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DIGESTS FOR OCTOBER 24, 2012

ART III - BILL OF RIGHTS
Section 2 Search and Seizure


People v. Marti, 193 SCRA 57 (FAUSTINO)
[NOTE: No submission, online digest]

Facts:
Accused-appellant went to a forwarding agency to send four
packages to a friend in Zurich. Initially, the accused was asked by the
proprietress if the packages can be examined. However, he refused.
Before delivering said packages to the Bureau of Customs and the
Bureau of Posts, the husband of the proprietress opened said boxes
for final inspection. From that inspection, included in the standard
operating procedure and out of curiosity, he took several grams of its
contents.

He brought a letter and the said sample to the National Bureau of
Investigation. When the NBI was informed that the rest of the
shipment was still in his office, three agents went back with him. In
their presence, the husband totally opened the packages.
Afterwards, the NBI took custody of said packages. The contents ,
after examination by forensic chemists, were found to be marijuana
flowering tops.

The appellant, while claiming his mail at the Central Post Office, was
invited by the agents for questioning. Later on, the trial court found
him guilty of violation of the Dangerous Drugs Act.


Issues:
(1) Whether or Not the items admitted in the searched illegally
searched and seized.
(2) Whether or Not custodial investigation properly applied.
(3) Whether or Not the trial court not give credence to the explanation
of the appellant on how said packages came to his possession.


Held:
No. The case at bar assumes a peculiar character since the
evidence sought to be excluded was primarily discovered and
obtained by a private person, acting in a private capacity and without
the intervention and participation of State authorities. Under the
circumstances, can accused/appellant validly claim that his
constitutional right against unreasonable searches and seizure has
been violated. Stated otherwise, may an act of a private individual,
allegedly in violation of appellant's constitutional rights, be invoked
against the State. In the absence of governmental interference, the
liberties guaranteed by the Constitution cannot be invoked against
the State. It was Mr. Job Reyes, the proprietor of the forwarding
agency, who made search/inspection of the packages. Said
inspection was reasonable and a standard operating procedure on
the part of Mr. Reyes as a precautionary measure before delivery of
packages to the Bureau of Customs or the Bureau of Posts. Second,
the mere presence of the NBI agents did not convert the reasonable
search effected by Reyes into a warrantless search and seizure
proscribed by the Constitution. Merely to observe and look at that
which is in plain sight is not a search. Having observed that which is
open, where no trespass has been committed in aid thereof, is not
search.

No. The law enforcers testified that accused/appellant was informed
of his constitutional rights. It is presumed that they have regularly
performed their duties (See. 5(m), Rule 131) and their testimonies
should be given full faith and credence, there being no evidence to
the contrary.

No. Appellant signed the contract as the owner and shipper thereof
giving more weight to the presumption that things which a person
possesses, or exercises acts of ownership over, are owned by him
(Sec. 5 [j], Rule 131). At this point, appellant is therefore estopped to
claim otherwise.


Stonehill v. Diokno, 20 SCRA 383 (FORTES)

Doctrine:
General Warrants are outlawed because they place the sanctity of
domicile and the privacy of communication and correspondence at
the mercy of the whims, caprice, passion of peace officers.

Facts:
Upon application of DOJ Secretary Diokno and NBI Acting Director
Lukban several judges on different dates, issued a total of 42 search
warrants against petitioners and/or the corporations of which they
were officers. The Search Warrants directed to the any peace
officer, to search the persons and/or the premises of their offices,
warehouses and/or residences, and to seize and take possession of
the following personal properties:

Books of accounts, financial records, vouchers, correspondence,
receipts, ledgers, journals, portfolios, credit journals, typewriters, and
other documents and/or papers showing all business transactions
including disbursements receipts, balance sheets and profit and loss
statements and Bobbins (cigarette wrappers).

as "the subject of the offense; stolen or embezzled and proceeds or
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fruits of the offense," or "used or intended to be used as the means
of committing the offense," which is described in the applications
adverted to above as "violation of Central Bank Laws, Tariff and
Customs Laws, Internal Revenue (Code) and the Revised Penal
Code."

Petitioners contentions are:
(1) The SW did not describe with particularity the documents, books
and things to be seized;
(2) cash money, not mentioned in the warrants, were actually
seized;
(3) the warrants were issued to fish evidence against petitioners in
deportation cases filed against them;
(4) the searches and seizures were made in an illegal manner; and
(5) the documents, papers and cash money seized were not
delivered to the courts that issued the warrants, to be disposed of in
accordance with law

The court classified the things seized into two (2) major groups:
(a) those found and seized in the offices of the aforementioned
corporations
(b) those found and seized in the residences of petitioners herein.


Issue/s:
(1)Those found and seized in the offices of the corporations are
obtained legally.
(2) Those found and seized in the residences of petitioners are
obtained legally.

Held:
In holding for the petitioners Stonehill, et al, the Court said:
Individual petitioners cannot assail the legality of the contested
warrants and of the seizures made in pursuance thereof, as
corporations have their respective personalities, separate and distinct
from the personality of herein petitioners.

As regards the warrants, the constitutional mandates that:
(1) No warrant shall issue EXCEPT upon probable cause to be
determined by the judge
(2) Warrant shall particularly describe the things to be seized.

None of these requirements are complied with in the contested
warrants.
It was impossible for the judges to determine probable cause that a
crime has been committed and that the respondents are probably
guilty thereof as the warrant only stated the offense as "violation of
Central Ban Laws, Tariff and Customs Laws, Internal Revenue
(Code) and Revised Penal Code."
As for the things to be seized, the warrant was very general as it
authorized the seizure of books of accounts and records showing all
the business transactions of certain persons regardless of whether
they are legal or illegal. General warrants are outlawed.



Burgos v. Chief of Staff, 133 SCRA 800 (FRANCISCO)

*petition for certiorari, prohibition, and mandamus with preliminary
mandatory and prohibitory injunction

A search warrant against a publisher must particularize the alleged
criminal or subversive material to be seized.
A search warrant in the nature of a general warrant is
constitutionally objectionable.

Facts:
- Petitioners assail the validity of 2 search warrants issued
on December 7, 1982 by respondent Judge Cruz-Pano of
the then Court of First Instance of Rizal, under which the
premises known as No. 19, Road 3, Project 6, Quezon
City, and 784 Units C & D, RMS Building, Quezon Avenue,
Quezon City, business addresses of the "Metropolitan Mail"
and "We Forum" newspapers, respectively, were searched,
and office and printing machines, equipment,
paraphernalia, motor vehicles and other articles used in the
printing, publication and distribution of the said
newspapers, as well as numerous papers, documents,
books and other written literature alleged to be in the
possession and control of petitioner Jose Burgos, Jr.
publisher-editor of the "We Forum" newspaper, were
seized. As a consequence of the search and seizure, these
premises were padlocked and sealed, with the further
result that the printing and publication of said newspapers
were discontinued.
- Respondents contend that petitioners should have filed a
motion to quash said warrants in the court that issued them
before impugning the validity of the same before this Court.
Respondents also assail the petition on ground of laches
(Failure or negligence for an unreasonable and
unexplained length of time to do that which, by exercising
due diligence, could or should have been done earlier. It is
negligence or omission to assert a right within a reasonable
time, warranting a presumption that the party entitled to
assert it either has abandoned it or declined to assert it).
Respondents further state that since petitioner had already
used as evidence some of the documents seized in a prior
criminal case, he is stopped from challenging the validity of
the search warrants.

Petitioners submit the following reasons to nullify the questioned
warrants:
1. Respondent Judge failed to conduct an examination under oath or
affirmation of the applicant and his witnesses, as mandated by the
above-quoted constitutional provision as well as Sec. 4, Rule 126 of
the Rules of Court.

2. The search warrants pinpointed only one address, which would be
the former abovementioned address.

3. Articles belonging to his co-petitioners were also seized although
the warrants were only directed against Jose Burgos, Jr.
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4. Real properties were seized.

5. The application along with a joint affidavit, upon which the
warrants were issued, from the Metrocom Intelligence and Security
Group could not have provided sufficient basis for the finding of a
probable cause upon which a warrant may be validly issued in
accordance with Section 3, Article IV of the 1973 Constitution.

Respondents justify the continued sealing of the printing machines
on the ground that they have been sequestered under Section 8 of
Presidential Decree No. 885, as amended, which authorizes
sequestration of the property of any person engaged in subversive
activities against the government in accordance with implementing
rules and regulations as may be issued by the Secretary of National
Defense.


Issue:
Whether or not the two search warrants were validly issued and
executed.


Held:
In regard to the quashal of warrants that petitioners should have
initially filed to the lower court, this Court takes cognizance of this
petition in view of the seriousness and urgency of the constitutional
Issue raised, not to mention the public interest generated by the
search of the "We Forum" offices which was televised in Channel 7
and widely publicized in all metropolitan dailies. The existence of this
special circumstance justifies this Court to exercise its inherent
power to suspend its rules. With the contention pertaining to laches,
the petitioners gave an explanation evidencing that they have
exhausted other extra-judicial efforts to remedy the situation,
negating the presumption that they have abandoned their right to the
possession of the seized property.

On the enumerated reasons:
1. This objection may properly be considered moot and academic, as
petitioners themselves conceded during the hearing on August 9,
1983, that an examination had indeed been conducted by
respondent judge of Col. Abadilla and his witnesses.

2. The defect pointed out is obviously a typographical error.
Precisely, two search warrants were applied for and issued because
the purpose and intent were to search two distinct premises. It would
be quite absurd and illogical for respondent judge to have issued two
warrants intended for one and the same place.

3. Section 2, Rule 126, of the Rules of Court, does not require that
the property to be seized should be owned by the person against
whom the search warrant is directed. It may or may not be owned by
him.

4. Petitioners do not claim to be the owners of the land and/or
building on which the machineries were placed. This being the case,
the machineries in question, while in fact bolted to the ground,
remain movable property susceptible to seizure under a search
warrant.

5. The broad statements in the application and joint affidavit are mere
conclusions of law and does not satisfy the requirements of probable
cause. Deficient of such particulars as would justify a finding of the
existence of probable cause, said allegation cannot serve as basis
for the issuance of a search warrant and it was a grave error for
respondent judge to have done so. In Alvarez v. Court of First
Instance, this Court ruled that "the oath required must refer to the
truth of the facts within the personal knowledge of the petitioner or
his witnesses, because the purpose thereof is to convince the
committing magistrate, not the individual making the affidavit and
seeking the issuance of the warrant, of the existence of probable
cause." Another factor which makes the search warrants under
consideration constitutionally objectionable is that they are in the
nature of general warrants. The description of the articles sought to
be seized under the search warrants in question are too general.

With regard to the respondents invoking PD 885, there is an absence
of any implementing rules and regulations promulgated by the
Minister of National Defense. Furthermore, President Marcos himself
denies the request of military authorities to sequester the property
seized from petitioners. The closure of the premises subjected to
search and seizure is contrary to the freedom of the press as
guaranteed in our fundamental law.

The search warrants are declared null and void.


Tambasen v. People, 246 SCRA 184 (GATCHALIAN)

FACTS:
P/Sgt. Flumar Natuel applied for the issuance of a search warrant
from the MTCC, alleging that he received information that petitioner
had in his possession at his house at the North Capitol Road,
Bacolod City, "M-16 Armalite Rifles (Mags & Ammos), Hand
Grenades, .45 Cal. Pistols (Mags & Ammos), Dynamite Sticks and
Subversive Documents," which articles were "used or intended to be
used" for illegal purposes. The application was granted by the MTCC
with the issuance of Search Warrant No. 365, which allowed the
seizure of the items specified in the application.
At around 6:30 P.M. of September 9, 1988, a police team searched
the house of petitioner and seized the following articles: Two
envelopes containing cash in the total amount of P14k (10k & 4k),
one AR 280 handset w/antennae; one YAESU FM Transceiver FT
23R w/Antenae; one ALINCO ELH 230D Base; one (1) DC Regulator
Supply; one brown Academy Notebook & Assorted papers; and Four
handsets battery pack
MTCC issued an order directing Sgt. Natuel to make a return of the
search warrant. The following day, Sgt. Natuel submitted a report to
the court. Not considering the report as a "return in contemplation of
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law," petitioner filed another motion praying that Sgt. Natuel be
required to submit a complete and verified inventory of the seized
articles. Thereafter, Sgt. Natuel manifested that although he was the
applicant for the issuance of the search warrant, he was not present
when it was served.Petitioner filed before the MTCC a motion
praying that the search and seizure be declared illegal and that the
seized articles be returned to him. In his answer to the motion, Lt.
Col. Nicolas Torres, the station commander of the Bacolod City
Police, said that the amount of P14,000.00 had been earmarked for
the payment of the allowance of the Armed City Partisan (ACP) and
other "known NPA personalities" operating in the City of Bacolod.
The MTCC issued an order directing Lt. Col. Torres to return the
money seized to petitioner. The court opined that in the
implementation of the search warrant, any seizure should be limited
to the specific items covered thereby. It said that the money could not
be considered as "subversive documents"; it was neither stolen nor
the effects of gambling.
The Solicitor General filed before the RTC, a petition for certiorari
seeking the annulment of the order of the MTCC. The petition alleged
that assuming that the seizure of the money had been invalid,
petitioner was not entitled to its return citing the rulings in Alih v.
Castro, and Roan v. Gonzales. In those cases, the Court held that
pending the determination of the legality of the seizure of the articles,
they should remain in custodia legis. RTC, granted the petition and
directing the clerk of court to return to the MTCC the money pending
the resolution of the preliminary investigation. Petitioner filed the
instant petition for certiorari and prohibition praying for the issuance
of a TRO commanding the city prosecutor to cease and desist from
continuing with the preliminary investigation. He also prayed that
Search Warrant No. 365 and the seizure of his personal effects be
declared illegal.
During the pendency of the instant petition, a series of events related
to the questioned search and seizure transpired. At around 10:30
P.M. of March 1, 1990, petitioner, who was then on board a
passenger vehicle, was arrested by intelligence operatives in
Barangay Mandalagan, Bacolod City and was detained. Basing on
sworn statements of two rebel returnees, the police filed a complaint
for subversion against petitioner with the Office of the City
Prosecutor. The following day, the City Prosecutor filed an
information for violation of the Anti-Subversion Law against petitioner
with RTC. An order for the arrest of petitioner was issued on March
2, 1990. Petitioner filed a motion to quash the information which the
RTC granted and the warrant of arrest was recalled. Motion for
consideration was denied/
ISSUE:
Whether RTC gravely abused its discretion in directing that the
money seized from petitioner's house, specifically the amount of
P14,000.00, be retained and kept in custodia legis.

HELD:
YES
The search warrant violates Section 3, Rule 126 of the Revised
Rules of Court, which prohibits the issuance of a search warrant for
more than one specific offense. The caption of Search Warrant No.
365 reflects the violation of two special laws: P.D. No. 1866 for illegal
possession of firearms, ammunition and explosives; and R.A. No.
1700, the Anti-Subversion Law. Search Warrant No. 365 was
therefore a "scatter-shot warrant" and totally null and void. Moreover,
by their seizure of articles not described in the search warrant, the
police acted beyond the parameters of their authority under the
search warrant.
Section 2, Article III of the 1987 Constitution requires that a
search warrant should particularly describe the things to be
seized. "The evident purpose and intent of the requirement is to
limit the things to be seized to those, and only those,
particularly described in the search warrant to leave the
officers of the law with no discretion regarding what articles
they should seize, to the end that unreasonable searches and
seizures may not be made and that abuses may not be
committed" The same constitutional provision is also aimed at
preventing violations of security in person and property and
unlawful invasions of the sanctity of the home, and giving
remedy against such usurpations when attempted
Clearly then, the money which was not indicated in the search
warrant, had been illegally seized from petitioner. The fact that the
members of the police team were doing their task of pursuing
subversives is not a valid excuse for the illegal seizure. For the
retention of the money seized by the police officers, approval of the
court which issued the search warrant is necessary. In like manner,
only the court which issued the search warrant may order their
release.
Section 3(2) of Article III of the 1987 Constitution provides that
evidence obtained in violation of the right against unreasonable
searches and seizures shall be inadmissible for any purpose in any
proceeding.
The information in Criminal Case No. 8517, with petitioner as the
sole accused, was ordered quashed by the trial court and the motion
was denied. Hence, there appears to be no criminal prosecution
which can justify the retention of the seized articles in custodia legis.
Lastly, R.A. No. 1700, the Anti-Subversion Law, was repealed by
R.A. No. 7636 and, therefore, the crimes defined in the repealed law
no longer exist.
PETITION GRANTED. RETURN THE MONEY TO THE
PETITIONER

Placer v. Villanueva, 126 SCRA 463 (GUY)

Doctrine: purpose of requiring the submission of affidavits of the
complainant and of his witnesses is to enable the court to determine
whether to dismiss the case outright or to require further
proceedings.
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The filing of the affidavits of witnesses with the court is mandatory.
Section 9, par. 2 of said Rule prescribes that "the complaint or
information must be accompanied by the affidavits of the complainant
and of his witnesses in such number of copies as there are
defendants plus two (2) copies for the court's files.
Main issue: whether the certification of the investigating fiscal in the
information as to the existence of probable cause obligates
respondent City Judge to issue a warrant of arrest
City Fiscal of Butuan City and his assistants filed in the City court
112209-12222 CAse no. Titles.
1)according to the Fiscal that the preliminary examination has been
conducted by himself. He examined the complaint and his witnesess;
that on the basis of the sworn statements and other evidence
submitted before this Office. Except for the last 4 case title no.
2) The information filed in case 12219 and 12220 bore the
certification of 3rd Assistant Fiscal and the case 12219 and 12221
and 12222 by 2nd Assistant Fiscal.
3) Following receipt of said informations, respondent judge issued an
order setting on April 5, 1982 the hearing of said criminal cases for
the purpose of determining the propriety of issuing the corresponding
warrants of arrest.
4) After said hearing, respondent issued the questioned orders dated
April 13, 15, 16 and 19, 1982, requiring petitioners to submit to the
court the affidavits of the prosecution witnesses and other
documentary evidence in support of the informations to aid him in
the exercise of his power of judicial review of the findings of probable
cause by petitioners
5) Petitioners filed two separate motions for reconsideration,
contending that under P.D Nos. 77 and 911 THEY ARE AUTHORIZE
TO DETERMINE THE EXISTENCE OF A PROBABLE CAUSE in a
PRELIMINARY EXAMINATION, THEIR Finding CONSITUTE
SUFFICIENT BASIS FOR ISSUANCE OF WARRANT OF ARREST.
6) Respondent Denied and reinterred his order to submit the
supporting affidavits
7) Petitioner filed this petition for Certiorari and mandamus to set
aside
8) No warrant had been issued in 113 informations. In order to avoid
delay in the prosecution of these cases petitioner finally submitted
the required affidavits and documents.
9) Petitioners therefore filed a motion with this Court to restrain
respondent from enforcing the orders.
10)Petitioner contend that the fiscal's certification in the information
of the existence of probable cause constitutes sufficient justification
for the judge to issue a warrant of arrest; and that such certification
binds the judge.
11) Respondent justifies his order as an exercise of his judicial power
to review the fiscal's findings of probable cause. He further maintains
that the failure of petitioners to file the required affidavits destroys the
presumption of regularity in the performance of petitioners' official
duties.
Issue: whether or not the respondent city judge may, for the purpose
of issuing a warrant of arrest, compel the fiscal to submit to the court
the supporting affidavits and other documentary evidence presented
during the preliminary investigation.
Held: We sustain the position of respondent judge.
Ratio:
Warrant of arrest, when issued. - If the judge be satisfied from the
preliminary examination conducted by him or by the investigating
officer that the offense complained of has been committed and that
there is reasonable ground to believe that the accused has
committed it, he must issue a warrant or order for his arrest."
Under this section, the judge must satisfy himself of the existence of
probable cause before issuing a warrant or order of arrest. If on the
face of the information the judge finds no probable cause, he may
disregard the fiscal's certification and require the submission of the
affidavits of witnesses to aid him in arriving at a conclusion as to the
existence of a probable cause.
It appears that after petitioners had submitted the required affidavits
of witnesses, the respondent judge ordered Criminal Cases Nos.
12417, 12418, 12419, 12420 and 12422 remanded to the City Fiscal
for further preliminary investigation or reinvestigation. We hold that
respondent did not abuse his discretion in doing so. From the
informations and affidavits presented to him, he found the charges
patently without basis or merit.
WHEREFORE, the petition is hereby dismissed.


Soliven v. Makasiar, 167 SCRA 393 (HAUTEA)

FACTS:
In these consolidated cases, three principal issues were raised: (1)
whether or not petitioners were denied due process when information
for libel were filed against them although the finding of the existence
of a prima facie case was still under review by the Secretary of
Justice and, subsequently, by the President; (2) whether or not the
constitutional rights of Beltran were violated when respondent
RTC judge issued a warrant for his arrest without personally
examining the complainant and the witnesses, if any, to
determine probable cause; and (3) whether or not the President of
the Philippines, under the Constitution, may initiate criminal
proceedings against the petitioners through the filing of a complaint-
affidavit.

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The second issue, raised by petitioner Beltran, calls for an
interpretation of the constitutional provision on the issuance of
warrants of arrest. The pertinent provision reads:

Art. III, 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 nder 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 addition of the word "personally" after the word "determined" and
the deletion of the grant of authority by the 1973 Constitution to issue
warrants to "other responsible officers as may be authorized by law,"
has apparently convinced petitioner Beltran that the Constitution now
requires the judge to personally examine the complainant and his
witnesses in his determination of probable cause for the issuance of
warrants of arrest.

ISSUE:
1. WON, the Constitution requires the judge to personally examine
the complainant and his witness in his determination of probable
cause for the issuance of warrants of arrest?

HELD:
NO, What the Constitution underscores is the exclusive and personal
responsibility of the issuing judge to satisfy himself of the existence
of probable cause. In satisfying himself of the existence of probable
cause for the issuance of a warrant of arrest, the judge is not
required to personally examine the complainant and his witnesses.
Following established doctrine and procedure, he shall: (1)
personally evaluate the report and the supporting documents
submitted by the fiscal regarding the existence of probable cause
and, on the basis thereof, issue a warrant of arrest; or (2) if on the
basis thereof he finds no probable cause, he may disregard the
fiscal's report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion as to the existence of
probable cause.

Sound policy dictates this procedure, otherwise judges would be
unduly laden with the preliminary examination and investigation of
criminal complaints instead of concentrating on hearing and deciding
cases filed before their courts.

On June 30, 1987, the Supreme Court unanimously adopted Circular
No. 12, setting down guidelines for the issuance of warrants of arrest.
The procedure therein provided is reiterated and clarified in this
resolution.

It has not been shown that respondent judge has deviated from the
prescribed procedure. Thus, with regard to the issuance of the
warrants of arrest, a finding of grave abuse of discretion amounting
to lack or excess of jurisdiction cannot be sustained.


Cruz v. People, 233 SCRA 439 (KHONG HUN)


Morano v. Vivo, 20 SCRA 562 (LESAVA)

Facts:
Chan Sau Wah, a Chinese citizen born in Fukien, China on January
6, 1932, arrived in the Philippines on November 23, 1961 to visit her
cousin. With her was Fu Yan Fun, her minor son (1 of 3) by the first
marriage, born in Hongkong on September 11, 1957.
Chan Sau Wah and her minor son Fu Yan Fun were permitted only
into the Philippines under a temporary visitor's visa for two (2)
months and after they posted a cash bond of P4,000.00.
On January 24, 1962, Chan Sau Wah married Esteban Morano, a
native-born Filipino citizen. Born to this union on September 16, 1962
was Esteban Morano, Jr.
To prolong their stay in the Philippines, Chan Sau Wah and Fu Yan
Fun obtained several extensions. Until the last extension expired.
The the Commissioner of Immigration ordered Chan Sau Wah and
her son, to leave the with a warning that upon failure so to do, he will
issue a warrant for their arrest and will cause the confiscation of their
bond.
Chan Sau Wah (with her husband Esteban Morano) and Fu Yan Fun
petitioned the Court of First Instance of Manila for mandamus to
compel the Commissioner of Immigration to cancel petitioners' Alien
Certificates of Registration; prohibition to stop the Commissioner
from issuing a warrant for their arrest, and preliminary injunction to
restrain the Commissioner from confiscating their cash bond and
from issuing warrants of arrest pending resolution of this case.
The trial court issued the writ of preliminary injunction and after the
trial, the Court of First Instance declared CHAN SAU WAH as citizen
of the Philippines.
Petitioners and respondent Commissioner both appealed.
Solicitor Generals side: The court a quo took the position that "Chan
Sau Wah became, by virtue of, and upon, her marriage to Esteban
Morano, a natural-born Filipino, a Filipino citizen. But given the
requisites ((a) valid marriage of an alien woman to a citizen of the
Philippines and (b) the alien woman herself might be lawfully
naturalized) for paragraph 1, Section 15 of Commonwealth Act
473 to take place, the 2
nd
requisite is not considered fulfilled.
In a series of cases, this Court has declared that the marriage of an
alien woman to a Filipino citizen does not ipso facto make her a
Filipino citizen. She must satisfactorily show that she has all the
qualifications and none of the disqualifications required by the
Naturalization Law.
Petitioner Chan Sau Wah thus did not become a Filipino citizen.
Petitioners then raise the constitutionality of Section 37 (a) of the
Immigration Act of 1940, which reads:
Sec. 37. (a) The following aliens shall be arrested upon the
warrant of the Commissioner of Immigration or of any other
officer designated by him for the purpose and deported
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upon the warrant of the Commissioner of Immigration after
a determination by the Board of Commissioners of the
existence of the ground for deportation as charged against
the alien:
x x x x x x x x x
(7) Any alien who remains in the Philippines in violation of
any limitation or condition under which he was admitted as
a nonimmigrant.
Petitioners argue that the legal precept just quoted trenches upon the
constitutional mandate in Section 1 (3), Article III [Bill of Rights] of the
Constitution, to wit:
(3) The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable
searches and seizures shall not be violated, and no
warrants shall issue but upon probable cause, to be
determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be
searched, and the persons or things to be seized.
They say that the Constitution limits to judges the authority to issue
warrants of arrest and that the legislative delegation of such power to
the Commissioner of Immigration is thus violative of the Bill of Rights.
Issue:
WON the delegation to Commissioner of Immigration to issue
warrants of arrest is violative of the Bill of Rights?

Held:
NO. Section 1 (3), Article III of the Constitution, we perceive, does
not require judicial intervention in the execution of a final order of
deportation issued in accordance with law. The constitutional
limitation contemplates an order of arrest in the exercise of judicial
power as a step preliminary or incidental to prosecution or
proceedings for a given offense or administrative action, not as a
measure indispensable to carry out a valid decision by a competent
official, such as a legal order of deportation, issued by the
Commissioner of Immigration, in pursuance of a valid legislation.
The convention recognized, as sanctioned by due process,
possibilities and cases of deprivation of liberty, other than by order of
a competent court.
Section 1 (3), Article III of the Constitution aforesaid, requiring that
the issue of probable cause be determined by a judge, does not
extend to deportation proceedings.


Board of Commissioners, CID v. De la Rosa, 197 SCRA 853 (LIM)

Doctrine: Jurisprudential Guidelines for Due Process in Deportation
Cases Probable Cause is indispensable even in deportation

Petitioners: The Board of Commissioners (hereinafter referred to as
the Board) of the Commission on Immigration and Deportation
(CID)
Respondents Judge Dela Rosa of Manila RTC, Judge Capulong of
Valenzuela RTC, and the Gatchalian family (primarily William T.
Gatchalian)

NOTE: The former CID has been renamed as the Bureau of
Immigration.

FACTS:
The Gatchalian family line is as follows: Marciana (great
grandmother, mother of Santiago) Santiago (grandfather, father of
Francisco) Francisco (father of William) William. They arrived
in Manila from Hong Kong in 1961. They had with them Certificates
of Registration and Identity issued by the Philippine Consulate in
Hong Kong.

In 1962, the Secretary of Justice issued Memorandum Number 9,
setting aside all decisions purporting to have been rendered by the
Board on appeal or on review. Among those cases was that of the
Gatchalians. After a review of the proceedings, the Board ordered
the exclusion (or deportation) of William. A warrant of exclusion was
issued, and that the decision of the Board has now become final and
executory.

In 1973, William filed a motion for re-hearing. Then Commissioner of
the Board, Victor Nituda, reversed the 1962 decision and recalled the
warrant of arrest against William. Consequently, the Identification
Certificates of William were validated.

In 1990, or 28 years after the original warrant was issued, the NBI
arrested William. He was charged with certain violations of the
Immigration Act of 1940 (the case did not specify the grounds).
William was released upon posting a P200k cash bond.

William filed a petition for certiorari and prohibition before the Manila
RTC, presided by respondent Judge Dela Rosa. The Board filed a
motion to dismiss. Dela Rosa dismissed the motion to dismiss.

Meanwhile, Williams wife and children filed before the Valenzuela
RTC a writ of preliminary injunction, stating that the Board acted with
GADALEJ in the institution of the deportation proceedings against
William. Judge Capulong issued a TRO enjoining the petitioners from
continuing with the deportation proceeding against William.

Hence, this petition for certiorari.

ISSUE:
1. W/N respondent RTC Judges Dela Rosa and Capulong
have jurisdiction over the petitioners and the subject matter
of the case YES
2. W/N the arrest of William following the warrant of exclusion
is valid NO
3. W/N William is a Filipino citizen YES
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4. W/N the ground for which William is sought to be deported
has already prescribed YES

Held: Petition dismissed. William Gatchalian is a Filipino citizen.


RATIO:
1. Jurisdiction
A. Trial courts have jurisdiction to issue writs of certiorari.
Thus, the RTCs are vested with the power to
determine the existence of GADALEJ on the part of
any branch or instrumentality of the government.
Thus, decisions of the CID are appealable to, and may
be reviewed through a certiorari action, by the RTC.
B. When the evidence submitted by a respondent is
conclusive of his citizenship, the right to review should
also be recognized. Thus, the RTCs should promptly
enjoin deportation proceedings.
C. Judicial intervention is allowed only in cases where
citizenship claims are so substantial that there are
reasonable grounds to believe that the claim is
correct. Note that William has presented various
evidences to support his citizenship., and such
evidence are substantial to prove Williams Filipino
citizenship.

2. Arrest
A. The Immigration Act of 1940 states: The following
aliens shall be arrested upon the warrant of the
Commissioner of Immigration xxx and [be] deported
upon the warrant of the Commissioner after a
determination by the Board of the existence of the
ground for deportation as charged against the alien.
B. The arrest in 1990 follows the warrant of exclusion
issued in 1962. It seems that the warrant of exclusion
against William was not a warrant to deport him, but to
subject him to custodial investigation. Such warrant is
null and void for being unconstitutional, because there
is no probable cause for the arrest.
C. The Constitution does not distinguish warrants
between criminal cases and administrative
proceedings. Thus, a judge (in this case, the
Commissioner of CID) must first determine whether
grounds for deportation have risen. Only then can a
warrant of arrest be served or issued.

3. Citizenship
A. Nitudas acts of recalling the 1962 warrant of
exclusion as well as the revalidation of Williams
Identification Certificate are equivalent to an
admission that William is indeed a Filipino citizen. It
being so, this fact entitles him to remain in the country.
Thus, the deportation proceedings are without legal
basis after all.
B. Besides, CID recognized the Filipino citizenship of
Marciana (the great grandmother) and Santiago, (the
grandfather). By jus sanguinis, William is also a
Filipino.

4. Prescription
A. You need a prescription to obtain certain medicines
for pharmacies and drugstores. In this case, William is
not sick, so he does not need to go to a pharmacy or a
drugstore.
B. Deportation shall not be effected unless the arrest in
the deportation proceedings is made within five years
after the cause of deportation arises. Since the arrest
occurred 28 years after the alleged cause of
deportation arose, Williams arrest was obviously
illegal, even if the original warrant was valid.


Harvey v. Santiago, 162 SCRA 840 (MANALAYSAY)

Doctrine: The rule that search & seizures must be supported by a
valid warrant is not absolute. There are exceptions (e.g. Search is
incidental to the arrest, search in moving vehicle, seizure in plain
view). In case at bar, search done was incidental to the arrest.

Nature: A petition for Habeas Corpus.

Facts:
1. Petitioners Andrew Harvey (52) & John Sherman (72) both
Americans and Adriaa Van Den Elshout (58 Dutch) nationals
were residing at Pagsanjan, Laguna.
2. Petitioners were apprehended from their respective residences
by agents of the Commission on Immigration and Deportation
(CID) by virtue of Mission Orders issued by respondent
Commissioner Miriam Santiago. Petitioners are presently
detained at the CID Detention Center.
3. Petitioners were among the 22 suspected alien pedophiles who
were apprehended after 3 months of close surveillance by CID
agents. 2 days after apprehension, 17/22 arrested aliens opted
for self-deportation and have left the country. One was released
for lack of evidence; another was charged not for being a
pedophile but for working without a valid working visa. Thus, of
the original 22, only the 3 petitioners chose to face deportation.
4. Seized during apprehension were rolls of photo negatives and
photos of the suspected child prostitutes shown in salacious
poses as well as boys and girls engaged in the sex act. There
were also posters advertising the child prostitutes.
5. Operation Report reads: HARVEY was found together with 2
young boys. SHERMAN was found with 2 naked boys inside his
room. ELSHOUT was living in with 2 children ages 14 & 16 for
quite sometime.
6. Deportation proceedings were instituted against petitioners for
being undesirable aliens inimical to public morals, public health
and public safety.
7. Warrants of Arrest were issued by CID against petitioners (for
violation of Sections 37, 45 and 46 of the Immigration Act and
Section 69 of the Revised Admin Code). On the same date, the
Board of Special Inquiry III commenced trial.
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8. Petitioners filed an Urgent Petition for Release Under Bond
alleging that their health was being seriously affected by their
continuous detention. Upon recommendation, CID doctor
certified that petitioners were healthy.
9. Petitioners filed a Petition for Bail which respondent denied
considering the certification by the CID physician that petitioners
were healthy. To avoid congestion, respondent ordered
petitioners' transfer to the CID detention cell at Fort Bonifacio,
but the transfer was deferred pending trial.
10. Petitioner Harvey filed a Motion stating that he had "finally
agreed to a self-deportation" and praying that he be
"provisionally released for at least 15 days and placed under the
custody of Atty. Asinas before he voluntarily departs the
country." Board of Special Inquiry allowed provisional release of
5 days only under certain conditions. However, it appears that
on the same date that the aforesaid Motion was filed, Harvey
and his co-petitioners had already filed the present petition.
11. Petitioners availed of this Petition for a Writ of Habeas Corpus.
A Return of the Writ was filed by the SG and the Court heard the
case on oral argument.

Issues:
1. WON Commissioner has authority to arrest and detain
petitioners pending determination of the existence of a probable
cause leading to an administrative investigation YES
2. WON Section 2, Article III was violated since the CID agents
NO
3. WON mere confidential information made to the CID agents and
their suspicion of the activities of petitioners, coupled with their
association with other suspected pedophiles, are valid legal
grounds for arrest although being a pedophile is not punishable
by any PH law YES

Held:
We reject petitioners' contentions and uphold respondent's official
acts ably defended by the Solicitor General.

1. There can be no question that the right guaranteed by Article III,
Section 2, is available to all persons, including aliens, whether
accused of crime or not. One of the constitutional requirements
of a valid search warrant or warrant of arrest is that it must be
based upon probable cause. Probable cause has been defined
as referring to "such facts and circumstances antecedent to the
issuance of the warrant that in themselves are sufficient to
induce a cautious man to rely on them and act in pursuance
thereof"
2. The 1985 Rules on Criminal Procedure also provide that an
arrest without a warrant may be effected by a peace officer or
even a private person (1) when such person has committed,
actually committing, or is attempting to commit an offense in his
presence; and (2) when an offense has, in fact, been committed
and he has personal knowledge of facts indicating that the
person to be arrested has committed it (Rule 113, Section 5).
3. In this case, the arrest of petitioners was based on probable
cause determined after close surveillance for 3 months during
which period their activities were monitored. The existence of
probable cause justified the arrest and the seizure of the photo
negatives, photographs and posters without warrant. Those
articles were seized as an incident to a lawful arrest and, are
therefore, admissible in evidence.
But even assuming that the arrest was not valid at its
inception, the records show that formal deportation charges
have been filed against them, as undesirable aliens.
Warrants of arrest were issued against them. A hearing is
presently. The restraint against their persons, therefore,
has become legal. "Where a person's detention was later
made by virtue of a judicial order in relation to criminal
cases subsequently filed against the detainee, his petition
for habeas corpus becomes moot and academic". It is a
fundamental rule that a writ of habeas corpus will not be
granted when the confinement is or has become legal,
although such confinement was illegal at the beginning.
4. That petitioners were not "caught in the act" does not make their
arrest illegal. Petitioners were found with young boys in their
respective rooms. Under those circumstances the CID agents
had reasonable grounds to believe that petitioners had
committed "pedophilia" defined as "psycho-sexual perversion
involving children" or paraphilia (or unusual sexual activity) in
which children are the preferred sexual object. While not a crime
under RPC, it is behavior offensive to public morals and violative
of the declared policy of the State to promote and protect the
physical, moral, spiritual, and social well being of our youth.
5. At any rate, the filing by petitioners of a petition to be
released on bail should be considered as a waiver of any
irregularity attending their arrest and estops them from
questioning its validity.
6. Deportation charges instituted by respondent Commissioner are
in accordance with the Philippine Immigration Act of 1940.
Section 37(a) provides in part: (a) The following aliens shall be
arrested upon the warrant of the Commissioner or any other
officer designated by him for the purpose and deported upon the
warrant of the Commissioner after a determination by the Board
of Commissioners of the existence of the ground for deportation
as charged against the alien.
Deportation proceedings are administrative in
character. An order of deportation is never construed as a
punishment. It is preventive, not a penal process. It need
not be conducted strictly in accordance with ordinary
Court proceedings.
It is essential, however, that the warrant of arrest shall give
the alien sufficient information about the charges, relating
the facts relied upon. It is also essential that he be given a
fair hearing with the assistance of counsel, if he so desires.
However, all the strict rules of evidence governing judicial
controversies do not need to be observed; only such as are
fundamental and essential, like the right of cross-
examination. Hearsay evidence may even be admitted,
provided the alien is given the opportunity to rebut it.
7. Section 37 of the Immigration Law, which empowers the
Commissioner to issue warrants for the arrest of overstaying
aliens is constitutional. The arrest is a step preliminary to the
deportation of the aliens who had violated the condition of
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their stay in this country. To rule otherwise would be to render
the authority given the Commissioner nugatory to the detriment
of the State.
8. The requirement of probable cause, to be determined by a
Judge, does not extend to deportation proceedings. There
need be no "truncated" recourse to both judicial and
administrative warrants in a single deportation proceedings. The
foregoing does not deviate from the ruling that "under the
express terms of our Constitution (1935), it is therefore even
doubtful whether the arrest of an individual may be ordered by
any authority other than a judge if the purpose is merely to
determine the existence of a probable cause, leading to an
administrative investigation." For probable cause had already
been shown to exist before the warrants of arrest were issued.
9. What is essential is that there should be a specific charge
against the alien intended to be arrested and deported, that a
fair hearing be conducted.
10. The denial by respondent Commissioner of petitioners' release
on bail was in order because in deportation proceedings, the
right to bail is not a matter of right but a matter of discretion
on the part of the Commissioner. As deportation proceedings do
not partake of the nature of a criminal action, the constitutional
guarantee may not be invoked.
11. Every sovereign power has the inherent power to exclude aliens
from its territory upon such grounds as it may deem proper for
its self-preservation or public interest. The power to deport
aliens is an act of State, an act done by or under the authority of
the sovereign power. It is a police measure against undesirable
aliens whose continued presence in the country is found to be
injurious to the public good and the domestic tranquility of the
people. Particularly so in this case where the State has
expressly committed itself to defend the right of children to
assistance and special protection from all forms of neglect,
abuse, cruelty, exploitation, and other conditions prejudicial to
their development (Article XV)

Dispositive:
Respondent Commissioner in instituting deportation proceedings
acted in the interests of the State. Petition is dismissed and the Writ
of Habeas Corpus is hereby denied.

Tran Van Nghia v. Liwag, 175 SCRA 318 (MERCADO)


Mata v. Bayona, 128 SCRA 388 (MONTINOLA)
[NOTE: No submission, online digest]

Facts:
Soriano Mata was accused under Presidential Decree (PD) 810, as
amended by PD 1306, the information against him alleging that
Soriano Mata offered, took and arranged bets on the Jai Alai game
by selling illegal tickets known as Masiao tickets without any
authority from the Philippine Jai Alai & Amusement Corporation or
from the government authorities concerned. Mata claimed that
during the hearing of the case, he discovered that nowhere from the
records of the said case could be found the search warrant and other
pertinent papers connected to the issuance of the same, so that he
had to inquire from the City Fiscal its whereabouts, and to which
inquiry Judge Josephine K. Bayona, presiding Jufe of the City Court
of Ormoc replied, it is with the court. The Judge then handed the
records to the Fiscal who attached them to the records. This led Mata
to file a motion to quash and annul the search warrant and for the
return of the articles seized, citing and invoking, among others,
Section 4 of Rule 126 of the Revised Rules of Court. The motion was
denied by the Judge on 1 March 1979, stating that the court has
made a thorough investigation and examination under oath of
Bernardo U. Goles and Reynaldo T. Mayote, members of the
Intelligence Section of 352nd PC Co./Police District II INP; that in fact
the court made a certification to that effect; and that the fact that
documents relating to the search warrant were not attached
immediately to the record of the criminal case is of no moment,
considering that the rule does not specify when these documents are
to be attached to the records. Matas motion for reconsideration of
the aforesaid order having been denied, he came to the Supreme
Court, with the petition for certiorari, praying, among others, that the
Court declare the search warrant to be invalid for its alleged failure to
comply with the requisites of the Constitution and the Rules of Court,
and that all the articles confiscated under such warrant as
inadmissible as evidence in the case, or in any proceedings on the
matter.
Issue:
Whether the 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.
Held:
Under the Constitution no search warrant shall issue but 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. More emphatic and detailed is the implementing rule
of the constitutional injunction, The Rules provide that the 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. 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
may produce and to attach them to the record. Such written
deposition is necessary in order that the Judge may be able to
properly determine the existence or nonexistence of the probable
cause, to hold liable for perjury the person giving it if it will 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.
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Silva v. Presiding Judge, 203 SCRA 140 (MORA)

FACTS:
On June 13, 1986, M/Sgt. Ranulfo Villamor, Jr., as chief of the PC
Narcom Detachment in Dumaguete City, Negros Oriental, filed an
Application for Search Warrant with the Regional Trial Court,
Branch XXXIII, Dumaguete City against petitioners Nicomedes Silva
and Marlon Silva.1 This application was accompanied by a
Deposition of Witness executed by Pfc. Arthur M. Alcoran and Pat.
Leon T. Quindo, also dated June 13, 1986.

On the same day, Judge Nickarter A. Ontal, then Presiding Judge of
the Regional Trial Court, Branch XXXIII, Dumaguete City, pursuant to
the said Application for Search Warrant and Deposition of
Witness, issued Search Warrant No. 1, directing the aforesaid police
officers to search the room of Marlon Silva in the residence of
Nicomedes Silva for violation of Republic Act No. 6425, otherwise
known as the Dangerous Drugs Act of 1972.

Pertinent portions of Search Warrant No. 1 read as follows:
It appearing to the satisfaction of the undersigned after examining
oath (sic) MSGT. Ranulfo T. Villamor, Jr. and his witnesses (sic) Pfc.
Arthur M. Alcoran and Pat. Leon T. Quindo that there is probable
cause to believe that possession and control of Marijuana dried
leaves, cigarettes, joint has been committed or is about to be
committed and that there are good and sufficient reasons to believe
that marijuana dried leaves, cigarettes, joint has in possession and/or
control at Tamas Room (Rgt. side 1st Floor) located at Nono-
Limbaga Drive, Tanjay, Neg. Or. which is/are:

X Subject of the offense stated above
Stolen or embezzled or other proceeds of fruits of the offense;

X (Used or intended to be used as means of committing an offense.

You are hereby commanded to make an immediate search at any
time of the day (night) of the room of Tama Silva residence of his
father Comedes Silva to open (sic) aparadors, lockers, cabinets,
cartoons, containers, forthwith seize and take possession of the
following property Marijuana dried leaves, cigarettes, joint and bring
the said property to the undersigned to be dealt with as the law
directs.

In the course of the search, the serving officers also seized money
belonging to Antonieta Silva in the amount of P1,231.40.
Antonieta Silva filed a motion for the return of the said amount on the
grounds that the search warrant only authorized the serving officers
to seize marijuana dried leaves, cigarettes and joint, and that said
officers failed or refused to make a return of the said search warrant
in gross violation of Section 11, Rule 126 of the Rules of Court.

Acting on said motion, Judge Ontal issued an Order, stating that the
court holds in abeyance the disposition of the said amount of
P1,231.40 pending the filing of appropriate charges in connection
with the search warrant.

Petitioners filed a motion to quash Search Warrant No. 1 on the
grounds that (1) it was issued on the sole basis of a mimeographed
Application for Search Warrant and Deposition of Witness, which
were accomplished by merely filling in the blanks and (2) the judge
failed to personally examine the complainant and witnesses by
searching questions and answers in violation of Section 3, Rule 126
of the Rules of Court.

On August 11, 1987, respondent trial court, through Judge Eugenio
M. Cruz, who, by then, had replaced retired Judge Ontal, issued an
Order denying the motion for lack of merit, finding the requisites
necessary for the issuance of a valid search warrant duly complied
with.

A motion for reconsideration dated September 1, 1987 filed by
petitioners was likewise denied by Judge Cruz

ISSUE:
WON the issuance of Search Warrant No.1was tainted with illegality

HELD:
TAINTED WITH ILLEGALITY.

Section 2, Article III (Bill of Rights) of the 1987 Constitution
guarantees the right to personal liberty and security of homes against
unreasonable searches and seizures. This section provides:

Sec. 2. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched
and the persons or things to be seized.
The purpose of the constitutional provision against unlawful 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 usurpations when attempted.

Thus, Sections 3 and 4, Rule 126 of the Rules of Court provide for
the requisites for the issuance of a search warrant, to wit:
SEC. 3. Requisite for issuing search warrant.A search warrant
shall not issue but upon probable cause in connection with one
specific offense 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 things to be seized.

SEC. 4. Examination of complainant; record.The judge must,
before issuing the warrant, personally examine in the form of
searching questions and answers, in writing and under oath the
complainant and any witnesses he may produce on facts personally
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known to them and attach to the record their sworn statements
together with any affidavits submitted.

Based on the aforecited constitutional and statutory provisions, the
judge must, before issuing a search warrant, determine whether
there is probable cause by examining the complainant and witnesses
through searching questions and answers.

This Court defined probable cause as follows:
The probable cause for a valid search warrant, has been defined
as such facts and circumstances which would lead a reasonably
discreet and prudent man to believe that an offense has been
committed, and that objects sought in connection with the offense are
in the place sought to be searched. This probable cause must be
shown to be within the personal knowledge of the complainant or the
witnesses he may produce and not based on mere hearsay.

In the case at bar, we have carefully examined the questioned
search warrant as well as the Application for Search Warrant and
Deposition of Witness, and found that Judge Ontal failed to comply
with the legal requirement that he must examine the applicant and
his witnesses in the form of searching questions and answers in
order to determine the existence of probable cause. The joint
Deposition of Witness executed by Pfc. Alcoran and Pat. Quindo,
which was submitted together with the Application for Search
Warrant contained, for the most part, suggestive questions
answerable by merely placing yes or no in the blanks provided
thereon. In fact there were only four (4) questions asked. The
disposition did not only contain leading questions but it was also very
broad.

In the case of Nolasco vs. Pao, G.R. No. 69803, October 8, 1985,
139 SCRA 152, 163, this Court held: The probable cause required
to justify the issuance of a search warrant comprehends such facts
and circumstances as will induce a cautious man to rely upon them
and act in pursuant thereof. Of the 8 questions asked, the 1st, 2nd
and 4th pertain to identity. The 3rd and 5th are leading not searching
questions. The 6th, 7th and 8th refer to the description of the
personalities to be seized, which is identical to that in the Search
Warrant and suffers from the same lack of particularity. The
examination conducted was general in nature and merely repetitious
of the deposition of said witness. Mere generalization will not suffice
and does not satisfy the requirements or probable cause upon which
a warrant may issue.

Thus the court held that in issuing a search warrant, the judge must
strictly comply with the constitutional and statutory requirement that
he must determine the existence of probable cause by personally
examining the applicant and his witnesses in the form of searching
questions and answers. His failure to comply with this requirement
constitutes grave abuse of discretion. As declared in Marcelo vs. De
Guzman, G.R. No. L-29077, June 29, 1982, 114 SCRA 657, the
capricious disregard by the judge in not complying with the
requirements before issuance of search warrants constitutes abuse
of discretion.

The officers implementing the search warrant clearly abused their
authority when they seized the money of Antonieta Silva. This is
highly irregular considering that Antonieta Silva was not even named
as one of the respondents, that the warrant did not indicate the
seizure of money but only of marijuana leaves, cigarettes and joints,
and that the search warrant was issued for the seizure of personal
property (a) subject of the offense and (b) used or intended to be
used as means of committing an offense and NOT for personal
property stolen or embezzled or other proceeds of fruits of the
offense. Thus, the then presiding Judge Ontal likewise abused his
discretion when he rejected the motion of petitioner Antonieta Silva
seeking the return of her seized money.

Thus, the SC declared Search Warrant No. 1 null and void.
Respondent Judge of the Regional Trial Court of Negros Oriental,
Branch XXXIII is directed to order the return to petitioner Antonieta
Silva of the amount of P1,231.40 which had earlier been seized from
her by virtue of the illegal search warrant.


Veroy v. Judge Layague, 210 SCRA 97 (PABALAN)


People v. Del Rosario, 234 SCRA 246 (RAMOS)

Facts:
Normando del Rosario was charged before Branch 17 of
the Regional Trial Court of the Fourth Judicial Region
stationed in Cavite City with Illegal Possession of Firearm
and Ammunitions
That on or about September 4, 1991, in the City of Cavite,
Republic of the Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, without legal
authority, did, then and there, willfully, unlawfully,
feloniously and knowingly have in his possession and
control a homemade (paltik)caliber .22 revolver with three
(3) live ammunition.
Accused also sell to a poseur buyer an aluminum foil
containing Methamphetamine Hydrochloride also known as
"Shabu", a regulated drug.
The trial court convicted him of illegal possession of
firearms and illegal sale of drugs particularly shabu
Upon application of SPO3 Raymundo Untiveros of the
PNP of Cavite City Court Judge Arturo de Guia issued in
the morning of September 4, 1991 a search warrant
authorizing the search and seizure of an "undetermined
quantity of Methamphetamine Hydrochloride commonly
known as shabu and its paraphernalias" in the premises of
appellant's house located at 828 R. Basa St., San Roque,
Cavite City.
However, the search warrant was not implemented
immediately due to the lack of police personnel to form the
raiding team
At about 9 o'clock in the evening of that day, a raiding team
was finally organized. SPO3 Untiveros headed the raiding
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team with PO3 Rogelio Francisco, SPO1 Eduardo Novero,
SPO3 Reynaldo de la Cruz, PO1 Carlito Barbuco, PO3
Onrubio and SPO2 Villegas as members
In the final briefing of the raiding team at the police station,
it was agreed upon that PO1 Venerando Luna will buy
shabu from appellant and after his return from appellant's
house, the raiding team will implement the search warrant
A marked money consisting of a P100 bill bearing serial no.
PQ 329406 was given by the Station Commander to PO1
Luna and entered in the police logbook.
PO1 Luna with a companion proceeded to appellant's
house to implement the search warrant. Barangay Capt.
Maigue, Norma del Rosario and appellant witnessed the
search at appellant's house
The seized items were photographed thereat by Fred
Agana and then turned over to PO3 Onrubio SPO3
Untiveros issued receipts for the seized items with
Barangay Capt. Maigue and appellant's sister Norma as
signing witnesses. He also made a return of the seized
items to the court
At police station, the seized items were taped and initialed
by SPO3 de la Cruz
The next day, SPO4 Pilapil, through PO1 Barbuco,
forwarded to NBI Forensic Chemist Mary Ann Aranas for
laboratory analysis the aluminum foil containing suspected
shabu bought by PO1 Luna from appellant in the buy-bust
operation as well as the aluminum foils containing
suspected marijuana which were confiscated by virtue of
the search warrant.

Issue:
WON the seizure of the firearms are proper

Held:
NO. sec. 2, Art.III of the constitution specifically provides
that a search warrant must particularly describe the
things to be seized.
In this case, the only objects to be seized that the
warrant determined was the methamphetamine and the
paraphernalia. The seizure of the firearms was
unconstitutional.
With the exclusion in evidence of the illegally seized
firearm, there is, therefore, a total absence of evidence to
support the charge of illegal possession of firearm, against
accused-appellant.The same may be said of the charge of
illegal possession of ammunition.
WHEREFORE, the decision appealed from is hereby
REVERSED and accused-appellant is hereby
ACQUITTED in Criminal Case No. 236-91 and Criminal
Case No. 237-91.


People v. Gesmundo, 219 SCRA 743 (SASAKI)

FACTS:

Prosecutions version:

On Nov. 17, 1986, PO Luciano gave money and instructed
his civilian informer to buy marijuana from Gesmundo at
the Cocoland Hotel.

Luciano saw the accused selling marijuana to his civilian
informer by the door outside the house of the accused.
Immediately thereafter, he applied for a search warrant.

At about 2:00 p.m. of that day, a raiding police team armed
with a search warrant went to the residence of the Brgy.
Capt. for them to be accompanied by him in serving the
said warrant at the residence of the accused

The police was allowed to enter the house upon the
strength of the warrant

The accused begged the police not to searchand to leave
the house, but the police insisted on searching her house.

The accused led the team into her kitchen and she pointed
to a metal basin on top of a table as the hiding place of the
dried marijuana flowering tops contained in a plastic bag
marked ISETANN. The police also recovered from a native
"uway" cabinet dried marijuana flowering tops wrapped
separately in three (3) pieces of Komiks paper.

After the discovery, the accused was photographed
together with the confiscated items. Thereafter, accused
was made to acknowledge in writing that the dried
marijuana flowering tops were taken from her possession
and control inside her residence. Brgy. Capt. Capuno also
affixed his countersignature thereto.


Accusseds version:

The police arrived at her house in a jeep.

She identified Sgt. Yte and PFC Jose Luciano.

She invited Sgt. Yte to enter her house while Luciano was
left in the jeep.

While inside the house Yte showed the accused something
he claimed as a search warrant, when someone coming
from the kitchen uttered ito na

They proceeded to the kitchen and saw Luciano holding
a plastic bag with four other companions who entered the
house through the back door which was open.

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They confronted the accused and insisted that the bags
belonged to her.

Accused denied the accusation and told them that she
doesnt know anything about it.

She was made to sign a prepared document. She was
brought to the police station and was detained.

Before the incident in question, Sgt. Yte asked help from
accused-appellant to testify against one Marquez, son of
her former landlord, for drug pushing. Accused refused,
reasoning out that it would be unfair since she is totally
unaware of this thing. But Sgt. Yte remained undaunted
and was forcing her for the second time to testify against
Marquez.

The court rendered judgment against the accused.

Accused claims that the drugs were planted

ISSUE:
W/N there was proper search and seizure done on the property of
the accused


HELD:

NO!

The investigation report prepared by Luciano stated that, during the
search, they discovered a hole at the backyard of the house of the
suspect with a big biscuit can inside the hole and on top of the cover
a flower pot was placed wherein the marijuana were kept.

However, there was no mention of any marijuana obtained from a
flower pot in any of their testimonies. There were inconsistencies
insofar as the prosecution is concerned, as to what was recovered
and where; the trial court concluded that these inconsistencies are
trivial. There must sufficient evidence that the marijuana was actually
surrendered by the accused.

The claim that the marijuana was planted was strengthen as the
police violated sec 7, rule 126 rules of the court provides
no search of a house, room or any other premise shall be made
except in the presence of the lawful occupant thereof or any
member of his family or in the absence of the latter, in the
presence of two (2) witnesses of sufficient age and discretion
residing in the same locality. This requirement is mandatory to
ensure regularity in the execution of the search warrant. Violation of
said rule is in fact punishable under Article 130 of the Revised Penal
Code.

The document (PAGPAPATUNAY) was inadmissible to the court as
the accused was not informed of her right not to sign the document
neither was she informed that she has the right to the assistance of a
counsel and the fact that it may be used as evidence against her. It
was not proved that the marijuana belonged to her. Not only does
the law require the presence of witnesses when the search is
conducted, but it also imposes upon the person making the
search the duty to issue a detailed receipt for the property
seized. He is likewise required to deliver the property seized to
the judge who issued the warrant, together with a true and
accurate inventory thereof duly verified under oath. Again, these
duties are mandatory and are required to preclude substitution of the
items seized by interested parties.

WHEREFORE, the appealed judgment is REVERSED, and on
reasonable doubt, the appellant is hereby ACQUITTED of the crime
charged.


Umil v. Ramos, 187 SCRA 311 (SUNGA)

Facts:

On 1 February 1988, military agents were dispatched to the
St. Agnes Hospital, Roosevelt Avenue, Quezon City, to
verify a confidential information which was received by their
office, about a "sparrow man" (NPA member) who had
been admitted to the said hospital with a gunshot wound.
That the wounded man in the said hospital was among the
five (5) male "sparrows" who murdered two (2) Capcom
mobile patrols the day before, or on 31 January 1988 at
about 12:00o'clock noon, before a road hump along
Macanining St., Bagong Barrio, Caloocan City.
The wounded man's name was listed by the hospital
management as "Ronnie Javellon," twenty-two(22) years
old of Block 10, Lot 4, South City Homes, Bian, Laguna
however it was disclosed later that the true name of the
wounded man was Rolando Dural.
In view of this verification, Rolando Dural was transferred
to the Regional Medical Services of the CAPCOM, for
security reasons. While confined thereat, he was positively
identified by the eyewitnesses as the one who murdered
the 2 CAPCOM mobile patrols.

Issue:
Whether or Not Rolando was lawfully arrested.

Held:
Rolando Dural was arrested for being a member of the
NPA, an outlawed subversive organization.
Subversion being a continuing offense, the arrest without
warrant is justified as it can be said that he was committing
as offense when arrested.
The crimes rebellion, subversion, conspiracy or proposal to
commit such crimes, and crimes or offenses committed in
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furtherance therefore in connection therewith constitute
direct assaults against the state and are in the nature of
continuing crimes



People v. Sucro, 195 SCRA 388 (SUPAPO)

DOCTRINES:
Constitutional Law; Arrest; Warrantless Arrests; When a police officer
sees the offense, although at a distance, or hears the disturbances
created thereby, and proceeds at once to the scene thereof, he may
effect an arrest without a warrant.

Same; Same; Same; Same; Same; Police officers have personal
knowledge of the actual commission of the crime when it had earlier
conducted surveillance activities of the accused.

Same; Same; Search and Seizure; 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.

SYNOPSIS:
During police surveillance, Sucro was caught selling marijuana
(pusher). He was immediately arrested and recovered from him
pieces of marijuana. He was convicted guilty of the sale of prohibited
drug under S4 A2 of the Dangerous Drug Act by the RTC of Kalibo,
Aklan. He appealed his case to the SC contending that he was
arrested without warrant. However, the Court affirmed the decision of
the RTC.

FACTS:
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.

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. 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. Pat.
Fulgencio again called up Seraspi to report that a third buyer later
Identified as Ronnie Macabante, was transacting with appellant.
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. Upon seeing
the police, Macabante threw something to the ground which turned
out to be a tea bag of marijuana. When confronted, Macabante
readily admitted that he bought the same from appellant (Edison
Sucro) in front of the chapel. The police team was able to overtake
and arrest appellant. The police recovered 19 sticks and 4 teabags of
marijuana from the cart inside the chapel and another teabag from
Macabante.
ISSUES:
1. WON the arrest without warrant of the accused is lawful.
2. WON the evidence resulting from such arrest is admissible.

HELD:
1. The court ruled 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:
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;
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. 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
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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 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. 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.
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.: 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.
2. That searches and seizures must be supported by a valid warrant
is not an absolute rule (Manipon, Jr. v. Sandiganbayan), 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. 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.
Premises considered, the Court is convinced that appellant Edison
Sucro had indeed committed the offense charged. The trial court's
decision must be upheld.

DISPOSITION:
WHEREORE, the decision appealed from is hereby AFFIRMED.


People v. Rodrigueza, 205 SCRA 791 (TABAG)

DOCTRINE:
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.
Exceptions:
- when the owner of the premises waives his right
against such incursion;
- when the search is incidental to a lawful arrest;
- when it is made on vessels and aircraft for violation of
customs laws;
- when it is made on automobiles for the purpose of
preventing violations of smuggling or immigration laws;
- when it involves prohibited articles in plain view;
- or in cases of inspection of buildings and other premises
for the enforcement of fire, sanitary and building
regulations

FACTS:
- This case is an appeal of an RTC Legaspi City decision
finding Don Rodrigueza (accussed-appellant/respondent)
guilty beyond reasonable doubt.
- Rodrigueza was found to be guilty of violating Sec 4, Art 2
of the Dangerous Drugs Act of 1972, he was sentenced
with life imprisonment and fine of 20,000 pesos.
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- The information filed asserts that Rodrigueza with co-
accussed Samuel Segovia and Antonio Lonceras were in
possession of 100 grams of marijuana leaves for selling
(drug pushers).
- Through a buy-bust operation, Rodrigueza was convicted
but his co-accused were acquitted.
- As mentioned, NARCOM agents staged a buy-bust
operation after gaining information that there was on-going
illegal traffic of prohibited drugs in Tagas, Albay.
- The participating agents were given money treated with
ultraviolet powder. One of the agents went to said location
and asked for a certain Don (later known as the accused
Rodrigueza).
- Rodrigueza met with the agent undercover and a certain
object wrapped in a plastic later identified as marijuana
was given in exchange for P200.
- The agent went back to headquarters and made a report,
based on which, a team was subsequently organized and a
raid was conducted in the house of the father of the
accused. (It should be stressed that Rodrigueza was NOT
arrested DURING the buy-bust operation.)
- During the raid of Rodriguezas fathers house, the
NARCOM agents were able to confiscate dried marijuana
leaves and a plastic syringe, among other drug
paraphernalia. THEY DID NOT HAVE ANY SEARCH
WARRANT.
- Coinciding with the raid, the suspects including Rodrigueza
and his father were apprehended. They were brought to
the headquarters for investigation. Again, it should be
noted that there were NO warrants of arrest.
- Having physical custody of the accused, Rodrigueza was
found positive of ultraviolet powder.
- The next day, Rodriguezas father was released but he was
asked to execute an affidavit sworn before the assistant
city prosecutor. He had no counsel when this was done.
- The case details that the suspects presented different
versions of their alleged participation. Greatly relevant is
the statement of Rodrigueza claiming that he went to Camp
Bagong Ibalon when his father was taken by military men.
When he arrived at the camp, 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.
- Due to the evidence obtained through the search and
seizure, the RTC convicted Rodrigueza.
(TO BE MORE COMPEREHENSIVE) The accused assigns the
following errors, stating that the RTC 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.

ISSUE:
Fundamentally, W/N Rodrigueza should be acquitted in view of
NARCOMs violation of Sec 2, Article 3 of the Bill of Rights (on
Search and Seizure)?
In particular, W/N the evidence obtained through the raid without
a valid search warrant should be admissible?

HELD:
YES, Rodrigueza should be acquitted. NARCOM violated his
Constitutional rights against invalid search and seizure.
NO, admissibility of evidence from the invalid search and
seizure (through the raid) should be questioned.
The NARCOM agents procedure in the entrapment of the accused
failed to meet the qualification that the suspected drug dealer must
be caught red-handed in the act of selling marijuana to a person
posing as a buyer, since the operation was conducted after the
actual exchange.

(SC held that a buy-bust operation is a form of entrapment
employed by peace officers to trap and catch a malefactor in
flagrante delicto. Applied to the case at bar, the term in flagrante
delicto requires that the suspected drug dealer must be caught red-
handed in the act of selling marijuana or any prohibited drug to a
person acting or posing as a buyer.)

The raid AFTER the buy-bust operation (not during or
IMMEDIATELY after), also violated accused right against
unreasonable search and seizure as the situation did not fall in the
circumstances wherein a search may be validly made even without a
search warrant, i.e. when the search is incidental to a lawful arrest
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and when it involves prohibited articles in plain view.

The NARCOM agents could not have justified their act by invoking
the urgency and necessity of the situation because the testimonies of
the prosecution witnesses reveal that the place had already been put
under surveillance for quite some time. Had it been their intention to
conduct the raid, then they should, because they easily could, have
first secured a search warrant during that time.

The Court further notes that there is confusion and ambiguity in the
identification of the confiscated marijuana leaves and other prohibited
drug paraphernalia presented as evidence against appellant.
Evidently, the prohibited articles were among those confiscated
during the so-called follow-up raid in the house of Rodriguezas
father. The unanswered question then arises as to the identity of the
marijuana leaves that became the basis of appellant's conviction. In
People vs. Rubio, the SC 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.

RULING ON OTHER ERROR/S:
The sworn statement of Rodriguezas father (without counsel) is
INADMISSIBLE, violative of his Constitutional right to counsel. Any
confession or admission obtained in violation of section 12 or 17 (on
the right to remain silent, and the right to counsel, among others)
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. 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.


Callanta v. Villanueva, 77 SCRA 377 (VELASCO)

Facts:
This case is a petition for certiorari brought against Dagupan City
Judge Felipe Villanueva, who denied the motions to quash the two
complaints for grave oral defamation against Faustina Callanta.

Petitioner questioned the validity of the issuance of warrant of arrest
by the city judge on the ground that it should have been the city fiscal
who should have conducted the preliminary examination. According
to petitioners counsel, there was jurisdictional infirmity. It was shown
that after such issuance of the warrants of arrest with the bail fixed in
the amount of P600, Callanta posted such required bail bonds, thus
obtaining provisional liberty.

The respondents, in their answer, showed that the city fiscal was in
agreement with their investigation, and that during the proceedings,
the fiscal appeared to prosecute the petitioner. They further
commented that if the fiscal did not agree with the city judges
investigation of the case, he would have asked for further
investigation.

Issue: WON petitioners contention is with merit.

Held: No. Petition dismissed.

It was held in many precedent cases that the posting of the bail bond
constitutes a waiver of discussing any irregularity in the preliminary
investigation conducted prior to the issuance of warrant. It stops him
from contesting the validity of his warrant of arrest.

Petitioner also erred in their contention on the city judges preliminary
investigation. The Charter of the City of Dagupan is clear. The City
Court of Dagupan City "may also conduct preliminary investigation
for any offense, without regard to the limits of punishment, and may
release, or commit and bind over any person charged with such
offense to secure his appearance before the proper court."


Posadas v. Court of Appeals, 188 SCRA 288 (VILLAFUERTE)

Facts:
Members of the Integrated National Police (INP) of the Davao
Metrodiscom assigned with the Intelligence Task Force, Pat. Ursicio
Ungab and Pat. Umbra Umpar conducted surveillance along
Magallanes Street, Davao City. While in the vicinity of Rizal Memorial
Colleges they spotted petitioner carrying a "buri" bag and they
noticed him to be acting suspiciously. They approached the petitioner
and identified themselves as members of the INP. Petitioner
attempted to flee but his attempt to get away was unsuccessful. They
then checked the "buri" bag of the petitioner where they found one
(1) caliber .38 Smith & Wesson revolver with Serial No. 770196, two
(2) rounds of live ammunition for a .38 caliber gun, a smoke (tear
gas) grenade, and two (2) live ammunitions for a .22 caliber gun.
They brought the petitioner to the police station for further
investigation. In the course of the same, the petitioner was asked to
show the necessary license or authority to possess firearms and
ammunitions found in his possession but he failed to do so. He was
then taken to the Davao Metrodiscom office and the prohibited
articles recovered from him were indorsed to M/Sgt. Didoy the officer
then on duty. He was prosecuted for illegal possession of firearms
and ammunitions in the Regional Trial Court of Davao City.

Issue:
Whether or Not the warantless search is valid.

Held:
In justifying the warrantless search of the buri bag then carried by
the petitioner, argues that under Section 12, Rule 136 of the Rules of
Court a person lawfully arrested may be searched for dangerous
weapons or anything used as proof of a commission of an offense
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without a search warrant. It is further alleged that the arrest without a
warrant of the petitioner was lawful under the circumstances.
In the case at bar, there is no question that, indeed, it is reasonable
considering that it was effected on the basis of a probable cause.
The probable cause is that when the petitioner acted suspiciously
and attempted to flee with the buri bag there was a probable cause
that he was concealing something illegal in the bag and it was the
right and duty of the police officers to inspect the same.
It is too much indeed to require the police officers to search the bag
in the possession of the petitioner only after they shall have obtained
a search warrant for the purpose. Such an exercise may prove to be
useless, futile and much too late.
Clearly, the search in the case at bar can be sustained under the
exceptions heretofore discussed, and hence, the constitutional
guarantee against unreasonable searches and seizures has not been
violated.



People v. Mengote, 210 SCRA 174 (ATIENZA)
Facts:
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 his
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 argues that the
seizure of the revolver was incidental to a lawful arrest even without
a 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 responded. They 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. The suspects were then
searched. Rogelio Mengote 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.
On August 11, 1987, the Rogelio Mengote was charged with violating
PD 1866 (Illegal Possession of Firearm) before the Regional Trial
Court of Manila.
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. For his
part, 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. Mengote
was convicted and sentenced on reclusion perpetua.
It is submitted in the Appellant's Brief that the revolver should not
have been admitted in evidence because of its illegal seizure (No
search warrant). The defense also argues that neither could it have
been seized as an incident of a lawful arrest because the arrest of
Mengote was itself unlawful (No arrest 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.
Issue:
WON the warrantless search and arrest was illegal
Held:
Illegal. 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. However, the Solicitor General reasons 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 falling under paragraphs (a) and (b)
hereof, the person arrested without a warrant shall be forthwith
delivered to the nearest police station or jail.
The Supreme Court did not agree with the Solicitor General
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
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belief that an offense had been committed and that the accused-
appellant had committed it." But the SC said, 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?
According to the SC, these are certainly not sinister acts and the
setting of the arrest made them less so because he was arrested at
11:30 in the morning and in a crowded street shortly after alighting
from a passenger jeep with his companion. The SC adds that 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. The SC adds that the
accuse appellants actions (looking side to side) does not warrant
suspicion. 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.
There were previous cases that upheld the warrantless arrest but
according to SC, this 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.
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 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 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. 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.
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.
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.
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.

People v. Tangliben, 184 SCRA 220 (BUENAVENTURA)

FACTS:
In the late evening of March 2, 1982, Patrolmen Silverio Quevedo
and Romeo L. Punzalan of the San Fernando Police Station,
together with Barangay Tanod Macario Sacdalan, were conducting
surveillance mission at the Victory Liner Terminal compound located
at Barangay San Nicolas, San Fernando, Pampanga; that the
surveillance was aimed not only against persons who may commit
misdemeanors at the said place but also on persons who may be
engaging in the traffic of dangerous drugs based on informations
supplied by informers; that it was around 9:30 in the evening that
said Patrolmen noticed a person caring a traveling bag (Exhibit G)
who was acting suspiciously and they confronted him; that the
person was requested by Patrolmen Quevedo and Punzalan to open
the red traveling bag but the person refused, only to accede later on
when the patrolmen identified themselves; that found inside the bag
were marijuana leaves (Exhibit B) wrapped in a plastic wrapper and
weighing one kilo, more or less; that the person was asked of his
name and the reason why he was at the said place and he gave his
name as Medel Tangliben and explained that he was waiting for a
ride to Olongapo City to deliver the marijuana leaves; that the
accused was taken to the police headquarters at San Fernando,
Pampanga, for further investigation; and that Pat. Silverio Quevedo
submitted to his Station Commander his Investigator's Report
(Exhibit F).
In the following morning or on March 3, 1982, Pat. Silverio Quevedo
asked his co-policeman Pat. Roberto Quevedo, who happens to be
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his brother and who has had special training on narcotics, to conduct
a field test on a little portion of the marijuana leaves and to have the
remaining portion examined by the PCCL at Camp Olivas, San
Fernando, Pampanga; that Pat. Roberto Quevedo conducted a field
test (Exhibit H) on the marijuana leaves and found positive result for
marijuana (Exhibit E); that the remaining bigger quantity of the
marijuana leaves were taken to the PCCL at Camp Olivas by Pat.
Roberto Quevedo that same day of March 3, 1982 (Exhibit A and A-
1) and when examined, the same were also found to be marijuana
(Exhibit C and C-1).

ISSUE:
Whether or not the marijuana allegedly seized from the accused was
a product of an unlawful search without a warrant and is therefore
inadmissible in evidence.
HELD/RATIO:

The SC held that the contention is devoid of merit.
One of the exceptions to the general rule requiring a search warrant
is a search incident to a lawful arrest. Thus, Section 12 of Rule 126
of the 1985 Rules on Criminal Procedure provides:
Section 12. Search incident to a lawful arrest. A
person lawfully arrested may be searched for
dangerous weapons or anything which may be
used as proof of the commission of an offense,
without a search warrant.
Meanwhile, Rule 113, Sec. 5(a) provides:
. . . A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be
arrested has committed, is actually committing,
or is attempting to commit an offense.
Accused was caught in flagrante, since he was carrying marijuana at
the time of his arrest. This case therefore falls squarely within the
exception. The warrantless search was incident to a lawful arrest and
is consequently valid.
In the present case, the accused was found to have been committing
possession of marijuana and can be therefore searched lawfully even
without a search warrant. Another reason is that this case poses
urgency on the part of the arresting police officers. It was found out
that an informer pointed to the accused telling the policemen that the
accused was carrying marijuana. The police officers had to act
quickly and there was not enough time to secure a search warrant.


People v. Malmstedt, 198 SCRA 401 (CAMERINO)
[NOTE: No submission, online digest]

Facts:
In an information filed against the accused- appellant Mikael
Malmstead was charged before the RTC of La Trinidad, Benguet, for
violation of Section 4, Art. II of Republic Act 6425, as amended,
otherwise known as the Dangerous Drugs Act of 1972, as amended.
Accused Mikael Malmstedt, a Swedish national, entered the
Philippines for the third time in December 1988 as a tourist. He had
visited the country sometime in 1982 and 1985.

In the evening of 7 May 1989, accused left for Baguio City. Upon his
arrival thereat in the morning of the following day, he took a bus to
Sagada and stayed in that place for two (2) days. Then in the 7 in the
morning of May 11, 1989, the accused went to Nangonogan bus stop
in Sagada.

At about 8: 00 o'clock in the morning of that same day (11 May
1989), Captain Alen Vasco, the Commanding Officer of the First
Regional Command (NARCOM) stationed at Camp Dangwa, ordered
his men to set up a temporary checkpoint at Kilometer 14, Acop,
Tublay, Mountain Province, for the purpose of checking all vehicles
coming from the Cordillera Region. The order to establish a
checkpoint in the said area was prompted by persistent reports that
vehicles coming from Sagada were transporting marijuana and other
prohibited drugs. Moreover, information was received by the
Commanding Officer of NARCOM, that same morning that a
Caucasian coming from Sagada had in his possession prohibited
drugs. The group composed of seven (7) NARCOM officers, in
coordination with Tublay Police Station, set up a checkpoint at the
designated area at about 10:00 o'clock in the morning and inspected
all vehicles coming from the Cordillera Region.

The two (2) NARCOM officers started their inspection from the front
going towards the rear of the bus. Accused who was the sole
foreigner riding the bus was seated at the rear thereof.

During the inspection, CIC Galutan noticed a bulge on accused's
waist. Suspecting the bulge on accused's waist to be a gun, the
officer asked for accused's passport and other identification papers.
When accused failed to comply, the officer required him to bring out
whatever it was that was bulging on his waist. The bulging object
turned out to be a pouch bag and when accused opened the same
bag, as ordered, the officer noticed four (4) suspicious-looking
objects wrapped in brown packing tape, prompting the officer to open
one of the wrapped objects. The wrapped objects turned out to
contain hashish, a derivative of marijuana.
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Thereafter, accused was invited outside the bus for questioning. But
before he alighted from the bus, accused stopped to get two (2)
travelling bags from the luggage carrier. Upon stepping out of the
bus, the officers got the bags and opened them. A teddy bear was
found in each bag. Feeling the teddy bears, the officer noticed that
there were bulges inside the same which did not feel like foam
stuffing. It was only after the officers had opened the bags that
accused finally presented his passport.

Accused was then brought to the headquarters of the NARCOM at
Camp Dangwa, La Trinidad, Benguet for further investigation. At the
investigation room, the officers opened the teddy bears and they
were found to also contain hashish. Representative samples were
taken from the hashish found among the personal effects of accused
and the same were brought to the PC Crime Laboratory for chemical
analysis.

In the chemistry report, it was established that the objects examined
were hashish. a prohibited drug which is a derivative of marijuana.
Thus, an information was filed against accused for violation of the
Dangerous Drugs Act.

ACCUSEDS DEFENSE

During the arraignment, accused entered a plea of "not guilty." For
his defense, he raised the issue of illegal search of his personal
effects. He also claimed that the hashish was planted by the
NARCOM officers in his pouch bag and that the two (2) travelling
bags were not owned by him, but were merely entrusted to him by an
Australian couple whom he met in Sagada. He further claimed that
the Australian couple intended to take the same bus with him but
because there were no more seats available in said bus, they
decided to take the next ride and asked accused to take charge of
the bags, and that they would meet each other at the Dangwa
Station.

The trial court found the guilt of the accused Mikael Malmstedt
established beyond reasonable doubt.

Seeking the reversal of the decision of the trial court finding him
guilty of the crime charged, accused argues that the search of his
personal effects was illegal because it was made without a search
warrant and, therefore, the prohibited drugs which were discovered
during the illegal search are not admissible as evidence against him.


Issue:
Whether or Not the contention of the accused is valid, and therefore
the RTC ruling be reversed.


Held:
The Constitution guarantees the right of the people to be secure in
their persons, houses, papers and effects against unreasonable
searches and seizures. However, where the search is made pursuant
to a lawful arrest, there is no need to obtain a search warrant. A
lawful arrest without a warrant may be made by a peace officer or a
private person under the following circumstances.

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.

Accused was searched and arrested while transporting prohibited
drugs (hashish). A crime was actually being committed by the
accused and he was caught in flagrante delicto. Thus, the search
made upon his personal effects falls squarely under paragraph (1) of
the foregoing provisions of law, which allow a warrantless search
incident to a lawful arrest. 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
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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 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.
Warrantless search of the personal effects of an accused has been
declared by this Court as valid, because of existence of probable
cause, where the smell of marijuana emanated from a plastic bag
owned by the accused, 10 or where the accused was acting
suspiciously, 11 and attempted to flee.

The appealed judgment of conviction by the trial court is hereby
affirmed. Costs against the accused-appellant.

OR

FACTS:
Accused-appellant Mikael Malmstedt (hereinafter referred to as
the accused) was charged before the Regional Trial Court (RTC) of
La Trinidad, Benguet,
Malmstedt, a Swedish national, entered the Philippines for the
third time in December 1988 as a tourist.
Accused left for Baguio City. Upon his arrival thereat in the
morning of the following day, he took a bus to Sagada and stayed in
that place for two (2) days.
Accused went to the Nangonogan bus stop in Sagada to catch the
first available trip to Baguio City. From Baguio City, accused planned
to take a late afternoon trip to Angeles City, then proceed to Manila
to catch his flight out of the country, scheduled on 13 May 1989.
From Sagada, accused took a Skyline bus
Captain Alen Vasco, the Commanding Officer of the First
Regional Command (NARCOM) stationed at Camp Dangwa, ordered
his men to set up a temporary checkpoint at Kilometer 14, Acop,
Tublay, Mountain Province, for the purpose of checking all vehicles
coming from the Cordillera Region. The order to establish a
checkpoint in the said area was prompted by persistent reports that
vehicles coming from Sagada were transporting marijuana and other
prohibited drugs. Moreover, information was received by the
Commanding Officer of NARCOM, that same morning, that a
Caucasian coming from Sagada had in his possession prohibited
drugs.
Sgt. Fider and CIC Galutan boarded the bus and announced that
they were members of the NARCOM and that they would conduct an
inspection. The two (2) NARCOM officers started their inspection
from the front going towards the rear of the bus. Accused who was
the sole foreigner riding the bus was seated at the rear thereof.
During the inspection, CIC Galutan noticed a bulge on accused's
waist. Suspecting the bulge on accused's waist to be a gun, the
officer asked for accused's passport and other identification papers.
When accused failed to comply, the officer required him to bring out
whatever it was that was bulging on his waist. The bulging object
turned out to be a pouch bag and when accused opened the same
bag, as ordered, the officer noticed four (4) suspicious-looking
objects wrapped in brown packing tape, prompting the officer to open
one of the wrapped objects. The wrapped objects turned out to
contain hashish, a derivative of marijuana.
Upon stepping out of the bus, the officers got the bags and
opened them. A teddy bear was found in each bag. Feeling the teddy
bears, the officer noticed that there were bulges inside the same
which did not feel like foam stuffing. It was only after the officers had
opened the bags that accused finally presented his passport.
Upon stepping out of the bus, the officers got the bags and
opened them. A teddy bear was found in each bag. Feeling the teddy
bears, the officer noticed that there were bulges inside the same
which did not feel like foam stuffing. It was only after the officers had
opened the bags that accused finally presented his passport.
Accused was then brought to the headquarters of the NARCOM
at Camp Dangwa, La Trinidad, Benguet for further investigation. At
the investigation room, the officers opened the teddy bears and they
were found to also contain hashish.
During the arraignment, accused entered a plea of "not guilty."
For his defense, he raised the issue of illegal search of his personal
effects. He also claimed that the hashish was planted by the
NARCOM officers in his pouch bag and that the two (2) travelling
bags were not owned by him, but were merely entrusted to him by an
Australian couple whom he met in Sagada. He further claimed that
the Australian couple intended to take the same bus with him but
because there were no more seats available in said bus, they
decided to take the next ride and asked accused to take charge of
the bags, and that they would meet each other at the Dangwa
Station.
Likewise, accused alleged that when the NARCOM officers
demanded for his passport and other Identification papers, he
handed to one of the officers his pouch bag which was hanging on
his neck containing, among others, his passport, return ticket to
Sweden and other papers. The officer in turn handed it to his
companion who brought the bag outside the bus. When said officer
came back, he charged the accused that there was hashish in the
bag. He was told to get off the bus and his picture was taken with the
pouch bag placed around his neck. The trial court did not give
credence to accused's defense.
The claim of the accused that the hashish was planted by the
NARCOM officers, was belied by his failure to raise such defense at
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the earliest opportunity. When accused was investigated at the
Provincial Fiscal's Office, he did not inform the Fiscal or his lawyer
that the hashish was planted by the NARCOM officers in his bag.

ISSUE:
1. WON, the search was Illegal because it was made without a
search warrant?

HELD:
1. The search is LEGAL.
Where the search is made pursuant to a lawful arrest, there is no
need to obtain a search warrant. A lawful arrest without a warrant
may be made by a peace officer or a private person under the
following circumstances.
6

Sec. 5 Arrest without warrant; when lawful. A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed
is actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested
has committed it; and
(c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forthwith delivered to the nearest
police station or jail, and he shall be proceeded against in
accordance with Rule 112, Section 7. (6a 17a).
Accused was searched and arrested while transporting prohibited
drugs (hashish). A crime was actually being committed by the
accused and he was caught in flagrante delicto. Thus, the search
made upon his personal effects falls squarely under paragraph (1) of
the foregoing provisions of law, which allow a warrantless search
incident to a lawful arrest.
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 could lead a reasonable, discreet and prudent
man to believe that an offense has been committed, and that the
objects sought in connection with the offense are in the place sought
to be searched. The required probable cause that will justify a
warrantless search and seizure is not determined by any fixed
formula but is resolved according to the facts of each case.
Warrantless search of the personal effects of an accused has been
declared by this Court as valid, because of existence of probable
cause, where the smell of marijuana emanated from a plastic bag
owned by the accused, or where the accused was acting
suspiciously, and attempted to flee.
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. It was held that when faced
with on-the-spot information, the police officers had to act quickly and
there was no time to secure a search warrant.
It must be observed that, at first, the NARCOM officers merely
conducted a routine check of the bus (where accused was riding)
and the passengers therein, and no extensive search was initially
made. It was only when one of the officers noticed a bulge on the
waist of accused, during the course of the inspection, that accused
was required to present his passport. The failure of accused to
present his identification papers, when ordered to do so, only
managed to arouse the suspicion of the officer that accused was
trying to hide his identity. For is it not a regular norm for an innocent
man, who has nothing to hide from the authorities, to readily present
his identification papers when required to do so?
The receipt of information by NARCOM that a Caucasian coming
from Sagada had prohibited drugs in his possession, plus the
suspicious failure of the accused to produce his passport, taken
together as a whole, led the NARCOM officers to reasonably believe
that the accused was trying to hide something illegal from the
authorities. From these circumstances arose a probable cause which
justified the warrantless search that was made on the personal
effects of the accused. In other words, the acts of the NARCOM
officers in requiring the accused to open his pouch bag and in
opening one of the wrapped objects found inside said bag (which
was discovered to contain hashish) as well as the two (2) travelling
bags containing two (2) teddy bears with hashish stuffed inside them,
were prompted by accused's own attempt to hide his identity by
refusing to present his passport, and by the information received by
the NARCOM that a Caucasian coming from Sagada had prohibited
drugs in his possession. To deprive the NARCOM agents of the
ability and facility to act accordingly, including, to search even without
warrant, in the light of such circumstances, would be to sanction
impotence and ineffectiveness in law enforcement, to the detriment
of society.


People v. Aminnudin, 163 SCRA 402 (DORIA)

FACTS:
Idel Aminnudin y Ahni was arrested on June 25, 1984, shortly after
disembarking from the M/V Wilcon 9 at about 8:30 in the evening, in
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Iloilo City. The PC officers, acting on a tip from one of their informers,
waited for Aminuddin, accosted him, inspected his bag and finding
what looked like marijuana leaves took him to their headquarters for
investigation. The two bundles of suspect articles were confiscated
from him and taken to the NBI laboratory for examination. It was later
analyzed as 3 kilos of marijuana leaves by the NBI forensic
examiner. With the foregoing, an Information for violation of the
Dangerous Drugs Act was filed against him. Later, the information
was amended to include Farida Ali y Hassen, who had also been
arrested with him that same evening and likewise investigated. Both
were arraigned and pleaded not guilty. Subsequently, the fiscal filed
a motion to dismiss the charge against Ali on the basis of a sworn
statement of the arresting officers absolving her after a 'thorough
investigation." The motion was granted, and trial proceeded only
against the accused-appellant, who was eventually convicted.

In his defense, Aminnudin disclaimed the marijuana, averring that all
he had in his bag was his clothing consisting of a jacket, two shirts
and two pairs of pants. He alleged that he was arbitrarily arrested
and immediately handcuffed. His bag was confiscated without a
search warrant. At the PC headquarters, he was manhandled to
force him to admit he was carrying the marijuana, the investigator
hitting him with a piece of wood in the chest and arms even as he
parried the blows while he was still handcuffed. He insisted he did
not even know what marijuana looked like and that his business was
selling watches and sometimes cigarettes. He also argued that the
marijuana he was alleged to have been carrying was not properly
identified and could have been any of several bundles kept in the
stock room of the PC headquarters.

The trial court, disbelieving him, held it was high time to put him away
and sentenced him to life imprisonment plus a fine of P20,000. The
trial court was unconvinced, noting from its own examination of the
accused that he claimed to have come to Iloilo City to sell watches
but carried only two watches at the time, traveling from Jolo for that
purpose and spending P107.00 for fare, not to mention his other
expenses.


ISSUE:
WON Amminudin was lawfully searched and arrested.


HELD:
NO. Amminudin was ACQUITTED.

Aminnudin claimed that he was arrested and searched without
warrant, making the marijuana allegedly found in his possession
inadmissible as evidence against him under the Bill of Rights. The
RTC did not even discuss this point. For his part, the Solicitor
General dismissed this after an all-too-short argument that the arrest
of Aminnudin was valid because it came under Rule 113, Section
6(b) of the Rules of Court on warrantless arrests. This made the
search also valid as incidental to a lawful arrest.

It is not disputed, and in fact it is admitted by the PC officers who
testified for the prosecution, that they had no warrant when they
arrested Aminnudin and seized the bag he was carrying. Their only
justification was the tip they had earlier received from a reliable and
regular informer who reported to them that Aminnudin was arriving in
Iloilo by boat with marijuana. The Chief of the arresting teams
statement is a cavalier pronouncement, especially as it comes from a
mere lieutenant of the PC. The Supreme Court cannot countenance
such a statement. This is still a government of laws and not of men.

The mandate of the Bill of Rights is clear:

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

In this case, there was no warrant of arrest or search warrant issued
by a judge after personal determination by him of the existence of
probable cause. Contrary to the averments of the government,
Amminudin was not caught in flagrante nor was a crime about to be
committed or had just been committed to justify the warrantless
arrest allowed under Rule 113 of the Rules of Court. Even
expediency could not be invoked to dispense with the obtention of
the warrant. The present case presented no such urgency. From the
conflicting declarations of the PC witnesses, it is clear that they had
at least two days within which they could have obtained a warrant to
arrest and search Aminnudin who was coming to Iloilo on the M/V
Wilcon 9. His name was known. The vehicle was identified. The date
of its arrival was certain. And from the information they had received,
they could have persuaded a judge that there was probable cause,
indeed, to justify the issuance of a warrant. Yet they did nothing. No
effort was made to comply with the law. The Bill of Rights was
ignored altogether because the PC lieutenant who was the head of
the arresting team, had determined on his own authority that a
"search warrant was not necessary."

In the many cases where this Court has sustained the warrantless
arrest of violators of the Dangerous Drugs Act, it has always been
shown that they were caught red-handed, as a result of what are
popularly called "buy-bust" operations of the narcotics agents. Rule
113 was clearly applicable because at the precise time of arrest the
accused was in the act of selling the prohibited drug.

While this is not to say that Amminudin is innocent, for indeed his
very own words suggest that he is lying, that fact alone does not
justify a finding that he is guilty. The constitutional presumption is that
he is innocent, and he will be so declared even if his defense is weak
as long as the prosecution is not strong enough to convict him.
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Without the evidence of the marijuana allegedly seized from
Aminnudin, the case of the prosecution must fall. That evidence
cannot be admitted, and should never have been considered by the
trial court for the simple fact is that the marijuana was seized illegally.
The search was not an incident of a lawful arrest because there was
no warrant of arrest and the warrantless arrest did not come under
the exceptions allowed by the Rules of Court.


Separate Opinions

AQUINO, J., dissenting:
I respectfully dissent. I hold that the accused was caught in flagrante,
for he was carrying marijuana leaves in his bag at the moment of his
arrest. He was not "innocently disembarking from the vessel." The
unauthorized transportation of marijuana (Indian hemp), which is a
prohibited drug, is a crime. (Sec. 4, Rep. Act No. 6425). Since he
was committing a crime, his arrest could be lawfully effected without
a warrant (Sec. 6a, Rule 113, Rules of Court), and the search of his
bag (which yielded the marijuana leaves) without a search warrant
was also lawful (Sec. 12, Rule 126, Rules of Court). I vote to affirm
the judgment of the trial court finding him guilty of illegally
transporting marijuana.


People v. Saycon, 236 SCRA 325 (EXCONDE)

That the requirement that a judicial warrant must be obtained prior to
the carrying out of a search and seizure is, however, not absolute.
That not all searches and seizures are prohibited. Those which are
reasonable are not forbidden. A reasonable search is not to be
determined by any fixed formula but is to be resolved according to
the facts of each case.
Where, for example, the officer merely draws aside the curtain of a
vacant vehicle which is parked on the public fair grounds, or simply
looks into a vehicle, or flashes a light therein, these do not constitute
unreasonable search.
Facts:
Facts as found by the trial court were gleaned from the testimonies of
the arresting officers Senior Police Officers Winifredo S. Noble and
Ruben Laddaran of the Narcotics Command, PNP; Police Officer
Emmanuelito C. Lajot of the Philippine Coastguard Office in
Dumaguete City; and Forensic Analyst N.G. Salinas of the PNP
Crime Laboratory.
That on or about 8 Jul 1992, at about 6 am, the Coastguard
personnel received information from NARCOM agent Ruben
Laddaran that a suspected "shabu" courier (Alvaro Saycon) was on
board the MV Doa Virginia, which was arriving in Dumaguete City
from Manila. Upon receipt of the information, the Coastguard chief
officer CPO Tolin, instructed them to intercept the suspect. A
combined team of NARCOM agents and Philippine Coastguard
personnel posted themselves at the gate of Pier 1. Alvaro Saycon
alighted from the boat carrying a black bag and went through the
checkpoint manned by the Philippine Coastguard where he was
identified by police officer Noble (NARCOM).
Saycon was then invited to the Coastguard Headquarters
at the Pier area. At the headquarters, the coastguard asked Saycon
to open his bag, and the latter willingly obliged. In it were personal
belongings and a maong wallet. Inside that maong wallet, there was
a Marlboro pack containing the suspected "shabu". When police
officer Noble asked Saycon whether the Marlboro pack containing
the suspected "shabu" was his, Saycon merely bowed his head.
Saycon, his bag and the suspected "shabu" were brought to the
NARCOM office for booking. When Alvaro Saycon was arrested, the
NARCOM agents did not have a warrant of arrest.
After the arrest, the suspected drug material taken from
Saycon was brought to the PNP Crime Laboratory in Cebu City for
chemical examination. The PNP's Forensic Analyst declared in court
that she had conducted an examination of the specimens and found
that it was the regulated drug methamphetamine hydrochloride,
known as "shabu."
In his appeal before this Court seeking reversal of the
decision of the court a quo finding him guilty of the crime charged,
Saycon contends that the search of his bag was illegal because it
had been made without a search warrant and that, therefore, the
"shabu" discovered during the illegal search was inadmissible in
evidence against him. Appellant Saycon denied ownership of the
"shabu" taken from his black bag. He claimed that upon
disembarking from the ship at the pier in Dumaguete City, he was
met by 2 unfamiliar persons who snatched his bag from him. After,
despite the appellants protest, he was taken to the office of the port
collector, at gunpoint, and there his bag was searched by 4 men,
which were Noble, Sixto, Edjec and Ruben Laddaran. When
appellant asked why his belongings were being searched, these 4
men answered that there was "shabu" inside his bag. After the
search of the appellants bag, he was shown a small wallet
purportedly taken from his black bag which contained "shabu." And
then was detained at the Dumaguete City Jail.
5

It is not disputed that the arresting officers were not armed
with a search warrant or a warrant of arrest when they searched
Saycon's bag and thereafter effected his arrest.
The relevant constitutional provisions are set out in
Sections 2 and 3 [2], Article III of the 1987 Constitution which read as
follows:
Sec. 2. The right of the people to be secure in
their persons, houses, papers and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable,
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and no search warrant or warrant of arrest shall
issued except upon probable cause to be
determined personally by the judge after
examination under oath or affirmation of the
complainant and the witness as he may produce,
and particularly describing the place to be
searched and the persons or things to be seized.
Sec. 3. xxx xxx xxx
(2) Any evidence obtained in violation of this or
the preceding section shall be inadmissible for
any purpose in any proceeding.
At arraignment, Alvaro Saycon entered a plea of not guilty.
On 15 Jun 1993, trial court rendered a judgment of conviction; found
Saycon guilty beyond reasonable doubt. As charged with violating
Section 15, Article III of R.A. No. 6425 as amended, the Dangerous
Drugs Act, for wilfully, unlawfully and feloniously, deliver and
transport[] from Manila to Dumaguete City approximately 4 grams
of methamphetam[ine] hydrochloride commonly known as "shabu," a
regulated drug. The trial court sentenced him to life imprisonment
and to pay a fine of P20,000.00.

Issue:

WON the warrantless search and seizure was valid

Held:

Yes, the search and seizure done to Alvaro Saycon is
considered legal. There exist reasonable or probable cause,
consisted of 2 parts, to believe that appellant would be carrying or
transporting prohibited drugs upon arriving in Dumaguete City. (1)
Senior Police Officer Noble had testified in court that the NARCOM
Agents had, approximately 3 weeks before date of arrival, conducted
a test-buy which confirmed that appellant was indeed engaged in
transporting and selling "shabu." The police authorities did not, on
that occasion, arrest Alvaro Saycon, but what should be noted is that
the identity of Saycon as a drug courier or drug distributor was
established in the minds of the police authorities. (2) the arresting
officers testified that they had received confidential information that
very early morning of 8 July 1992, Alvaro Saycon would probably be
on board the MV Doa Virginia which was scheduled to arrive in
Dumaguete City, probably carrying "shabu" with him.
It was argued by Saycon that the police authorities should
have procured, and had the time to procure, the necessary judicial
warrants for search and arrest. Saycon also sought to underscore a
supposed confusion in the testimonies of NARCOM Officer Winifredo
Noble and Coastguard Officer Lajot relating to who, as between the
NARCOM agent and the Coastguard elements, had informed the
other that appellant would probably be arriving on board the MVDoa
Virginia. The record shows that the NARCOM Officers were
uncertain as to the precise date and time appellant Saycon would
arrive from Manila; all they knew was that Saycon would be taking a
boat from Manila to Dumaguete City Pier.
13
The MV Doa
Virginia docked at the Port of Pier I of Dumaguete City between 6:00
and 6:30 in the morning of 8 July 1992. Earlier on that same morning,
the NARCOM Officers received more specific information that
appellant Saycon could be on board the MV Doa Virginia which was
arriving that morning.
14
Clearly, the NARCOM Agents had to act
quickly but there was not enough time to obtain a search warrant or a
warrant of arrest. It was realistically not possible for either the
NARCOM Agents or the Coastguard Officers to obtain a judicial
search warrant or warrant of arrest in the situation presented by the
case at bar.
It follows that the warrantless arrest of appellant Saycon,
was also valid and lawful, since the police had determined, he was in
fact carrying or transporting "shabu." The further consequence is that
the4 grams of "shabu" obtained from his maong wallet found inside
his black bag was lawfully before the court a quo. We agree with the
RTC that the evidence proved beyond reasonable doubt that
appellant Saycon had been carrying with him "shabu" at the
time of his search and arrest and his guilt of the offense charged
was established beyond reasonable doubt.
When, however, a vehicle is stopped and subjected to an
extensive search, such a warrantless search would be
constitutionally permissible only if the officers conducting the search
have reasonable or probable cause to believe, before the search,
that either the motorist is a law-offender or the contents or cargo of
the vehicle are or have been instruments or the subject matter or the
proceeds of some criminal offense. (People v. Bagista, supra;
Valmonte v. de Villa, 185 SCRA 665 [1990]).

The rules in Section 5 (a) and (b), Rule 133 of the Rules of
Court is applicable to such case as the court has had to resolve the
question of valid or invalid warrantless arrest or warrantless search
or seizure by determining the presence or absence of a reasonable
or probable cause, before the search and arrest, that led the police
authorities to believe that such a felony (possessing or transporting
or delivering prohibited drugs) was then in progress.
The decision of the trial court 15 Jun 1993, in Crim. Case
No. 10325 is affirmed. However modifications must be reduced to
imprisonment for an indeterminate period ranging from 6 mos.
of arresto mayor as minimum to 6 yrs of prision correctional as
maximum, and the fine of P20,000.00 must be deleted. This
reduction of penalty is required by the provisions of Section 20,
Article IV of R.A. NO. 6425, as last amended by Section 17, of R.A.
No. 7659 (effective 13 December 1993) as construed and given
retroactive effect in People v. Martin Simon (G.R. No. 93028, 29 July
1994) considering that the amount of "shabu" here involved (4
grams) is obviously less than the 200 grams of "shabu" cut-off
quantity established in the amended Section 20 of the Dangerous
Drugs Act.


People v. Musa, 217 SCRA 597 (FAUSTINO)
[NOTE: No submission, online digest]

Facts:
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A civilian informer gave the information that Mari Musa was engaged
in selling marijuana in Suterville, Zamboanga City. Sgt. Ani was
ordered by NARCOM leader T/Sgt. Belarga, to conduct a
surveillance and test buy on Musa. The civilian informer guided Ani
to Musas house and gave the description of Musa. Ani was able to
buy one newspaper-wrapped dried marijuana for P10.00.

The next day, a buy-bust was planned. Ani was to raise his right
hand if he successfully buys marijuana from Musa. As Ani proceeded
to the house, the NARCOM team positioned themselves about 90 to
100 meters away. From his position, Belarga could see what was
going on. Musa came out of the house and asked Ani what he
wanted. Ani said he wanted more marijuana and gave Musa the
P20.00 marked money. Musa went into the house and came back,
giving Ani two newspaper wrappers containing dried marijuana. Ani
opened and inspected it. He raised his right hand as a signal to the
other NARCOM agents, and the latter moved in and arrested Musa
inside the house. Belarga frisked Musa in the living room but did not
find the marked money (gave it to his wife who slipped away). T/Sgt.
Belarga and Sgt. Lego went to the kitchen and found a cellophane
colored white and stripe hanging at the corner of the kitchen. They
asked Musa about its contents but failed to get a response. So they
opened it and found dried marijuana leaves inside. Musa was then
placed under arrest.

Issue:
Whether or Not the seizure of the plastic bag and the marijuana
inside it is unreasonable, hence, inadmissible as evidence.

Held:
Yes. It constituted unreasonable search and seizure thus it may not
be admitted as evidence. The warrantless search and seizure, as an
incident to a suspects lawful arrest, may extend beyond the person
of the one arrested to include the premises or surroundings under his
immediate control. Objects in the plain view of an officer who has
the right to be in the position to have that view are subject to seizure
and may be presented as evidence. The plain view doctrine is
usually applied where a police officer is not searching for evidence
against the accused, but nonetheless inadvertently comes across an
incriminating object. It 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.

In the case at bar, the plastic bag was not in the plain view of the
police. They arrested the accused in the living room and moved into
the kitchen in search for other evidences where they found the plastic
bag. Furthermore, the marijuana inside the plastic bag was not
immediately apparent from the plain view of said object.

Therefore, the plain view does not apply. The plastic bag was
seized illegally and cannot be presented in evidence pursuant to
Article III Section 3 (2) of the Constitution.


Pita v. Court of Appeals, 178 SCRA 362 (FORTES)

DOCTRINE: Seach and seizure may only be done through a judicial
warrant

FACTS:
Mayor Bagatsing and the Manila City Council initiated an Anti-Smut
Campaign. They seized and confiscated from news vendors and
newsboys magazines, tabloids and other newspapers believed to be
obscene, indecent and pornographic. These confiscated publications
were later burned in the middle of Recto Ave in the presence of
Mayor Bagatsing and of other student leaders.

One of the magazines confiscated is Pinoy Playboy. Its publishers,
Leo Pita, petitioned the Court to prevent the Mayor and the City
Council from indiscriminate seizure, confiscation and burning of
Pinoy Playboy magazine.

In the Mayors Answer, he admitted the confiscation and burning of
the magazine but he countered that the magazines were surrendered
to them by newsstand owners and newsboys, the owners of the
materials. The Mayor clarified as well that the offices of Pinoy
Playboy was never subjected to raid.

ISSUE:
Mayor Bagatsing and/or their agents can without a court order
confiscate or seize plaintiffs magazine before any judicial finding is
made on whether said magazine is obscene or not.

HELD:
In granting the petition of Mr. Pita, the Court held that the fact that
former Mayors act was sanctioned by police power is no license to
seize property in disregard of due process. Search and seizure may
only be done through a judicial warrant otherwise they become
unreasonable and subject to challenge.


Valmonte v. De Villa, 185 SCRA 665 (FRANCISCO)

*motion and supplemental motion for reconsideration

Under exceptional circumstances, checkpoints may be allowed and
installed by the government.
Checkpoints have been regarded by authorities as a security
measure designed to entrap criminals and insurgents an to constitute
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a dragnet for all types of articles in illegal trade.

Facts:
- 20 Jan 1987, the National Capital Region District
Command (NCRDC) was activated pursuant to LOI Feb
1987 of the Philippine General Headquarters, AFP, with the
mission of conducting security operations within its area of
responsibility and peripheral areas, for the purpose of
establishing an effective territorial defense, maintaining
peace and order, and providing an atmosphere conducive
to the social, economic and political development of the
NCR. As part of its duty to maintain peace and rder, the
NCRDC installed checkpoints in various parts of
Valenzuela, Metro Manila.
- Petitioners aver that, because of the installation of said
checkpoints, the residents of Valenzuela are worried of
being harassed and of their safety being placed at the
arbitrary, capricious and whimsical disposition of the
military manning the checkpoints, considering that their
vehicles are being subjected to regular searches and
check-ups, especially at night or at dawn, without the
benefit of a search warrant and/or court order. Their alleged
fear for their safety increased when, at dawn of 9 July
1988, Benjamin Parpon, a supply officer of the Municipality
of Valenzuela, Bulacan, was gunned down allegedly in cold
blood by the members of the NCRDC manning the
checkpoint along MacArthur Highway at Malinta,
Valenzuela, for ignoring and/or refusing to submit himself to
the checkpoint and for continuing to speed off inspire of
warning shots fired in the air.

Issue:
Whether or not the installation of checkpoints violates the right of the
people against unreasonable searches and seizures.

Held:
Petitioners concern for their safety and apprehension at being
harassed by the military manning the checkpoints are not sufficient
grounds to declare the checkpoints per se, illegal. No proof has been
presented before the court to show that, in the course of their routine
checks, the military, indeed, committed specific violations of
petitioners rights against unlawful search and seizure of other rights.
The constitutional right against unreasonable searches is a personal
right invocable only by those whose rights have been infringed, or
threaten to be infringed. Not all searches and seizures are prohibited.
Those that are reasonable are not forbidden. The setting up of the
questioned checkpoints may be considered as a security measure to
enable the NCRDC to pursue its mission of establishing effective
territorial defense and maintaining peace and order for the benefit of
the public. Checkpoints may not also be regarded as measures to
thwart plots to destabilize the government, in the interest of public
security. Between the inherent right of the state to protect its
existence and promote public welfare and an individuals right against
a warrantless search that is, however, reasonably conducted, the
former should prevail. True, the manning of checkpoints by the
military is susceptible of abuse by the military in the same manner
that all governmental power is susceptible of abuse. But, at the cost
of occasional inconvenience, discomfort and even irritation to the
citizen, the checkpoints during these abnormal times, when
conducted within reasonable limits, are parts of the price we pay for
an orderly society and a peaceful community.

Motion and supplemental MR are DENIED. The DENIAL is FINAL.


Bagalihog v. Fernandez, 198 SCRA 615 (GATCHALIAN)

FACTS:

Rep. Moises Espinosa was shot to death shortly after disembarking
at the Masbate Airport. Witnesses said one of the gunmen fled on a
motorcycle. On the same day, the petitioner's house, which was near
the airport, was searched with his consent to see if the killers had
sought refuge there. The search proved fruitless. Two days later,
Capt. Julito Roxas and his men from the Philippine Constabulary
seized the petitioner's motorcycle and took it to the PC headquarters
in Masbate. They had no search warrant. The motorcycle was
impounded on the suspicion that it was one of the vehicles used by
the killers. After investigation, the petitioner and several others were
charged with multiple murder and frustrated murder for the killing of
Espinosa and three of his bodyguards and the wounding of another
person.
On June 21, 1989, the petitioner filed a complaint against Capt.
Roxas for the recovery of the motorcycle with an application for a writ
of replevin. On November 7, 1989, the petitioner filed an urgent
manifestation for the deposit of the motorcycle with the clerk of court
of the Regional Trial Court of Masbate, on the ground that PC
soldiers were using the vehicle without authority. The motion was
granted on November 10, 1989, by Judge Ricardo Butalid. On the
other hand, petitioners prayer for recovery of his motorcycle was
transferred and presided to Judge Fernandez which dismissed the
case for lack of jurisdiction. Reconsideration having been denied.
ISSUE #1:
Whether or not petitioners motorcycle was illegally seized? YES
HELD #1
The private respondent admits the absence of a search warrant
when the motorcycle was seized but stresses that the crime
perpetrated is a heinous offense. Espinosa was a man of
consequence. The motorcycle in question is an extremely mobile
vehicle and can be easily dismantled or hidden, and the unique
situation existing at that time required him to place it in the custody of
the PC-CIS Task Force Espinosa without first securing a search
warrant. In doing so, he merely complied with the orders of his
superior to preserve the vehicle for use as evidence in the criminal
cases.
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We share Captain Roxas's concern for the apprehension of the killers
but cannot agree with his methods. For all his strong conviction about
the guilt of the petitioner, the private respondent must still abide by
the Constitution and observe the requirements of the Bill of Rights.
Article III, Section 2. The provision protects not only those who
appear to be innocent but also those who appear to be guilty but
are nevertheless to be presumed innocent until the contrary is
proved. The mere fact that in the private respondent's view the crime
involved is "heinous" and the victim was "a man of consequence" did
not authorize disregard of the constitutional guaranty. Neither did
"superior orders" condone the omission for they could not in any
case be superior to the Constitution. We do not find that the
importance of the motorcycle in the prosecution of the criminal cases
excused its seizure without a warrant. The authorities had enough
time to comply with the required procedure but they did not do so,
preferring the unconstitutional shortcut. The crime was committed on
March 17, 1989, and the motorcycle was seized only on March 19,
1989, or two days later. During that period, the private respondent
had all the opportunity to apply for a search warrant and establish
probable cause in accordance with the Bill of Rights and the Rules of
Court. He did not.
The private respondent himself emphasizes that the petitioner had
promised in the morning of March 19, 1989, to present the
motorcycle in case it was needed during the investigation of the
killings.
5
There was no reason to fear that it would be concealed by
the petitioner, who presumably was under police surveillance at the
time as one of the suspected killers. He could not have had that
much opportunity to hide the vehicle even if he wanted to.
The private respondent maintains that by the petitioner's promise, he
effectively waived the right to a search warrant and so can no longer
complain that the motorcycle had been invalidly seized. There was
no such waiver. The petitioner merely agreed to cooperate with the
investigators and to produce the vehicle when needed, but he did not
agree to have it impounded. The record shows that he expressed
reservations when this was suggested and said he needed the
motorcycle for his official duties as a member of the Sangguniang
Panlalawigan and in his private business.
6
At any rate, it has been
shown that he was unwilling to surrender it at the time it was taken
without warrant, and that made the taking unlawful.
ISSUE #2
Whether or not Judge Fernandez was correct in dismissing the civil
case holding that the court has no jurisdiction over it because it was
in custodia legis and only the judge trying the criminal cases against
the petitioner and his co-accused could order its release? NO
HELD #2
It is true that property held as evidence in a criminal case cannot be
replevied. But the rule applies only where the property is lawfully
held, that is, seized in accordance with the rule against warrantless
searches and seizures or its accepted exceptions. Property subject
of litigation is not by that fact alone in custodia legis.


"A thing is in custodia legis when it is shown that it has been
and is subjected to the official custody of a judicial executive
officer in pursuance of his execution of a legal writ." Only when
property is lawfully taken by virtue of legal process is it
considered in the custody of the law, and not otherwise.
The circumstance that Judge Fernandez ordered the motorcycle to
be deposited with the clerk of court on motion of the petitioner did not
place the vehicle in custodia legis. The respondent judge had no
authority over it because it had not been lawfully seized nor had it
been voluntarily surrendered to the court by the petitioner. The
private respondent observed in his comment that "it is only when the
exhibits are offered in evidence and admitted by the court that they
are submitted to the custody of the Court, and, before that, "they are
usually in the possession of the prosecution." Even he agrees
therefore that the motorcycle is not in custodia legis. At that, the
vehicle in the case at bar is not admissible as an exhibit even if
offered as such because it is "the fruit of the poisonous tree." Under
Article III, Sec. 3(2) "any evidence obtained in violation" of the rule
against unreasonable searches and seizure "shall be inadmissible for
any purpose in any proceeding."


Aniag, Jr. v. Coemelec, 237 SCRA 424 (GUY)

Doctrine: As a rule, a valid search must be authorized by a search
warrant duly issued by an appropriate authority. However, this is not
absolute. An extensive search without warrant could only be resorted
to if the officers conducting the search had probable cause to believe
before the search that either the motorist was a law offender or that
they would find the evidence pertaining to the commission of a crime
in the vehicle. In the case at bar, there was no probable cause and
the manner in which search was conducted is violative of due
process.

Facts:
1) In preparation for the synchronized national and local elections
scheduled on 11 May 1992, COMELEC issued Resolution No. 2323
otherwise referred to as the "Gun Ban," promulgating rules and
regulations on bearing, carrying and transporting of firearms or other
deadly weapons, on security personnel or bodyguards, on bearing
arms by members of security agencies or police organizations, and
organization or maintenance of reaction forces during the election
period.
2) Subsequently, COMELEC issued Resolution No. 2327 providing
for the summary disqualification of candidates engaged in
gunrunning, using and transporting of firearms, organizing special
strike forces, and establishing spot checkpoints.
3) Pursuant to the "Gun Ban," Mr. Serapio P. Taccad, Sergeant-at-
Arms, House of Representatives, wrote petitioner who was then
Congressman of the 1st District of Bulacan requesting the return of
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the two (2) firearms issued to him by the HREP. Upon being advised
of the request by his staff, petitioner immediately instructed his driver,
Ernesto Arellano, to pick up the firearms from petitioner's house at
Valle Verde and return them to Congress.
4) Meanwhile, at about 5PM of the same day, PNP set up a
checkpoint outside the Batasan Complex some 20 meters away from
its entrance.
5) 30 minutes later, the policemen manning the outpost flagged down
the car driven by Arellano as it approached the checkpoint. They
searched the car and found the firearms neatly packed in their gun
cases and placed in a bag in the trunk of the car. Arellano was then
apprehended and detained. He explained that he was ordered by
petitioner to get the firearms from the house and return them to
Sergeant-at Arms Taccad of the HREP.
6) PNP referred Arellano's case to the Office of the City Prosecutor.
The referral did not include petitioner as among those charged with
an election offense. City Prosecutor ordered the release of Arellano
after finding the latter's sworn explanation meritorious.
7) City Prosecutor invited petitioner to shed light on the
circumstances mentioned in Arellano's sworn explanation. Petitioner
not only appeared at the preliminary investigation to confirm
Arellano's statement but also wrote the City Prosecutor urging him to
exonerate Arellano. He explained that Arellano did not violate the
firearms ban as he in fact was complying with it when apprehended
by returning the firearms to Congress; and, that he was petitioner's
driver, not a security officer nor a bodyguard.
8) Office of the City Prosecutor recommended that the case against
Arellano be dismissed and that the "unofficial" charge against
petitioner be also dismissed.
9) Nevertheless, upon recommendation of its Law Department,
COMELEC issued Resolution No. 92-0829 directing the filing of
information against petitioner and Arellano for violation of the
Omnibus Election Code, in relation to Sec. 32 of R.A. No. 7166; 7
and petitioner to show cause why he should not be disqualified from
running for an elective position, pursuant to COMELEC Resolution
No. 2327, in relation to Secs. 32, 33 and 35 of R.A. 7166, and Sec.
52, par. (c), of B.P. Blg. 881. 8
10) Petitioner filed MR but COMELEC denied petitioner's motion.
Hence, this recourse.

Issue:
WON petitioner can be validly prosecuted for instructing his driver to
return to the Sergeant-at-Arms the 2 firearms issued to him on the
basis of the evidence gathered from the warrantless search of his
car.

Held:
1) Petitioner strongly protests against the manner by which the PNP
conducted the search. According to him, without a warrant and
without informing the driver of his fundamental rights the policemen
searched his car. The firearms were not tucked in the waist nor within
the immediate reach of Arellano but were neatly packed in their gun
cases and wrapped in a bag kept in the trunk of the car. Thus, the
search of his car that yielded the evidence for the prosecution was
clearly violative. Arellano was instructed to return to Congress, as he
did, the firearms in compliance with the directive of its Sergeant-at-
Arms pursuant to the "Gun Ban," thus, no law was in fact violated.
2) COMELEC claims that petitioner is charged with violation of the
"Gun Ban" which is mala prohibita, hence, the intention of the
offender is immaterial. Be that as it may, SC finds no need to delve
into the alleged constitutional infirmity of Resolution No. 2327 since
this petition may be resolved without passing upon this particular
issue.
3) As a rule, a valid search must be authorized by a search warrant
duly issued by an appropriate authority. However, this is not
absolute. Aside from a search incident to a lawful arrest, a
warrantless search had been upheld in cases of moving vehicles and
the seizure of evidence in plain view, as well as the search
conducted at police or military checkpoints which we declared are not
illegal per se, and stressed that the warrantless search is not
violative of the Constitution for as long as the vehicle is neither
searched nor its occupants subjected to a body search, and the
inspection of the vehicle is merely limited to a visual search.
4) The records do not show that the manner by which the package
was bundled led the PNP to suspect that it contained firearms. There
was not mention either of any report regarding any nervous,
suspicious or unnatural reaction from Arellano when the car was
stopped and searched. Given these circumstances and relying on its
visual observation, the PNP could not thoroughly search the car
lawfully as well as the package without violating the constitutional
injunction.
5) An extensive search without warrant could only be resorted to if
the officers conducting the search had reasonable or probable cause
to believe before the search that either the motorist was a law
offender or that they would find the instrumentality or evidence
pertaining to the commission of a crime in the vehicle to be searched.
Thus, we upheld the validity of the warrantless search in situations
where the smell of marijuana emanated from a plastic bag owned by
the accused, or where the accused was acting suspiciously, and
attempted to flee.
6) In the case at bench, we find that the checkpoint was set up
twenty (20) meters from the entrance to the Batasan Complex to
enforce Resolution No. 2327. There was no evidence to show that
the policemen were impelled to do so because of a confidential
report leading them to reasonably believe that certain motorists
matching the description furnished by their informant were engaged
in gunrunning, transporting firearms or in organizing special strike
forces. Nor, as adverted to earlier, was there any indication from the
package or behavior of Arellano that could have triggered the
suspicion of the policemen. Absent such justifying circumstances
specifically pointing to the culpability of petitioner and Arellano, the
search could not be valid. The action then of the policemen
unreasonably intruded into petitioner's privacy and the security of his
property. Consequently, the firearms obtained in violation of
petitioner's right against warrantless search cannot be admitted for
any purpose in any proceeding.
7) While Resolution No. 2327 authorized the setting up of
checkpoints, it however stressed that "guidelines shall be made to
ensure that no infringement of civil and political rights results from the
implementation of this authority," and that "the places and manner of
setting up of checkpoints shall be determined in consultation with the
Committee on Firearms Ban and Security Personnel created under
Sec. 5, Resolution No. 2323." The facts show that PNP installed the
checkpoint at about five o'clock in the afternoon of 13 January 1992.
The search was made soon thereafter, or thirty minutes later. It was
not shown that news of impending checkpoints without necessarily
giving their locations, and the reason for the same have been
announced in the media to forewarn the citizens. Nor did the informal
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checkpoint that afternoon carry signs informing the public of the
purpose of its operation. As a result, motorists passing that place did
not have any inkling whatsoever about the reason behind the instant
exercise. With the authorities in control to stop and search passing
vehicles, the motorists did not have any choice but to submit to the
PNP's scrutiny. Otherwise, any attempt to turnabout albeit innocent
would raise suspicion and provide probable cause for the police to
arrest the motorist and to conduct an extensive search of his vehicle.
8) In the case of petitioner, only his driver was at the car at that time
it was stopped for inspection. As conceded by COMELEC, driver
Arellano did not know the purpose of the checkpoint. In the face of 14
armed policemen conducting the operation, driver Arellano being
alone and a mere employee of petitioner could not have marshalled
the strength and the courage to protest.
9) Moreover, the manner by which COMELEC proceeded against
petitioner runs counter to the due process clause of the Constitution.
The facts show that petitioner was not among those charged by the
PNP with violation of the Omnibus Election Code. Nor was he
subjected by the City Prosecutor to a preliminary investigation for
such offense. The non-disclosure by the City Prosecutor to the
petitioner that he was a respondent in the preliminary investigation is
violative of due process which requires that the procedure
established by law should be obeyed.
10) COMELEC argues that petitioner was given the chance to be
heard because he was invited to enlighten the City Prosecutor
regarding the circumstances leading to the arrest of his driver, and
that petitioner in fact submitted a sworn letter of explanation
regarding the incident. This does not satisfy the requirement of due
process the essence of which is the reasonable opportunity to be
heard and to submit any evidence one may have in support of his
defense.
11) Apparently, petitioner was merely invited during the preliminary
investigation of Arellano to corroborate the latter's explanation.
Petitioner then was made to believe that he was not a party
respondent in the case, so that his written explanation on the incident
was only intended to exculpate Arellano, not petitioner himself.
Hence, it cannot be seriously contended that petitioner was fully
given the opportunity to meet the accusation against him as he was
not apprised that he was himself a respondent when he appeared
before the City Prosecutor. Petitioner's filing of a motion for
reconsideration with COMELEC cannot be considered as a waiver of
his claim to a separate preliminary investigation for himself. The
motion itself expresses petitioner's vigorous insistence on his right.

Dispositive: Petition GRANTED. The warrantless search conducted
by the PNP is declared illegal and the firearms seized during the
warrantless search cannot be used as evidence in an proceeding
against petitioner. COMELEC Resolution No. 92-0829 being violative
is SET ASIDE.


People v. De Gracia, 233 SCRA 716 (HAUTEA)

FACTS:
The incidents involved in this case took place at the height of
the coup d' etat staged in December, 1989 by ultra-rightist elements
headed by the Reform the Armed Forces Movement-Soldiers of the
Filipino People (RAM-SFP) against the Government. At that time,
various government establishments and military camps in Metro
Manila were being bombarded by the rightist group with their "tora-
tora" planes. At around midnight of November 30, 1989, the 4th
Marine Battalion of the Philippine Marines occupied Villamor Air
Base, while the Scout Rangers took over the Headquarters of the
Philippine Army, the Army Operations Center, and Channel 4, the
government television station. Also, some elements of the Philippine
Army coming from Fort Magsaysay occupied the Greenhills
Shopping Center in San Juan, Metro Manila.
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,
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. The parties likewise
stipulated that there was a rebellion during the period from November
30 up to December 9, 1989.
On the 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. The surveillance, 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.
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, 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 gt. 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. 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.

ISSUE:
1. WON, there was a valid search and seizure?

HELD:
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1. YES. 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. Under such urgency and exigency of the moment, a search
warrant could lawfully be dispensed with.
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

DOCTRINE:
Citing the case of People vs. Malmstedt The required probable
cause that will justify a warrantless search and seizure is not
determined by any fixed formula but is resolved according to the
facts of each case.
Warrantless search of the personal effects of an accused has
been declared by this Court as valid, because of existence of
probable cause, where the smell of marijuana emanated from a
plastic bag owned by the accused, or where the accused was acting
suspiciously, and attempted to flee.
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. 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.
Moreover, in Umil, et al., vs. Ramos; The arrest of persons
involved in the rebellion whether as its fighting armed elements, or
for committing non-violent acts but in furtherance of the rebellion, is
more an act of capturing them in the course of an armed conflict, to
quell the rebellion, than for the purpose of immediately prosecuting
them in court for a statutory offense. The arrest, therefore, need not
follow the usual procedure in the prosecution of offenses which
requires the determination by a judge of the existence of probable
cause before the issuance of a judicial warrant of arrest and the
granting of bail if the offense is bailable. Obviously the absence of a
judicial warrant is no legal impediment to arresting or capturing
persons committing overt acts of violence against government forces,
or any other milder acts but really in pursuance of the rebellious
movement. The arrest or capture is thus impelled by the exigencies
of the situation that involves the very survival of society and its
government and duly constituted authorities. If killing and other acts
of violence against the rebels find justification in the exigencies of
armed hostilities which (are) of the essence of waging a rebellion or
insurrection, most assuredly so in case of invasion, merely seizing
their persons and detaining them while any of these contingencies
continues cannot be less justified.


Demaisip v. CA, 193 SCRA 373 (KHONG HUN)
Facts:
Acting on a confidential information that Johnny Demaisip
had in his possession marijuana and brownies cake (spiced with
marijuana ingredient), a surveillance was conducted at the vicinity of
the residence of the accused at No. 3, Mango Street, Carmen,
Cagayan de Oro City, by the agents of the 10th NARCOTICS
REGIONAL UNIT, Narcotics command, AFP, whose office is at the
3rd floor of the City Hall, Cagayan de Oro City. Sgt. Cario's
recollection of the house number, as No. 5, is faulty. It is No 3. They
posted themselves in strategic places at the vicinity of the accused's
residence. They were M/Sgt. Dominador Pascua, PC; P/Sgt. Avelino
Tampus, INF; Sgt. Reynaldo Miguel, PC, and prosecution witness
P/Sgt. Rico Carino, INF. The confidential information, when verified
by a "Task Buy" was found to be positive. A search warrant, upon
application was issued by Judge Antonio Orcullo of the Municipal
Trial Court in Cities, Cagayan de Oro City. The search warrant,
however, has neither been shown nor submitted as part of the
evidence for the prosecution. Sgt. Carino mentioned it in his
testimony during the trial. The accused admitted that there was a
search warrant. The police team proceeded to the suspect's place to
[verify] if the prohibited stuff was still in the residence of the accused.
A test buy was made on October 11, 1983 through another
confidential informer who was directed to buy ten-pesos worth of
dried marijuana leaves from Joey the brother of the accused. The
agents, according to Sgt. Carino, were able to buy from Joey
Demaisip ten pesos worth of Marijuana leaves. Joey Demaisip upon
interrogation, after the test buy, disclosed that the marijuana which
he has sold came from their residence along Mango Street. The
police-constabulary team forthwith proceeded to the Demaisip
residence. The team brought along Cirilo Padla, Sr., a barangay
councilman of Carmen, Cagayan de Oro City. The search warrant
was presented to the father of Johnny Demaisip Atty. Peter
Demaisip who was then in the house. A search was thereupon made
in one of the rooms of the Demaisip residence. Inside a room [in] the
ground floor, on top of a cabinet, Sgt. Carino found a small plastic
bag pocket containing dried marijuana leaves of approximately ten
(10) grams. The plastic pocket was wrapped in a newspaper. Johnny
Demaisip, who was present, was confronted with the find, and he
readily admitted that the marijuana was his. Further search yielded
no other quantity of marijuana. Sgt. Rico Carino and his companions
brought Johnny Demaisip to Narcom office at the City Hall for further
interrogation. At the team's office, a tactical interrogation was made,
[preceded] by [an information of] Johnny Demaisip of constitutional
right to remain silent, and to have counsel of his choice, and was
further informed that the statement he would give might be used as
evidence for or against him. Johnny Demaisip stated that he needed
no counsel and that he was going to tell the truth. He did not ask for
the presence of as father, who is a lawyer. Then and there the
statement of Johnny Demaisip was reduced to two pages of
transcript (in Visayan which is the dialect spoken and known by the
accused. Sgt. Carino who conducted the investigation and who typed
the statement, asked Johnny Demaisip if he was willing to sign it and
he expressed willingness to sign it. It was prepared at about four
o'clock in the afternoon of October 11, 1983. The statement was
finished but could not then be brought to the Clerk of Court (of the
Municipal Trial Court in Cities) because it was already closed. It was
kept by Carino until the next day. In the morning of the next day,
Johnny Demaisip was directed by Sgt. Carino to bring his statement
to the Clerk of Court for his signing and swearing to it before said
officer. Carino stayed outside the office of the Clerk of Court Evelyn
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Gamotin Nery at the City Hall. After the lapse of about thirty to forty-
five minutes Johnny Demaisip came out of Clerk of Court Nery's
office bringing with him his statement already subscribed and sworn
to by him before MTCC Clerk of Court Evelyn Gamotin Nery. The
petitioner stresses the fact tahat the alleged search warrant was
never produced in court, and that in the absence thereof., it was as if
the authorities were armed with none the time of the search, As to
the alleged failure of prosecution to prove the existence of
tethrahydrocannobinol, suffice it to say the existence of this
ingredient is presumed from the existence of Indian hemp. The lower
court has found as a fact that there is marijuana. Court of appeal
affirmed on the lower court ruling hence this petition.
Issue:
Whether or not the petitioners were validly searched
Held:
Yes. It is a fact that no warrant was shown in court,
although there were supposed testimonies of its existence. As affirm
in court of appeals ruling that At any rate, objections to the legality of
the search warrant and to the admissibility of the evidence obtained
thereby were deemed waived when no objection to the legality of the
search warrant was raised during the trial of the case nor to the
admissibility of the evidence obtained through said warrant. It is
indeed fundamental that the objections are a matter of privilege,
which may be waived. Amid a waiver, the court is duty bound to
admit the evidence, in this case, testimony as to the existence of a
piece of paper. The petitioner's final objections as to the authorities'
failure to apprise him of his right to counsel when he wrote as
confession, is however, well-taken. We have indeed held that the
accused's waiver of as rights and signification of a willingness to
make a confession are ceremonies that require the presence of
counsel. However, there was other evidence against the petitioner,
apart, from his alleged confession, notably, the testimonies of the
searching officers who found, indeed, marijuana in his premises.
Hence, even if we disregard his extrajudicial confession, we can not
reject the testimonies of the prosecution witnesses,

DAVID, et. al. vs. GLORIA MACAPAGAL-ARROYO, et. al., G.R
No. 171396. May 3, 2006 (LESAVA)

FACTS:
On February 24, 2006, as the nation celebrated the 20th Anniversary
of the Edsa People Power I, President Arroyo issued PP 1017
declaring a state of national emergency. On the same day, the
President issued G.O. No. 5 implementing PP 1017, directing the
Chief of Staff of the AFP and the Chief of the PNP, as well as the
officers and men of the AFP and PNP, to immediately carry out the
necessary and appropriate actions and measures to suppress
and prevent acts of terrorism and lawless violence. A week after,
the President lifted the state of national emergency.
Petitioners cite events that occurred after the issuance of PP 1017
and G.O. No. 5
The Office of the President announced the cancellation of all
programs and activities related to the 20th anniversary celebration
of Edsa People Power I; and revoked the permits to hold rallies
issued earlier by the local governments. Justice Secretary Raul
Gonzales stated that political rallies, which to the Presidents mind
were organized for purposes of destabilization, are
cancelled.Presidential Chief of Staff Michael Defensor announced
that "warrantless arrests and take-over of facilities, including media,
can already be implemented."
According to petitioner Kilusang Mayo Uno, the police cited PP 1017
as the ground for the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested
(without warrant) petitioner Randolf S. David, a professor at the
University of the Philippines and newspaper columnist. Also arrested
was his companion, Ronald Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006,
operatives of the Criminal Investigation and Detection Group (CIDG)
of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily
Tribune offices in Manila. The raiding team confiscated news stories
by reporters, documents, pictures, and mock-ups of the Saturday
issue. Policemen from Camp Crame in Quezon City were stationed
inside the editorial and business offices of the newspaper; while
policemen from the Manila Police District were stationed outside the
building.
A few minutes after the search and seizure at the Daily
Tribune offices, the police surrounded the premises of another pro-
opposition paper, Malaya, and its sister publication, the tabloid
Abante.
The raid, according to Presidential Chief of Staff Michael Defensor,
is "meant to show a strong presence, to tell media outlets not to
connive or do anything that would help the rebels in bringing down
this government." The PNP warned that it would take over any media
organization that would not follow "standards set by the government
during the state of national emergency." Director General Lomibao
stated that "if they do not follow the standards and the standards
are - if they would contribute to instability in the government, or if
they do not subscribe to what is in General Order No. 5 and Proc.
No. 1017 we will recommend a takeover." National
Telecommunications Commissioner Ronald Solis urged television
and radio networks to "cooperate" with the government for the
duration of the state of national emergency. He asked for "balanced
reporting" from broadcasters when covering the events surrounding
the coup attempt foiled by the government. He warned that his
agency will not hesitate to recommend the closure of any broadcast
outfit that violates rules set out for media coverage when the national
security is threatened.
Numerous personalities representing different party-lists were also
arrested.
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Thus, 7 petitions were filed regarding the constitutionality of PP 1017
and G.O. No. 5.
ISSUE:
WON the actuations of the military during the state of emergency has
violated the rights of the people?

HELD:
YES.
One of the misfortunes of an emergency, particularly, that which
pertains to security, is that military necessity and the guaranteed
rights of the individual are often not compatible. Our history reveals
that in the crucible of conflict, many rights are curtailed and trampled
upon. Here, the right against unreasonable search and seizure;
the right against warrantless arrest; and the freedom of speech,
of expression, of the press, and of assembly under the Bill of
Rights suffered the greatest blow.
In G.R. No. 171396 (David, et. al)
There was a violation of the right against warrantless arrest.
The Constitution provides that "the right of the people to be secured
in their persons, houses, papers and effects against unreasonable
search and seizure of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be
seized." The plain import of the language of the Constitution is that
searches, seizures and arrests are normally unreasonable unless
authorized by a validly issued search warrant or warrant of arrest.
Thus, the fundamental protection given by this provision is that
between person and police must stand the protective authority of a
magistrate clothed with power to issue or refuse to issue search
warrants or warrants of arrest.
Facts established by petitioner David:
1
st
he was arrested without warrant;
2
nd
he PNP operatives arrested him on the basis of PP 1017;
3
rd
he was brought at Camp Karingal, Quezon City where he was
fingerprinted, photographed and booked like a criminal suspect;
4
th
he was treated brusquely by policemen who "held his head and
tried to push him" inside an unmarked car;
5
th
he was charged with Violation of Batas Pambansa Bilang No.
880 and Inciting to Sedition;
6
th
he was detained for seven (7) hours; and
7
th
he was eventually released for insufficiency of evidence.

Section 5, Rule 113 of the Revised 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 just been committed and he has
probable cause to believe based on personal knowledge of
facts or circumstances that the person to be arrested has
committed it; and
x x x.

Neither of the two (2) exceptions mentioned above justifies petitioner
Davids warrantless arrest. During the inquest for the charges of
inciting to sedition and violation of BP 880, all that the arresting
officers could invoke was their observation that some rallyists were
wearing t-shirts with the invective "Oust Gloria Now" and their
erroneous assumption that petitioner David was the leader of the
rally. Consequently, the Inquest Prosecutor ordered his immediate
release on the ground of insufficiency of evidence. He noted that
petitioner David was not wearing the subject t-shirt and even if he
was wearing it, such fact is insufficient to charge him with inciting to
sedition. Further, he also stated that there is insufficient evidence for
the charge of violation of BP 880 as it was not even known whether
petitioner David was the leader of the rally.

The ringing truth here is that petitioner David, et al. were arrested
while they were exercising their right to peaceful assembly. They
were not committing any crime, neither was there a showing of a
clear and present danger that warranted the limitation of that right. As
can be gleaned from circumstances, the charges of inciting to
sedition and violation of BP 880 were mere afterthought.
On the basis of the above principles, the Court likewise considers the
dispersal and arrest of the members of KMU et al. (G.R. No. 171483)
unwarranted. Apparently, their dispersal was done merely on the
basis of Malacaangs directive canceling all permits previously
issued by local government units. This is arbitrary. The wholesale
cancellation of all permits to rally is a blatant disregard of the
principle that "freedom of assembly is not to be limited, much
less denied, except on a showing of a clear and present
danger of a substantive evil that the State has a right to
prevent." Tolerance is the rule and limitation is the exception. Only
upon a showing that an assembly presents a clear and present
danger that the State may deny the citizens right to exercise it.
Indeed, respondents failed to show or convince the Court that the
rallyists committed acts amounting to lawless violence, invasion or
rebellion. With the blanket revocation of permits, the distinction
between protected and unprotected assemblies was eliminated.

In G.R. No. 171409, (Cacho-Olivares, et al.)

The searches were illegal.

Petitioners narration of facts, which the Solicitor General failed to
refute, established the following:
1
st
the Daily Tribunes offices were searched without warrant;
2
nd
the police operatives seized several materials for publication;
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3
rd
the search was conducted at about 1:00 o clock in the morning
of February 25, 2006;
4
th
the search was conducted in the absence of any official of
the Daily Tribune except the security guard of the building; and
5
th
policemen stationed themselves at the vicinity of the Daily
Tribune offices.

Thereafter, a wave of warning came from government officials.
Presidential Chief of Staff Michael Defensor was quoted as saying
that such raid was "meant to show a strong presence, to tell
media outlets not to connive or do anything that would help the
rebels in bringing down this government." Director General
Lomibao further stated that "if they do not follow the standards
and the standards are if they would contribute to instability in
the government, or if they do not subscribe to what is in General
Order No. 5 and Proc. No. 1017 we will recommend
a takeover." National Telecommunications Commissioner Ronald
Solis urged television and radio networks to "cooperate" with the
government for the duration of the state of national emergency. He
warned that his agency will not hesitate to recommend the
closure of any broadcast outfit that violates rules set out for
media coverage during times when the national security is
threatened
The search is illegal. Rule 126 of The Revised Rules on Criminal
Procedure lays down the steps in the conduct of search and
seizure. Section 4 requires that a search warrant be issued upon
probable cause in connection with one specific offence to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may
produce. Section 8 mandates that the search of a house, room, or
any other premise be made in the presence of the lawful
occupant thereof or any member of his family or in the absence of
the latter, in the presence of two (2) witnesses of sufficient age and
discretion residing in the same locality. And Section 9 states that the
warrant must direct that it be served in the daytime, unless the
property is on the person or in the place ordered to be searched, in
which case a direction may be inserted that it be served at any time
of the day or night. All these rules were violated by the CIDG
operatives.

SILAHIS INTERNATIONAL HOTEL, INC., et. al. vs. SOLUTA, et.
al. G.R. No. 163087. February 20, 2006 (LIM)

Doctrine: (See last part of Ratio)
Petitioner: Jose Marcel Panlilio (Panlilio) Vice President for Finance
of his co-petitioner Silahis International Hotel, Inc. (Hotel)
Respondents: Rogelio Soluta (Soluta), Joselito Santos, Edna
Bernate (Edna), Vicenta Delola (Vicenta), and Florentino Matilla
(Matilla) employees of the hotel and officers of the Glowhrain-
Silahis Union Chapter, the hotel employees union (The Union)

FACTS:

According to Petitioners:
In late 1987, as Coronel Floro Maniego (Maniego), General
Manager of the Rapier Enforcement Professional
Investigation and Security Agency, Inc. (REPISA) which
the hotel contracted to provide its security force, had been
receiving reports that sale and/or use of marijuana, dollar
smuggling, and prostitution were going on in the union
office at the hotel and that there existed a theft syndicate,
he conducted a surveillance, with the approval of Panlilio,
of suspected members and officers of the union.
2


In the morning of January 11, 1988, Panlilio, his personal
secretary Andy Dizon, Maniego, Bulletin reporter Nonoy
Rosales, and REPISA security guard Steve Villanueva
(Villanueva) entered the union office located at the hotel
basement, with the permission of union officer Henry
Babay (Babay) who was apprised about the suspected
illegal activities, and searched the premises in the course
of which Villanueva found a plastic bag under a table.
When opened, the plastic bag yielded dry leaves of
marijuana.
3
Panlilio thereupon ordered Maniego to
investigate and report the matter to the authorities.

According to Respondents:
On January 10, 1988, Loida Somacera (Loida), a
laundrywoman of the hotel, stayed overnight at the female
locker room at the basement of the hotel. At dawn of
January 11, 1988, she heard pounding sounds outside,
prompting her to open the door of the locker room upon
which she saw five men in barong tagalog whom she failed
to recognize but she was sure were not employees of the
hotel,
4
forcibly opening the door of the union office.
5
She
even saw one of the men hid something behind his back.
She then closed the door and went back to bed. Soon after
she heard the door of the union office opened.

In the morning of January 11, 1988, as union officer Soluta
was trying in vain to open the door of the union office,
Loida narrated to him what she had witnessed at dawn.

Soluta thus immediately lodged a complaint before the
Security Officer. And he fetched a locksmith, Efren
Guevarra, who tried to assist him, Edna, Arnold Ilustrisimo
and Ed Bautista open the door. At that instant, men in
barong tagalog armed with clubs arrived and started hitting
Soluta and his companions, drawing them to run to the
female locker room, and to thereafter proceed to the
Engineering Office where they called for police assistance.
6


While awaiting the arrival of the police, Babay and Panlilio,
on the latters request, met. At the meeting, Panlilio told
Babay that they proceed to the union office where they
would settle the mauling incident, to which Babay replied
that the door of the office could not be opened. Panlilio
thereupon instructed Villanueva to force open the door, and
the latter did. Once inside, Panlilio and his companions
began searching the office, over the objection of Babay
who even asked them if they had a search warrant.
7
A
plastic bag was found containing marijuana flowering tops.

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As a result of the discovery of the presence of marijuana in
the union office and after the police conducted an
investigation of the incident, a complaint against the 13
union officers,
8
namely: Babay, Isaac Asuncion, Jr., Soluta,
Teodoro Gimpayan, Vicenta, Edna, Arnulfo Ilustrisimo,
Irene Velarde, Joselito Santos, Renato Lina, Avelino
Meneses, Matilla, and Norman Agtani
9
was filed before the
Fiscals Office of Manila, for violation of Republic Act (R.A.)
No. 6425, as amended by Batas Pambansa Bilang 179
(The Dangerous Drugs Act).

Information indicting the union officers under BP179 was filed at the
Manila RTC ACQUITTED due to inadmissible evidence according
to the suspicious circumstances of the confiscation.

Respondents (Soluta et al.) filed before the Manila RTC a case for
malicious prosecution against Petitioners (Silahis et al. and their
counsels) GRANTED. They were awarded moral damages. This
decision was brought to the CA AFFIRMED with modifications
(P50k as moral damages and 1k because the CA said so).

ISSUE:
W/N the respondent individual can recover for damages for violation
of constitutional rights.

HELD:
YES

RATIO:
Article 32 of the New Civil Code provides:
ART. 32. Any public officer or employee, or any private individual,
who directly or indirectly obstructs, defeats, violates or in any manner
impedes or impairs any of the following rights and liberties of another
person shall be liable to the latter for damages:

(9) The right to be secure in ones person,
house, papers, and effects against
unreasonable searches and seizures;
The indemnity shall include moral damages.
Exemplary damages may also be adjudicated.
(Emphasis and underscoring supplied)
As constitutional rights, like the right to be secure
in ones person, house, papers, and effects
against unreasonable search and seizures,
occupy a lofty position in every civilized and
democratic community and not infrequently
susceptible to abuse, their violation, whether
constituting a penal offense or not, must be
guarded against. As the Code Commission
noted,
(3) Direct and open violations of the Penal Code
trampling upon the freedoms named are not so
frequent as those subtle, clever and indirect ways
which do not come within the pale of the penal
law. It is in these cunning devices of suppressing
or curtailing freedom, which are not criminally
punishable, where the greatest danger to
democracy lies. The injured citizen will always
have, under the new Civil Code, adequate civil
remedies before the courts because of the
independent civil action, even in those instances
where the act or omission complained of does
not constitute a criminal offense.
24


The Code Commission thus deemed it necessary to hold not only
public officers but also private individuals civilly liable for violation of
rights enumerated in Article 32 of the Civil Code. That is why it is not
even necessary that the defendant under this Article should have
acted with malice or bad faith, otherwise, it would defeat its main
purpose, which is the effective protection of individual rights.
25
It
suffices that there is a violation of the constitutional right of the
plaintiff.

In the present case, as priorly stated, petitioners had, by their own
claim, already received reports in late 1987 of illegal activities
allegedly undertaken in the union office and Maniego conducted
surveillance of the union officers. Yet, in the morning of January 11,
1988, petitioners and their companions barged into and searched the
union office without a search warrant, despite ample time for them to
obtain one, and notwithstanding the objection of Babay.

The course taken by petitioners and company stinks in illegality, it not
falling under any of the exceptional instances when a warrantless
search is allowed by law. Petitioners violation of individual
respondents constitutional right against unreasonable search thus
furnishes the basis for the award of damages under Article 32 of the
Civil Code.

In MHP Garments, Inc. v. Court of Appeals,
26
a case for unfair
competition, the progression of time between the receipt of the
information and the raid of the stores of the therein private
respondents premises showed that there was sufficient time for the
therein petitioners and the raiding party to apply for a judicial warrant.
Yet they did not apply for one. They went on with the raid and seized
the goods of the therein private Respondents. Under the
circumstances, this court upheld the grant of damages by the trial
court to the therein private respondents for violation of their right
against unreasonable search and seizure.

As for petitioners contention that property rights justified the search
of the union office, the same does not lie. For respondents, being the
lawful occupants of the office, had the right to raise the question of
validity of the search and seizure.
27


Neither does petitioners claim that they were allowed by union officer
Babay to enter the union office lie. Babays account of why
petitioners and company went to the union office to consider
Panlilios suggestion to settle the mauling incident is more credible,
as is his claim that he protested the search, and even asked if they
were armed with a search warrant.

While it is doctrinal that the right against unreasonable searches and
seizures is a personal right which may be waived expressly or
impliedly, a waiver by implication cannot be presumed. There must
be clear and convincing evidence of an actual intention to relinquish
it to constitute a waiver thereof.
28
There must be proof of the
following: (a) that the right exists; (b) that the person involved had
knowledge, either actual or constructive, of the existence of such
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right; and, (c) that the said person had an actual intention to
relinquish the right. In other words, the waiver must be voluntarily,
knowingly and intelligently made. The evidence shows otherwise,
however.

That a violation of ones constitutional right against illegal search and
seizure can be the basis for the recovery of damages under Article
32 in relation to Article 2219(6) and (10) of the New Civil Code, there
is no doubt. Since the complaint
29
filed before the trial court was for
damages due to malicious prosecution and violation of constitutional
right against illegal search and seizure, the award by the trial court of
actual damages to respondent union was correctly set aside by the
appellate court.

Article 32 speaks of an officer or employee or person "directly or
indirectly" responsible for the violation of the constitutional rights and
liberties of another. Hence, it is not the actor alone who must answer
for damages under Article 32; the person indirectly responsible has
also to answer for the damages or injury caused to the aggrieved
party.
30
Such being the case, petitioners, together with Maniego and
Villanueva, the ones who orchestrated the illegal search, are jointly
and severally liable for actual, moral and exemplary damages to
herein individual respondents in accordance with the earlier-quoted
pertinent provision of Article 32, in relation to Article 2219(6) and (10)
of the Civil Code which provides that moral damages may be
recovered in cases including illegal search and acts and action
referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34 and 35.
Petitioners magnify the citation by the appellate court of Aruta
allegedly "to justify [their] liability" under Article 32 of the Civil Code,
which petitioners allege is erroneous as said case did not involve
Article 32.
Aruta was, however, cited by the appellate court, not to justify
petitioners liability but to rule out the legality of the search in the
union office as the search was not done as an incident of a lawful
arrest.

Petitioners cite People v. Marti
31
to support their thesis that the
determinants in the validity of the constitutional right against
searches and seizure cannot be invoked against private individuals.

But the ruling of this Court in Marti, a criminal case, bears on the
issue of whether "an act of a private individual, allegedly in violation
of [ones] constitutional rights, [may] be invoked against the State." In
other words, the issue in that case was whether the evidence
obtained by a private person, acting in a private capacity without the
participation of the State, is admissible.

The issue in the present civil case, however, is whether respondent
individual can recover damages for violation of constitutional rights.
As reflected above, Article 32, in relation to Article 2219(6) and (10)
of the Civil Code, allows so.


Note: Read Rules 113 and 126, Revised Rule of Court


Section 3 Privacy of Communications and Correspondence

Gaanan v. Intermediate Appellate Court (145 SCRA 112 [1986])
(MANALAYSAY)

Nature: Petition for certiorari asking for an interpretation of the Anti-
Wiretapping Act.

Doctrine: Our lawmakers intended to discourage persons such as
govt authorities from installing devices to gather evidence for use in
court or to blackmail telephone users.
Mere act of listening, to be punishable, must strictly be with the use
of the enumerated devices in RA No. 4200. An extension telephone
is not among such devices.

Facts:

1. One morning complainant ATTY. PINTOR and his client Manuel
MONTEBON were in the living room of complainant's residence
discussing the terms for the withdrawal of the complaint for
direct assault which they filed with the Office of the City Fiscal of
Cebu against Leonardo LACONICO. After they had decided on
the proposed conditions, complainant made a telephone call to
Laconico.
2. That same morning, Laconico telephoned appellant ATTY.
GAANAN, who is a lawyer to come to his office and advise him
on the settlement of the direct assault case because his regular
lawyer, Atty. Leon Gonzaga, went on a business trip. According
to the request, Atty. Gaanan went to the office of Laconico
where he was briefed about the problem.
3. When complainant called up, Laconico requested appellant Atty.
Gaanan to secretly listen to the telephone conversation through
a telephone extension so as to hear personally the proposed
conditions for the settlement. Appellant heard complainant
enumerate the following conditions for withdrawal of the
complaint for direct assault. To name a few:
Figure of P8,000.00
Public apology to be made by Atty. Laconico before the
students of Don Bosco Technical High School
Transfer of son of Atty. Laconico to another school or
another section
Allow Manuel Montebon to continue teaching
Not to divulge the truth about the settlement of the Direct
Assault Case to the mass media
4. 20 minutes later, complainant called up again to ask Laconico if
he was agreeable to the conditions. Laconico answered `Yes'.
Complainant then told Laconico to wait for instructions on where
to deliver the money. Complainant called up again and
instructed Laconico to give the money to his wife at the office of
the then Department of Public Highways. Laconico who earlier
alerted his friend Colonel Zulueta of the Criminal Investigation
Service of the Philippine Constabulary, insisted that complainant
himself should receive the money. When he received the money
at the Igloo Restaurant, complainant was arrested by agents of
the Philippine Constabulary. In short, Atty. Pintor was
subsequently arrested in an entrapment operation upon receipt
of the money.
5. Appellant Atty. Gaanan executed on the following day an
affidavit stating that he heard complainant demand. Laconico
attached the affidavit of appellant to the complainant for
robbery/extortion which he filed against complainant.
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6. Since appellant listened to the telephone conversation without
complainant's consent, complainant charged appellant and
Laconico with violation of the Anti-Wiretapping Act.
7. RTC found both Gaanan and Laconico guilty. The two were
each sentenced to 1 year imprisonment with costs. Not satisfied
with the decision, the petitioner appealed to the appellate court.
8. IAC affirmed the decision of the trial court, holding that the
extension telephone which was used by the petitioner to
overhear the telephone conversation between complainant and
Laconico is covered in the term "device" as provided RA 4200
9. Section 1 of Rep. Act No. 4200 provides: "It shall be unlawful for
any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable or by
using any other device or arrangement, to secretly overhear,
intercept, or record such communication or spoken word by
using a device commonly known as a dictaphone or dictagraph
or detectaphone or walkie-talkie or taperecorder, or however
otherwise described

Issue:
WON an extension telephone is among the prohibited devices, such
that its use to overhear a private conversation would constitute
unlawful interception of communications between the 2 parties using
the tel. line - NO

Held:
We rule for the petitioner.
1. There is no question that the telephone conversation between
complainant Atty. Pintor and accused Atty. Laconico was
"private" in the sense that the words uttered were made
between one person and another as distinguished from words
between a speaker and a public. It is also undisputed that only
one of the parties gave the petitioner the authority to listen to
and overhear the caller's message with the use of an extension
telephone line. Obviously, complainant Pintor, a member of the
Philippine bar, would not have discussed the alleged demand
for an P8,000.00 consideration in order to have his client
withdraw a direct assault charge against Atty. Laconico if he
knew that another lawyer was also listening. We have to
consider, however, that affirmance of the criminal conviction
would, in effect, mean that a caller by merely using a telephone
line can force the listener to secrecy no matter how obscene,
criminal, or annoying the call may be. It would be the word of the
caller against the listener's.
2. Because of technical problems caused by the sensitive nature of
electronic equipment and the extra heavy loads which telephone
cables are made to carry in certain areas, telephone users often
encounter what are called "crossed lines". An unwary citizen
who happens to pick up his telephone and who overhears the
details of a crime might hesitate to inform police authorities if he
knows that he could be accused under Rep. Act 4200. Surely
the law was never intended for such mischievous results.
3. The main issue in the resolution of this petition, however,
revolves around the meaning of the phrase "any other device or
arrangement." Is an extension of a telephone unit such a device
or arrangement as would subject the user to imprisonment?
Private secretaries with extension lines to their bosses'
telephones are sometimes asked to use answering or recording
devices to record business conversations between a boss and
another businessman. Would transcribing a recorded message
for the use of the boss be a proscribed offense? Or for that
matter, would a "party line" be a device or arrangement under
the law?
4. The petitioner contends that telephones or extension telephones
are not included in the enumeration of "commonly known"
listening or recording devices, nor do they belong to the same
class of enumerated electronic devices contemplated by law.
5. WON listening over a telephone party line would be punishable
was discussed on the floor of the Senate. Yet, when the bill was
finalized into a statute, no mention was made of telephones in
the enumeration of devices. The omission was not a mere
oversight. Telephone party lines were intentionally deleted from
the provisions of the Act.
6. The respondent People argue that an extension telephone is
embraced and covered by the term "device" because it is a
separate device and distinct set of a movable apparatus.
7. The law refers to a "tap" of a wire or cable or the use of a
"device or arrangement" for the purpose of secretly overhearing,
intercepting, or recording the communication. There must be
either a physical interruption through a wiretap or the deliberate
installation of a device or arrangement in order to overhear,
intercept, or record the spoken words.
8. An extension telephone cannot be placed in the same category
as a dictaphone, dictagraph or the other devices enumerated in
Section 1 of RA No. 4200 as the use thereof cannot be
considered as "tapping" the wire or cable of a telephone line.
The telephone extension in this case was not installed for that
purpose. It just happened to be there for ordinary office use. It is
a rule in statutory construction that in order to determine the true
intent of the legislature, the particular clauses and phrases of
the statute should not be taken as detached and isolated
expressions, but the whole and every part thereof must be
considered.
9. Hence, the phrase "device or arrangement" in Section 1 of RA
No. 4200, although not exclusive to that enumerated therein,
should be construed to comprehend instruments of the same or
similar nature, that is, instruments the use of which would be
tantamount to tapping the main line of a telephone. It refers to
instruments whose installation or presence cannot be presumed
by the party or parties being overheard because, by their very
nature, they are not of common usage and their purpose is
precisely for tapping or recording a telephone conversation.
10. An extension telephone is an instrument which is very common.
A person should safely presume that the party he is calling at
the other end of the line probably has an extension telephone
and he runs the risk of a third party listening as in the case of a
party line or a telephone unit which shares its line with another.
11. Furthermore, it is a general rule that penal statutes must be
construed strictly in favor of the accused. Thus, in case of doubt
as in the case at bar, on whether or not an extension telephone
is included in the phrase "device or arrangement", the penal
statute must be construed as not including an extension
telephone.
12. A perusal of the Senate Congressional Records will show that
not only did our lawmakers not contemplate the inclusion of an
extension telephone as a prohibited "device or arrangement" but
of greater importance, they were more concerned with
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penalizing the act of recording than the act of merely listening to
a telephone conversation.
13. Our lawmakers intended to discourage, through punishment,
persons such as government authorities or representatives of
organized groups from installing devices in order to gather
evidence for use in court or to intimidate, blackmail or gain some
unwarranted advantage over the telephone users.
Consequently, the mere act of listening, in order to be
punishable must strictly be with the use of the enumerated
devices in RA No. 4200 or others of similar nature. We are of
the view that an extension telephone is not among such devices
or arrangements.
Dispositive: Petition is GRANTED. The decision of the then IAC is
ANNULLED and SET ASIDE. The petitioner is ACQUITTED of the
crime of violation of Anti-Wiretapping Act.


Ramirez v. Court of Appeals and Garcia (248 SCRA 590 [1995])
(MERCADO)
[NOTE: No submission, online digest]

Rule involved:
Ubi lex non distinguit nec nos distinguere debemos. Where the law
makes no distinctions, one does not distinguish.

Issue:
Does the anti-wiretapping law, RA 4200, allow parties to a
conversation to tape it without the consent of all those involved?
What was construed: The word any in Sec. 1 of RA 4200: It shall be
unlawful for ANY person, not being authorized by all the parties to
any private communication or spoken word, to tap any wire or cable,
or by using any other device or arrangement, to secretly overhear,
intercept, or record such communication or spoken word by using a
device commonly known as a Dictaphone or dictagraph or
detectaphone or walkie-talkie or tape recorder, or however otherwise
described.

Facts of the case:
Soccoro Ramirez was scolded by Ester Garcia inside Garcias office.
Ramirez taped the conversation and later filed charges against
Garcia for insulting and humiliating her, using as evidence the
transcript of the conversation, based on the tape recording. Garcia
filed criminal charges against Ramirez for violating the anti-wire
tapping act, because it was done without her knowledge and
consent. Ramirez claimed that what the law forbids is for other
parties, who are not part of the conversation, to record it using the
instruments enumerated in the law (there was an earlier case that
was dismissed because the instrument used was not mentioned in
the law). The trial court ruled in favor of Ramirez, granting a motion
to quash on the ground that the facts charged do not constitute an
offense, but the Court of Appeals reversed it.

Ratio:
First, the court noted that the provision makes it clear that it is illegal
for any person to secretly record a conversation, unless authorized
by all parties involved. The law makes no distinction as to whether
the party sought to be penalized by the statute ought to be a party
other than or different from those involved in the private
communication. The congressional records also showed that the
intent was that permission must be sought from all parties in the
conversation. This is a complete ban on tape recorded
conversations taken without the authorization of all the parties, Sen.
Tanada said during the deliberations. The provision seeks to
penalize even those privy to the private communications. Where the
law makes no distinctions, one does not distinguish.

Decision:
Petition denied. Decision of CA affirmed. Costs against Ramirez.


People v. Albofera (152 SCRA 123 [1987]) (MONTINOLA)
[NOTE: No submission, online digest]

FACTS:
Sometime in June or July 1980, accused Albofera and 3 others killed
Teodoro Carancio a forester. Rodrigo Esma was at the house of one
of the accused but did not participate in the killing.
The matter was later brought to the attention of the authorities by a
certain Sisneros and accused Albofera was arrested. The accused
Lawi-an was subsequently arrested.
Albofera executed an extra-judicial confession before the Municipal
Circuit Judge. He stated therein that he was forced to join the NPA
movement for fear of his life; that said group had ordered the arrest
of the victim, Carancio, and that the group sentenced him (the
victim) to die by stabbing.
Esma testified against the accused during the trial. While in prison,
accused Albofera sent a letter to Esma. Said letter was thereafter
introduced as evidence by prosecution. In his letter, accused
Albofera was asking Esma to change his declaration in his Affidavit
and testify in his favor instead.
Later the accused were convicted of murder.
ISSUE:
Whether the Alboferas letter to Esma should be excluded as
evidence in light of alleged unwarranted intrusion or invasion of the
accuseds privacy?
HELD:
No. The production of that letter by the prosecution was not the result
of an unlawful search and seizure nor was it through unwarranted
intrusion or invasion into Alboferas privacy. Albofera admitted having
sent the letter and it was its recipient, Rodrigo Esma himself, who
produced and identified the same in the course of his testimony in
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Court. Besides, there is nothing really self-incriminatory in the letter.
Albofera mainly pleaded that Esma change his declaration in his
Affidavit and testify in his (Alboferas) favor. Furthermore, nothing
Alboferas tated in his letter is being taken against him in arriving at a
determination of his culpability.


KILUSANG MAYO UNO, et. al. vs. DIRECTOR-GENERAL, et. al.
G.R. No. 167798. April 19, 2006 (MORA)

FACTS:
EO 420, issued by President Gloria Macapagal-Arroyo on 13 April
2005, reads:

REQUIRING ALL GOVERNMENT AGENCIES AND
GOVERNMENT-OWNED AND CONTROLLED CORPORATIONS
TO STREAMLINE AND HARMONIZE THEIR IDENTIFICATION (ID)
SYSTEMS, AND AUTHORIZING FOR SUCH PURPOSE THE
DIRECTOR-GENERAL, NATIONAL ECONOMIC AND
DEVELOPMENT AUTHORITY TO IMPLEMENT THE SAME, AND
FOR OTHER PURPOSES

WHEREAS, good governance is a major thrust of this Administration;
WHEREAS, the existing multiple identification systems in
government have created unnecessary and costly redundancies and
higher costs to government, while making it inconvenient for
individuals to be holding several identification cards;
WHEREAS, there is urgent need to streamline and integrate the
processes and issuance of identification cards in government to
reduce costs and to provide greater convenience for those
transacting business with government;
WHEREAS, a unified identification system will facilitate private
businesses, enhance the integrity and reliability of government-
issued identification cards in private transactions, and prevent
violations of laws involving false names and identities.
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President
of the Republic of the Philippines by virtue of the powers vested in
me by law, do hereby direct the following:

Section 1. Adoption of a unified multipurpose identification (ID)
system for government.All government agencies, including
government-owned and controlled corporations, are hereby directed
to adopt a unified multipurpose ID system to ensure the attainment of
the following objectives:
a. To reduce costs and thereby lessen the
financial burden on both the government and the
public brought about by the use of multiple ID
cards and the maintenance of redundant
database containing the same or related
information;
b. To ensure greater convenience for those
transacting business with the government and
those availing of government services;
c. To facilitate private businesses and promote
the wider use of the unified ID card as provided
under this executive order;
d. To enhance the integrity and reliability of
government-issued ID cards; and
e. To facilitate access to and delivery of quality
and effective government service.
Section 2. Coverage.All government agencies and government-
owned and controlled corporations issuing ID cards to their members
or constituents shall be covered by this executive order.

Section 3. Data requirement for the unified ID system.The data to
be collected and recorded by the participating agencies shall be
limited to the following:
o Name
o Home Address
o Sex
o Picture
o Signature
o Date of Birth
o Place of Birth
o Marital Status
o Names of Parents
o Height
o Weight
o Two index fingers and two thumbmarks
o Any prominent distinguishing features like moles
and others
o Tax Identification Number (TIN)
Provided that a corresponding ID number issued by the participating
agency and a common reference number shall form part of the
stored ID data and, together with at least the first five items listed
above, including the print of the right thumbmark, or any of the finger-
prints as collected and stored, shall appear on the face or back of the
ID card for visual verification purposes.

Petitioners in G.R. No. 167798 allege that EO 420 is unconstitutional
because it constitutes usurpation of legislative functions by the
executive branch of the government. Furthermore, they allege that
EO 420 infringes on the citizens right to privacy.

Petitioners in G.R. No. 167930 allege that EO 420 is void based on
the following grounds:
1. EO 420 is contrary to law. It completely disregards and violates the
decision of this Honorable Court in Ople v. Torres, et al., G.R. No.
127685, July 23, 1998. It also violates RA 8282 otherwise known as
the Social Security Act of 1997.
2. The Executive has usurped the legislative power of Congress as
she has no power to issue EO 420. Furthermore, the implementation
of the EO will use public funds not appropriated by Congress for that
purpose.
3. EO 420 violates the constitutional provisions on the right to privacy
(i) It allows access to personal confidential data
without the owners consent.
(ii) EO 420 is vague and without adequate safeguards
or penalties for any violation of its provisions.
(iii) There are no compelling reasons that will
legitimize the necessity of EO 420.
4. Granting without conceding that the President may issue EO 420,
the Executive Order was issued without public hearing.
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5. EO 420 violates the Constitutional provision on equal protection of
laws and results in the discriminatory treatment of and penalizes
those without ID.

ISSUE:
WON EO 420 infringes on the citizens right to privacy

HELD:
EO 420 IS VALID AND DOES NOT INFRINGE CITIZENS RIGHT
TO PRIVACY.
Prior to EO 420, government entities had a free hand in determining
the kind, nature and extent of data to be collected and stored for their
ID systems. Under EO 420, government entities can collect and
record only the 14 specific data mentioned in Section 3 of EO 420. In
addition, government entities can show in their ID cards only eight of
these specific data, seven less data than what the Supreme Courts
ID shows.

Also, prior to EO 420, there was no executive issuance to
government entities prescribing safeguards on the collection,
recording, and disclosure of personal identification data to protect the
right to privacy. Now, under Section 5 of EO 420, the following
safeguards are instituted:

a. The data to be recorded and stored, which shall be used only for
purposes of establishing the identity of a person, shall be limited to
those specified in Section 3 of this executive order;
b. In no case shall the collection or compilation of other data in
violation of a persons right to privacy be allowed or tolerated under
this order;
c. Stringent systems of access control to data in the identification
system shall be instituted;
d. Data collected and stored for this purpose shall be kept and
treated as strictly confidential and a personal or written authorization
of the Owner shall be required for access and disclosure of data;
e. The identification card to be issued shall be protected by advanced
security features and cryptographic technology;
f. A written request by the Owner of the identification card shall be
required for any correction or revision of relevant data, or under such
conditions as the participating agency issuing the identification card
shall prescribe.

On its face, EO 420 shows no constitutional infirmity because it even
narrowly limits the data that can be collected, recorded and shown
compared to the existing ID systems of government entities. EO 420
further provides strict safeguards to protect the confidentiality of the
data collected, in contrast to the prior ID systems which are bereft of
strict administrative safeguards.

The right to privacy does not bar the adoption of reasonable ID
systems by government entities.

In U.S. Justice Department, the issue was not whether the State
could collect and store information on individuals from public records
nationwide but whether the State could withhold such information
from the press. The premise of the issue in U.S. Justice
Department is that the State can collect and store in a central
database information on citizens gathered from public records
across the country. In fact, the law authorized the Department of
Justice to collect and preserve fingerprints and other criminal
identification records nationwide. The law also authorized the
Department of Justice to exchange such information with
officials of States, cities and other institutions. The
Department of Justice treated such information as confidential.
A CBS news correspondent and the Reporters Committee demanded
the criminal records of four members of a family pursuant to the
Freedom of Information Act. The U.S. Supreme Court ruled that the
Freedom of Information Act expressly exempts release of information
that would constitute an unwarranted invasion of personal privacy,
and the information demanded falls under that category of exempt
information.

With the exception of the 8 specific data shown on the ID card, the
personal data collected and recorded under EO 420 are treated as
strictly confidential under Section 6(d) of EO 420. These data are
not only strictly confidential but also personal matters. Section 7,
Article III of the 1987 Constitution grants the right of the people to
information on matters of public concern. Personal matters are
exempt or outside the coverage of the peoples right to information
on matters of public concern. The data treated as strictly
confidential under EO 420 being private matters and not matters of
public concern, these data cannot be released to the public or the
press. Thus, the ruling in U.S. Justice Department does not collide
with EO 420 but actually supports the validity EO 420.

Compared to the disclosure requirements of personal data that the
U.S. Supreme Court have upheld in Whalen, Danforth and Casey as
not violative of the right to privacy, the disclosure requirements under
EO 420 are far benign and cannot therefore constitute violation of the
right to privacy. EO 420 requires disclosure of 14 personal data that
are routine for ID purposes, data that cannot possibly embarrass or
humiliate anyone.

Petitioners have not shown how EO 420 will violate their right to
privacy. Petitioners cannot show such violation by a mere facial
examination of EO 420 because EO 420 narrowly draws the data
collection, recording and exhibition while prescribing comprehensive
safeguards. Ople v. Torres is not authority to hold that EO 420
violates the right to privacy because in that case the assailed
executive issuance, broadly drawn and devoid of safeguards, was
annulled solely on the ground that the subject matter required
legislation. As then Associate Justice, now Chief Justice Artemio V.
Panganiban noted in his concurring opinion in Ople v. Torres, The
voting is decisive only on the need for appropriate legislation, and it
is only on this ground that the petition is granted by this Court.

EO 420 applies only to government entities that already maintain ID
systems and issue ID cards pursuant to their regular functions under
existing laws. EO 420 does not grant such government entities any
power that they do not already possess under existing laws. In
contrast, the assailed executive issuance in Ople v. Torres sought to
establish a National Computerized Identification Reference System,
a national ID system that did not exist prior to the assailed executive
issuance. Obviously, a national ID card system requires legislation
because it creates a new national data collection and card issuance
system where none existed before.


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