are still at large. On May 2, 1990, two separate informations were filed by Assistant Provincial Prosecutor Benjamin Caraig against him for Violation of Section 8, Art. II, of R.A. 6425, and for Murder. When arraigned on May 16, 1990, the appellant pleaded not guilty to both charges. A joint trial of the two cases was held. On September 24, 1990, the trial court rendered a decision convicting him of Violation of Section 8 of R.A. 6425 and of Murder. In this appeal of the appellant, the following errors are ascribed to the trial court: 1. the court a quo gravely erred in admitting the marijuana leaves adduced in evidence by the prosecution; and 2. the court a quo gravely erred in convicting the accused-appellant of the crimes charged despite the absence of evidence required to prove his guilt beyond reasonable doubt. The appellant contends that the trial court erred in admitting the marijuana leaves as evidence in violation of his constitutional right not to be subjected to illegal search and seizure, for the dried marijuana leaves were seized from him in the course of a warrantless arrest by the police officers. We do not agree. The search of appellant's person and the seizure of the marijuana leaves in his possession were valid because they were incident to a lawful warrantless arrest. Paragraphs (a) and (b), Section 5, Rule 113 of the Revised Rules of Court provide:

180 'SECTION 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: "(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;" "(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; . . .' The policemen arrested Gerente only some three (3) hours after Gerente and his companions had killed Blace. They saw Blace dead in the hospital and when they inspected the scene of the crime, they found the instruments of death: a piece of wood and a concrete hollow block which the killers had used to bludgeon him to death. The eye-witness, Edna Edwina Reyes, reported the happening to the policemen and pinpointed her neighbor, Gerente, as one of the killers. Under those circumstances, since the policemen had personal knowledge of the violent death of Blace and of facts indicating that Gerente and two others had killed him, they could lawfully arrest Gerente without a warrant. If they had postponed his arrest until they could obtain a warrant, he would have fled the law as his two companions did. In Umil vs. Ramos, 187 SCRA 311, the arrest of the accused without a warrant was effected one (1) day after he had shot to death two Capcom soldiers. The arrest was held lawful by this Court upon the rationale stated by us in People vs. Malasugui, 63 Phil. 221, 228, thus: "To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many instances." The search conducted on Gerente's person was likewise lawful because it was made as an incident to a valid arrest. This is in accordance with Section 12, Rule 126 of the Revised Rules of Court which provides: "SECTION 12. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant." The frisk and search of appellant's person upon his arrest was a permissible precautionary measure of arresting officers to protect themselves, for the person who is about to be arrested may be armed and might attack them unless he is first disarmed. In Adams vs. Williams, 47 U.S. 143, cited in Justice Isagani A. Cruz's Constitutional Law, 1991 Edition, p. 150, it was ruled that "the individual being arrested may be frisked for concealed weapons that may be used against the arresting officer and all unlawful articles found in his person, or within his immediate control may be seized." There is no merit in appellant's allegation that the trial court erred in convicting him of having conspired and cooperated with Fredo and Totoy Echigoren to kill Blace despite the testimony of Dr. Valentin Bernales that the fracture on the back of the victim's skull could have been inflicted by one person only. What Dr. Bernales stated was a mere possibility that only one person dropped the concrete hollow block on the head of the victim, smashing it. That circumstance, even if true, does not absolve the other two co-conspirators in the murder of Blace for when there is a conspiracy to commit a crime, the act of one conspirator is the act of all. The conspiracy was proven by the eyewitness-testimony of Edna Edwina Reyes, that she overheard the appellant and his companions conspire to kill Blace, that acting in concert, they attacked their victim with a piece of wood and a hollow block and caused his death. "When there is no evidence indicating that the principal witness for the prosecution was moved by improper motive, the presumption is that he was not so moved and his testimony is entitled to full faith and credit" (People vs. Belibet, 199 SCRA 587, 588). Hence, the trial court did not err in giving full credit to Edna Reyes' testimony. Appellant's failure to escape (because he was very drunk) is no indicium of his innocence.

181 The Solicitor General correctly pointed out in the appellee's brief that the award of P30,000.00 as civil indemnity for the death of Clarito Blace should be increased to P50,000.00 in accordance with our ruling in People vs. Sison, 189 SCRA 643. WHEREFORE, the appealed decision is hereby AFFIRMED, with modification of the civil indemnity awarded to the heirs of the victim, Clarito Blace, which is hereby increased to P50,000.00. SO ORDERED.

182 THIRD DIVISION

[G.R. No. 121917. March 12, 1997]

ROBIN CARIO PADILLA @ ROBINHOOD PADILLA, petitioner, vs. COURT OF APPEALS and PEOPLE of the PHILIPPINES, respondents. DECISION FRANCISCO, J.: On October 26, 1992, high-powered firearms with live ammunitions were found in the possession of petitioner Robin Padilla @ Robinhood Padilla, i.e.: "(1) One .357 Caliber revolver, Smith and Wesson, SN-32919 with six (6) live ammunitions; "(2) One M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one (1) short magazine with ammunitions; "(3) One .380 Pietro Beretta, SN-A 35723 Y with clip and eight (8) ammunitions; and "(4) Six additional live double action ammunitions of .38 caliber revolver."[1] Petitioner was correspondingly charged on December 3, 1992, before the Regional Trial Court (RTC) of Angeles City with illegal possession of firearms and ammunitions under P.D. 1866[2]thru the following Information:[3] "That on or about the 26th day of October, 1992, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession and under his custody and control one (1) M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one (1) short magazines with ammunitions, one (1) .357 caliber revolver Smith and Wesson, SN-32919 with six (6) live ammunitions and one (1) .380 Pietro Beretta, SN-A35723Y with clip and eight (8) ammunitions, without having the necessary authority and permit to carry and possess the same. ALL CONTRARY TO LAW."[4] The lower court then ordered the arrest of petitioner,[5] but granted his application for bail.[6] During the arraignment on January 20, 1993, a plea of not guilty was entered for petitioner after he refused,[7] upon advice of counsel,[8] to make any plea.[9] Petitioner waived in writing his right to be present in any and all stages of the case.[10] After trial, Angeles City RTC Judge David Rosete rendered judgment dated April 25, 1994 convicting petitioner of the crime charged and sentenced him to an "indeterminate penalty from 17 years, 4 months and 1 day of reclusion temporal as minimum, to 21 years of reclusion perpetua, as maximum".[11] Petitioner filed his notice of appeal on April 28, 1994.[12] Pending the appeal in the respondent Court of Appeals,[13] the Solicitor-General, convinced that the conviction shows strong evidence of guilt, filed on December 2, 1994 a motion to cancel petitioner's bail bond. The resolution of this motion was incorporated in the now assailed respondent court's decision sustaining petitioner's conviction,[14] the dispositive portion of which reads: "WHEREFORE, the foregoing circumstances considered, the appealed decision is hereby AFFIRMED, and furthermore, the P200,000.00 bailbond posted by accused-appellant for his provisional liberty, FGU Insurance Corporation Bond No. JCR (2) 6523, is hereby cancelled. The Regional Trial Court, Branch 61, Angeles City, is directed to issue the Order of Arrest of accused-appellant and thereafter his transmittal to the National Bureau of Prisons thru the Philippine National Police where the said accused-appellant shall remain under confinement pending resolution of his appeal, should he appeal to the Supreme Court. This shall be immediately executory. The Regional Trial Court is further directed to submit a report of compliance herewith.

183 SO ORDERED."[15] Petitioner received a copy of this decision on July 26, 1995.[16] On August 9, 1995 he filed a "motion for reconsideration (and to recall the warrant of arrest)"[17] but the same was denied by respondent court in its September 20, 1995 Resolution,[18] copy of which was received by petitioner on September 27, 1995. The next day, September 28, petitioner filed the instant petition for review on certiorari with application for bail[19] followed by two "supplemental petitions" filed by different counsels,[20] a "second supplemental petition"[21] and an urgent motion for the separate resolution of his application for bail. Again, the Solicitor-General[22] sought the denial of the application for bail, to which the Court agreed in a Resolution promulgated on July 31, 1996.[23] The Court also granted the Solicitor-General's motion to file a consolidated comment on the petitions and thereafter required the petitioner to file his reply.[24] However, after his vigorous resistance and success on the intramural of bail (both in the respondent court and this Court) and thorough exposition of petitioner's guilt in his 55-page Brief in the respondent court, the Solicitor-General now makes a complete turnabout by filing a "Manifestation In Lieu Of Comment" praying for petitioner's acquittal.[25] The People's detailed narration of facts, well-supported by evidence on record and given credence by respondent court, is as follows:[26] "At about 8:00 o'clock in the evening of October 26, 1992, Enrique Manarang and his compadre Danny Perez were inside the Manukan sa Highway Restaurant in Sto. Kristo, Angeles City where they took shelter from the heavy downpour (pp. 5-6, TSN, February 15, 1993) that had interrupted their ride on motorcycles (pp. 5-6, ibid.) along McArthur Highway (ibid). While inside the restaurant, Manarang noticed a vehicle, a Mitsubishi Pajero, running fast down the highway prompting him to remark that the vehicle might get into an accident considering the inclement weather. (p. 7, Ibid) In the local vernacular, he said thus: 'Ka bilis na, mumuran pa naman pota makaaksidente ya.' (p. 7, ibid). True enough, immediately after the vehicle had passed the restaurant, Manarang and Perez heard a screeching sound produced by the sudden and hard braking of a vehicle running very fast (pp. 7-8, ibid) followed by a sickening sound of the vehicle hitting something (p. 8, ibid). Danny Cruz, quite sure of what had happened, remarked 'oy ta na' signifying that Manarang had been right in his observation (pp. 8-9, ibid). "Manarang and Cruz went out to investigate and immediately saw the vehicle occupying the edge or shoulder of the highway giving it a slight tilt to its side (pp. 9-10, ibid). Manarang, being a member of both the Spectrum, a civic group and the Barangay Disaster Coordinating Council, decided to report the incident to the Philippine National Police of Angeles City (p. 10, ibid). He took out his radio and called the Viper, the radio controller of the Philippine National Police of Angeles City (p. 10, ibid). By the time Manarang completed the call, the vehicle had started to leave the place of the accident taking the general direction to the north (p. 11, ibid). "Manarang went to the location of the accident and found out that the vehicle had hit somebody (p. 11, ibid). "He asked Cruz to look after the victim while he went back to the restaurant, rode on his motorcycle and chased the vehicle (p. 11 ibid). During the chase he was able to make out the plate number of the vehicle as PMA 777 (p. 33, TSN, February 15, 1993). He called the Viper through the radio once again (p. 34, ibid) reporting that a vehicle heading north with plate number PMA 777 was involved in a hit and run accident (p. 20, TSN, June 8, 1993). The Viper, in the person of SPO2 Ruby Buan, upon receipt of the second radio call flashed the message to all units of PNP Angeles City with the order to apprehend the vehicle (p. 20, ibid). One of the units of the PNP Angeles City reached by the alarm was its Patrol Division at Jake Gonzales Street near the Traffic Division (pp. 5-7, TSN, February 23, 1993). SPO2 Juan C. Borja III and SPO2 Emerlito Miranda immediately borded a mobile patrol vehicle (Mobile No. 3) and positioned themselves near the south approach of Abacan bridge since it was the only passable way going to the north (pp. 8-9, ibid). It took them about ten (10) seconds to cover the distance between their office and the Abacan bridge (p. 9, ibid). "Another PNP mobile patrol vehicle that responded to the flash message from SPO2 Buan was Mobile No. 7 of the Pulongmaragal Detachment which was then conducting patrol along Don Juico Avenue (pp. 8-9, TSN, March 8, 1993). On board were SPO Ruben Mercado and SPO3 Tan

184 and SPO2 Odejar (p. 8, ibid). SPO Ruben Mercado immediately told SPO3 Tan to proceed to the MacArthur Highway to intercept the vehicle with plate number PMA 777 (p. 10, ibid). "In the meantime, Manarang continued to chase the vehicle which figured in the hit and run incident, even passing through a flooded portion of the MacArthur Highway two (2) feet deep in front of the Iglesia ni Kristo church but he could not catch up with the same vehicle (pp. 1112, February 15, 1993). When he saw that the car he was chasing went towards Magalang, he proceeded to Abacan bridge because he knew Pulongmaragal was not passable (pp. 1214, ibid). When he reached the Abacan bridge, he found Mobile No. 3 and SPO2 Borja and SPO2 Miranda watching all vehicles coming their way (p. 10, TSN, February 23, 1993). He approached them and informed them that there was a hit and run incident (p. 10, ibid). Upon learning that the two police officers already knew about the incident, Manarang went back to where he came from (pp. 10-11; ibid). When Manarang was in front of Tina's Restaurant, he saw the vehicle that had figured in the hit and run incident emerging from the corner adjoining Tina's Restaurant (p. 15, TSN, February 15, 1993). He saw that the license plate hanging in front of the vehicle bore the identifying number PMA 777 and he followed it (p. 15, ibid) towards the Abacan bridge. "Soon the vehicle was within sight of SPO2 Borja and SPO2 Miranda of Mobile No. 3 (p. 10, TSN, February 23, 1993). When the vehicle was about twelve (12) meters away from their position, the two police officers boarded their Mobile car, switched on the engine, operated the siren and strobe light and drove out to intercept the vehicle (p. 11, ibid). They cut into the path of the vehicle forcing it to stop (p. 11, ibid). "SPO2 Borja and SPO2 Miranda alighted from Mobile No. 3 (P. 12, TSN, February 23, 1993). SPO2 Miranda went to the vehicle with plate number PMA 777 and instructed its driver to alight (p. 12, ibid). The driver rolled down the window and put his head out while raising both his hands. They recognized the driver as Robin C. Padilla, appellant in this case (p. 13, ibid). There was no one else with him inside the vehicle (p. 24). At that moment, Borja noticed that Manarang arrived and stopped his motorcycle behind the vehicle of appellant (p. 14, ibid). SPO2 Miranda told appellant to alight to which appellant complied. Appellant was wearing a short leather jacket (p. 16, TSN, March 8, 1993) such that when he alighted with both his hands raised, a gun (Exhibit 'C') tucked on the left side of his waist was revealed (p. 15, TSN, February 23, 1993), its butt protruding (p. 15, ibid). SPO2 Borja made the move to confiscate the gun but appellant held the former's hand alleging that the gun was covered by legal papers (p. 16,ibid). SPO2 Borja, however, insisted that if the gun really was covered by legal papers, it would have to be shown in the office (p. 16, ibid). After disarming appellant, SPO2 Borja told him about the hit and run incident which was angrily denied by appellant (p. 17, ibid). By that time, a crowd had formed at the place (p. 19, ibid). SPO2 Borja checked the cylinder of the gun and find six (6) live bullets inside (p. 20,ibid). "While SPO2 Borja and appellant were arguing, Mobile No. 7 with SPO Ruben Mercado, SPO3 Tan and SPO2 Odejar on board arrived (pp. 11-12, TSN, March 8, 1993). As the most senior police officer in the group, SPO Mercado took over the matter and informed appellant that he was being arrested for the hit and run incident (p. 13, ibid). He pointed out to appellant the fact that the plate number of his vehicle was dangling and the railing and the hood were dented (p. 12, ibid). Appellant, however, arrogantly denied his misdeed and, instead, played with the crowd by holding their hands with one hand and pointing to SPO3 Borja with his right hand saying 'iyan, kinuha ang baril ko' (pp. 13-15, ibid). Because appellant's jacket was short, his gesture exposed a long magazine of an armalite rifle tucked in appellant's back right pocket (p. 16, ibid). SPO Mercado saw this and so when appellant turned around as he was talking and proceeding to his vehicle, Mercado confiscated the magazine from appellant (pp. 16-17, ibid). Suspecting that appellant could also be carrying a rifle inside the vehicle since he had a magazine, SPO2 Mercado prevented appellant from going back to his vehicle by opening himself the door of appellant's vehicle (16-17, ibid). He saw a baby armalite rifle (Exhibit D) lying horizontally at the front by the driver's seat. It had a long magazine filled with live bullets in a semi-automatic mode (pp. 17-21, ibid). He asked appellant for the papers covering the rifle and appellant answered angrily that they were at his home (pp. 26-27, ibid). SPO Mercado modified the arrest of appellant by including as its ground illegal possession of

185 firearms (p. 28, ibid). SPO Mercado then read to appellant his constitutional rights (pp. 2829, ibid). "The police officers brought appellant to the Traffic Division at Jake Gonzales Boulevard (pp. 31-32, ibid) where appellant voluntarily surrendered a third firearm, a pietro berreta pistol (Exhibit 'L') with a single round in its chamber and a magazine (pp. 33-35, ibid) loaded with seven (7) other live bullets. Appellant also voluntarily surrendered a black bag containing two additional long magazines and one short magazine (Exhibits M, N, and O, pp. 3637, ibid). After appellant had been interrogated by the Chief of the Traffic Division, he was transferred to the Police Investigation Division at Sto. Rosario Street beside the City Hall Building where he and the firearms and ammunitions were turned over to SPO2 Rene Jesus Gregorio (pp. 5-10, TSN, July 13, 1993). During the investigation, appellant admitted possession of the firearms stating that he used them for shooting (p. 14, ibid). He was not able to produce any permit to carry or memorandum receipt to cover the three firearms (pp. 16-18, TSN, January 25, 1994). "On November 28, 1992, a certification (Exhibit 'F') was issued by Captain, Senior Inspector Mario Espino, PNP, Chief, Record Branch of the Firearms and Explosives Office (pp. 7-8, TSN, March 4, 1993). The Certification stated that the three firearms confiscated from appellant, an M-16 Baby armalite rifle SN-RP 131280, a .357 caliber revolver Smith and Wesson SN 32919 and a .380 Pietro Beretta SN-A35720, were not registered in the name of Robin C. Padilla (p. 6, ibid). A second Certification dated December 11, 1992 issued by Captain Espino stated that the three firearms were not also registered in the name of Robinhood C. Padilla (p. 10, ibid)." Petitioner's defenses are as follows: (1) that his arrest was illegal and consequently, the firearms and ammunitions taken in the course thereof are inadmissible in evidence under the exclusionary rule; (2) that he is a confidential agent authorized, under a Mission Order and Memorandum Receipt, to carry the subject firearms; and (3) that the penalty for simple illegal possession constitutes excessive and cruel punishment proscribed by the 1987 Constitution. After a careful review of the records[27]of this case, the Court is convinced that petitioner's guilt of the crime charged stands on terra firma, notwithstanding the Solicitor-General's change of heart. Anent the first defense, petitioner questions the legality of his arrest. There is no dispute that no warrant was issued for the arrest of petitioner, but that per se did not make his apprehension at the Abacan bridge illegal. Warrantless arrests are sanctioned in the following instances:[28] "Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it. (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. Paragraph (a) requires that the person be arrested (i) after he has committed or while he is actually committing or is at least attempting to commit an offense, (ii) in the presence of the arresting officer or private person.[29] Both elements concurred here, as it has been established that petitioner's vehicle figured in a hit and run - an offense committed in the "presence" of Manarang, a private person, who then sought to arrest petitioner. It must be stressed at this point that "presence" does not only require that the arresting person sees the offense, but also when he "hears the disturbance created thereby AND proceeds at once to the scene."[30] As testified to by Manarang, he heard the screeching of tires followed by a thud, saw the sideswiped victim (balut vendor), reported the incident to the police and thereafter gave chase to the erring Pajero vehicle using his motorcycle in order to apprehend its driver. After having sent a radio report to the PNP for assistance, Manarang proceeded to the Abacan

186 bridge where he found responding policemen SPO2 Borja and SPO2 Miranda already positioned near the bridge who effected the actual arrest of petitioner.[31] Petitioner would nonetheless insist on the illegality of his arrest by arguing that the policemen who actually arrested him were not at the scene of the hit and run.[32] We beg to disagree. That Manarang decided to seek the aid of the policemen (who admittedly were nowhere in the vicinity of the hit and run) in effecting petitioner's arrest, did not in any way affect the propriety of the apprehension. It was in fact the most prudent action Manarang could have taken rather than collaring petitioner by himself, inasmuch as policemen are unquestionably better trained and well-equipped in effecting an arrest of a suspect (like herein petitioner) who , in all probability, could have put up a degree of resistance which an untrained civilian may not be able to contain without endangering his own life. Moreover, it is a reality that curbing lawlessness gains more success when law enforcers function in collaboration with private citizens. It is precisely through this cooperation, that the offense herein involved fortunately did not become an additional entry to the long list of unreported and unsolved crimes. It is appropriate to state at this juncture that a suspect, like petitioner herein, cannot defeat the arrest which has been set in motion in a public place for want of a warrant as the police was confronted by an urgent need to render aid or take action.[33] The exigent circumstances of - hot pursuit,[34] a fleeing suspect, a moving vehicle, the public place and the raining nighttime - all created a situation in which speed is essential and delay improvident.[35] The Court acknowledges police authority to make the forcible stop since they had more than mere "reasonable and articulable" suspicion that the occupant of the vehicle has been engaged in criminal activity.[36] Moreover, when caught in flagrante delicto with possession of an unlicensed firearm (Smith & Wesson) and ammunition (M-16 magazine), petitioner's warrantless arrest was proper as he was again actually committing another offense (illegal possession of firearm and ammunitions) and this time in the presence of a peace officer.[37] Besides, the policemen's warrantless arrest of petitioner could likewise be justified under paragraph (b) as he had in fact just committed an offense. There was no supervening event or a considerable lapse of time between the hit and run and the actual apprehension. Moreover, after having stationed themselves at the Abacan bridge in response to Manarang's report, the policemen saw for themselves the fast approaching Pajero of petitioner,[38] its dangling plate number (PMA 777 as reported by Manarang), and the dented hood and railings thereof.[39] These formed part of the arresting police officer's personal knowledge of the facts indicating that petitioner's Pajero was indeed the vehicle involved in the hit and run incident. Verily then, the arresting police officers acted upon verified personal knowledge and not on unreliable hearsay information.[40] Furthermore, in accordance with settled jurisprudence, any objection, defect or irregularity attending an arrest must be made before the accused enters his plea.[41] Petitioner's belated challenge thereto aside from his failure to quash the information, his participation in the trial and by presenting his evidence, placed him in estoppel to assail the legality of his arrest.[42] Likewise, by applying for bail, petitioner patently waived such irregularities and defects.[43] We now go to the firearms and ammunitions seized from petitioner without a search warrant, the admissibility in evidence of which, we uphold. The five (5) well-settled instances when a warrantless search and seizure of property is valid,[44] are as follows: 1. warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court[45] and by prevailing jurisprudence[46], 2. Seizure of evidence in "plain view", the elements of which are:[47] (a). a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b). the evidence was inadvertently discovered by the police who had the right to be where they are; (c). the evidence must be immediately apparent, and

(d). "plain view" justified mere seizure of evidence without further [48] search.

187 3. search of a moving vehicle.[49] Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity.[50] 4. 5. consented warrantless search, and customs search.

In conformity with respondent court's observation, it indeed appears that the authorities stumbled upon petitioner's firearms and ammunitions without even undertaking any active search which, as it is commonly understood, is a prying into hidden places for that which is concealed.[51] The seizure of the Smith & Wesson revolver and an M-16 rifle magazine was justified for they came within "plain view" of the policemen who inadvertently discovered the revolver and magazine tucked in petitioner's waist and back pocket respectively, when he raised his hands after alighting from his Pajero. The same justification applies to the confiscation of the M-16 armalite rifle which was immediately apparent to the policemen as they took a casual glance at the Pajero and saw said rifle lying horizontally near the driver's seat.[52] Thus it has been held that: "(W)hen in pursuing an illegal action or in the commission of a criminal offense, the . . . police officers should happen to discover a criminal offense being committed by any person, they are not precluded from performing their duties as police officers for the apprehension of the guilty person and the taking of the corpus delicti."[53] "Objects whose possession are prohibited by law inadvertently found in plain view are subject to seizure even without a warrant."[54] With respect to the Berreta pistol and a black bag containing assorted magazines, petitioner voluntarily surrendered them to the police.[55] This latter gesture of petitioner indicated a waiver of his right against the alleged search and seizure[56], and that his failure to quash the information estopped him from assailing any purported defect.[57] Even assuming that the firearms and ammunitions were products of an active search done by the authorities on the person and vehicle of petitioner, their seizure without a search warrant nonetheless can still be justified under a search incidental to a lawful arrest (first instance). Once the lawful arrest was effected, the police may undertake a protective search[58] of the passenger compartment and containers in the vehicle[59] which are within petitioner's grabbing distance regardless of the nature of the offense.[60] This satisfied the two-tiered test of an incidental search: (i) the item to be searched (vehicle) was within the arrestee's custody or area of immediate control[61] and (ii) the search was contemporaneous with the arrest.[62] The products of that search are admissible evidence not excluded by the exclusionary rule. Another justification is a search of a moving vehicle (third instance). In connection therewith, a warrantless search is constitutionally permissible when, as in this case, the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender (like herein petitioner with respect to the hit and run) or the contents or cargo of the vehicle are or have been instruments or the subject matter or the proceeds of some criminal offense.[63] Anent his second defense, petitioner contends that he could not be convicted of violating P.D. 1866 because he is an appointed civilian agent authorized to possess and carry the subject firearms and ammunition as evidenced by a Mission Order[64] and Memorandum Receipt duly issued by PNP Supt. Rodialo Gumtang, the deputy commander of Task Force Aguila, Lianga, Surigao del Sur. The contention lacks merit. In crimes involving illegal possession of firearm, two requisites must be established, viz.: (1) the existence of the subject firearm and, (2) the fact that the accused who owned or possessed the firearm does not have the corresponding license or permit to possess.[65] The first element is beyond dispute as the subject firearms and ammunitions[66] were seized from petitioner's possession via a valid warrantless search, identified and offered in evidence during trial. As to the second element, the same was convincingly proven by the prosecution. Indeed, petitioner's purported Mission Order and Memorandum Receipt are inferior in the face of the more formidable evidence for the prosecution as our meticulous review of the records reveals that the Mission Order and Memorandum Receipt were

188 mere afterthoughts contrived and issued under suspicious circumstances. On this score, we lift from respondent court's incisive observation. Thus: "Appellant's contention is predicated on the assumption that the Memorandum Receipts and Mission Order were issued before the subject firearms were seized and confiscated from him by the police officers in Angeles City. That is not so. The evidence adduced indicate that the Memorandum Receipts and Mission Order were prepared and executed long after appellant had been apprehended on October 26, 1992. "Appellant, when apprehended, could not show any document as proof of his authority to possess and carry the subject firearms. During the preliminary investigation of the charge against him for illegal possession of firearms and ammunitions he could not, despite the ample time given him, present any proper document showing his authority. If he had, in actuality, the Memorandum Receipts and Missions Order, he could have produced those documents easily, if not at the time of apprehension, at least during the preliminary investigation. But neither appellant nor his counsel inform the prosecutor that appellant is authorized to possess and carry the subject firearms under Memorandum Receipt and Mission Order. At the initial presentation of his evidence in court, appellant could have produced these documents to belie the charged against him. Appellant did not. He did not even take the witness stand to explain his possession of the subject firearms. "Even in appellant's Demurrer to Evidence filed after the prosecution rested contain no allegation of a Memorandum Receipts and Mission Order authorizing appellant to possess and carry the subject firearms. "At the initial presentation of appellant's evidence, the witness cited was one James Neneng to whom a subpoena was issued. Superintendent Gumtang was not even mentioned. James Neneng appeared in court but was not presented by the defense. Subsequent hearings were reset until the defense found Superintendent Gumtang who appeared in court without subpoena on January 13, 1994."[67] The Court is baffled why petitioner failed to produce and present the Mission Order and Memorandum Receipt if they were really issued and existing before his apprehension. Petitioner's alternative excuses that the subject firearms were intended for theatrical purposes, or that they were owned by the Presidential Security Group, or that his Mission Order and Memorandum Receipt were left at home, further compound their irregularity. As to be reasonably expected, an accused claiming innocence, like herein petitioner, would grab the earliest opportunity to present the Mission Order and Memorandum Receipt in question and save himself from the long and agonizing public trial and spare him from proffering inconsistent excuses. In fact, the Mission Order itself, as well as the Letter-Directive of the AFP Chief of Staff, is explicit in providing that: "VIII. c. When a Mission Order is requested for verification by enforcement units/personnels such as PNP, Military Brigade and other Military Police Units of AFP, the Mission Order should be shown without resentment to avoid embarrassment and/or misunderstanding. "IX. d. Implicit to this Mission Order is the injunction that the confidential instruction will be carried out through all legal means and do not cover an actuation in violation of laws. In the latter event, this Mission Order is rendered inoperative in respect to such violation. "[68] which directive petitioner failed to heed without cogent explanation. The authenticity and validity of the Mission Order and Memorandum Receipt, moreover, were ably controverted. Witness for the prosecution Police Supt. Durendes denied under oath his signature on the dorsal side of the Mission Order and declared further that he did not authorize anyone to sign in his behalf.[69] His surname thereon, we note, was glaringly misspelled as "Durembes."[70] In addition, only Unit Commanders and Chief of Offices have the authority to issue Mission Orders and Memorandum Receipts under the Guidelines on the Issuance of MOs, MRs, & PCFORs.[71] PNP Supt. Rodialo Gumtang who issued petitioner's Mission Order and Memorandum Receipt is neither a Unit Commander nor the Chief of Office, but a mere deputy commander. Having emanated from an unauthorized source, petitioner's Mission Order and Memorandum Receipt are infirm and lacking in force and effect. Besides, the Mission Order covers "Recom 1-12-Baguio City,"[72] areas outside Supt. Gumtang's area of responsibility thereby needing prior approval "by next higher Headquarters"[73] which is absent in this

189 case. The Memorandum Receipt is also unsupported by a certification as required by the March 5, 1988 Memorandum of the Secretary of Defense which pertinently provides that: "No memorandum receipt shall be issued for a CCS firearms without corresponding certification from the corresponding Responsible Supply Officer of the appropriate AFP unit that such firearm has been officially taken up in that units property book, and that report of such action has been reported to higher AFP authority." Had petitioner's Memorandum Receipt been authentic, we see no reason why he cannot present the corresponding certification as well. What is even more peculiar is that petitioner's name, as certified to by the Director for Personnel of the PNP, does not even appear in the Plantilla of Non-Uniform Personnel or in the list of Civilian Agents or Employees of the PNP which could justify the issuance of a Mission Order, a fact admitted by petitioner's counsel.[74] The implementing rules of P.D. 1866 issued by the then PC-INP Chief and Director-General Lt. Gen. Fidel V. Ramos are clear and unambiguous, thus: "No Mission Order shall be issued to any civilian agent authorizing the same to carry firearms outside residence unless he/she is included in the regular plantilla of the government agency involved in law enforcement and is receiving regular compensation for the services he/she is rendering in the agency. Further, the civilian agent must be included in a specific law enforcement/police/intelligence project proposal or special project which specifically required the use of firearms(s) to insure its accomplishment and that the project is duly approved at the PC Regional Command level or its equivalent level in other major services of the AFP, INP and NBI, or at higher levels of command."[75] Circular No. 1, dated January 6, 1986, of the then Ministry of Justice likewise provides as follows: "If mission orders are issued to civilians (not members of the uniformed service), they must be civilian agents included in the regular plantilla of the government agency involved in law enforcement and are receiving regular compensation for the service they are rendering." That petitioner's Mission Order and Memorandum Receipt were fabricated pieces of evidence is accentuated all the more by the testimony and certification of the Chief of the Records Branch of the firearms and Explosives Office of the PNP declaring that petitioner's confiscated firearms are not licensed or registered in the name of the petitioner.[76] Thus: "Q. In all these files that you have just mentioned Mr. Witness, what did you find, if any? "A. I found that a certain Robin C. Padilla is a licensed registered owner of one 9 mm pistol, Smith and Wesson with Serial No. TCT 8214 and the following firearms being asked whether it is registered or not, I did not find any records, the M-16 and the caliber .357 and the caliber .380 but there is a firearm with the same serial number which is the same as that licensed and/or registered in the name of one Albert Villanueva Fallorina. "Q. So in short, the only licensed firearms in the name of accused Robin C. Padilla is a pistol, Smith and Wesson, caliber 9 mm with Serial No. TCT 8214? "A. Yes, sir. "Q. And the firearms that were the subject of this case are not listed in the names of the accused in this case? "A. Yes, sir.[77] xxx And the certification which provides as follows: Republic of the Philippines Department of the Interior and Local Government GENERAL HEADQUARTERS PHILIPPINE NATIONAL POLICE FIREARMS AND EXPLOSIVES OFFICE Camp Crame, Quezon City xxx xxx

190 "PNPFEO5 "C E R T I F I C A T I O N "TO WHOM IT MAY CONCERN: "THIS IS TO CERTIFY that Robin C. Padilla of 59 Labo St., Quezon City is a licensed/registered holder of Pistol Smith and Wesson Cal 9mm with serial number TCT8214 covered by License No. RL M76C4476687. "Further certify that the following firearms are not registered with this Office per verification from available records on file this Office as of this date: M16 Baby Armalite SN-RP131120 Revolver Cal 357 SN-3219 Pistol Cal 380 Pietro Beretta SN-35723 "However, we have on file one Pistol Cal 380, Beretta with serial number 35723Y, licensed/registered to one Albert Villanueva Fallorina of 29 San Juan St., Capitol Pasig, MM under Re-Registered License. "This certification is issued pursuant to Subpoena from City of Angeles. "FOR THE CHIEF, FEO: (Sgd.) JOSE MARIO M. ESPINO Sr. Inspector, PNP Chief, Records Branch" [78] In several occasions, the Court has ruled that either the testimony of a representative of, or a certification from, the PNP Firearms and Explosives Office (FEO) attesting that a person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the second element of illegal possession of firearm.[79] In People vs. Tobias,[80] we reiterated that such certification is sufficient to show that a person has in fact no license. From the foregoing discussion, the fact that petitioner does not have the license or permit to possess was overwhelmingly proven by the prosecution. The certification may even be dispensed with in the light of the evidence[81] that an M-16 rifle and any short firearm higher than a .38 caliber pistol, akin to the confiscated firearms, cannot be licensed to a civilian,[82] as in the case of petitioner. The Court, therefore, entertains no doubt in affirming petitioner's conviction especially as we find no plausible reason, and none was presented, to depart from the factual findings of both the trial court and respondent court which, as a rule, are accorded by the Court with respect and finality.[83] Anent his third defense, petitioner faults respondent court "in applying P.D. 1866 in a democratic ambience (sic) and a non-subversive context" and adds that respondent court should have applied instead the previous laws on illegal possession of firearms since the reason for the penalty imposed under P.D. 1866 no longer exists.[84] He stresses that the penalty of 17 years and 4 months to 21 years for simple illegal possession of firearm is cruel and excessive in contravention of the Constitution.[85] The contentions do not merit serious consideration. The trial court and the respondent court are bound to apply the governing law at the time of appellant's commission of the offense for it is a rule that laws are repealed only by subsequent ones.[86] Indeed, it is the duty of judicial officers to respect and apply the law as it stands.[87] And until its repeal, respondent court can not be faulted for applying P.D. 1866 which abrogated the previous statutes adverted to by petitioner. Equally lacking in merit is appellant's allegation that the penalty for simple illegal possession is unconstitutional. The penalty for simple possession of firearm, it should be stressed, ranges from reclusion temporal maximum to reclusion perpetua contrary to appellant's erroneous averment. The severity of a penalty does not ipso facto make the same cruel and excessive. 28 November 1992

191 "It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution. 'The fact that the punishment authorized by the statute is severe does not make it cruel and unusual.' (24 C.J.S., 1187-1188). Expressed in other terms, it has been held that to come under the ban, the punishment must be 'flagrantly and plainly oppressive', 'wholly disproportionate to the nature of the offense as to shock the moral sense of the community' "[88] It is well-settled that as far as the constitutional prohibition goes, it is not so much the extent as the nature of the punishment that determines whether it is, or is not, cruel and unusual and that sentences of imprisonment, though perceived to be harsh, are not cruel or unusual if within statutory limits.[89] Moreover, every law has in its favor the presumption of constitutionality. The burden of proving the invalidity of the statute in question lies with the appellant which burden, we note, was not convincingly discharged. To justify nullification of the law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative implication,[90] as in this case. In fact, the constitutionality of P.D. 1866 has been upheld twice by this Court.[91] Just recently, the Court declared that "the pertinent laws on illegal possession of firearms [are not] contrary to anyprovision of the Constitution. . ."[92] Appellant's grievance on the wisdom of the prescribed penalty should not be addressed to us. Courts are not concerned with the wisdom, efficacy or morality of laws. That question falls exclusively within the province of Congress which enacts them and the Chief Executive who approves or vetoes them. The only function of the courts, we reiterate, is to interpret and apply the laws. With respect to the penalty imposed by the trial court as affirmed by respondent court (17 years 4 months and 1 day of reclusion temporal, as minimum, to 21 years of reclusion perpetua, as maximum), we reduce the same in line with the fairly recent case of People v. Lian[93] where the Court en banc provided that the indeterminate penalty imposable for simple illegal possession of firearm, without any mitigating or aggravating circumstance, should be within the range of ten (10) years and one (1) day to twelve years (12) of prision mayor, as minimum, to eighteen (18) years, eight (8) months and one (1) day to twenty (20) of reclusion temporal, as maximum. This is discernible from the following explanation by the Court: "In the case at bar, no mitigating or aggravating circumstances have been alleged or proved, In accordance with the doctrine regarding special laws explained in People v. Simon,[94] although Presidential Decree No. 1866 is a special law, the penalties therein were taken from the Revised Penal Code, hence the rules in said Code for graduating by degrees or determining the proper period should be applied. Consequently, the penalty for the offense of simple illegal possession of firearm is the medium period of the complex penalty in said Section 1, that is, 18 years, 8 months and 1 day to 20 years. "This penalty, being that which is to be actually imposed in accordance with the rules therefor and not merely imposable as a general prescription under the law, shall be the maximum of the range of the indeterminate sentence. The minimum thereof shall be taken, as aforesaid, from any period of the penalty next lower in degree, which is, prision mayor in its maximum period to reclusion temporal in its medium period.[95] WHEREFORE, premises considered, the decision of the Court of Appeals sustaining petitioner's conviction by the lower court of the crime of simple illegal possession of firearms and ammunitions is AFFIRMED EXCEPT that petitioner's indeterminate penalty is MODIFIED to ten (10) years and one (1) day, as minimum, to eighteen (18) years, eight (8) months and one (1) day, as maximum. SO ORDERED

192 THIRD DIVISION

[G.R. Nos. 113511-12. July 11, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANILO SINOC, y SUMAYLO, accused-appellant. DECISION NARVASA, C.J.: In a decision handed down on October 7, 1993 by Branch 30 of the Regional Trial Court of Surigao City, Danilo Sinoc was found guilty beyond reasonable doubt in two cases jointly tried: [1]one, of the special complex crime of kidnapping with murder (under Article 267 in relation to Articles 248[2] and 48[3] of the Revised Penal Code) -- in Criminal Case No. 3564; and the other, of the complex crime of kidnapping with frustrated murder (under Articles 267, 248, 6,[4] and 48 of the same Code) -- in Criminal Case No. 3565. In each case, the penalty of reclusion perpetuawas imposed on him.[5] The amended informations under which Sinoc was tried and convicted, both dated January 23, 1992, included five (5) other accused, namely: Vicente Salon @ Dodong, Benjamin Espinosa @ Benji, Jaime Jornales @ James, Victorino Delegencia @ Jun-Gren, and one Roger Doe @ Ram (atlarge).[6] However, only Sinoc and Vicente Salon were arraigned, on July 14, 1992, the other accused being then at large, as they still appear to be to this day. Assisted by their respective counsel, both Sinoc and Salon entered pleas of not guilty and were thereafter jointly tried. The joint trial resulted in Salons acquittal in both cases. The court agreed with him that none of the witnesses presented by the prosecution remotely implicate** (him in) the crimes charged, and that (i)ndeed, the only piece of evidence pointing to ** (him[Salon]) as the mastermind is contained in the affidavit of confession of accused Danilo Sinoc, hence, conspiracy not having been proved, the case against Salon has to be dismissed. Only Sinoc, therefore, is concerned in the appeal at bar. Respecting the essential facts constituting the corpus delicti, there appears to be no serious dispute. It appears that on September 20, 1991, at about 6 oclock in the morning, Isidoro Viacrusis, manager of Taganito Mining Corporation, was motoring from the company compound (at Taganito, Claver, Surigao del Norte) to Surigao City. He was riding on a company vehicle, a Mitsubishi Pajero (with Plate No. DFX-397), driven by Tarcisio Guijapon. As Viacrusis and Guijapon were approaching the public cemetery of Claver, they were stopped by several armed men. The latter, identifying themselves as members of the New Peoples Army (NPA), boarded the Pajero and ordered Guijapon to proceed. When they reached Barobo, Surigao del Norte, the armed men ordered Viacrusis and Guijapon to alight, led them, their hands bound behind their back, to a coconut grove some six meters from the road, and after making them lie face down on the ground, shot them several times. Viacrusis miraculously survived. The driver, Guijapon, was not as lucky; he died on the spot. These facts set forth in, among others, a sworn statement given to the police by Sinoc, infra, and an affidavit executed and sworn to by Viacrusis on October 17, 1991, about a month later.[7]In that affidavit, Viacrusis described the armed men who had kidnapped and shot him and Guijapon. The only malefactor he was able to identify by name, however, was Danilo Sinoc who, he said, had curly hair, (was) known as Colot (Danilo Sinoc), (and was known to ) driver Tarcing **. Two prosecution witnesses gave germane testimony at the trial of the consolidated cases: Marlyn Legaspi a resident of San Vicente, Barobo, Surigao del Sur; and Barangay Captain Terencio Jamero, also of Barangay San Vicente. Marlyn testified that she was startled by the sound of gunshots that morning of September 20, 1991. She ran towards the direction of the gunfire and as she neared the place, heard the moaning of a man. She moved quickly to the highway and saw a blue Pajero parked at the barangay road, its engine idling; and moments later, she saw the same vehicle running fast towards San Francisco, Agusan del Sur. She lost no time in reporting the incident to Brangay Councilor Terencio Jamero.

193 Jamero testified that on receiving Marlyn's report, he and another Councilor, Alberto Saliling, at once proceeded to the place indicated. There they came upon the slain driver, and Isidoro Viacrusis, lying on the ground, sorely wounded, crying out for help. With the assistance of policemen of Barobo, they brought Viacrusis to the Agusan del Sur Provincial Hospital at Patin-ay. Timely medical attention enabled Viacrusis to recover from his grievous wounds. The evidence of the prosecution further establishes that in the morning of the following day, September 21, 1991, at about 7 oclock, a secret informant (known as a civilian asset) named Boyet reported to the Police Station at Monkayo, Davao del Norte that the stolen (carnapped) Pajero was parked behind the apartment of a certain Paulino Overa at the Bliss Housing Project at Poblacion, Monkayo. On instructions of the Station Commander, a police team[8] went to the place. They saw the Pajero and, their initial inquiries having yielded the information that the man who had brought it there would return that morning, posted themselves in such a manner as to keep it in view. Some three hours later, at about 10:30 oclock, they saw a man approach the Pajero who, on seeing them, tried to run away. They stopped him. They found out that the man, identified as Danilo Sinoc, of Surigao del Norte,[9] had the key of the Pajero, and was acting under instruction of certain companions who were waiting for him at the Star Lodge at Tagum, Davao del Norte. Riding on the recovered Pajero, the police officers brought Sinoc to the Star Lodge only to discover that his companions were no longer there. They later turned over Sinoc to the 459(th) Mobile Force, together with the Pajero. Four months afterwards, in the afternoon of January 21, 1993, SPO1 Roger A. Basadre and two other officers (of the CIS) brought Danilo Sinoc to the Public Attorneys Office at Curato Street Butuan City. They asked one of the attorneys there, Atty. Alfredo Jalad, for permission to take Sinocs statement in writing in his office. Sinoc asked Jalad to assist him because he wished to make an affidavit of confession. Atty. Jalad told Sinoc that he had the right to choose his own counsel, and to remain silent. Sinoc said he wanted to make the affidavit nonetheless, and be assisted by Jalad in doing so. The latter then had Sinoc narrate the occurrence in question in Cebuano/Visayan, a dialect with which Sinoc was familiar. That done, Jalad asked Sinoc if the CIS had promised him anything for the affidavit he would execute. Sinoc said no. Only then did the CIS officers commence to take Sinocs statement, typing their questions and Sinocs answer -- as well as the initial appraisal of his constitutional rights -- on a typewriter in Atty. Jalads office. In his sworn statement,[10] Sinoc declared that he knew the victims, Isidoro Viacrusis and Tarcisio Guijapon because he was formerly working at Taganito Mining Company (TAMICO); that in June, 1991, he learned that Benjamin Espinosa (@ Benji), Jaime Jornales (@ James), Victorino Delegencio (@ JunGren), and a certain Ram had been monitoring the activities of TAMICO Manager Viacrusis whom they planned to kidnap and rob of his Pajero, and make it appear to be an act of the NPA; that the criminal undertaking was planned by a certain Vicente Salon (@ Dodong), who made available the needed funds and two (2) hand guns; that in September, 1991, at a meeting of the group at the boarding house of Jun-Gren to which he (Sinoc) was invited, Sinoc was offered P20,000.00 to join in the kidnapping and carnapping operation; that he agreed because of poverty; that in the morning of September 20, 1991, at about 6:30 oclock, he, Ram and Benjamin Espinosa stopped the Pajero driven by Tarcisio Guijapon in which Viacrusis was riding, brandishing two .35 caliber revolvers, and a piece of wood shaped like a rifle; that they boarded the vehicle, identifying themselves as NPA (soldiers of the New Peoples Army) and had the driver proceed towards Surigao City; that at the bridge of Tres de Mayor, they had the Pajero stop to pick-up two other companions, James (Jaime Jornales) and Jun-Gren (Victor Delegencia); that Ram took over the wheel and drove towards Butuan City; that at San Vicente, Barobo, Ram turned into a feeder road and stopped about seven (7) meters from the highway; that there, Viacrusis and Guijapon, whose hands had been tied behind their back, were made to get down; that James Jornales shot Viacrusis four times after which Jun-Gren Delegencia, Jr. fired at Guijapon four times , too; that when Sinoc remonstrated at the shootings, he was told it was on Dodong Salons orders; that the malefactors then proceeded to the Bliss Housing Project at Monkayo where they left the Pajero, this being the place where the mastermind, Vicente Salon, was supposed to get the vehicle and pay Sinoc the promised sum of P20,000.00; that they then all went to Tagum; that on the following day, Sinoc was instructed by Jun-gren and James to return to Monkayo with the key of the Pajero and deliver it to Ram, and that when he arrived at the place at about 9 o clock in the morning, he was apprehended by soldiers and brought to the 459(th) PNP Mobile Company.

194 During the entire period of Sinocs interrogation, which commenced at about 3:00 P.M., Atty. Jalad remained seated beside him; and at its conclusion, Jalad read to Sinoc the contents of his statement from beginning to end. The statement was thereafter signed by Sinoc and by Jalad, the latter being described as witness to signature.[11] Sinoc was next brought to the home of Butuan City Prosecutor Ernesto M. Brocoy so that he might take oath on his statement. This was about 7:00 P.M. After going over the statement, City Fiscal Brocoy told Sinoc that it was very damaging, briefly discussing the contents thereof in Cebuano. The latter stood by his answers, however, averring that they have been voluntarily given. Evidently satisfied of the authenticity and voluntariness of the statement, Brocoy administered the oath to Sinoc, and signed the certification typed at the left hand margin of page 4 thereof, reading: SUBSCRIBED AND SWORN to before me this 21st day of January 1992, at Butuan City, Philippines. I hereby certify that I personally examined the herein affiant and that I am satisfied that he voluntarily executed and understood his statement." He also initialed every page of the statement.[12] While under detention at the Provincial Jail, awaiting trial, Sinoc wrote two (2) letters to the Trial Judge dated June and July, 1992, in both of which he asked that he be transferred to the City Jail because he had heard that Vicente Salon, who had been arrested on the strength of his sworn statement, had made plans to kill him. He sent the Judge a third letter -- dated August 11, 1993, consisting of four (4) pages -- which is described by His Honor as substantially a repetition of the contents of his affidavit of confession. All the letters were handwritten in block letters in the Cebuano dialect.[13] Sinoc proffered the defense of alibi. His claim, as summarized by his counsel, was that on September 19, 1991, he was in Sibagat, Agusan del Sur together with his wife and prepared on that early morning to sell tableya (native chocolate) in Tagum, Davao del Norte. On the same day they reached Tagum and they sold tableya and on the same day they were not able to sell the tableya; on September 20, 1991 they were again selling tableya in Tagum, Davao del Norte. It was while in Tagum that ** (they met) a certain Darves, they did not know exactly the name, he offered to them the money to accompany the said driver of Darves who is name(d) Ram. He was offered ** money to accompany this Ram in prior (sic) to allegedly get the Pajero vehicle from Moncayo together with Ram, and while in Moncayo he was first apprehended by the police and detained at Moncayo, first ** (by) the 459 Mobile Force of ** Moncayo and on January 14, 1992 to January 24, 1992 he was detained by the CIS authorities in Butuan City. Elaborating, Sinoc testified that he saw Darves with three companions at a certain restaurant in Tagum; that Darves introduced himself, and offered to give him P1,000.00) if he would accompany his driver to get a vehicle at Moncayo; that he agreed, and at 6 o clock in the morning of September 21, 1991 he went to the Star Lodge where Darves was staying; that there, he was introduced to the latters driver, Ram, given P1,000.00, and told to go with Ram; and that he went out of the Star Lodge, gave his wife P800.00, and then went with Ram to Moncayo on board a bus. In Moncayo, they went to where the Pajero was parked. Sinoc went towards the vehicle. Ram lagged behind, having paused to buy some cigarettes. When Sinoc reached the Pajero, five persons suddenly pointed guns at him, searched him, and found on him the key to the Pajero which Darves had given to him. The five persons, who were led by Sgt. Michael Aringgo of the PNP, brought him to the Moncayo police station where they investigated him without informing him of his constitutional rights. In the afternoon of that day, September 21, 1991, he was surrendered to the 459 th Mobile Force Company which detained him until January 14, 1992. On this date he was taken by CIS personnel and brought to the CIS Compound at Butuan City, at which place he was confined up to January 24, 1992, and subjected to interrogation without being informed that he had a right to remain silent. He was told, however, that he had the right to counsel, but although he told the investigators that his lawyer was Atty. Gavino Samontina, they never called the latter. The investigators wish him to sign an affidavit. When he refused, they maltreated him by repeatedly submerging his head in a toilet bowl full of excrement, as well as by tying him on a bed, raising the bed on one end so that his feet were up and his head down, and keeping him in that position for hours.

195 On January 20, 1992, his wife and Efren Dak-ang came to see him at the CIS Compound. He talked to them and revealed what was being done to him while under investigation. On January 21, 1992, after having been interrogated the whole night, he finally agreed to sign the affidavit because the CIS officers told him, (We) will kill you or salvage you. In fact, the night before, police officers had brought him to an uninhabited place near the bridge and, with guns pointed at his head, commanded him to run. He refused, of course. So, in the afternoon of that day, at around 4 o clock, he was brought to the office of Public Attorney Jalad, where the police investigators hurriedly typed his affidavit and made him sign it. He denied that Atty. Jalad informed him of his constitutional rights. He asserted that when he told Jalad he had his own lawyer, Jalad merely remarked, Never mind, all attorneys are just the same as long as it is attorney. He was next brought to Fiscal Brocoy who, without talking to him, right away signed that document (his confession). Sinoc also explained how he had come to write the letter of August 11, 1992 to the judge some seven months after his confession. That letter -- it will be recalled and as is evident from a comparison of both documents -- was described by the latter as substantially a repetition of the contents of his affidavits of confession, supra.[14] He said: (T)here were persons who visited me while at the Provincial Jail and told me to accept the crime ** because if I will not accept the crime my wife and my children (and) my parents, they will liquidate all of them **. Sinocs wife, Jovita, testified for the defense, and sought to corroborate his testimony. She affirmed that she had seen her husband at the CIS on September 20, 1992, at about 8:30 in the evening, and he had told her to keep ** silent, not to tell anybody that he will be accompan(ied) by the CIS. Efren Dakang also gave corroborating testimony. For some undisclosed reason, the surviving victim, Isodoro Viacrusis, did not testify; this, despite the fiscals assurances to the Trial Judge that he was very interested in giving evidence. Obviously because of Viacrusis failure to testify, his affidavit of October 17, 1991 was not formally offered, being obviously hearsay, although it is attached to the record. Be this at it may, the Trial Court was satisfied that the evidence actually presented by the Government sufficed to establish Sinocs guilt beyond reasonable doubt of the two felonies with which he stood charged. Sinoc has taken an appeal to this Court and ascribes to the Trial Court the following errors: (1) convicting him of the offenses charged although conspiracy had not been independently proven to exist among him and the other persons named in the indictment; (2) not rejecting the evidence obtained after he had been arrested without any warrant of arrest, and (3) not rejecting his confession after he had been illegally arrested and had thereafter been under custodial investigation ..without a counsel of choice from September 21, 1991 to January 20, 1992, first by the Monkayo 459 th Mobile Force, and later by the C.I.S., Butuan City. As regards Sinocs claim of illegal arrest, the law provides that an arrest without warrant may be licitly effected by a peace officer, inter alia When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it.[15] There is no question that the police officers in this case were aware that an offense had just been committed: i.e., that some twelve hours earlier, a Pajero belonging to a private company h ad been stolen (carnapped) and its driver and passenger shot, the former having died and the latter being on the verge of death. Nor is there any doubt that an informer (asset) had reported that the stolen Pajero was at the Bliss Housing Project at the Moncayo. It was precisely to recover the Pajero that a team composed of SPO1 Micheal Aringo and joint elements of 459 PNP MFC and Monkayo Police Stn. Led by Insptr. Eden T. Ugale, went to that place and, on taking custody of the Pajero, forthwith dispatched a radio message to Higher Headquarters advising of that fact.[16] There is no question either that when SPO1 Aringo and his companions reached the place where the Pajero was parked, they were told by Paulino Overa, owner of the apartment behind which the vehicle was parked, that the man who had brought the Pajero would be back by 12:00 noon; that the person thus described did in fact show up at about 10:00 A.M., and was immediately identified by Overa as the one who rode on that car pajero;'[17] just as there is no question that when the police officers accosted him, Sinoc had the key to the stolen Pajero and was in the act of moving toward it admittedly to take possession of it (after having arrived by bus from Tagum together with another suspect, Ram).

196 Sinocs link to the stolen vehicle (and hence to the kidnapping and killing accompanying its asportation) was thus palpable. The foregoing circumstances left the police officers no alternative save to arrest Sinoc and take possession of the Pajero. His arrest without warrant was justified; indeed, it was in the premises the officers clear duty to apprehend him; their omission to do so would have been inexcusable. Sinocs assault against the propriety of his interrogation after his warrantless arrest, because conducted without advice to him of his constitutional rights, is pointless. It is true that, as candidly admitted by the arresting officers, their initial interrogation of Sinoc was made without his first being told of his corresponding rights. This is inconsequential, for the prosecution never attempted to prove what he might have said on that occasion. The confession made by him some time afterwards at the Public Attorneys Office at Butuan City is altogether a different matter, however. The record adequately shows it to have been executed voluntarily and under applicable safeguards, apart from being confirmed by, or consistent with, other evidence. Sinoc does not dispute that he was taken to the Public Attorneys Office; that he spoke to Atty. Alfredo Jalad and it was in the latters office that his confession was prepared by the CIS investigator. Nor does he deny that he was then brought to the home of City Prosecutor Ernesto M. Brocoy who certified that the confession had been subscribed and sworn to before him and that he was satisfied that Sinoc had voluntarily executed and understood his statement. Sinoc nonetheless claims that he was under intimidation at that time and never advised of his constitutional rights. After carefully considering the evidence, this Court is convinced that the Trial Judge was correct in accepting the account of the execution of Sinocs confession (Exhs. K, K-1 to K-5) narrated by Public Atty. Alfedo Jalad and City Prosecutor Ernesto Brocoy, to the effect that the confession was voluntarily given after he had been duly informed of his constitutional rights. No reason whatever is discernible in the record for these Government officials to give false evidence against Sinoc, or testify otherwise than to the truth. Sinocs confession of January 21, 1992 is confirmed by the letter he admittedly wrote to the Trial Judge more than a year later, on August 11, 1993,[18] the contents of which are, as observed by the Trial Judge, substantially identical with those of the confession. In said letter, in which he narrates in no little detail the same story contained in his confession, he apologizes for bothering you again at this time (obviously referring to his prior letters to the Judge of June and July 1992), and gives his reasons for writing the latest letter: to ask for the Judges assistance and take account of his allegation that his agreement with his co-accused was only to stop the "Pajero," that it was poverty that impelled him to join the plotters (Vicente Salon, et al.); to see that Tarcisio Guijapon and Viacrucis be given justice; and to plead that the Judge take pity on him, and not give him too heavy a penalty. The confession is also consistent with Sinoc's testimony at his trial in which he admitted that he had indeed traveled from Tagum to Monkayo where he was arrested; and that he had made the trip, together with his co-accused, Ram, precisely to get the stolen Pajero the key of which he had on his person at the time. It contains details (e.g., the use of two (2) hand guns and a wooden rifle, the bringing of the Pajero from the scene of the killing to Moncayo, the identities of the individual malefactors who shot the victims) which is improbable to think were conjured out of thin air by the police investigators or deduced from other evidence. The confession is consistent, too, with the other proofs, particularly the testimony of Marlyn Legaspi and Barangay Councilor Jamero as regards the time and place of the shooting of the hapless victims. In any event, the Trial Judge appears to have carefully assessed the demeanor of the witnesses for the prosecution and those for the defense, in relation to the documents on record, and on this basis and from his vantage point, found that the prosecutions proof were more credible than the defense, and that their combined weight established beyond reasonable doubt the appellants culpable participation in the crimes charged. It must additionally be pointed out that apart from Sinocs protestations that his extrajudicial confession was the result of torture and threats, no competent evidence exists on record to substantiate that claim. He made no such claim to either Public Attorney Alfredo Jalad or City Prosecutor Ernesto Brocoy although there is absolutely nothing in the record to indicate any cause for him to distrust either government officer, much less believe they were in conspiracy with the police officers to concoct a case

197 against him. In fact, although he professes to have disclosed his supposed maltreatment to his wife when she visited him at the place of his detention, the latter made no mention of it in her testimony, nor did she ever attempt to have him medically examined to confirm such a revelation, if it had been made. Moreover, the counsel he said he wanted to represent him during his interrogation at Public Attorney Jalads office, Atty. Gavino Samontina, was never presented to confirm his statement. While the evidence does show that Sinoc became embroiled in a criminal conspiracy[19] -- he agreed (out of poverty, he says) to join in a crime being planned by certain men named by him and decided to commit it with them -- the agreement, as far as he was concerned, was to waylay Viacrusis, the Manager of the Tagum Mining Company, and rob him of his Pajero, for which his share would be P20,000.00; but it did not include the shooting of Viacrusis or any one else. In fact, he raised a protest when Viacrusis and Guijapon were shot. In other words, as far as Sinoc understood it, and as far as may in fact be deduced from the evidence, the plan was not so much to capture Viacrusis and deprived him of liberty, even less to assassinate him, but to steal his Pajero by violent means. The kidnapping was not the principal objective; it was merely incidental to the forcible taking of the vehicle. Unfortunately, by reason or on the occasion of the seizure of the Pajero -- and (as far as the proofs demonstrate) without foreknowledge on Sinocs part -- its driver was killed, and the lone passenger seriously injured. There was thus no kidnapping as the term is understood in Article 267 of the Revised Penal Code -the essential object of which is to kidnap, or detain another, or in any other manner deprive him of his liberty. The idea of kidnapping in this case appears to have been the result of the continuous but uninformed use of that term by the peace officers involved in the investigation, carelessly carried over into the indictments and the record of the trial, and even accepted by His Honor.[20] The offense actually committed in Criminal Case No. 3564 -- where the killing of Tarcesio Guijapon accompanied the taking of the Pajero-- is that defined and penalized by Article 294 of the Criminal Code,[21] viz.: ART. 294. Robbery with violence against or intimidation of persons-- Penalties.-- Any person guilty of robbery with the use of violence against any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson. *** *** ***."

It is germane to observe that even if the intent to deprive of liberty were as important or primordial an objective as the asportation of the Pajero, the kidnapping would be absorbed in the robbery with homicide;[22] and that the term, homicide, is used in the quoted article in the generic sense-- i.e., as also including murder, the nature of the offense not being altered by the treacherous character, or the number, of the killings in connection with the robbery.[23] On the other hand, the wrongful acts actually proven to have been committed by the defendants in Criminal Case No. 3565 are: (1) robbery, of course, as above described, and (2) frustrated murder on the occasion thereof -- gunshot wounds having been inflicted on Isidoro Viacrusis, while bound and prostrate on the ground, utterly unable to put up any defense, the wounds being of such a nature as would have resulted in his death were it not for timely medical intervention. Obviously, these acts do not fall within the ambit of article 294, which treats of the special complex crime of robbery with violence against or intimidation of persons, but NOT robbery with attempted or frustrated homicide (or murder), although the law does punish the crime of attempted andfrustrated robbery with homicide.[24] Neither do the crimes come within the operation of Article 48 of the Criminal Code which, speaking of complex crimes, provides that when a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the more serious crime shall be imposed, the same to be applied in its maximum period. Actually in this case, the two crimes of carnapping and frustrated murder did not result from a single act. Nor was either offense a necessary means for committing the other. The shooting of the victim was not necessary to commit the carnapping; indeed, at the time the victim was shot, the carnapping had already been consummated. And, of course, the cannapping which, according to the evidence, was the conspirators principal objective, was not necessary to perpetrate the shooting.

198 It follows then that the malefactors felonious acts in Criminal Case No. 3565 cannot be regarded as juridically fused into a complex crime under Article 48. They should be considered separate offenses, separately punishable. Now, Sinoc admittedly entered into a conspiracy with his co-accused; but he insists that as far as he was concerned, the conspiracy was to carnap the Pajero, and did not include any killing or assault against persons. His theory is that the slaying of the driver and passenger might conceivably have been contemplated from the outset by one or some or all his co-conspirators; But Sinoc himself never had that intention. Indeed, he says he had no inkling that the shooting would take place; had no opportunity to prevent it, and could only remonstrate about it after it was done; and he invokes the doctrine that conspirators may only be held accountable for the acts embraced in the criminal agreement; and as regards felonious acts not included, only the author thereof would be liable.[25] Sinocs disclaimers notwithstanding, it is this Courts view that the crime that may properly be ascribed to him in Case No. 3564 is robbery with homicide under Article 294 of the Revised Penal Code. For unfortunately for him, there is no avoiding the fact that a homicide -- although not agreed to or expected by him -- was committed on the occasion of the robbery of the Pajero; and he could not but have realized or anticipated the possibility of serious harm, even death, being inflicted on the person or persons in the Pajero targeted for robbery, since two of his companions were armed with guns, even if in his mind, to repeat, his agreement with them did not include killing.[26] The most that can be conceded is to credit him with the mitigating circumstance of having no intention to commit so grave a wrong as that committed.[27] Sinoc may not be held liable in Case No. 3565 for the separate offense of frustrated murder as regards Viacrusis, for the reasons already mentioned; in this particular case, the evidence shows that he agreed only to the plan to carnap the Pajero, but not to any assault or killing.[28] Nor is it logical to convict him twice of robbery of the same property under the same circumstances. Hence, he may not be pronounced responsible for the separate offense of robbery of the same Pajero, in addition to being declared guilty of robbery (of that same Pajero)with homicide under Article 294. The penalty imposable on Sinoc is that provided in Article 294 of the Penal Code, which is reclusion perpetua to death. Appreciating in his favor the mitigating circumstance of lack of intention to commit so grave a wrong as that done, the penalty that should be applied to him is reclusion perpetua. WHEREFORE, in Criminal Case No. 3564, appellant Danilo Sinoc, being guilty beyond reasonable doubt of the offense of robbery with homicide defined and punished by Article 294 of the Revised Penal Code, is sentenced to reclusion perpetua. Criminal Case No. 3565 is DISMISSED as to him. SO ORDERED.

199 THIRD DIVISION

[G.R. No. 132671. November 15, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CRISANTO BAULA, RUBEN BAULA, ROBERT BAULA and DANILO DACUCOS, accused-appellants. DECISION VITUG, J.: In an Information, dated 07 August 1996, accused-appellants were charged with murder before the Regional Trial Court, Branch 38, of Lingayen, Pangasinan. The accusatory portions of the Information against the indictees read: "That on or about the 13th day of December 1995, in the evening, in barangay Sioasio West, Municipality of Sual, Province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, armed with a bolo (tabas), with abuse of superior strength, treachery and evident premeditation and intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and stab Patrocenia Caburao, inflicting upon her the following: 1. Hacking wound - 3 inches in length; 2 inches deep Rt. Occipital region (nape area) exposing brain tissue; 2. Hacking wound - 4 inches in length; 2 inches deep at mid occipital area exposing damage brain tissue; 3. Hacking wound - 4 inches in length; 1/2 inch deep facial area running across the Rt. Cheek and left cheek including the nasal area; 4. Hacking wound - 2 inches in height; 1 inch deep at the vertex (top of the head); 5. Abrasion; confluent at the back area. Cause of death - Brain tissue injury secondary to mortal wounds above which injuries directly caused her death, to the damage and prejudice of the heirs of the said Patrocenia Caburao. Contrary to Art. 248 of the Revised Penal Code."[1] When arraigned, the accused all entered a plea of not guilty to the offense charged. Trial shortly thereafter ensued. The relevant facts and events that transpired, according to the prosecution, were briefly narrated in the People's Brief. On 13 December 1995, at around eight oclock in the evening, Jupiter Caburao, decided to follow his mother, Patrocinia Caburao, who had earlier left their house at Barangay Siwasiw West, Sual, Pangasinan, to settle her due obligations at a store, about one-and-a-half kilometers away, owned by a certain Brigida Tumamang. While traversing the road towards the store, Jupiter noticed a commotion near the creek about ten meters away from him. He focused his flashlight towards the direction where he heard the commotion and saw accused-appellants Crisanto Baula and Danilo Dacucos in the act of hacking a person who was lying on the ground, while accused-appellants Robert Baula and Ruben Baula stood as lookouts. The assault lasted for about four minutes. Accused-appellants fled but not before they had threatened Jupiter with death if he were to divulge the incident to anyone. Jupiter went near the lifeless body of the victim who turned out to be his own mother. Her head and face sustained four

200 hacking wounds, two of which damaged her brain tissues. Jupiter rushed home and brought his niece and nephew to the house of a neighbor for their safety. For fear of reprisal from accused-appellants and believing that the police would be able to solve the gory killing on their own, Jupiter did not reveal the carnage to either his relatives or the police. About two o'clock in the morning of 14 December 1995, the police authorities, led by SPO4 Fermin Mirande, went to the locus criminis, and took pictures of the body of the victim.[2] The investigation revealed that before the victim was killed, she had been to Brigida Tumamang's store; that accusedappellants were also at the store having a drinking spree; that the victim left the store between seven o'clock and eight o'clock in the evening, and that, fifteen minutes later, accused-appellants also left. SPO4 Mirande, with several policemen, repaired to the respective houses of accusedappellants. The policemen asked Ruben Baula and Crisanto Baula for the clothing they wore on the night of the murder. Ruben Baula gave his bloodstained pair of short pants, and Crisanto Baula turned over his bloodstained polo shirt. The policemen next went to the hut of Danilo Dacucos. Inside the hut, the group found hanging on the wall a bloodstained bolo. The bloodstained pair of short pants, polo shirt and bolo, together with the victim's dried blood samples,[3] were sent on the same day to the National Bureau of Investigation, Dagupan City Branch Office,[4] for forensic examination. The results of the examination[5] disclosed that the bloodstains[6] found in the bolo,[7]the bloodstains[8] on the polo shirt[9] and the bloodstains[10] on the pair of short pants[11] had the same type "O" blood as that of the victim. The defense had another version of the incident. Wilson Radovan, the barangay captain of Siwasiw, Sual, Pangasinan, testified that on 13 December 1995, at around eight o'clock in the evening, while he and the other barangay officials were at their outpost, they heard the cry of a woman asking for help. Rushing out, they saw Teofila Uson, a barangay mate, who told them that she and Patrocinia Caburao were being pelted with stones. Teofila Uson said that it was too dark to be able to identify the person who had attacked them. When the group proceeded to the place of the incident, they saw the lifeless body of Patrocinia Caburao, beside the road, near the creek. Radovan testified that he did not notice any other person in the place where the incident occurred. He requested Gene Macatiao, the son-in-law of the victim and one of those who first arrived in the scene, to inform their relatives and the police. Ruben Baula testified that in the morning of 13 December 1995, he, together with his co-accused and other companions, namely, Pepito Ramos, Amber Pagudpod, Francis Amistad and Reny, were harvesting palay, at Sitio Binabalian, Siwasiw West, Sual, Pangasinan, on the land being tenanted by Crisanto Baula. He recounted that they were there until 4:55 in the afternoon at about which time Crisanto Baula invited the group to eat "merienda" in the nearby canteen of Brigida Tumamang. He noticed that when they arrived at the store, there were three other persons partaking of drinks. At about twilight, they left the store of Brigida Tumamang and proceeded to their respective residences, leaving behind the three persons who continued with their drinking spree. At about three o'clock in the morning of 14 December 1995, while he was asleep, four policemen and several barangay officials arrived and asked him if he knew who had killed Patrocinia Caburao. Although he denied any knowledge about the killing, the policemen, nevertheless, invited him to accompany them to the house of Robert Baula. Arriving thereat, the policemen likewise questioned the latter about the killing of Patrocinia Caburao. Robert Baula, like his co-accused Ruben Baula, denied any knowledge of the killing. After the interrogation, the police authorities allowed them to go. Ruben and Robert Baula both vehemently denied that the police ever took any clothing from them. Accused-appellants, Crisanto Baula and Danilo Dacucos, corroborated the testimony of their coaccused, Ruben and Robert Baula, in its material points, claiming that in the morning of 13 December 1995, they went to Sitio Binabalian to harvest palay; that in the afternoon, they took their merienda at the store of Brigida Tumamang; and that, thereafter, they went home leaving behind the three persons still indulging in drinks at the store of Brigida Tumamang. The trial over, the court a quo rendered its judgment on 17 November 1997, convicting accusedappellants of the crime charged; thus: "WHEREFORE, in view of the foregoing premises, judgment is hereby rendered finding the accused Danilo Dacucos, Crisanto Baula, Ruben Baula and Robert Baula, guilty beyond reasonable doubt of the crime of Murder defined and penalized under Article 248 of the Revised Penal Code as amended.

201 Pursuant thereto and in relation to Article 63, paragraph 2, No. 2 of the same code, all the aforenamed accused are hereby sentenced to suffer the penalty of Reclusion Perpetua and to pay, jointly and severally, the heirs of Patrocinia Caburao the following: a. P50,000.00 for the death of Patrocinia Caburao; b. P15,000.00 for funeral expenses; c. moral damages of P75,000.00; d. to pay proportionally the costs. SO ORDERED."[12] Accused-appellants contend in the instant appeal that the trial court has erred (1) in giving full credence to the belated eyewitness account of Jupiter Caburao ascribing to herein accused-appellants authorship of the crime, and (2) in admitting in evidence the bolo, polo shirt, and short pants taken by the policemen from accused-appellants in violation of their constitutional rights. In convicting accused-appellants, the trial court found the explanation of Jupiter for his delay in reporting what he knew of the gruesome killing not to be without valid reasons. After all, the court said, he was threatened and he felt that the authorities could solve the crime even without revealing what he knew. True, the rule has generally been that where the culpability or innocence of an accused hinges on the issue of credibility of witnesses and the veracity of their testimony, the assessment made by the trial court thereover is entitled to a great degree of respect and, absent strong justifications to the contrary, it will not be disturbed on appeal.[13] The reason is simple. A trial court gets an opportunity, not equally open to an appellate court, to observe the expression of witnesses at the stand, including their demeanor under questioning, that makes up a most significant factor in the proper evaluation of testimonial evidence. Obviously, however, this rule will not apply where one judge hears the testimony of the witnesses and another judge pens the decision for, in such a case, the thesis for the rule is not in the least extant.[14] In the case under review, such as in People vs. Capilitan[15] and People vs. Villapana,[16] the decision was rendered by the judge who did not conduct the trial and hear the evidence. The Court in acquitting Capilitan of rape, quoted with approval its previous pronouncement in Villapana similarly acquitting the accused therein, viz: Additionally, we have to take note that in this case, the judge who heard the evidence for the prosecution is not the same judge who decided the case. It was Judge Serafin Salvador who heard the testimonies of complainant and her witness before his retirement. Whereas, it was Judge Romulo Quimbo who decided the case relying solely on the transcripts of stenographic notes in appreciating Macaranas and her witness testimonies. Even as this Court has consistently been guided by the precept that findings of trial courts on credibility of witnesses are accorded great weight and must not be disturbed as it was the trial judge who had the opportunity to observe the demeanor of the witnesses while they were testifying, this case should be an exception in view of the fact that the Judge who decided the case is NOT the same judge who heard the evidence (see People vs. Escalante, et al., G.R. No. L-371457, August 22, 1984, 131 SCRA 237). Thus, the Court should all the more exercise utmost care in evaluating the evidence presented in the instant case so as to render justice not only to the accused, but also to the complainant and the State as well.[17] Here, it was Judge Antonio M. Belen who heard the testimony given at the trial, but it was Judge Emilio V. Angeles who wrote the decision, dated 17 November 1997, solely on the basis of the records of the case. Having neither personally heard the testimony of the witnesses nor observed their deportment and manner of testifying, his assessment on the credibility of witnesses would have to be received with caution on appeal.[18] Verily, it is not uncommon for a witness to show some reluctance about being immersed in a criminal case. The natural reticence of most people to get involved is, in fact, of judicial

202 notice.[19] Thus, it is recognized that the delay or vacillation in making a criminal accusation does not necessarily impair the credibility of witnesses for, more often than not, such a delay can be satisfactorily explained.[20] In this instance, however, the Court cannot help but doubt as being highly suspect, the belated revelation of Jupiter on the identity of the assailants. His claim that he did not immediately report the matter to the police relying on a supposition that the crime could anyway be solved even without his own disclosure appears to be a bit flimsy. Unlike previous cases where we have ruled otherwise, Jupiter is not just an innocent bystander but the son of the victim. The raging passion and anger of a son who has just lost a mother in such a brutal manner would have impelled him to immediately report the crime to the authorities even with an alleged threat upon his life. It can be accepted that there is yet no real test or a hard and fast rule in ascertaining the truth of the testimony of a witness to an accurate degree. Nevertheless, testimony that conforms to human knowledge, observation, and experience is often deemed reliable and that which is repugnant to such standards belongs to the miraculous and outside of judicial cognizance.[21] The Court finds that Jupiter's response to the events is far from the natural reaction of a son who has just witnessed the grisly murder of his own mother. What he has said to have done is simply not in accord with human nature. With all the bitterness and indignation expected of a person similarly situated, it is quite odd that he would keep the matter to himself and fail to disclose his knowledge of the crime to the police authorities, or even to any of his relatives, despite his presence during their investigation of the case. His belated declaration of the identity of his mother's assailants, some two months after the killing, can but accentuate the difficulty that the Court would have to face if it were to rely almost completely on his testimony. A careful reading of the records of this case additionally would reveal significant flaws in the testimony of Jupiter. Jupiter testified that he was able to recognize all the accused being barangaymates but failed to recognize the victim because he was quite distant from the place where the assault took place. He remembered well the number of times the accused Crisanto and Danilo had allegedly hacked the victim, yet, on further questioning by the trial court, he could not tell which part of the body of the victim was struck. On direct examination, Jupiter would insist that he approached the victim after the accused had fled. When asked by the court whether he went close to the place of the incident, he answered in the negative, stating that he was shocked and frightened. Jupiter testified that the incident had lasted for four minutes and that he focused his flashlight on the commotion four times, at intervals of five seconds each, but, again, when queried by the court why he had waited for four minutes before focusing his flashlight, Jupiter kept silent and did not answer the question. It would seem unlikely that after Jupiter focused his flashlight on them, accused-appellants would continue hacking the victim and for the two lookouts, who were supposed to precisely warn their coaccused of the presence of witnesses, to simply do nothing about it. The most common response of persons committing a crime would be to flee upon being discovered. Indeed, there should be greater reason for them to do so when that witness happened to be the son of their victim. Testimonial evidence to be believed must not only proceed from the mouth of a credible witness but must be credible in itself which, by common experience and observation, could lead to the inference of at least its probability under the circumstances.[22] In a criminal prosecution the accused is confronted with the full might of state authority. The evidence of the prosecution must thus be strong to pierce the shield of presumptive innocence.[23] Accused-appellants also take exception to the admissibility of the evidence consisting of the bloodstained bolo, polo shirt and short pants arguing that, even on the assumption that these articles did belong to accused-appellants, their seizure without a valid warrant has violated their constitutional rights. Admittedly, the bloodstained bolo, polo shirt and short pants were taken, sans any search warrant, from accused-appellants Danilo Dacucos, Crisanto Baula and Ruben Baula, respectively, at a time when the police started to question them about the killing of Patrocinia Caburao. Section 2, Article III, of the 1987 Constitution provides: "Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no

203 search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized." The above constitutional mandate is complemented by Article III, Section 3(2), of the Constitution providing that "Section 3(2). Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding" a rule pronounced by the Court in Stonehill vs. Diokno.[24] The plain import of the fundamental law is thus to say that between the State and the people stands the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants or warrants of arrest.[25] The protection means that the State cannot simply intrude indiscriminately into houses, or conduct search and seizure thereat or on the person of an individual, and it puts up an almost impenetrable shield to protect privacy and accord sanctity against this unlawful form of restraint.[26] The above proscription against unreasonable searches and seizures is not absolute, of course, and the Court has had occasions to rule that a warrantless search and seizure of property is valid under certain circumstances. There can, for instance, be a lawful warrantless search incidental to a lawful arrest recognized under Section 12, Rules 126 of the Rules of Court and by prevailing jurisprudence; or seizure of evidence in "plain view," its elements being extant;[27] or search of a moving vehicle;[28] or consented search; or customs search.[29] The situation here in question, however, can hardly come within the purview of any of the established exceptions. In a warrantless search incidental to a lawful arrest, the arrest itself must have to be effected under the circumstances enumerated by law. One such case is when an offense has in fact just been committed, and the peace officer has personal knowledge of facts indicating that the person to be arrested has committed it.[30] Accused-appellants were not being arrested at the time that the subject articles were allegedly taken from them but were just being questioned by the police officers conducting the investigation about the death of Patrocinia Caburao. The investigating officers had no personal knowledge of facts indicating that the accused had committed the crime. Being in no position to effect a warrantless arrest, the police officers were thus likewise barred from effecting a warrantless search and seizure. SPO4 Fermin Mirande testified: Fiscal: Q. What have you found in the scene of the incident? Witness: A. We were able to see the bloodied body of Patrocinia Caburao, sir. Court: Q. Dead already? Witness: A. Yes, sir, due to multiple hack wounds. Fiscal: Q. What have you and your companions done there? Witness: A. Since at the time we arrived at the place, we did not immediately gather such evidence to pin point any suspect. We tried our very best to conduct further investigation as to the place where this victim came from and we were able to establish that she came at the place where at the place of one store, sir. Court: Q. Store of? Witness: A. I could no longer..... Q. In Siwasiw? A. Yes, sir. From that place, according to the information given by the owner of the store, nobody had seen what is really happened to the victim, sir.

204 xxx xxx xxx Fiscal: Q. After you proceeded to the store and you have gathered that information, what transpired next in that store? Witness: A. Since there is an information that there were persons who were drinking at the said store, sir. Court: Q. Drinking wine you mean? Witness: A. Yes, sir. We exerted our efforts to look for these people, sir. Fiscal: Q. Have you ascertain the identities of the persons who were drinking at the store? Witness: A. The four (4) suspects were the four (4) accused now, Crisanto Baula, Danilo Dacocos, Ruben Baula and Robert Baula and they were the one engaged in this drinking spree at the said place, sir. Court: Q. All the accused? Witness: A. And some other unidentified persons, sir. Fiscal: Q. After you ascertain the four (4) accused and some other which were not identified were the one have drunk at the said store, what transpired next in your investigation? Witness: A. We tried to look for these persons, identified persons, sir. Court: Q. What happened? Witness: A. And we were able to locate them at their respective houses, sir. Fiscal: Q. Now, what transpired when you located the four (4) accused at their respective houses? Witness: A. We examined their persons if they are really drank at that time but the same no sign that they were drank but we made on suspicion that one of the accused to where we requested to present his clothes during the night that he wore during their engagement at the drinking spree in the store, sir. Court: Q. Who is this accused? Witness: A. I have not bring with me the record, sir. Fiscal: Q. Can you identify that suspect, if you can see him again? Witness: A. One of the Baulas, sir. Q. How many Baulas? A. Three (3), sir. Q. Can you identify by his face? Atty. Palma: Already testified, he cannot. Court: Q. You look at the accused? Witness: A. So far, as of now, I could not exactly identify him, sir, but the moment I could see on my records, I have to consult my record. Q. What record? A. The one presented our transmittal to the NBI, sir. Q. NBI, Dagupan City? A. Yes, sir.

205 Q. Regarding what? A. To determine as to whether the suspected bloodstains of the clothing that is of the victim, sir. xxx xxx xxx Fiscal: Q. Now, you said the clothing which you have requested from one of the accused Baula to give to you which he wore that evening when there was drinking spree in the store, now, what part of the clothing was stained with blood? Witness: A. I could no longer remember, sir. Q. Now, what else have you done after you had requested this one of the accused Baula to present his clothes wore at the night of the drinking spree? A. One of the persons who were engaged in the drinking spree was Danilo Dacocos, sir. We tried to look for him and we were able to see him at his hut almost one (1) kilometer away from the store, sir, and we were able to see one (1) bolo which was hang on the wall of the hut. Court: Q. Was the bolo has bloodstained? Witness: A. There is again a suspected bloodstain, sir, and that cause us to turn over for examination to the NBI, sir. Q. And this is one of the specimen you sent? A. Yes, sir. xxx xxx xxx Fiscal: Q. Now, tell us if there was occupants of this hut of Danilo Dacocos when you saw this bloodstain on that bolo? Witness: A. At the time we discovered the bolo there is no occupant but he was the one living at the said hut, sir. Q. Why do you know that it was Danilo Dacocos was the one living in that hut? A. During the interview he admitted that he is living there, sir. Q. Now, what transpired next after going to this hut of Danilo Dacocos? A. We took the bolo and sent to the NBI, sir.[31] (Emphasis supplied.) Clearly, the police officers acted on a mere suspicion that accused-appellants could be responsible for the commission of the crime and only because of their being at the store where the victim was last seen. Mere suspicion cannot satisfy the requirement of probable cause which signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person accused is guilty of the offense with which he can be charged.[32] An illegal search cannot be undertaken and then an arrest effected on the strength of the evidence yielded by that search.[33] The Court finds it less than credible the stance of the prosecution that the polo shirt and short pants have been voluntarily given. An alleged consent to a warrantless search and seizure cannot be based merely on the presumption of regularity in the performance of duty.[34] This presumption, by itself, cannot prevail against the constitutionally protected rights of an individual, and zeal in the pursuit of criminals cannot ennoble the use of arbitrary methods that the Constitution itself abhors.[35] WHEREFORE, the assailed Decision is REVERSED and SET ASIDE and all the accused-appellants are hereby ACQUITTED of the crime charged and ordered to be immediately released from custody unless detained for some other lawful reason. Costs de oficio. SO ORDERED.

206 EN BANC

[G.R. No. 136267. July 10, 2001]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FIDEL ABRENICA CUBCUBIN, JR., accusedappellant. DECISION MENDOZA, J.: This case is here on automatic review of the decision,[1] dated October 5, 1998, of the Regional Trial Court, Branch 88, Cavite City, finding accused-appellant Fidel Abrenica Cubcubin, Jr. guilty of murder and sentencing him to suffer the penalty of death. The information against accused-appellant alleged: That on or about August 26, 1997, in the City of Cavite, Republic of the Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, armed with an unlicensed homemade (paltik) Smith and Wesson caliber .38 revolver, with no serial number, with intent to kill, acting with treachery and evident premeditation and taking advantage of the darkness of [the] night, did, then and there, willfully, unlawfully, and feloniously, assault, attack and shoot with the aforesaid unlicensed firearm a certain HENRY PECHO PIAMONTE, hitting and inflicting upon the latter gunshot wounds in the head which caused the latters instantaneous death. CONTRARY TO LAW.[2] Accused-appellant pleaded not guilty to the charge, whereupon trial on the merits ensued. Eight witnesses were presented by the prosecution: police officers Florentino M. Malinao, Jr., Enrico A. Rosal, Raymundo D. Estoy, Jr., and Virgilio L. Pilapil, all of whom belong to the Cavite City Police Department; National Bureau of Investigation ballistician Isabelo D. Silvestre, Jr.; NBI Forensic Chemist II Juliet Gelacio-Mahilum; Dr. Regalado D. Sosa, City Health Officer II and City Medico-Legal Officer of the Department of Health (DOH) in Cavite City; and Danet D. Garcellano, a food server at the Sting Cafe in San Antonio, Cavite City. The testimony of Police Chief Inspector Edwin G. Nemenzo, Chief of the Records, Firearms and Explosives Division of the Philippine National Police (PNP) in Camp Crame, Quezon City, was dispensed with in view of his certification, dated October 7, 1997 (Exh. N),[3] that accused-appellant is not a licensed/registered holder of firearm of any kind and caliber. The prosecution evidence is to the following effect: At about 3:30 in the morning of August 26, 1997, Sgt. Rogel, desk officer of the Cavite City police station, received a telephone call that a person had been shot near the cemetery along Julian Felipe Boulevard in San Antonio, Cavite City. For this reason, a police team, composed of SPO1 Malinao, Jr., PO3 Rosal, PO3 Estoy, Jr., PO3 Manicio, and SPO3 Manalo, responded to the call and found Henry P. Piamonte slumped dead on his tricycle which was then parked on the road. Police photographer Fred Agana took pictures of the crime scene (Exhs. A, A-1, A-2, and A-3)[4] showing the victim slumped on the handle of the tricycle.[5] PO3 Rosal testified that a tricycle driver, who refused to divulge his name, told him that accused-appellant and the victim were last seen together coming out of the Sting Cafe, located in San Antonio near the gate of Sangley Point, Cavite City, about a kilometer and a half away from the crime scene. Forthwith, PO3 Rosal and SPO1 Malinao, Jr. went to the cafe and talked to Danet Garcellano, a food server/waitress in Sting Cafe.[6] The other policemen at the police station called up City Prosecutor Agapito Lu who also proceeded to Sting Cafe. Garcellano told the police investigators that she had seen accused-appellant arrive at Sting Cafe at about 12:00 midnight and drink beer; that at about 2:30 a.m., the victim arrived and joined accused-appellant; that the two stayed in the cafe until 3:30 a.m.; and that she did not know if they left together as she was serving other customers. Garcellano

207 described accused-appellant as a lean, dark-complexioned, and mustachioed man who had on a white tshirt and brown short pants.[7] Armando Plata, another tricycle driver, told PO3 Rosal and SPO1 Malinao, Jr. that Garcellanos description fitted a person known as alias Jun Dulce. Armando Plata, who knew where accusedappellant lived, led PO3 Rosal, SPO1 Malinao, Jr., and Prosecutor Lu to accused-appellants house in Garcia Extension, Cavite City. The policemen knocked on the door for about three minutes before it was opened by a man who answered the description given by Danet Garcellano and who turned out to be accused-appellant. The police operatives identified themselves and informed him that he was being sought in connection with the shooting near the cemetery. Accused-appellant denied involvement in the incident. PO3 Rosal and SPO1 Malinao, Jr. then asked permission to enter and look around the house.[8] SPO1 Malinao, Jr. said that upon entering the house, he noticed a white t-shirt, bearing the brand name Hanes (Exh. H)[9] and the name Dhenvher written in the inner portion of the shirts hemline, placed over a divider near the kitchen. Upon close examination, he said that he found it to be bloodied." When he picked up the t-shirt, two spent .38 caliber shells fell from it. PO3 Rosal stayed with accused-appellant while he conducted a search. They then took the t-shirt and the two bullet shells. SPO1 Malinao, Jr. then asked accused-appellant to go with them to Sting Cafe for purposes of identification. There, accused-appellant was positively identified by Danet Garcellano as the victims companion. The police investigators asked accused-appellant where the fatal gun was. SPO1 Malinao, Jr. said accused-appellant refused to tell him where he hid the gun so he sought his (accusedappellants) permission to go back to his house to conduct a further search. Thereupon, SPO1 Malinao, Jr., accompanied by Prosecutor Lu, PO3 Estoy, Jr., PO3 Manicio, SPO3 Manalo, and PO3 Rosal, proceeded thereto.[10] Inside the house, they saw accused-appellants 11-year old son Jhumar. PO3 Estoy, Jr. found on top of a plastic water container (drum) outside the bathroom a homemade Smith and Wesson caliber .38 revolver (six shooter), without a serial number (Exh. F). He found the gun loaded with five live bullets (Exhs. M, M-1, M-2, M-3, and M-4). PO3 Estoy, Jr. said that he inscribed his initials RDE (for Raymundo D. Estoy) on the cylinder of the gun with the use of a sharp object. While PO3 Estoy, Jr. was conducting the search, SPO1 Malinao, Jr. and PO3 Rosal stayed with accused-appellant in the sala.[11] The .38 caliber gun (Exhs. B, B-1),[12] the white Hanes t-shirt (Exhs. B-2, B-2-A, B-2-B),[13] and the two spent .38 caliber shells (Exhs. B-2, B-2-B)[14] were all photographed. Accused-appellant was then taken to the police station, where he was photographed (Exh. B-3)[15] along with the things seized from him. SPO4 Virgilio Pilapil, Chief Investigator of the Criminal Investigation Division, testified that on August 26, 1997, the case involving the killing of Henry Pecho Piamonte was forwarded to him by PO3 Rosal together with the evidence consisting of a bloodstained white Hanes t-shirt, a .38 revolver with five live ammunitions, and two deformed slugs. After an evaluation of the evidence, he formally filed a criminal complaint for murder against accused-appellant. He took blood samples of the victim and submitted the same to the NBI for laboratory examination.[16] Dr. Regalado Sosa, City Health Officer II and City Medico-Legal Officer of the Department of Health in Cavite City, conducted a postmortem examination of the cadaver and prepared an autopsy report (Exh. O)[17]which showed the following findings: AUTOPSY REPORT EXTERNAL FINDINGS: A medium built fair complexioned male adult human body in its cadaveric state with gunshot wounds . . . described as follows: = Gunshot wound, 1.5 cm. x 0.5 cm., oval in shape with powder burns more on top of the wound to 2.5 cms. elevation/height located at the angle of the right jaw and/or 5 cms. below the inferior level of the right ear. The wound has irregular and inverted borders. It is directed inwards fracturing the lower edge of the angle of the right mandible and the lead slug is embedded at the right lateral portion of the first (1st) cervical vertebrae hence extracted.

208 = Gunshot wound, 1 cm. in d[iameter] with inverted irregular borders located at the left frontal region 5 cms. above the temporal end of the left eyebrow. It is directed inwards and downwards fracturing the bone (frontal) underneath into [the] intracranial cavity.

INTERNAL FINDINGS: = = = = Presence of circular complete fracture, 0.8 cm. in d[iameter] at the left frontal region. The left frontal lobe of the brain is perforated and the frontal lobe is enveloped with liquid and clotted blood. The lead slug is found at the inner surface of the left frontal lobe. The right mandibular region was incised near the gunshot wound and the area is severely hematomatous and explored until a lead slug [was] found at the 1st cervical vertebrae at the right side. Stomach contains liquid and little rice and with alcoholic (beer) smell. Other internal organs are significantly normal.

= =

Slugs extracted: 1. 0.6 cm. in d[iameter] lead slug with one end is markedly deformed. The length of the slug is 1.6 cms. Note: One diagonal incised line was marked on the slug. 2. A 0.7 cm. in d[iameter] lead slug . . . roundly/ovally deformed [on] one end. The length of the slug is 1.8 cm. Note: Two diagonal incised lines [were] marked on the said slug. Dr. Sosa testified that the victim sustained two gunshot wounds (Exh. R),[18] the first one located on the right jaw below the ear while the second wound located at the left temporal side above the left eyebrow. The slug from the first gunshot wound remained at the base of the neck, near the spinal column. There were powder burns, called tatooing, surrounding the first wound which showed that the victim was shot point-blank. The second slug was also embedded at the front lobe of the brain.[19] Dr. Sosa indicated in the Certificate of Death (Exh. Q) that the victim died of shock secondary to severe intracranial hemorrhage due to multiple gunshot wounds.[20] Upon written request (Exh. C)[21] of Prosecutor Lu, the NBI conducted a ballistics examination to determine whether the two slugs taken from the body of the victim were fired from the firearm recovered from accused-appellant. Isabelo D. Silvestre, Jr., an NBI ballistician, conducted on September 10, 1997 a comparative examination of the two evidence bullets, marked as HPP-1 (Exh. E) and HPP-2 (Exh. E-1), which had been recovered from the victims head and the three test bullets (Exhs. G, G-1, G-2) fired from the seized .38 caliber firearm. The tests showed that the evidence bullets were fired from the subject firearm.[22] The empty shells from the three test bullets fired were duly marked (Exhs. G-3, G-4, G5). No photographs were taken. Silvestres findings were confirmed by four other NBI ballisticians: Chief Ballistician Rogelio Munar, Supervising Ballistician Ernie Magtibay, Senior Ballistician Elmer Pieded, and, Flor Landicho, another ballistician. The two .38 caliber empty shells recovered from accusedappellant were no longer examined.[23] Prosecutor Lu also made a written request (Exh. J)[24] for a laboratory examination of the bloodstains on the white Hanes t-shirt of accused-appellant to determine whether such were identical to the blood of the victim. Juliet Gelacio-Mahilum, NBI Forensic Chemist II, testified that on September 26, 1997, she conducted three kinds of laboratory examinations, namely, (a) benzidine test, to determine the presence of blood; (b) precipitin test, to determine if the bloodstains came from human or animal blood; and (c) ABO grouping test, to determine the blood group. When tested and matched together, the

209 bloodstained white Hanes t-shirt and the blood sample of the victim yielded positive results for human blood belonging to blood type O (Exh. K).[25] For its part, the defense presented accused-appellant himself, his son Jhumar, and his sister Yolanda Cubcubin Padua. Accused-appellant Fidel Abrenica Cubcubin, Jr. testified that he enlisted in the Philippine Constabulary as a soldier in 1974 but was discharged in 1977 for being AWOL. He said he left for Saudi Arabia where he worked as a driver and came back in 1979. He was later employed as a driver by a friend, who owned a junk shop in Cavite City. He admitted knowing the victim whom he addressed as Kuya. Accused-appellant testified that from 10:00 in the evening to 12:00 midnight of August 25, 1997, he and some friends played a card game called tong-its on Molina Street, Cavite City. Afterwards, he proceeded to the Sting Cafe where he had some drinks while waiting for food to be served. Henry Piamonte, a tricycle driver, arrived and had drinks with him. After a while, the victim left as a passenger was waiting to be given a ride. The victim came back to the restaurant before 1:00 a.m. and had another bottle of beer with accused-appellant. At about 1:30 a.m., the victim again left to transport another passenger. After that, the victim did not come back anymore.[26] Accused-appellant said he left Sting Cafe at about 2:00 a.m. and took a tricycle home to 1151 Garcia Extension, San Antonio, Cavite City. He was sleeping on the sofa in his bedroom when he was awakened by the arrival of three policemen, two of them he recognized as SPO1 Malinao, Jr. and PO3 Estoy, Jr., who pointed their guns at him and told him to lie face down. He said he was handcuffed while the policemen searched his room, turning the sala set upside down and opening the cabinets. His son, Jhumar, stood beside him. Before leaving, the policemen took from the clothes stand a white t-shirt belonging to his son Denver. Accused-appellant said that he did not ask them why they were searching the place as he was afraid they would maltreat him. He denied the claim of the policemen that the white t-shirt had blood stains. He claimed that the policemen did not have any search warrant nor a warrant of arrest when they took him into custody. Nor did they inform him of his constitutional right to remain silent and to be assisted by counsel. He also said that he was made to stay in a police patrol car for almost two hours before he was brought inside the police station. He denied owning the .38 caliber revolver presented to him by Prosecutor Lu and SPO4 Pilapil or that the same had been recovered from his house. He also denied the prosecutions claim that he was taken to the Sting Cafe where he was allegedly identified by Danet Garcellano as the person last seen with the victim before the latter was killed.[27] Jhumar Cubcubin, son of accused-appellant, testified that at about 4:00 in the morning of August 26, 1997, he was sleeping on the second floor of the house when he was roused from his sleep by loud knocks on the door. When he opened the door, he saw three policemen who were looking for his father. He told them that his father was not around, but he was shoved away. They proceeded upstairs to the room of his father where they took from the clothes stand a white Hanes t -shirt belonging to his brother Denver. They put his father in a police patrol car waiting outside. Jhumar immediately went to his aunt, Yolanda Cubcubin Padua, and reported to her what had happened. He went back to the house and saw some policemen still conducting a search. As the policemen were about to leave, a van with some other policemen on board arrived. They asked him where the water container was located. They went inside the house and, when they came out, one of them announced that he had found a gun, which was then photographed. Jhumar said that while his father was inside the police patrol car, his aunt was arguing with the policemen. At that instance, SPO1 Malinao, Jr. spread the tshirt and told Jhumars aunt Eto, puro dugo damit niya, although the t-shirt had no bloodstains. He said that he and his father never gave permission to the policemen to search their house.[28] Yolanda Cubcubin Padua, accused-appellants sister, testified that at about 5:30 in the morning of August 26, 1997, she was told by her nephew, Jhumar, that accused-appellant had been apprehended by some policemen. She and Jhumar then went to the police patrol car where she saw her brother in handcuffs. She said she protested to the policemen that there was no evidence that accused-appellant had killed the victim. Yolanda said she saw the confiscated white Hanes t-shirt, but she claimed the same did not have any bloodstain on it. She went back to her house to call up her mother in Gen. Trias, Cavite to let her know what had happened. She then went out to see accused-appellant and saw Jhumar, who told her that some policemen were searching accused-appellants house and found a gun.[29]

210 On October 5, 1998, the trial court rendered its decision finding accused-appellant guilty of murder. It based its finding on circumstantial evidence, to wit: (1) That Danet Garcellano, a waitress at the Sting Cafe, saw accused-appellant arrive at about 12:00 midnight of August 25, 1997 and drink beer, while the victim arrived at about 2:30 a.m. of August 26, 1997 and joined accused-appellant in drinking beer at the bar. She said that she served them beer and they stayed for about an hour, that the two later had an argument as accused-appellant wanted to have two more bottles of beer which the victim paid for, and that at about 3:30 a.m., the victim and accused-appellant left and boarded the victims tricycle; (2) That PO3 Rosal and SPO1 Malinao, Jr. testified that they saw the lifeless body of the victim, with bullet wounds on his head, slumped on the handle of his tricycle, that the crime scene was about 50 meters away from the house of accused-appellant, and that when they were told by an unidentified tricycle driver that the victim and accused-appellant were seen leaving the Sting Cafe together, they went to Sting Cafe and interviewed Danet Garcellano who described the appearance of the victims companion. Armando Plata, another tricycle driver who knew accused-appellant as the person being described by Garcellano, accompanied the policemen to the house of accused-appellant; (3) That after SPO1 Malinao, Jr. was allowed to enter the house, he found a white Hanes t-shirt with bloodstains on it and also recovered two spent .38 caliber shells; (4) That when accused-appellant was taken to the Sting Cafe, he was positively identified by Danet Garcellano as the victims companion moments prior to his death; (5) That when the investigators returned to the house of accused-appellant, PO3 Estoy, Jr. found a .38 caliber revolver placed on top of a plastic water container located outside the bathroom; (6) That laboratory examination conducted by the forensic chemist, Juliet Gelacio-Mahilum, showed that the bloodstains on the white Hanes t-shirt were human blood, type O, which matched the blood type of the victim; and (7) That per ballistic examination of NBI ballistician, Isabelo D. Silvestre, Jr., the two slugs recovered from the head of the victim were fired from the .38 caliber revolver seized from accused-appellants house. The trial court rejected accused-appellants alibi, giving full credence to the testimonies of Danet Garcellano and the police investigators whom it found to have no motive to falsely implicate accusedappellant. It admitted the prosecution evidence consisting of the white Hanes t-shirt, two spent shells, and the .38 caliber revolver, on the ground that these items had been seized as incident to a lawful arrest. It ruled that since Dr. Sosa testified that the victim was shot point-blank while on his tricycle and was not in a position to see the assailant, the qualifying circumstance of treachery was present, not to mention that the victim was unarmed and thus totally defenseless. The trial court theorized that while the victim was on his tricycle, the assailant went around and shot him on the left temple. It held that the use of an unlicensed firearm in killing the victim constituted an aggravating circumstance. Hence, the trial court found accused-appellant guilty of murder and accordingly imposed on him the penalty of death. Hence, this appeal. On April 18, 2000, the Court received a letter, dated April 5, 2000,[30] from Victoria Abrenica Dulce, mother of accused-appellant, with an attached affidavit of desistance entitled Sinumpaang Salaysay ng Pag-Uurong, dated November 14, 1997,[31] executed by Marilou B. Piamonte, widow of the victim, stating that accused-appellant had been mistakenly identified as the assailant, and, by reason thereof, sought the dismissal of the criminal case against him. In her letter, Dulce said that the affidavit of desistance was supposed to be submitted to the trial court prior to the presentation of the evidence for the prosecution, but, for unknown reasons, the same was not done by accused-appellants counsel. This affidavit of desistance, however, not being formally offered before the trial court, has no probative value. We now consider accused-appellants assignment of errors. First. Accused-appellant contends that his arrest, effected on August 26, 1997 without a warrant, was illegal. On this point, Rule 113, 5(b) of the 1985 Rules on Criminal Procedure, as amended, provides: 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;

211 (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. Under 5(b), two conditions must concur for a warrantless arrest to be valid: first, the offender has just committed an offense and, second, the arresting peace officer or private person has personal knowledge of facts indicating that the person to be arrested has committed it. It has been held that personal knowledge of facts in arrests without a warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion.[32] In this case, the arrest of accused-appellant was effected shortly after the victim was killed. The question, therefore, is whether there was probable cause for PO3 Rosal and SPO1 Malinao, Jr., the arresting officers, to believe that accused-appellant committed the crime. We hold that there was none. The two did not have personal knowledge of facts indicating that accused-appellant had committed the crime. Their knowledge of the circumstances from which they allegedly inferred that accused-appellant was probably guilty was based entirely on what they had been told by others, to wit: by someone who called the PNP station in San Antonio, Cavite City at about 3:30 in the morning of August 26, 1997 and reported that a man had been killed along Julian Felipe Boulevard of the said city; by an alleged witness who saw accused-appellant and the victim coming out of the Sting Cafe; by Danet Garcellano, waitress at the Sting Cafe, who said that the man last seen with the victim was lean, mustachioed, dark-complexioned and was wearing a white t-shirt and a pair of brown short pants; by a tricycle driver named Armando Plata who told them that the physical description given by Garcellano fitted accused-appellant, alias Jun Dulce and who said he knew where accused-appellant lived and accompanied them to accused-appellants house. Thus, PO3 Rosal and SPO1 Malinao, Jr. merely relied on information given to them by others. In an analogous case,[33] the police was informed that the accused was involved in subversive activities. On the basis of this information, the police arrested the accused and, in the course of the arrest, allegedly recovered an unlicensed firearm and some subversive materials from the latter. This Court held that the arresting officers had no personal knowledge since their information came entirely from an informant. It was pointed out that at the time of his arrest, the accused was not in possession of the firearm nor engaged in subversive activities. His arrest without a warrant could not be justified under 5(b). In another case,[34] the accused, in a case of robbery with rape, were arrested solely on the basis of the identification given by one of the victims. This Court held the arrest to be illegal for lack of personal knowledge of the arresting officers. More recently, in Posadas v. Ombudsman,[35] this Court, in declaring the arrest without warrant of two University of the Philippines students to be illegal, held: There is no question that this case does not fall under paragraphs (a) and (c). The arresting officers in this case did not witness the crime being committed. Neither are the students fugitives from justice nor prisoners who had escaped from confinement. The question is whether paragraph (b) applies because a crime had just been committed and the NBI agents had personal knowledge of facts indicating that [the students] were probably guilty. .... [T]he NBI agents in the case at bar tried to arrest [the students] four days after the commission of the crime. They had no personal knowledge of any fact which might indicate that the two students were probably guilty of the crime. What they had were the supposed positive identification of two alleged eyewitnesses, which is insufficient to justify the arrest without a warrant by the NBI. Indeed, at the time [the victim] was killed, these [NBI] agents were nowhere near the scene of the crime. When [the NBI agents] attempted to arrest [the students], the latter were not committing a crime nor were they doing anything that would create the suspicion that they were doing anything illegal. On the contrary, [they], under the supervision of the U.P. police, were taking part in a peace talk called to put an end to the violence on the campus.

212 Nor can it be argued that the arresting officers had probable cause to believe accused-appellant to be guilty of the killing of the victim because they found a bloodstained t-shirt, a .38 caliber revolver, and two spent .38 caliber shells in his house. At the time accused-appellant was arrested, he was not doing anything overtly criminal. The alleged discovery of the gun came after his arrest. Moreover, as will presently be explained, the objects allegedly seized from accused-appellant were illegally obtained without a search warrant. Be that as it may, accused-appellant cannot now question the validity of his arrest without a warrant. The records show that he pleaded not guilty to the charge when arraigned on November 11, 1997. It is true that on August 28, 1997, he filed a petition for reinvestigation in which he alleged that he had been illegally detained without the benefit of a warrant of arrest. In its order, dated September 9, 1997, the trial court granted his motion and ordered the City Prosecutor to conduct a preliminary investigation and submit his findings within thirty (30) days thereof.[36] On October 7, 1997, City Prosecutor Agapito S. Lu moved for the resetting of accused-appellants arraignment from October 8, 1997 to the first week of November, 1997 on the ground that the findings on the laboratory and ballistics examinations had not yet been received from the NBI.[37]Accused-appellant did not object to the arraignment. The City Prosecutors request was, therefore, granted and the arraignment was reset to November 11, 1997.[38] Nor did accused-appellant move to quash the information on the ground that his arrest was illegal and, therefore, the trial court had no jurisdiction over his person. Instead, on November 11, 1997, at the scheduled arraignment, accused-appellant, with the assistance of counsel, pleaded not guilty to the charge.[39] On the same day, the trial court issued an order stating that, as a result of accused-appellants arraignment, his motion for preliminary investigation had become moot and academic and, accordingly, set the case for trial.[40] Accused-appellant thus waived the right to object to the legality of his arrest.[41] Second. Accused-appellant contends that neither he nor his son gave permission to the arresting police officers to search his house and, therefore, the Hanes t-shirt, the two spent slugs, and the .38 caliber revolver allegedly found in his house are inadmissible in evidence. The prosecution, on the other hand, insists that accused-appellant consented to the search of his house. To be sure, the right against unreasonable searches and seizures is a personal right which may be waived expressly or impliedly. But a waiver by implication cannot be presumed. There must be persuasive evidence of an actual intention to relinquish the right. A mere failure on the part of the accused to object to a search cannot be construed as a waiver of this privilege. For as Justice Laurel explained in Pasion Vda de Garcia v.Locsin,[42] As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officers authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not consent or an invitation thereto, but is merely a demonstration or regard for the supremacy of the law. Because a warrantless search is in derogation of a constitutional right, peace officers who conduct it cannot invoke regularity in the performance of official functions and shift to the accused the burden of proving that the search was unconsented. It is noteworthy that the testimonies of the two prosecution witnesses, SPO1 Malinao, Jr. and PO3 Rosal, on the search show laborious effort to emphasize that accused-appellant gave them permission to search his house. At every turn, even when they were not being asked, they said the search was made with the consent of the accused. As Shakespeare would put it, the lady doth protest too much, methinks. Indeed, not only does accused-appellant stoutly deny that he ever consented to the search of his dwelling but the prosecution has not shown any good reason why accused-appellant might have agreed to the search. The prosecution says the search can be justified as incidental to a valid arrest. Even assuming the warrantless arrest to be valid, the search cannot be considered an incident thereto. A valid arrest allows only the seizure of evidence or dangerous weapons either in the person of the one arrested or within the area of his immediate control. The rationale for such search and seizure is to prevent the person arrested either from destroying evidence or from using the weapon against his captor. It is clear that the warrantless search in this case cannot be justified on this ground. For neither the t-shirt nor the gun was within the area of accused-appellants immediate control. In fact, according to the rosecution, the police found the gun only after going back to the house of accused-appellant. Nor can the warrantless search in this case be justified under the plain view doctrine. As this Court held in People v. Musa:[43]

213 The plain view doctrine may not, however, be used to launch unbridled searches and indiscriminate seizures nor to extend a general exploratory search made solely to find evidence of defendants guilt. The plain view doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. [Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed. 2d 564 (1971)] Furthermore, the U.S. Supreme Court stated the following limitations on the application of the doctrine: What the plain view cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the plain view doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. [Id., 29 L.Ed. 2d 583. See also Texas v. Brown, 460 U.S. 730, 75 L. Ed. 2d 502 (1983)] Here, the search of accused-appellants house was illegal and, consequently, the things obtained as a result of the illegal search, i.e., the white Hanes t-shirt, two spent shells, and the .38 caliber gun, are inadmissible in evidence against him. It cannot be said that the .38 caliber gun was discovered through inadvertence. After bringing accused-appellant to the Sting Cafe where he was positively identified by a waitress named Danet Garcellano as the victims companion, the arresting officers allegedly asked accused-appellant where he hid the gun used in killing the victim. According to SPO1 Malinao, Jr., when accused-appellant refused to answer, he sought accused-appellants permission to go back to his house and there found the .38 caliber revolver on top of a plastic water container outside the bathroom. Thus, the gun was purposely sought by the police officers and they did not merely stumble upon it. Nor were the police officers justified in seizing the white Hanes t-shirt placed on top of the divider in plain view as such is not contraband nor is it incriminating in nature which would lead SPO1 Malinao, Jr. to conclude that it would constitute evidence of a crime. Contrary to what SPO1 Malinao, Jr. said, the t-shirt was not bloodied which could have directed his attention to take a closer look at it. From the photograph of the t-shirt (Exh. B-2), it is not visible that there were bloodstains. The actual t-shirt (Exh. H) merely had some small specks of blood at its lower portion. Third. There is no evidence to link accused-appellant directly to the crime. Danet Garcellano said that accused-appellant arrived at about midnight of August 25, 1997; that the victim joined him at about 2:30 a.m.; and that although both left the Sting Cafe at about 3:30 a.m., she really did not know if they left together. Thus, Danet testified: PROSECUTOR LU: .... Q A Q A Were they together when they left Sting Cafe or they left one after the other? When they were already bringing along with them the two bottles of beer, they talked and afterwards, I already left them and I served the other customers. Did you actually see Henry Piamonte leave the Sting Cafe? They were about to leave already at that time because they were already bringing with them the two bottles of beer, Sir. But did you see Henry Piamonte actually leave the Sting Cafe? When Henry Piamonte left the Sting Cafe, Henry boarded a tricycle, Sir. How about Cubcubin, how did he leave the Sting Cafe? He followed Henry, Sir. How did he follow Henry, on foot, on board a vehicle or what? I do not know anymore, Sir, because I already served the other customers inside.[44]

Q A Q A Q A .... On cross-examination, Danet said: ATTY. BAYBAY: Q When he left, he left alone? A I do not know anymore, Sir, because I already served inside.

214 Q A Are you saying to us that you did not see him when he left? No, Sir, what I know is that he and Cubcubin were together because of the two bottles of beer which were paid by Piamonte inside, Sir.

Q A Q A Q A

.... ATTY. BAYBAY: Q The accused Fidel Cubcubin left Sting Cafe at 3:30? A Yes, Sir. Q Now, how could you be sure of the time when you were serving other people at that time? A That is only my estimation, Sir. Q You only estimated? A Yes, Sir. And, what was the basis of your estimation? Because at that time there were only few customers in that place, Sir. So, you are not really sure what time Fidel Cubcubin left? Yes, Sir. You also did not see him leave? No, Sir.[45]

In People v. Gallarde,[46] it was explained that positive identification refers essentially to proof of identity and not per se to that of being an eyewitness to the very act of commission of the crime. A witness may identify a suspect or accused in a criminal case as the perpetrator of the crime. This constitutes direct evidence. Or, he may not have actually seen the crime committed, but is nevertheless able to identify a suspect or accused as the perpetrator of the crime, as when the latter is the person or one of the persons last seen with the victim immediately before and right after the commission of the crime. This is the second type of positive identification, which, when taken together with other pieces of evidence constituting an unbroken chain, leads to a fair and reasonable conclusion that the accused is the author of the crime to the exclusion of all others. This rule, however, cannot be applied in the present case because Danet Garcellano did not actually see accused-appellant and the victim leave the Sting Cafe together. There is thus serious doubt as to whether accused-appellant was really the last person seen with the victim. Her testimony is insufficient to place accused-appellant in the scene of the crime so as to form part of the chain of circumstantial evidence to show that accused-appellant committed the crime. Suspicion alone is insufficient, the required quantum of evidence being proof beyond reasonable doubt.[47] Nor is there adequate evidence to prove any ill motive on the part of accused-appellant. Accusedappellant testified that he could not have killed the victim because the latter was his friend whom he considered his kuya or elder brother.[48] There is no showing that the killing of the victim was by reason of a supposed altercation they had as to who would pay for the two bottles of beer ordered while they were at the Sting Cafe. The beer was later paid for by the victim. Motive is proved by the acts or statements of the accused before or immediately after the commission of the offense, i.e., by deeds or words that may express the motive or from which his reason for committing the offense may be inferred.[49] Rule 133, 4 of the Revised Rules on Evidence requires the concurrence of the following in order to sustain a conviction based on circumstantial evidence: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. In the case at bar, there are serious doubts as to whether the crime was committed by accusedappellant in view of the following: (1) As already stated, Danet Garcellano, a waitress at the Sting Cafe, did not actually see accused-appellant and the victim leaving the cafe together at about 3:30 a.m. of August 26, 1997; (2) PO3 Rosal and SPO1 Malinao, Jr. testified that when they arrived at the scene of the crime, they were informed by a tricycle driver that the victim and the accused-appellant had earlier left the Sting Cafe together, but the tricycle driver was not presented to confirm this fact; (3) SPO1 Malinao, Jr. testified that the white Hanes t-shirt was bloodied, but the evidence shows that it had some bloodstains only on its lower portion (Exh. H), while the photograph of the t-shirt (Exhs. B-2, B-2-A, B-2B), supposedly taken at the time of the search, shows that it had no bloodstains and this discrepancy was not explained by SPO1 Malinao, Jr.; (4) The fact that the t-shirt was tested positive for type O blood does not necessarily mean that the bloodstains came from the victim who also had a type O blood; (5) Accused-appellant was never given a paraffin test to determine if he was positive for

215 gunpowder nitrates; (8) The .38 caliber gun allegedly found in his house was not examined for the possible presence of accused-appellants fingerprints; and (9) The allegation that the gun was placed on top of a water container in accused-appellants house is unbelievable as it is improbable that accusedappellant could be so careless as to leave the fatal weapon there when he could have hidden it or thrown it away. Nor can we rest easy on the prosecutions claim as to where the two empty shells and the t -shirt were allegedly found. SPO1 Malinao, Jr. testified that these were placed beside the white Hanes tshirt and fell when he took the shirt. On direct examination, SPO1 Malinao, Jr. said: PROSECUTOR LU: What else did you tell Cubcubin at that time? We asked him to allow us to go inside the house and he let us go inside the house, then after entering the same, while we were in the sala near the kitchen we saw the white Hanes t-shirt there, Sir, that was near the kitchen. Q Where exactly was the white t-shirt placed at that time when you saw the same? A Because after entering the house you will see the entire portion of that house and there is a table there and that t-shirt was placed on the table. Q Was that t-shirt visible from the front door of the house? A Yes, Sir. Q Can you describe to us the t-shirt that you saw? A Before I got the t-shirt, I even asked his permission for me to be able to get the t-shirt, Sir, and he even gave me the permission to get the same, after getting the t-shirt there were even 2 empty shells which fell, and I saw the t-shirt was with blood stains. Q This white t-shirt, can you tell us the brand of the t-shirt? A Hanes, Sir. Q How about the blood spot or blood stains, can you tell us how many, if you can remember? A We were in a hurry, I did not count the blood stains anymore but there were blood stains on the t-shirt, Sir. Q How about these 2 empty shells that fell when you lifted the t-shirt, can you describe to us these 2 empty shells? A Empty shells of .38 cal. bullets, Sir. Q What did you do with the empty shells? A I got the t-shirt as well as the 2 empty shells and I showed them to him, Sir.[50] However, on cross-examination, he said he found the empty shells on top of a cabinet (tokador) in the bedroom on the second floor of the house. Thus, he testified: ATTY. BAYBAY: Q Where was this t-shirt again when you first saw it? A In the kitchen area, Sir. Q Where in the kitchen area, on the floor or on the wall? A It was immediately in front of the door because the house has no divider anymore, Sir. Q And that t-shirt was immediately near the door, on the floor? A Yes, Sir. Q What did you do after that, when you saw the t-shirt there? A I asked his permission so that I could take a look at the t-shirt, Sir. Q And you said, you looked at it? A Yes, Sir. Q When you said, you looked at it, how did you look at it? A I spread it out in front of him, Sir. Q And when you spread it out in front of him, did you ask him whose t-shirt is it? A I asked him if that t-shirt belongs to him, Sir. Q What did he say? A According to him, the t-shirt does not belong to him, Sir. Q You also testified that you found two empty shells? A Yes, Sir. Q Where did you find these two empty shells? A From the bedroom upstairs, Sir. Q Bedroom upstairs? A Yes, Sir. Q A

216 Q A Q A Q A Q A Q A Q A You mean, it is a two-storey house? Yes, Sir, there is a bedroom upstairs. You found it when you went up? I first asked his permission to look around inside the house, Sir, because I was asking him also about the whereabouts of the firearm he had. And he allowed you? He allowed me, sir. And when you went upstairs, you found the two empty shells? Yes, Sir, they were placed on their tokador on a place where there is a curtain. In your previous testimony and this is found on page 41 of the TSN, you stated that you got the tshirt and when you lifted the t-shirt, two empty shells fell off? After finding the two empty shells for a .38 caliber, Sir, I placed them together with the t-shirt. What you are telling us now is that you went upstairs, you found two empty shells and you put them together with the t-shirt, that is what you are telling us now? After finding and taking a look at the t-shirt, I put it on the original place where it was, Sir, and after finding the two empty shells, it so happened that the investigator was behind me so after that, I showed to him the t-shirt as well as the empty shells.[51] .... Also in your previous testimony, you got the t-shirt and you asked the permission to get the tshirt, after getting the t-shirt, there were 2 empty shells which fell. The question is, do you remember that this happened? These two empty shells which I recovered upstairs, sir, I placed them on top of the t-shirt. You said, when you got the t-shirt, something fell, in your direct testimony? While Fidel Cubcubin was just beside me, Sir, I got the t-shirt, I spread it out and nothing fell yet at that time, then I asked him about the firearm that he used.

A Q A

.... Q Do you remember having been asked this particular question: Q Can you describe to us the t-shirt that you saw? A Before I got the t-shirt I even asked his permission for me to be able to get the t-shirt, Sir, and he even gave me the permission to get the same, after getting the t-shirt there were even 2 empty shells which fell, and I saw the t-shirt was with blood stains. A Yes, Sir, I remember it. Q I am just referring to two empty shells that fell, which you said, is that true? A Yes, Sir, there were empty shells that fell, but I first placed them on top of the t-shirt because I was planning to wrap these empty shells in the t-shirt. Q You also testified here on page 40 that the t-shirt was visible from the front door of the house, is that true? A Yes, Sir. Q And you were referring to the time that you entered the house? A Yes, Sir. Q And that was the time that you lift[ed] the t-shirt when you saw it and you got it? A What I said before was that, I got the t-shirt, I lifted it, after that, I placed it on its original place, Sir, and I asked him about the firearm but he was not commenting anything on that, so I asked permission from him to go upstairs to look around. Q When you said you placed that from the place where you found it, how did you put it on the place where you found it? A I placed it there the way I saw it before, the way it was previously placed there, Sir, because I was planning to bring the t-shirt.[52] Thus, caught in his own contradiction, SPO1 Malinao, Jr. prevaricated but in the process committed more contradictions. He said he found the empty shells on top of the tokador on the second floor of the house, brought them downstairs, and then placed them on the t-shirt. When he got the t-shirt, the empty shells fell on the floor. But how could he have gotten the shells from the second floor if, according to him, he found them by accident when they fell from the t-shirt which he found immediately after entering accused-appellants house and before going up to the second storey? It is also noteworthy that whereas at first SPO1 Malinao, Jr. said he found the t-shirt placed on the table near the kitchen, he later said he found it on the floor.

217 WHEREFORE, the decision of the Regional Trial Court, Branch 88, Cavite City, finding accusedappellant Fidel Abrenica Cubcubin, Jr. guilty of the crime of murder, is REVERSED and accused-appellant is hereby ACQUITTED on the ground of reasonable doubt. Accused-appellant is ordered immediately released from custody unless he is being held for some other lawful cause. The Director of Prisons is directed to implement this Decision and to report to the Court the action taken hereon within five (5) days from receipt hereof. SO ORDERED.

218 Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 95902 February 4, 1992 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DON RODRIGUEZA, accused-appellant. The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant.

REGALADO, J.: On appeal before us is the decision of the Regional Trial Court of Legaspi City, Branch 10, finding accused-appellant Don Rodrigueza guilty beyond reasonable doubt of violating Section 4, Article II of the Dangerous Drugs Act of 1972 (Republic Act No. 6425, as amended) and sentencing him to suffer the penalty of life imprisonment and to pay a fine of P20,000.00 and costs. 1 However, the Solicitor General, deviating from his conventional stance in the prosecution of criminal cases, recommends the acquittal of appellant for the reasons stated in his Manifestation for Acquittal (In Lieu of Appellee's Brief) filed with the Court. We have reviewed and analyzed the testimonial and documentary evidence in this case and we find said recommendation to be well taken. The information, dated July 10, 1987, charges Don Rodrigueza and his co-accused, Samuel Segovia and Antonio Lonceras, with allegedly having in their custody and possession 100 grams of marijuana leaves and for selling, in a buy-bust operation, said 100 grams of dried marijuana leaves for a consideration of P200.00. 2 During the arraignment, all the accused pleaded not guilty to the charge against them. At the trial, the prosecution and the defense presented several witnesses after which the court a quo rendered judgment acquitting Samuel Segovia and Antonio Lonceras but convicting and penalizing herein appellant as hereinbefore stated. The following facts are culled from the decision of the trial court and the evidence presented by the prosecution. At around 5:00 o'clock in the afternoon of July 1, 1987, CIC Ciriaco Taduran was in their headquarters at the Office of the Narcotics Regional Unit at Camp Bagong Ibalon, Legaspi City, together with S/Sgt. Elpidio Molinawe, CIC Leonardo B. Galutan and their commanding officer, Major Crisostomo M. Zeidem, when a confidential informer arrived and told them that there was an ongoing illegal traffic of prohibited drugs in Tagas, Daraga, Albay. Major Zeidem formed a team to conduct a buy-bust operation, which team was given P200.00 in different denominations to buy marijuana. These bills were treated with ultraviolet powder at the Philippine Constabulary Crime Laboratory (PCCL). Sgt. Molinawe gave the money to Taduran who acted as the poseur buyer. He was told to look for a certain Don, the alleged seller of prohibited drugs. Taduran went to Tagas alone and, while along the road, he met Samuel Segovia. He asked Segovia where be could find Don and where he could buy marijuana. Segovia left for a while and when be returned, he was accompanied by a man who was later on introduced to him as Don, herein appellant. 3

219 After agreeing on the price of P200.00 for 100 grams of marijuana, Don halted a passing tricycle driven by Antonio Lonceras. He boarded it and left Taduran and Segovia. When he came back, Don gave Taduran "a certain object wrapped in a plastic" which was later identified as marijuana, and received payment therefor. Thereafter, Taduran returned to the headquarters and made a report regarding his said purchase of marijuana. 4 Based on that information, Major Zeidem ordered a team to conduct an operation to apprehend the suspects. In the evening of the same date, CIC Galutan and S/Sgt. Molinawe proceeded to Regidor Street, Daraga, Albay and arrested appellant, Antonio Lonceras and Samuel Segovia. The constables were not, however, armed with a warrant of arrest when they apprehended the three accused. The arrestees were brought to the headquarters for investigation. 5 Thereafter, agents of the Narcotics Command (NARCOM) conducted a raid in the house of Jovencio Rodrigueza, father of appellant. Taduran did not go with them. During the raid, they were able to confiscate dried marijuana leaves and a plastic syringe, among others. The search, however, was not authorized by any search warrant. 6 The next day, July 2, 1987, Jovencio Rodrigueza was released from detention but appellant was detained. An affidavit, allegedly taken from and executed by him, was sworn to by him before the assistant city prosecutor. Appellant had no counsel when his sworn statement was taken during that custodial investigation. The arrestees were also examined by personnel of the PCCL and were found positive for ultraviolet powder. 7 The three accused presented different versions of their alleged participations. Samuel Segovia testified that he was in their house in the evening of July 1, 1987 listening to the radio. Later, he ate his merienda and then went out to buy cigarettes from the store. While he was at the store, a jeep stopped behind him. Several armed men alighted therefrom and ordered him to get inside the jeep. He refused but he was forced to board the vehicle. He was even hit by the butt of a gun. 8 He was thereafter brought to Camp Bagong Ibalon where he was investigated and was repeatedly asked regarding the whereabouts of Rodrigueza. He was manhandled by the NARCOM agents and was detained while inside the camp. He was then made to hold a P10.00 bill treated with ultraviolet powder. When he was taken to the PCCL and examined he was found positive of the ultraviolet powder. He was also made to sign some papers but he did not know what they were all about. 9 Appellant, on the other hand, testified that on said date he was in the house of his aunt in San Roque, Legaspi City. He stayed there overnight and did not leave the place until the next day when his brother arrived and told him that their father was taken by some military men the preceding night. Appellant went to Camp Bagong Ibalon and arrived there at around 8:00 o'clock in the morning of July 2, 1987. When he arrived, he was asked if he knew anything about the marijuana incident, to which question he answered in the negative. Like Segovia, he was made to hold a P10.00 bill and was brought to the crime laboratory for examination. From that time on, he was not allowed to go home and was detained inside the camp. He was also tortured in order to make him admit his complicity in the alleged sale of marijuana. 10 In the assignment of errors in his brief, appellant contends that the trial court erred in (1) admitting in evidence the sworn statement of appellant which was obtained in violation of his constitutional rights; (2) convicting appellant of the crime charged despite the fact that the 100 grams of dried marijuana leaves allegedly bought from him were not properly identified; (3) convicting appellant of the crime charged despite the fact that the evidence for the prosecution is weak and not convincing; and (4) finding appellant guilty beyond reasonable doubt of selling or at least acting as broker in the sale of the 100 grams of marijuana to CIC Taduran late in the afternoon of July 1, 1987, despite the failure of the prosecution to prove his guilt beyond reasonable doubt. 11 We rule for the appellant and approve the recommendation for his acquittal. In disposing of this case, however, we feel that the issues raised by appellant should properly be discussed seriatim.

220 1. A buy-bust operation is a form of entrapment employed by peace officers to trap and catch a malefactor in flagrante delicto. 12 Applied to the case at bar, the term in flagrante delicto requires that the suspected drug dealer must be caught redhanded in the act of selling marijuana or any prohibited drug to a person acting or posing as a buyer. In the instant case, however, the procedure adopted by the NARCOM agents failed to meet this qualification. Based on the very evidence of the prosecution, after the alleged consummation of the sale of dried marijuana leaves, CIC Taduran immediately released appellant Rodrigueza instead of arresting and taking him into his custody. This act of CIC Taduran, assuming arguendo that the supposed sale of marijuana did take place, is decidedly contrary to the natural course of things and inconsistent with the aforestated purpose of a buy-bust operation. It is rather absurd on his part to let appellant escape without having been subjected to the sanctions imposed by law. It is, in fact, a dereliction of duty by an agent of the law. 2. The admissibility of the sworn statement allegedly executed by appellant was squarely placed in issue and, as correctly pointed out by the defense, said sworn statement is inadmissible in evidence against appellant. We have once again to reiterate and emphasize that Article III of the 1987 Constitution provides: Sec. 12 (1). Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have a competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. xxx xxx xxx (3) Any confession or admission obtained in violation of this or section 17 hereof shall be inadmissible in evidence against him. An examination of said sworn statement shows that appellant was informed of his constitutional right to remain silent and to be assisted by counsel during custodial examination. He was also asked if he was waiving his right to be assisted by counsel and he answered in the affirmative. However, while the rights of a person under custodial investigation may be waived, such waiver must be made not only voluntarily, knowingly and intelligently but also in the presence and with the assistance of counsel. 13 In the present case, the waiver made by appellant being without the assistance of counsel, this omission alone is sufficient to invalidate said sworn statement. 14 3. Corollary to this, we take cognizance of the error of the trial court in admitting in evidence against appellant the articles allegedly confiscated during the raid conducted in the house of Jovencio Rodrigueza. As provided in the present Constitution, a search, to be valid, must generally be authorized by a search warrant duly issued by the proper government authority. 15 True, in some instances, this Court has allowed government authorities to conduct searches and seizures even without a search warrant. Thus, when the owner of the premises waives his right against such incursion; 16 when the search is incidental to a lawful arrest; 17 when it is made on vessels and aircraft for violation of customs laws; 18 when it is made on automobiles for the purpose of preventing violations of smuggling or immigration laws; 19 when it involves prohibited articles in plain view; 20 or in cases of inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations,21 a search may be validly made even without a search warrant. In the case at bar, however, the raid conducted by the NARCOM agents in the house of Jovencio Rodrigueza was not authorized by any search warrant. It does not appear, either, that the situation falls under any of the aforementioned cases. Hence, appellant's right against unreasonable search and seizure was clearly violated. The NARCOM agents could not have justified their act by invoking the urgency and necessity of the situation because the testimonies of the prosecution witnesses reveal that

221 the place had already been put under surveillance for quite some time. Had it been their intention to conduct the raid, then they should, because they easily could, have first secured a search warrant during that time. 4. The Court further notes the confusion and ambiguity in the identification of the confiscated marijuana leaves and other prohibited drug paraphernalia presented as evidence against appellant. CIC Taduran, who acted as the poseur buyer, testified that appellant sold him 100 grams of dried marijuana leaves wrapped in a plastic bag. Surprisingly, and no plausible explanation has been advanced therefor, what were submitted to and examined by the PCCL and thereafter utilized as evidence against the appellant were the following items: One (1) red and white colored plastic bag containing the following: Exh. "A"Thirty (30) grams of suspected dried marijuana fruiting tops contained inside a transparent plastic bag. Exh. "B" Fifty (50) grams of suspected dried marijuana leaves and seeds contained inside a white colored plastic labelled "Robertson". Exh. "C" Four (4) aluminum foils each containing suspected dried marijuana fruiting tops having a total weight of seven grams then further wrapped with a piece of aluminum foil. Exh. "D" Five (5) small transparent plastic bags each containing suspected dried marijuana fruiting tops having a total weight of seventeen grams. Exh. "E" One plastic syringe. 22 Evidently, these prohibited articles were among those confiscated during the so-called follow-up raid in the house of Jovencio Rodrigueza. The unanswered question then arises as to the identity of the marijuana leaves that became the basis of appellant's conviction. 23 In People vs. Rubio, 24 this Court had the occasion to rule that the plastic bag and the dried marijuana leaves contained therein constitute the corpus delicti of the crime. As such, the existence thereof must be proved with certainty and conclusiveness. Failure to do so would be fatal to the cause of the prosecution. 5. It is accepted that, as a rule, minor inconsistencies in the testimony of a witness will not affect his credibility. It even enhances such credibility because it only shows that he has not been rehearsed. 25 However, when the inconsistencies pertain to material and crucial points, the same detract from his overall credibility. The exception, rather than the rule, applies in the case at bar. As correctly pointed out by the Solicitor General, the testimonies of the prosecution witnesses are tainted with serious flaws and material inconsistencies rendering the same incredible. 26 CIC Taduran, in his testimony, said that they had already been conducting surveillance of the place where the buy-bust operation was to take place. It turned out, however, that he did not even know the exact place and the identity of the person from whom he was to buy marijuana leaves. Thus: FISCAL TOLOSA Q What place in Tagas were you able to go (to)? WITNESS A I am not actually familiar in (sic) that place, in Tagas, although we occasionally passed there.

222 Q Now, upon your arrival in Tagas, what did you do that afternoon? A I waited for the suspect because previously, we have already been conducted (sic) surveylance (sic) in the vicinity. Q Upon arrival in Tagas, were you able to see the suspect? A By the road, sir. Q Who was the first person did you see (sic) when you arrived at Tagas? A The first person whom I saw is Samuel Segovia. Q Were you able to talk with this Samuel Segovia? A According to him, we could get some. 27 The same findings go for the testimony of witness Galutan. In his direct examination, he declared that they arrested the three accused all at the same time on the fateful night of July 1, 1987. But, in his crossexamination and as corroborated by the Joint Affidavit of Arrest 28 submitted by him and Molinawe, it appeared that Lonceras and Segovia were arrested on different times and that appellant Don Rodrigueza was not among those who were arrested. Instead, it was Jovencio Rodrigueza, Don's father, who was picked up at a much later time. With said inconsistencies in sharp focus, we are constrained to give more credibility to the testimony of appellant Rodrigueza. While it is true that appellant's defense amounts to an alibi, and as such is the weakest defense in a criminal prosecution, there are, nonetheless, some evidentiary aspects pointing to the truth in his testimony. Firstly, the Joint Affidavit of Arrest corroborates his testimony that he was not among those who were arrested on the night of July 1, 1987. His co-accused Segovia also testified that appellant Rodrigueza was not with them when they were apprehended by the NARCOM agents. Secondly, the apparent motive of the NARCOM agents in prosecuting the accused was also revealed during the trial of the case. Rebuttal witnesses Gracita Bahillo, sister of appellant, and Hospicio Segovia, father of Samuel Segovia, testified that Sgt. Molinawe, who has since been reportedly dismissed from the service, asked for P10,000.00 from each of them in exchange for the liberty of the accused. 29 This allegation was never refuted by the prosecution. Hence, the rule laid down by this Court that the statements of prosecution witnesses are entitled to full faith and credit 30 has no application in the case at bar. Finally, the Court has repeatedly ruled that to sustain the conviction of the accused, the prosecution must rely on the strength of its own evidence and not on the weakness of the defense. 31 As clearly shown by the evidence, the prosecution has failed to establish its cause. It has not overcome the presumption of innocence accorded to appellant. This being the case, appellant should not be allowed to suffer for unwarranted and imaginary imputations against him. WHEREFORE, the judgment of conviction of the court below is hereby REVERSED and SET ASIDE and accused-appellant Don Rodrigueza is hereby ACQUITTED of the crime charged. It is hereby ordered that he be immediately released from custody unless he is otherwise detained for some other lawful cause. SO ORDERED.

223 Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 101837 February 11, 1992 ROLITO GO y TAMBUNTING, petitioner, vs. THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168, Regional Trial Court, NCJR Pasig, M.M., and PEOPLE OF THE PHILIPPINES, respondents.

FELICIANO, J.: According to the findings of the San Juan Police in their Investigation Report, 1 on 2 July 1991, Eldon Maguan was driving his car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra St. Petitioner entered Wilson St., where it is a one-way street and started travelling in the opposite or "wrong" direction. At the corner of Wilson and J. Abad Santos Sts., petitioner's and Maguan's cars nearly bumped each other. Petitioner alighted from his car, walked over and shot Maguan inside his car. Petitioner then boarded his car and left the scene. A security guard at a nearby restaurant was able to take down petitioner's car plate number. The police arrived shortly thereafter at the scene of the shooting and there retrieved an empty shell and one round of live ammunition for a 9 mm caliber pistol. Verification at the Land Transportation Office showed that the car was registered to one Elsa Ang Go. The following day, the police returned to the scene of the shooting to find out where the suspect had come from; they were informed that petitioner had dined at Cravings Bake Shop shortly before the shooting. The police obtained a facsimile or impression of the credit card used by petitioner from the cashier of the bake shop. The security guard of the bake shop was shown a picture of petitioner and he positively identified him as the same person who had shot Maguan. Having established that the assailant was probably the petitioner, the police launched a manhunt for petitioner. On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify news reports that he was being hunted by the police; he was accompanied by two (2) lawyers. The police forthwith detained him. An eyewitness to the shooting, who was at the police station at that time, positively identified petitioner as the gunman. That same day, the police promptly filed a complaint for frustrated homicide 2 against petitioner with the Office of the Provincial Prosecutor of Rizal. First Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed petitioner, in the presence of his lawyers, that he could avail himself of his right to preliminary investigation but that he must first sign a waiver of the provisions of Article 125 of the Revised Penal Code. Petitioner refused to execute any such waiver. On 9 July 1991, while the complaint was still with the Prosecutor, and before an information could be filed in court, the victim, Eldon Maguan, died of his gunshot wound(s). Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide, filed an information for murder 3 before the Regional Trial Court. No bail was recommended. At the bottom of the information, the Prosecutor certified that no preliminary investigation had been conducted because the accused did not execute and sign a waiver of the provisions of Article 125 of the Revised Penal Code. In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the Prosecutor an omnibus motion for immediate release and proper preliminary investigation, 4 alleging that the warrantless arrest of petitioner was unlawful and that no preliminary investigation had been conducted

224 before the information was filed. Petitioner also prayed that he be released on recognizance or on bail. Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the last page of the motion itself that he interposed no objection to petitioner being granted provisional liberty on a cash bond of P100,000.00. On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in order to expedite action on the Prosecutor's bail recommendation. The case was raffled to the sala of respondent Judge, who, on the same date, approved the cash bond 6 posted by petitioner and ordered his release. 7 Petitioner was in fact released that same day. On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct preliminary investigation 8 and prayed that in the meantime all proceedings in the court be suspended. He stated that petitioner had filed before the Office of the Provincial Prosecutor of Rizal an omnibus motion for immediate release and preliminary investigation, which motion had been granted by Provincial Prosecutor Mauro Castro, who also agreed to recommend cash bail of P100,000.00. The Prosecutor attached to the motion for leave a copy of petitioner's omnibus motion of 11 July 1991. Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct preliminary investigation and cancelling the arraignment set for 15 August 1991 until after the prosecution shall have concluded its preliminary investigation. On 17 July 1991, however, respondent Judge motu proprio issued an Order, 10 embodying the following: (1) the 12 July 1991 Order which granted bail was recalled; petitioner was given 48 hours from receipt of the Order to surrender himself; (2) the 16 July 1991 Order which granted leave to the prosecutor to conduct preliminary investigation was recalled and cancelled; (3) petitioner's omnibus motion for immediate release and preliminary investigation dated 11 July 1991 was treated as a petition for bail and set for hearing on 23 July 1991. On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the Supreme Court assailing the 17 July 1991 Order, contending that the information was null and void because no preliminary investigation had been previously conducted, in violation of his right to due process. Petitioner also moved for suspension of all proceedings in the case pending resolution by the Supreme Court of his petition; this motion was, however, denied by respondent Judge. On 23 July 1991, petitioner surrendered to the police. By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari, prohibition and mandamus to the Court of Appeals. On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of petitioner on 23 August 1991. On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his arraignment. On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial Warden of Rizal to admit petitioner into his custody at the Rizal Provincial Jail. On the same date, petitioner was arraigned. In view, however, of his refusal to enter a plea, the trial court entered for him a plea of not guilty. The Trial court then set the criminal case for continuous hearings on 19, 24 and 26 September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November 1991. 11 On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of Appeals. He alleged that in view of public respondent's failure to join issues in the petition for certiorari earlier filed by him, after the lapse of more than a month, thus prolonging his detention, he was entitled to be released on habeas corpus. On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. 13 The petition for certiorari, prohibition and mandamus, on the one hand, and the petition for habeas corpus, upon the other, were subsequently consolidated in the Court of Appeals.

225 The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to restrain his arraignment on the ground that that motion had become moot and academic. On 19 September 1991, trial of the criminal case commenced and the prosecution presented its first witness. On 23 September 1991, the Court of Appeals rendered a consolidated decision 14 dismissing the two (2) petitions, on the following grounds: a. Petitioner's warrantless arrest was valid because the offense for which he was arrested and charged had been "freshly committed." His identity had been established through investigation. At the time he showed up at the police station, there had been an existing manhunt for him. During the confrontation at the San Juan Police Station, one witness positively identified petitioner as the culprit. b. Petitioner's act of posting bail constituted waiver of any irregularity attending his arrest. He waived his right to preliminary investigation by not invoking it properly and seasonably under the Rules. c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order because the trial court had the inherent power to amend and control its processes so as to make them conformable to law and justice. d. Since there was a valid information for murder against petitioner and a valid commitment order (issued by the trial judge after petitioner surrendered to the authorities whereby petitioner was given to the custody of the Provincial Warden), the petition for habeas corpus could not be granted. On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Counsel for petitioner also filed a "Withdrawal of Appearance" 15 with the trial court, with petitioner's conformity. On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14 October 1991, the Court issued a Resolution directing respondent Judge to hold in abeyance the hearing of the criminal case below until further orders from this Court. In this Petition for Review, two (2) principal issues need to be addressed: first, whether or not a lawful warrantless arrest had been effected by the San Juan Police in respect of petitioner Go; and second, whether petitioner had effectively waived his right to preliminary investigation. We consider these issues seriatim. In respect of the first issue, the Solicitor General argues that under the facts of the case, petitioner had been validly arrested without warrant. Since petitioner's identity as the gunman who had shot Eldon Maguan on 2 July 1991 had been sufficiently established by police work, petitioner was validly arrested six (6) days later at the San Juan Police Station. The Solicitor General invokes Nazareno v. Station Commander, etc., et al., 16 one of the seven (7) cases consolidated with In the Matter of the Petition for Habeas Corpus of Roberto Umil, etc., v. Ramos, et al. 17 where a majority of the Court upheld a warrantees arrest as valid although effected fourteen (14) days after the killing in connection with which Nazareno had been arrested. Accordingly, in the view of the Solicitor General, the provisions of Section 7, Rule 112 of the Rules of Court were applicable and because petitioner had declined to waive the provisions of Article 125 of the Revised Penal Code, the Prosecutor was legally justified in filing the information for murder even without preliminary investigation. On the other hand, petitioner argues that he was not lawfully arrested without warrant because he went to the police station six (6) days after the shooting which he had allegedly perpetrated. Thus, petitioner argues, the crime had not been "just committed" at the time that he was arrested. Moreover, none of the police officers who arrested him had been an eyewitness to the shooting of Maguan and accordingly none had the "personal knowledge" required for the lawfulness of a warrantees arrest. Since there had been no lawful warrantless arrest. Section 7, Rule 112 of the Rules of Court which

226 establishes the only exception to the right to preliminary investigation, could not apply in respect of petitioner. The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the legality of the warrantless arrests of petitioners made from one (1) to fourteen days after the actual commission of the offenses, upon the ground that such offenses constituted "continuing crimes." Those offenses were subversion, membership in an outlawed organization like the New People's Army, etc. In the instant case, the offense for which petitioner was arrested was murder, an offense which was obviously commenced and completed at one definite location in time and space. No one had pretended that the fatal shooting of Maguan was a "continuing crime." Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in the instant case falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which provides as follows: Sec. 5 Arrest without warrant; when lawful. A peace officer or a private person may, without 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 proceed against in accordance with Rule 112, Section 7. Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting" officers obviously were not present, within the meaning of Section 5(a), at the time petitioner had allegedly shot Maguan. Neither could the "arrest" effected six (6) days after the shooting be reasonably regarded as effected "when [the shooting had] in fact just been committed" within the meaning of Section 5(b). Moreover, none of the "arresting" officers had any "personal knowledge" of facts indicating that petitioner was the gunman who had shot Maguan. The information upon which the police acted had been derived from statements made by alleged eyewitnesses to the shooting one stated that petitioner was the gunman; another was able to take down the alleged gunman's car's plate number which turned out to be registered in petitioner's wife's name. That information did not, however, constitute "personal knowledge." 18 It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the meaning of Section 5 of Rule 113. It is clear too that Section 7 of Rule 112, which provides: Sec. 7 When accused lawfully arrested without warrant. When a person is lawfully arrested without a warrant for an offense cognizable by the Regional Trial Court the complaint or information may be filed by the offended party, peace officer or fiscal without a preliminary investigation having been first conducted, on the basis of the affidavit of the offended party or arresting office or person However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of non-availability of a lawyer, a

227 responsible person of his choice. Notwithstanding such waiver, he may apply for bail as provided in the corresponding rule and the investigation must be terminated within fifteen (15) days from its inception. If the case has been filed in court without a preliminary investigation having been first conducted, the accused may within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule. (Emphasis supplied) is also not applicable. Indeed, petitioner was not arrested at all. When he walked into San Juan Police Station, accompanied by two (2) lawyers, he in fact placed himself at the disposal of the police authorities. He did not state that he was "surrendering" himself, in all probability to avoid the implication he was admitting that he had slain Eldon Maguan or that he was otherwise guilty of a crime. When the police filed a complaint for frustrated homicide with the Prosecutor, the latter should have immediately scheduled a preliminary investigation to determine whether there was probable cause for charging petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the Prosecutor proceed under the erroneous supposition that Section 7 of Rule 112 was applicable and required petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition for carrying out a preliminary investigation. This was substantive error, for petitioner was entitled to a preliminary investigation and that right should have been accorded him without any conditions. Moreover, since petitioner had not been arrested, with or without a warrant, he was also entitled to be released forthwith subject only to his appearing at the preliminary investigation. Turning to the second issue of whether or not petitioner had waived his right to preliminary investigation, we note that petitioner had from the very beginning demanded that a preliminary investigation be conducted. As earlier pointed out, on the same day that the information for murder was filed with the Regional Trial Court, petitioner filed with the Prosecutor an omnibus motion for immediate release and preliminary investigation. The Solicitor General contends that that omnibus motion should have been filed with the trial court and not with the Prosecutor, and that the petitioner should accordingly be held to have waived his right to preliminary investigation. We do not believe that waiver of petitioner's statutory right to preliminary investigation may be predicated on such a slim basis. The preliminary investigation was to be conducted by the Prosecutor, not by the Regional Trial Court. It is true that at the time of filing of petitioner's omnibus motion, the information for murder had already been filed with the Regional Trial Court: it is not clear from the record whether petitioner was aware of this fact at the time his omnibus motion was actually filed with the Prosecutor. In Crespo v. Mogul, 19 this Court held: The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists to warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. While it is true that the fiscal has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of the Court. The only qualification is that the action of the Court must not impair the substantial rights of the accused., or the right of the People to due process of law. xxx xxx xxx The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case [such] as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already

228 in Court he cannot impose his opinion on the trial court. The