G.R. No.
200334 July 30, 2014 fruiting tops,"19 and inside Dayaos yellow bag was a brick of
THE PEOPLE OF THE PHILIPPINES, Respondent-Appellee,
vs.
VICTOR COGAED y ROMANA, Accused-Appellant.
DECISION
LEONEN, J.:
The mantle of protection upon one's person and one's effects
through Article III, Section 2 of the Constitution is essential to
allow citizens to evolve their autonomy and, hence, to avail
themselves of their right to privacy. The alleged compromise
with the battle against dangerous drugs is more apparent
than real. Often, the compromise is there because law
enforcers neglect to perform what could have been done to
uphold the Constitution as they pursue those who traffic this
scourge of society.
Squarely raised in this appeal1 is the admissibility of the
evidence seized as a result of a warrantless arrest. The police
officers identified the alleged perpetrator through facts that
were not based on their personal knowledge. The information
as to the accuseds whereabouts was sent through a text
message. The accusedwho never acted suspicious was
identified by a driver. The bag that allegedly contained the
contraband was required to be opened under intimidating
circumstances and without the accused having been fully
apprised of his rights. This was not a reasonable search within
the meaning of the Constitution. There was no reasonable
suspicion that would allow a legitimate "stop and frisk" action.
The alleged waiver of rights by the accused was not done
intelligently, knowingly, and without improper pressure or
coercion.
The evidence, therefore, used against the accused should be
excluded consistent with Article III, Section 3 (2) of the
Constitution. There being no possible admissible evidence, the
accused should be acquitted.
I
According to the prosecution, at about 6:00 a.m. of
November 25, 2005, Police Senior Inspector Sofronio Bayan
(PSI Bayan) of the San Gabriel Police Station in San
Gabriel,La Union, "received a text message from an
unidentified civilian informer"2 that one Marvin Buya (also
known as Marvin Bugat) "[would]be transporting
marijuana"3 from Barangay LunOy, San Gabriel, La Union to
the Poblacion of San Gabriel, La Union.4
PSI Bayan organized checkpoints in order "to intercept the
suspect."5 PSI Bayan ordered SPO1 Jaime Taracatac, Jr.
(SPO1 Taracatac), a member of the San Gabriel Police, to set
up a checkpoint in the waiting area of passengers from San
Gabriel bound for San Fernando City.6 A passenger jeepney
from Barangay Lun-Oy arrived at SPO1 Taracatacs
checkpoint.7 The jeepney driver disembarked and signalled to
SPO1 Taracatac indicating the two male passengers who were
carrying marijuana.8 SPO1 Taracatac approached the two
male passengers who were later identified as Victor
RomanaCogaed and Santiago Sacpa Dayao.9 Cogaed was
carrying a blue bag and a sack while Dayao was holding a
yellow bag.10
SPO1 Taracatac asked Cogaed and Dayao about the contents
of their bags.11 Cogaed and Dayao told SPO1 Taracatac that
they did not know since they were transporting the bags as a
favor for their barriomatenamed Marvin.12 After this
exchange, Cogaed opened the blue bag, revealing three
bricks of what looked like marijuana.13Cogaed then muttered,
"nagloko daytoy nga Marvinen, kastoymet gayam ti
nagyanna,"which translates to "Marvin is a fool, this is what
[is] contained in the bag."14 "SPO1 Taracatac arrested
[Cogaed] and . . . Dayao and brought them to the police
station."15 Cogaed and Dayao "were still carrying their
respective bags"16 inside the station.17
While at the police station, the Chief of Police and
Investigator PO3 Stanley Campit (PO3 Campit) requested
Cogaed and Dayao to empty their bags.18 Inside Cogaeds
sack was "four (4) rolled pieces of suspected marijuana
suspected marijuana.20
PO3 Campit prepared the suspected marijuana for laboratory
testing.21 PSI Bayan personally delivered the suspected
marijuana to the PNP Crime Laboratory.22 Forensic Chemical
Officer Police Inspector Valeriano Panem Laya II performed
the tests and found that the objects obtained were indeed
marijuana.23 The marijuana collected from Cogaeds blue bag
had a total weight of 8,091.5 grams.24 The marijuana from
Cogaeds sack weighed 4,246.1 grams.25 The marijuana
collected from Dayaos bag weighed 5,092 grams.26 A total of
17,429.6 grams werecollected from Cogaeds and Dayaos
bags.27
According to Cogaeds testimony during trial, he was at
Balbalayan, La Union, "waiting for a jeepney to take him"28to
the Poblacion of San Gabriel so he could buy pesticide.29 He
boarded a jeepney and recognized Dayao, his younger
brothers friend.30 Upon arrival at the Poblacion of San
Gabriel, Dayao and Cogaed alighted from the
jeepney.31 Dayao allegedly "asked for [Cogaeds] help in
carrying his things, which included a travelling bag and a
sack."32 Cogaed agreed because they were both going to the
market.33 This was when SPO1 Taracatac approached them,
and when SPO1 Taracatac asked Cogaed what was inside the
bags, Cogaed replied that he did not know.34SPO1 Taracatac
then talked to Dayao, however, Cogaed was not privy to their
conversation.35 Thereafter, SPO1 Taracatac arrested Dayao
and Cogaed and brought them to the police station.36 These
facts were corroborated by an eyewitness,Teodoro Nalpu-ot,
who was standing across the parking lot where Cogaed was
apprehended.37
At the police station, Cogaed said that "SPO1 Taracatac hit
[him] on the head."38 The bags were also opened, but Cogaed
never knew what was inside.39
It was only later when Cogaed learned that it was marijuana
when he and Dayao were charged with illegal possession of
dangerous drugs under Republic Act No. 9165.40 The
information against them states:
That on or about the 25th day of November, 2005, in the
Municipality of San Gabriel, Province of La Union, and within
the jurisdiction of this Honorable Court, the above-named
accused VICTOR COGAED Y ROMANA and SANTIAGO DAYAO
Y SACPA (who acted with discernment) and JOHN
DOE,conspiring, confederating and mutually helping one
another, did then there wilfully, unlawfully, feloniously and
knowingly, without being authorized by law, have in their
control, custody and possession dried marijuana, a dangerous
drug, with a total weight of seventeen thousand,four hundred
twenty-nine and sixtenths (17, 429.6) grams.
CONTRARY TO Section 11 (Possession of Dangerous Drugs),
Article II, of Republic Act No. 9165 (otherwise known as the
"Comprehensive Dangerous Drugs Act of 2002").41
The case was raffled to Regional Trial Court, Branch 28 of San
Fernando City, La Union.42 Cogaed and Dayao pleaded not
guilty.43 The case was dismissed against Dayao because he
was only 14 years old at that time and was exempt from
criminal liability under the Juvenile Justice and Welfare Act of
2006 or Republic Act No. 9344.44 Trial against Cogaed
ensued. In a decision45 dated May 21, 2008, the Regional
Trial Court found Cogaed guilty. The dispositive portion of the
decision states:
WHEREFORE, the Court finds accused Victor Cogaed y
Romana GUILTY beyond reasonable doubt for Violation of
Section 11, Article II of Republic Act No. 9165 (otherwise
known as the "Comprehensive Dangerous Drugs Act of 2002")
and sentences him to suffer life imprisonment, and to pay a
fine of one million pesos (Php 1,000,000.00).46
The trial court judge initiallyfound Cogaeds arrest illegal
considering that "Cogaed at that time was not, at the moment
of his arrest, committing a crime nor was shown that hewas
about to do so or that had just done so. He just alighted from
the passenger jeepney and there was no outward indication
that called for his arrest."47 Since the arrest was illegal, the
warrantless search should also be considered
illegal.48 However, the trial court stated that notwithstanding
the illegality of the arrest, Cogaed "waived his right to object
to such irregularity"49 when "he did not protest when SPO1
Taracatac, after identifying himself, asked him to open his
bag."50
Cogaed appealed51 the trial courts decision.However, the
Court of Appeals denied his appeal and affirmed the trial
courts decision.52 The Court of Appeals found that Cogaed
waived his right against warrantless searches when "[w]ithout
any prompting from SPO1 Taracatac, [he] voluntarily opened
his bag."53 Hence, this appeal was filed.
The following errors were assigned by Cogaed in his
appellants brief:
I
THE TRIAL COURT GRAVELY ERRED IN ADMITTING THE
SEIZED DANGEROUS DRUGS AS EVIDENCE AGAINST THE
ACCUSED-APPELLANT DESPITE BEING THE RESULT OF AN
UNLAWFUL WARRANTLESS SEARCH AND SEIZURE.
II
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE
ACCUSED-APPELLANT DESPITE THE ARRESTING OFFICERS
NON-COMPLIANCE WITH THE REQUIREMENTS FOR THE
PROPER CUSTODY OF SEIZED DANGEROUS DRUGS UNDER
REPUBLIC ACT NO. 9165.
III
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE
ACCUSED-APPELLANT DESPITE THE ARRESTING OFFICERS
FAILURE TO PRESERVE THE INTEGRITY AND EVIDENTIARY
VALUE OF THE SEIZED DANGEROUS DRUGS.54
For our consideration are the following issues: (1) whether
there was a valid search and seizure of marijuana as against
the appellant; (2) whether the evidence obtained through the
search should be admitted; and (3) whether there was
enough evidence to sustain the conviction of the accused.
In view of the disposition of this case, we deem that a
discussion with respect to the requirements on the chain of
custody of dangerous drugs unnecessary.55
We find for the accused.
II
The right to privacy is a fundamental right enshrined by
implication in our Constitution. It has many dimensions. One
of its dimensions is its protection through the prohibition of
unreasonable searches and seizures in Article III, Section 2 of
the Constitution:
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 determinedpersonally
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.
This provision requires that the court examine with care and
diligence whether searches and seizures are "reasonable." As
a general rule, searches conducted with a warrant that meets
all the requirements of this provision are reasonable. This
warrant requires the existence of probable cause that can
only be determined by a judge.56The existence of probable
cause must be established by the judge after asking
searching questions and answers.57Probable cause at this
stage can only exist if there is an offense alleged to be
committed. Also, the warrant frames the searches done by
the law enforcers. There must be a particular description of
the place and the things to be searched.58
However, there are instances when searches are reasonable
even when warrantless.59 In the Rules of Court,
searchesincidental to lawful arrests are allowed even without
a separate warrant.60 This court has taken into account the
"uniqueness of circumstances involved including the purpose
of the search or seizure, the presence or absence of probable
cause, the manner in which the search and seizure was made,
the place or thing searched, and the character of the articles
procured."61 The known jurisprudential instances of
reasonable warrantless searches and seizures are:
1. Warrantless search incidental to a lawful arrest. . .
;
2. Seizure of evidence in "plain view," . . . ;
3. Search of a moving vehicle. Highly regulated by
the government, the vehicles inherent mobility
reduces expectation of privacy especially when its
transit in public thoroughfares furnishes a highly
reasonable suspicion amounting to probable cause
that the occupant committed a criminal activity;
4. Consentedwarrantless search;
5. Customs search;
6. Stop and frisk; and
7. Exigent and emergency
circumstances.62 (Citations omitted)
III
One of these jurisprudential exceptionsto search warrants is
"stop and frisk". "Stop and frisk" searches are often confused
with searches incidental to lawful arrests under the Rules of
Court.63 Searches incidental to a lawful arrest require that a
crime be committed in flagrante delicto, and the search
conducted within the vicinity and withinreach by the person
arrested is done to ensure that there are no weapons, as well
as to preserve the evidence.64
On the other hand, "stop and frisk"searches are conducted to
prevent the occurrence of a crime. For instance, the search in
Posadas v. Court of Appeals65 was similar "to a stop and frisk
situation whose object is either to determine the identity of a
suspicious individual or to maintain the status
quomomentarily while the police officer seeks to obtain more
information."66 This court stated that the "stop and frisk"
search should be used "[w]hen dealing with a rapidly
unfolding and potentially criminal situation in the city streets
where unarguably there is no time to secure . . . a search
warrant."67
The search involved in this case was initially a "stop and frisk"
search, but it did not comply with all the requirements of
reasonability required by the Constitution.
"Stop and frisk" searches (sometimes referred to as
Terrysearches68) are necessary for law enforcement. That is,
law enforcers should be given the legal arsenal to prevent the
commission of offenses. However, this should be balanced
with the need to protect the privacy of citizens in accordance
with Article III, Section 2 of the Constitution.
The balance lies in the concept of"suspiciousness" present in
the situation where the police officer finds himself or herself
in. This may be undoubtedly based on the experience ofthe
police officer. Experienced police officers have personal
experience dealing with criminals and criminal behavior.
Hence, they should have the ability to discern based on
facts that they themselves observe whether an individual is
acting in a suspicious manner. Clearly, a basic criterion would
be that the police officer, with his or her personal knowledge,
must observe the facts leading to the suspicion of an illicit
act.
In Manalili v. Court of Appeals,69 the police officers were
initially informed about a place frequented by people abusing
drugs.70 When they arrived, one of the police officers saw a
man with "reddish eyes and [who was] walking in a swaying
manner."71 The suspicion increased when the man avoided
the police officers.72 These observations led the police officers
to conclude that the man was high on drugs.73 These were
sufficient facts observed by the police officers "to stop[the]
petitioner [and] investigate."74
In People v. Solayao,75 police officers noticed a man who
appeared drunk.76 This man was also "wearing a camouflage
uniform or a jungle suit."77 Upon seeing the police, the man
fled.78 His flight added to the suspicion.79After stopping him,
the police officers found an unlicensed "homemade
firearm"80 in his possession.81 This court ruled that "[u]nder
the circumstances, the government agents could not possibly
have procured a search warrant first."82 This was also a valid
search.
In these cases, the police officers using their senses observed
facts that led to the suspicion. Seeing a man with reddish
eyes and walking in a swaying manner, based on their
experience, is indicative of a person who uses dangerous and
illicit drugs. A drunk civilian in guerrilla wear is probably
hiding something as well.
The case of Cogaed was different. He was simply a passenger
carrying a bag and traveling aboarda jeepney. There was
nothing suspicious, moreover, criminal, about riding a
jeepney or carrying a bag. The assessment of suspicion was
not made by the police officer but by the jeepney driver. It
was the driver who signalled to the police that Cogaed was
"suspicious."
This is supported by the testimony of SPO1 Taracatac himself:
COURT:
Q So you dont know what was the content while it was still
being carried by him in the passenger jeep?
WITNESS:
A Not yet, Your Honor.83
SPO1 Taracatac likewise stated:
COURT:
Q If the driver did not make a gesture pointing to the
accused, did you have reason to believe that the accused
were carrying marijuana?
WITNESS:
A No, Your Honor.84
The jeepney driver had to point toCogaed. He would not have
been identified by the police officers otherwise.
It is the police officer who should observe facts that would
lead to a reasonable degree of suspicion of a person. The
police officer should not adopt the suspicion initiated by
another person. This is necessary to justify that the person
suspected be stopped and reasonably searched.85 Anything
less than this would be an infringementupon ones basic right
to security of ones person and effects.
IV
Normally, "stop and frisk" searches do not give the law
enforcer an opportunity to confer with a judge to determine
probable cause. In Posadas v. Court of Appeals,86 one of the
earliest cases adopting the "stop and frisk" doctrine in
Philippine jurisprudence, this court approximatedthe
suspicious circumstances as probable cause:
The probable causeis 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.87 (Emphasis supplied)
For warrantless searches, probable cause was defined as "a
reasonable ground of suspicionsupported by circumstances
sufficiently strong in themselves to warrant a cautious man to
believe that the person accused is guilty of the offense with
which he is charged."88
Malacat v. Court of Appeals89 clarifies the requirement further.
It does not have to be probable cause,but it cannot be mere
suspicion.90 It has to be a "genuine reason"91 to serve the
purposes of the "stop and frisk" exception:92
Other notable points of Terryare that while probable cause is
not required to conduct a "stop and frisk," it nevertheless
holds that mere suspicion or a hunch will not validate a "stop
and frisk." A genuine reason must exist, in light of the police
officers experience and surrounding conditions, to warrant
the belief that the person detained has weapons concealed
about him.93 (Emphasis supplied, footnotes omitted)
In his dissent for Esquillo v. People,94 Justice Bersamin
reminds us that police officers must not rely on a single
suspicious circumstance.95 There should be "presence of more
than oneseemingly innocent activity, which, taken together,
warranted a reasonable inference of criminal activity."96 The
Constitution prohibits "unreasonable searches and
seizures."97 Certainly, reliance on only one suspicious
circumstance or none at all will not result in a reasonable
search.98
There was not a single suspicious circumstance in this case,
and there was no approximation for the probable cause
requirement for warrantless arrest. The person searched was
noteven the person mentioned by the informant. The
informant gave the name of Marvin Buya, and the person
searched was Victor Cogaed. Even if it was true that Cogaed
responded by saying that he was transporting the bag to
Marvin Buya, this still remained only as one circumstance.
This should not have been enough reason to search Cogaed
and his belongings without a valid search warrant.
V
Police officers cannot justify unbridled searches and be
shielded by this exception, unless there is compliance with
the "genuine reason" requirement and that the search serves
the purpose of protecting the public. As stated in Malacat:
[A] "stop-and-frisk" serves a two-fold interest: (1) the
general interest of effective crime prevention and detection,
which underlies the recognition that a police officer may,
under appropriate circumstances and in an appropriate
manner, approach a person for purposes of investigating
possible criminal behavior even without probable cause; and
(2) the more pressing interest of safety and self-
preservationwhich permit the police officer to take steps to
assure himself that the person with whom he deals is not
armed with a deadly weapon that could unexpectedly and
fatally be used against the police officer.99 (Emphasis
supplied)
The "stop and frisk" searchwas originally limited to outer
clothing and for the purpose of detecting dangerous
weapons.100 As in Manalili,101 jurisprudence also allows "stop
and frisk" for cases involving dangerous drugs.
The circumstances of thiscase are analogous to People v.
Aruta.102 In that case, an informant told the police that a
certain "Aling Rosa" would be bringing in drugs from Baguio
City by bus.103 At the bus terminal, the police officers
prepared themselves.104 The informant pointed at a woman
crossing the street105 and identified her as "Aling
Rosa."106 The police apprehended "Aling Rosa," and they
alleged that she allowed them to look inside her bag.107The
bag contained marijuana leaves.108
In Aruta, this court found that the search and seizure
conducted was illegal.109 There were no suspicious
circumstances that preceded Arutas arrest and the
subsequent search and seizure.110 It was only the informant
that prompted the police to apprehend her.111 The evidence
obtained was not admissible because of the illegal
search.112Consequently, Aruta was acquitted.113
Arutais almost identical to this case, except that it was the
jeepney driver, not the polices informant, who informed the
police that Cogaed was "suspicious."
The facts in Arutaare also similar to the facts in People v.
Aminnudin.114 Here, the National Bureau ofInvestigation (NBI)
acted upon a tip, naming Aminnudin as somebody possessing
drugs.115 The NBI waited for the vessel to arrive and accosted
Aminnudin while he was disembarking from a boat.116 Like in
the case at bar, the NBI inspected Aminnudins bag and found
bundles of what turnedout to be marijuana leaves.117 The
court declared that the searchand seizure was
illegal.118 Aminnudin was acquitted.119
People v. Chua120 also presents almost the same
circumstances. In this case, the police had been receiving
information that the accused was distributing drugs in
"different karaoke bars in Angeles City."121 One night, the
police received information that thisdrug dealer would be
dealing drugs at the Thunder Inn Hotel so they conducted a
stakeout.122 A car "arrived and parked"123 at the hotel.124The
informant told the police that the man parked at the hotel
was dealing drugs.125 The man alighted from his car.126 He
was carrying a juice box.127 The police immediately
apprehended him and discovered live ammunition and drugs
in his person and in the juice box he was holding.128
Like in Aruta, this court did not find anything unusual or
suspicious about Chuas situation when the police
apprehended him and ruled that "[t]here was no validstop-
and-frisk."129
VI
None of the other exceptions to warrantless searches exist to
allow the evidence to be admissible.The facts of this case do
not qualify as a search incidental to a lawful arrest.
Rule 126, Section 13 of the Rules of Court allows for searches
incidental to a lawful arrest. For there to be a lawful arrest,
there should be either a warrant of arrest or a lawful
warrantless arrest as enumerated in Rule 113, Section 5 of
the Rules of Court:
Section 5. Arrest without warrant; when lawful. A peace
officer or a private person may, withouta warrant, arrest a
person:
(a) When, in his presence, the person to be arrested
has committed, is actually committing, or is
attempting to commit an offense;
(b) When an offense has just been committed and he
has probable cause to believe based on personal
knowledge of facts or circumstances that the person
to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who
has escaped from a penal establishment or place
where he is serving final judgment or temporarily
confined while his case is pending, or has escaped
while being transferred from one confinement to
another.
The apprehension of Cogaed was not effected with a warrant
of arrest. None of the instances enumerated in Rule 113,
Section 5 of the Rules of Court were present whenthe arrest
was made. At the time of his apprehension, Cogaed has not
committed, was not committing, or was about to commit a
crime. As in People v. Chua, for a warrantless arrest of in
flagrante delictoto be affected, "two elements must concur:
(1) the person to bearrested must execute anovert act
indicating that he has just committed, is actually committing,
or is attempting to commit a crime; and (2) such overt act is
done inthe presence or within the view of the arresting
officer."130 Both elements were missing when Cogaed was
arrested.131 There were no overt acts within plain view of the
police officers that suggested that Cogaed was in possession
of drugs at that time.
Also, Cogaed was not an escapee prisoner that time; hence,
he could not have qualified for the last allowable warrantless
arrest.
VII
There can be no valid waiver of Cogaeds constitutional rights
even if we assume that he did not object when the police
asked him to open his bags. As this court previously stated:
Appellants silence should not be lightly taken as consent to
such search. The implied acquiescence to the search, if there
was any, could not have been more than mere passive
conformity given under intimidating or coercive circumstances
and is thus considered no consent at all within the purview of
the constitutional guarantee.132(Citations omitted) Cogaeds
silence or lack of aggressive objection was a natural reaction
to a coercive environment brought about by the police
officers excessive intrusion into his private space. The
prosecution and the police carry the burden of showing that
the waiver of a constitutional right is one which is knowing,
intelligent, and free from any coercion. In all cases, such
waivers are not to be presumed.
The coercive atmosphere created by the presence of the
police officer can be discerned again from the testimony of
SPO1 Taracatac during cross-examination:
ATTY. BINWAG:
Q Now, Mr. witness, you claimed that you only asked them
what are the contents of their bags, is it not?
WITNESS:
A Yes, maam.
Q And then without hesitation and voluntarily they just
opened their bags, is it not?
A Yes, maam.
Q So that there was not any order from you for them to open
the bags?
A None, maam.
Q Now, Mr. witness when you went near them and asked
them what were the contents ofthe bag, you have not seen
any signs of hesitation or fright from them, is it not?
A It seems they were frightened, maam.
Q But you actually [claimed] that there was not any hesitation
from them in opening the bags, is it not?
A Yes, maam but when I went near them it seems that they
were surprised.133 (Emphasis supplied)
The state of mind of Cogaed was further clarified with SPO1
Taracatacs responses to Judge Florendos questions:
COURT:
....
Q Did you have eye contact with Cogaed?
A When I [sic] was alighting from the jeepney, Your Honor I
observed that he was somewhat frightened.1wphi1 He was a
little apprehensive and when he was already stepping down
and he put down the bag I asked him, "whats that," and he
answered, "I dont know because Marvin only asked me to
carry."134
For a valid waiver by the accused of his or her constitutional
right, it is not sufficient that the police officerintroduce
himself or herself, or be known as a police
officer.1wphi1 The police officer must also inform the person
to be searched that any inaction on his orher part will amount
to a waiver of any of his or her objections that the
circumstances do not amount to a reasonable search. The
police officer must communicate this clearly and in a language
known to the person who is about to waive his or her
constitutional rights. There must be anassurance given to the Branch 19, dated June 5, 2000, finding Rodolfo
police officer that the accused fully understands his or her
rights. The fundamental nature of a persons constitutional Abenes y Gacutan (petitioner) guilty beyond
right to privacy requires no less.
reasonable doubt of Illegal Possession of High

VIII Powered Firearm and Ammunition under

The Constitution provides:
Presidential Decree No. 1866 (P.D. No. 1866) in
Any evidence obtained in violation of [the right against Criminal Case No. 4559 -98, and of violat ing
unreasonable searches and seizures] shall be inadmissible for
any purpose in any proceeding.135 Section 261(q) of Batas Pambansa Blg. 881 (B.P.

Blg. 881), otherwise known as the Omnibus

Otherwise known as the exclusionary rule or the fruit of the
poisonous tree doctrine, this constitutional provision Election Code, vis--vis COMELEC Resolution No.
originated from Stonehill v. Diokno.136 This rule prohibits the
issuance of general warrants that encourage law enforcers to 2958 (Gun Ban) in Criminal Case No. 4563 -98.
go on fishing expeditions. Evidence obtained through unlawful
seizures should be excluded as evidence because it is "the
only practical means of enforcing the constitutional injunction
against unreasonable searches and seizures."137 It ensures Petitioner was charged under the following
that the fundamental rights to ones person, houses, papers,
and effects are not lightly infringed upon and are upheld. Informations:

In Criminal Case No. 4559-98

Considering that the prosecution and conviction of Cogaed
were founded on the search of his bags, a pronouncement of The undersigned Assistant City
the illegality of that search means that there is no evidence Prosecutor hereby accuses RODOLFO
left to convict Cogaed. ABENES Y GACUTAN of the offense
of ILLEGAL POSSESSION OF HIGH
Drugs and its illegal traffic are a scourgeto our society. In the POWERED FIREARM & ITS
fight to eradicate this menace, law enforcers should be AMMUNITIONS (Violation of P.D. No.
equipped with the resources to be able to perform their duties 1866, as amended by R.A. No.
better. However, we cannot, in any way, compromise our 8294), committed as fol lows:
societys fundamental values enshrined in our Constitution.
Otherwise, we will be seen as slowlydismantling the very On May 8, 1998, at about 10:30
foundations of the society that we seek to protect. a.m., in Danlugan, Pagadian City,
Philippines, within the jurisdiction
of this Honorable Court, said
WHEREFORE, the decisions of the Regional Trial Court, Branch RODOLFO ABENES Y GACUTAN did,
28, San Fernando City, La Union and of the Court of Appeals then and there, willfully, unlawfully,
in CA-G.R. CR-HC No. 03394 are hereby REVERSEDand SET and without any prior authority,
ASIDE. For lack of evidence to establish his guilt beyond license or permit to possess or carry
reasonable doubt, accused-appellant VICTOR COGAED Y the firearm hereunder described,
ROMANA is hereby ACQUITTED and ordered RELEASED from have in his possession and control
confinement unless he is being heldfor some other legal the following firearm classified as
grounds. No costs. high powered, with its
corresponding ammunitions and
SO ORDERED. accessory, viz:

- one (1) cal. 45

pistol (NORINCO)
bearing SN
RODOLFO ABENES y G.R. No. 156320
906347;
GACUTAN,
- one (1)
Petitioner, Present:
magazine for
pistol cal. 45
YNARES-
- seven (7)
SANTIAGO, J.,
rounds live
- versus - Chairperson,
ammunitions for
AUSTRIA-
cal. 45,
MARTINEZ,
CALLEJO,
in gross violation of P.D. No. 1866
SR., and
as amended by R.A. No. 8294.
THE HON. COURT OF CHICO-
NAZARIO, JJ.
CONTRARY TO LAW.[2]
APPEALS and PEOPLE
OF Promulgated:
THE PHILIPPINES, In Criminal Case No. 4563 -98
Respondents. February 14, 2007
x--------------------------------------
----------x The undersigned Assistant
City Prosecutor hereby accuses
RODOLFO ABENES Y GACUTAN of
DECISION Election Offense in violation of Sec .
261 (9)[3], BP 881 (OMNIBUS
ELECTION CODE), vis --vis COMELEC
AUSTRIA-MARTINEZ, J.: R E S O L U T I O N # 1 9 5 8 (G U N B A N ) ,
committed as follows:

On May 8, 1998, at about

For review before the Court is the 10:30 a.m. within the Election
period which is from January 11,
Decision[1] dated November 29, 2002 of the Court
1998 to June 30, 1998, in Danlugan,
of Appeals (CA) which affirmed the Joint Decision Pagadian City, Philippines, within
the jurisdiction of this Honorable
of the Regional Trial Court (RTC) of Pagadian City, Court, said RODOLFO ABENES Y
GACUTAN did, then and there,
 willfully, and unlawfully, carry in his documents to be shown to support
person a cal. .45 (NORINCO) pistol, Abenes claim. He could not show
bearing serial number 906347, and any. Hence, SPO1 Requejo
loaded with seven (7) rounds of live confiscated Abenes firearm, which
ammunitions, without any prior was later identified as a Norinco .45
authority from the COMELEC in caliber pistol bearing Serial No.
gross violation of Sec. 261 (9) of BP 906347, including its magazine
881 (OMNIBUS ELECTION CODE) in containing seven live ammunitions.
relation to COMELEC RESO LUTION
No. 2958 (GUN BAN). Subsequently SPO3 Pascua,
using his privately owned jeep,
CONTRARY TO LAW.[4] brought Abenes to the PNP
Headquarters
at Camp Abelon in Pagadian City. U
Upon arraignment, the petitioner pleaded not pon reaching the Headquarters,
guilty. Trial ensued. SPO3 Pascua indorsed Abenes to
Major Quano who in turn referred
Abenes to a certain SPO2 Benvienido
Albon for further investigation
The facts, as found by the RTC and
(TSN, August 24, 1998 [SPO3
summarized by the CA, are as follows: Cipriano Q. Pascua] pp. 5 -27, [SPO1
Eliezer Requejo] pp. 29 -50).
The prosecution showed that
three days prior to the May 11, 1998 A certification dated May 18,
national and local elections, the 1998 from the Firearms and
Philippine National Police (PNP) of Explosives License Pr ocessing
Pagadian City, through its Company Section of the
Commander Major Pedronisto PNP, Pagadian City disclosed that
Quano, created a team composed of Abenes is not a registered nor a
seven policemen with a directive to licensed firearm holder (Record of
establish and man a checkpoint in Criminal Case No. 4559 -98, p. 56).
Barangay Danlugan at said city, for
the purpose of enforcing the Gun After the prosecution
Ban which was then being presented its evidence, [the]
implemented by the COMELEC. SPO3 accused filed a Demurrer to
Cipriano Q. Pascua was the Evidence with Motion to Dismiss
designated team leader. (supra, pp. 72-79), which was
denied by the trial court in a
The team proceeded to Resolution dated March 5,
Barangay Danlugan, arriving thereat 1999 (supra, pp. 80-82).
at 8:15 in the morning of May 8,
1998. Team leader SPO3 Pascua In his defense, accused -
coordinated with the Barangay appellant tried to establish that the
Chairman of Danlugan, and the team firearm did not belong to and was
put up a road block with the marking not recovered from him; tha t the
COMELEC GUN BAN. Vehicles firearm was recovered by the
passing through the road block were policemen from the floor of the
required by the team to stop and vehicle inside a clutch bag which
their occupants were then politely was allegedly left by an unidentified
requested to alight in order to allow person who hitched a ride
routine inspection and checking of somewhere along the national
their vehicles.Motorists who refused highway of Tawagan Norte
the request were not forced to do Zamboanga Del Sur and alighted
so. near the Mabuhay Bazaar in
Pagadian City (TSN, July 12, 1999
At about 10:30 in the [Noel Rivera], pp. 7 -13; September
morning of the same day, a red 1 5 , 1 9 9 9 [ R o d o l f o A b e ne s ] , p p . 1 1 -
Tamaraw FX trying to pass through 15; September 27, 1999 [Manuel
the check point was stopped by the Sabado Gengania], pp. 9 -16).[5]
team and directed to park at the
On June 5, 2000, the RTC rendered its Joint
side of the road. As the occupants
within the vehicle could not be seen Decision convicting the petitioner on both charges,
through its tinted windows, S PO1
Eliezer Requejo, a member of the the dispositive portion of which states:
t e a m , k n o c k e d o n th e v e h i c l e s
window and requested the occupants WHEREFORE, in view of all
to step down for a routine the foregoing discussion, this Court
inspection. The eight occupants, hereby finds accused Rodo lfo
which included the accused - Abenes y Gacutan GUILTY beyond
appellant Rodolfo Abenes who is the reasonable doubt for Violation of
Barangay Chairman of Tawagan P.D. No. 1866, as amended by
Norte, Labangan, Zamboanga Del Republic Act No. 8294, having been
Sur, alighted from the vehicle. At found in possession without
this juncture, SPO1 Requejo and license/permit of a Norinco .45
SPO3 Pascua noticed that a caliber pistol bearing Serial No.
holstered firearm was tucked at the 906347 and 7 rounds of
right waist of Abenes. The firearm ammunitions and sentences him to
was readily visible to the policemen; imprisonment ranging from TWO (2)
it was not covered by the shirt worn YEARS, FOUR (4) MONTHS and ONE
by Abenes. Abenes was then asked (1) DAY of PRISION CORRECCIONAL
by SPO3 Pascua whether he had a in its MEDIUM PERIOD, as MINIMUM,
license and authority to carry the to EIGHT (8) YEARS of PRISION
firearm, and whether his possession MAYOR in its MINIMUM, as MAXIMUM
was exempted from the Gun Ban and a FINE of THIRTY THOUSAND
being enforced by the PESOS (P30,000.00), Philippine
COMELEC. Accused answered in the currency. Insofar as Criminal Case
affirmative. The policemen then No. 4559-98 is concerned. The .45
demanded for the pertinent Caliber Pistol aforementioned and
 the seven (7) rounds of
ammunitions are hereby forfeited in Tamaraw FX, along with his companions in the
favor of the government the same
being effects of the Violation of P.D. vehicle, violated his constitutional right against
1866, amended.
unlawful search and seizure; and, that the trial
As regards Criminal Case No.
4563-98, this Court also finds court erred in believing the version of the incident
herein accused Rodolfo Abenes y
Gacutan GUILTY of Violation of as testified to by the policemen instead of the
Section 264, in relation to Section
261, paragraphs (p) and (q) of version presented by the defenses witness which
Batas Pambansa Blg. 881, otherwise
known as the Omnibus Election Code is more consistent with truth and human
and sentences him to imprisonment
for a period of ONE (1) YEAR, and in experience. [7]

addition thereto, herein accused is

disqualified to hold any public office
and deprived [of] the right of
On November 29, 2002, the CA rendered its
suffrage. It shall be understood that
the sentence herein imposed shall Decision, the dispositive portion of which reads:
be served simultaneously with the
sentence imposed in Criminal Case WHEREFORE, premises
No. 4559-98. considered, the Joint Decision
appealed from is AFFIRMED with the
SO ORDERED.[6] MODIFICATION that with respect to
Criminal Case No. 4559 -98,
accused-appellant is sentenced to
The RTC found that, as between the positive and an indeterminate penalty of 4 years,
2 months and 1 day of prision
categorical assertions of facts by the two correccional as minimum to 7 years
and 4 months of prision mayor as
policemen the witnesses for the prosecution and maximum.

the mere denial of the accused and his witnesses, SO ORDERED.[8]

the former must prevail over the latter; that the

prosecution successfully proved that the petitioner With respect to the validity of the checkpoint, the

had no license or permit to carry the firearm CA found that not only do the police officers have

through the officer -in-charge of the firearms and in their favor the presumption that official duties

explosives office who testified that, based on his have been regularly performed, but also that the

records, the petitioner had not been issued a proximity of the day the checkpoint had been set

license, and whose testimony had not been up, to the day of the May 11, 1998 elections,

impugned by the defense; and that the testimonies specifically for the purpose of enforci ng the

of the accused and his two witnesses to the effect COMELEC gun ban, gives a strong badge of the

that while aboard their private vehicle and on their legitimacy of the checkpoint; that after a review

way to attend an election campaign meeting, they of the records, the evidence adduced by the

simply stopped and allowed a complete stranger to prosecution prevails over the self -serving and

hitch a ride who was car rying a clutch bag, left the uncorroborated claim of the petitioner that he had

same in the vehicle when he alighted, and which been framed; and, that with respect to the

later turned out to contain the subject firearm, admissibility of the firearm as evidence, the

were flimsy and unbelievable. The RTC ruled that prosecution witnesses convincingly established

the defense of alibi or denial cannot prevail over that the .45 caliber pistol, tucked into the right

the positive identification by eyewitnesses who waist of the petitioner when he alighted from the

have no improper motive to falsely testify against vehicle, was readily visible, a nd, therefore, could

the petitioner, especially where the policemen and be seized without a search warrant under the plain

the petitioner do not know each other; and, that view doctrine.

the petitioner failed to show any license or any

other document to justify his lawful p ossession of The petitioner is now before this Court,

the firearm. raising the following issues:

I.
The petitioner appealed to the CA claiming GIVEN THE CIRCUMSTANCES, AND
THE EVIDENCE ADDUCED, WAS THE
that the checkpoint was not shown to have been
CHECK-POINT VALIDLY
legally set up, and/or that the frisking of the ESTABLISHED?

petitioner who was ordered to alight from the II.

 GIVEN THE CIRCUMSTANCES, AND
THE EVIDENCE ADDUCED, WAS THE circumstances of weight which would affect the
PETITIONERS CONSTITUTIONAL
RIGHT AGAINST UNLAWF UL SEARCH result of the case, or that the judge acted
AND SEIZURE VIOLATED?
arbitrarily, his assessment of the credibility of
III. witnesses deserves high respect by appellate
GIVEN THE CIRCUMSTANCES, AND courts.[14] Thus, the Court finds no cogent reason
THE EVIDENCE ADDUCED, DID NOT
THE HONORABLE COURT OF APPEALS to disturb the findings of the lower courts that the
COMMIT A GRAVE ABUSE OF
DISCRETION FOR ADOPTING THE police found in plain view a gun tucked into the
TRIAL COURTS UNSUBSTANTIATED
FINDINGS OF FACT? waist of the petitioner during the Gun Ban period

IV. enforced by the COMELEC.

So too must this Court uphold the validity of the

GIVEN THE CIRCUMSTANCES, AND
THE EVIDENCE ADDUCED, IS NOT checkpoint. The petitioner insists that the
THE PETITIONER ENTIT LED TO AN
A C Q U I T T A L , I F N O T O N TH E G R O U N D prosecution should have produced the mission
THAT THE PROSECUTION FAILED TO
PROVE GUILT BEYOND R EASONABLE order constituting the checkpoint, and
DOUBT, ON THE GROUND OF
REASONABLE DOUBT ITSELF . . . AS invokes Aniag, Jr. v. Comelec, [15]
where the Court
TO WHERE THE GUN WAS TAKEN:
FROM THE FLOOR OF THE VEHICLE purportedly held that firearms seized from a motor
OR FROM THE WAIST OF
PETITIONER?[9] vehicle without a warrant are inadmissible because

there was no indication that would trigger any

The appeal is partly meritorious. The Court suspicion from the policemen nor any other

reverses the CAs finding of his conviction in circumstance showing probable cause.

Criminal Case No. 4559 -98.

On both points the petitioner is wrong. In

After a thorough review of the records, this Court the present case, the production of the mission

is of the view that the courts a quo except for a order is not necessary in view of the fact that the

notable exception with respect to the negative checkpoint was established three days before

allegation in the Information are correct in the ir the May 11, 1998 elections; and, the

findings of fact. Indeed, the version of the circumstances under which the policemen found

defense, as found by the lower courts, is the gun warranted its seizure without a warrant .

implausible and belies the common experience of

mankind. Evidence to be believ ed must not only In People v. Escao,[16] the Court, through

proceed from the mouth of a credible witness but the ponencia of Chief Justice Hilario G. Davide,

it must be credible in itself such as the common Jr., held:

experience and observation of mankind can Accused-appellants assail

the manner by which th e checkpoint
approve as probable under the in question was conducted. They
contend that the checkpoint manned
circumstances. [10]
In addition, the question of by elements of the Makati Police
should have been announced. They
credibility of witnesses is primarily for the trial also complain of its having been
conducted in an arbitrary and
court to determine.[11] For this reason, its discriminatory manner.
observations and conclusions are accorded great
We take judicial notic e of the
respect on appeal.[12] existence of the COMELEC resolution
imposing a gun ban during the
election period issued pursuant to
Section 52(c) in relation to Section
The trial court's assessment of the 26(q) of the Omnibus Election Code
(Batas Pambansa Blg. 881). The
credibility of a witness is en titled to great weight. national and local elections in 1995
were held on 8 May, the second
It is conclusive and binding unless shown to be Monday of the month. The incident,
which happened on 5 April 1995,
tainted with arbitrariness or unless, through was well within the election period.
oversight, some fact or circumstance of weight and
This Court has ruled that not
influence has not been considered. [13]
Absent any all checkpoints are illegal. Those
which are warranted by the
showing that the trial judge overlooked, exigencies of public order and ar e
conducted in a way least intrusive to
misunderstood, or misapplied some facts or motorists are allowed. For,
admittedly, routine checkpoints do
 intrude, to a certain extent, on
motorists right to "free passage In the instant case, the firearm was seized
without interruption," but it cannot
be denied that, as a rule, it involves from the petitioner when in plain view, the
only a brief detention of travelers
policemen saw it tucked into his waist uncovered
during which the vehicles occupants
are required to answer a brief by his shirt.
question or two. For as long as the
vehicle is neither searched nor its
occupants subjected to a body
search, and the inspection of the Under the plain view doctrine, objects
vehicle is limited to a visu al search,
said routine checks cannot be falling in the plain view of an officer who has a
regarded as violative of an
individuals right against right to be in the position to have that view are
unreasonable search. In fact, these
routine checks, when conducted in a subject to seizure and may be presented as
fixed area, are even less intrusive.
evidence. [18]
The plain view doctrine applies when
The checkpoint herein the following requisites concur: (a) the law
conducted was in pursuance of the
gun ban enforced by the COMELEC. enforcement officer in search of the evidence has
The COMELEC would be hard put to
implement the ban if its deputized a prior justification for an intrusion or is in a
agents were limited to a visual
search of pedestrians. It would also position from which he can view a particular area;
defeat the purpose for which such
ban was instituted. Those who (b) the discovery of the evidence in plain view is
intend to bring a gun during said
period would know that they only inadvertent; and (c) it is immediately apparent to
need a car to be able to easily
the officer that the item he observes may be
perpetrate their malicious designs.
evidence of a crime, contraband or otherwise
The facts adduced do not
constitute a ground for a violation subject to seizure. [19]
of the constitutional rights of the
accused against illegal search and
seizure. PO3 Suba admitted that
they were merely stopping cars they All the foregoing requirements are present
deemed suspicious, such as those
whose windows are heavily tinted in the instant case. The law enforcement officers
just to see if the passengers thereof
lawfully made an initial intrusion because of the
were carrying guns. At best they
would merely direct their flashlights
enforcement of the Gun Ban and were properly in
inside the cars they would stop,
without opening the cars doors or a position from which they particularly viewed the
subjecting its passengers to a body
search. There is nothing area. In the course of such lawful intrusion, the
discriminatory in this as this is what
the situation policemen came inadvertently across a piece of
demands.[17] (Emphasis supplied)
evidence incriminating the petitioner where they

saw the gun tucked into his waist. The gun was in
Thus, the Court agrees with the Solicitor
plain view and discovered inadvertently when the
General that petitioners reliance on Aniag is
petitioner alighted from the vehicle .
misplaced.

As accurately found by the CA:

In Aniag, the police officers manning the xxx It must be emphasized that the
policemen discovered the firearm
checkpoint near the Batasang Pambansa complex [on] the person of the [petitioner]
shortly after he alighted from the
stopped the vehicle driven by the driver of vehicle and before he was
frisked. SPO3 Pascuas testimony[,]
Congressman Aniag. After stopping the vehicle,
corroborated by that of SPO1
Requejo[,] convincingly established
the police opened a package inside the car which
that the holstered .45 caliber pistol
contained a firearm purportedly belonging to tucked at the right waist of the
[petitioner] was readily visible to
Congressman Aniag. In declaring the search the policemen (TSN, August 24,
1998, pp. 18, 37). Thus,
illegal, the Supreme Court stated that the law notwithstanding the absence of a
Search Warrant, the policemen may
enforcers who conducted the search had no validly seize the firearm and the
same is admissible in evidence
probable cause to check the content of the package against the [petitioner] pursuant to
the plain view doctrine xxx. [20]
because the driver did not behave suspiciously nor

was there any previous information that a vehicle

Nor can the Court believe petitioners claim that he
hiding a firearm would pass by the checkpoint.
could not have freely refused the police orders

issued by the police team who were armed to the

teeth and in the face of such show of force. The police from the possession of the petitioner,

courts a quo consistently found that the police without the latter being able to present any license

team manning the checkpoint politely requested or permit to possess the same, such fact alone is

the passengers to alight from their vehicles, and not conclusive proof that he was not lawfully

the motorists who refused this request were not authorized to carry such firearm. In other words,

forced to do so. These findings of fact are fully such fact does not relieve the prosecution from its

supported by the evidence in the record. duty to establish the lack of a license or permit to

carry the firearm by clear and convincing evidence,

However, the Court must underscore that like a certification from the government agency

t h e p r o s e c u t i o n f a i l e d t o s a t i s f a c t o r i l y p r o v e th e concerned.[24]

negative allegation in the Information that the

petitioner possessed no license or permit to bear Thus, for failure of the prosecution to prove

the subject firearm. beyond reasonable doubt that petitioner was

carrying a firearm without prior authority , license

It is a well-entrenched rule that in crimes or permit, the latter must be exculpated from

involving illegal posses sion of firearm, the criminal liability under P.D. No. 1866, as amended.

prosecution has the burden of proving the

elements thereof, viz: the existence of the subject With respect to the charge of violating

firearm, and the fact that the accused who owned Section 261(q) of B.P. Blg. 881, as amended,

or possessed the firearm does not have the otherwise known as the Omnibus Election Code,

corresponding license or permit to possess the the Court is constrained to affirm the conviction of

same. [21]
the petitioner, since the prosecution successfully

discharged its burden of proof.

Undoubtedly, it is the constitutional

presumption of innocence that lays such burden Section 261 of B.P. Blg. 881 (Omnibus Election

upon the prosecution. The absence of such license Code), as originally worded, provides:

and legal authority constitutes an essential Sec. 261. Prohibited

Acts. The following shal l be guilty of
ingredient of the offense of illegal possession of an election offense:
firearm, and every ingredient or essential element
(q) Carrying firearms
of an offense must be shown by the prosecution by outside residence or place of
business. Any person who, altho ugh
proof beyond reasonable doubt. [22] possessing a permit to carry
firearms, carries any firearms
outside his residence or place of
business during the election
Witness for the prosecution SPO4 Gilbert C. period, unless authorized in writing
by the Commission: Provided, That
Senados admitted that his records were a motor vehicle, water or air craft
shall not be considered a residence
outdated, i.e., that his Master List of holders of or place of business or extension
hereof.
firearms only covered licenses up to 1994; that it

was possible for the petitioner to acquire a license x x x x (Emphasis supplied)

after 1994; and that he issued the Certification,

dated May 18, 1998, stating that the petitioner Section 32 of Republic Act No. 7166 (R.A. No.

carried no license or permit to possess the guns 7166), amending Section 261 of the Omnibus

because he was ordered to do so by his Election Code, provides:

superiors.[23] SEC. 32. Who May Bear

Firearms. During the election
period, no person shall bear, carry
or transport firearms or other
There is no evidence that between 1994 deadly weapons in public places,
including any building, street, par k,
and May 8, 1998, the date the crime was allegedly private vehicle or public
conveyance, even if licensed to
committed, no license was issued to petitioner. possess or carry the same, unless
authorized in writing by the
While the prosecution was able to establish the
Commission. The issuance of
f a c t t h a t t h e s u b j e c t f i r e a r m w a s s e i z e d b y th e firearm licenses shall be suspended
 during the election sentence the accused to an
period. (Emphasis supplied) indeterminate sentence the
maximum term of which shall be
that which, in view of the attending
circumstances, could be properly
In view of the foregoing provisions, while it is well - imposed under the rules of the said
Code, and the minimum which shall
settled that under P.D. No. 1866, as amended, the
be within the range of the penalty
burden to prove the negative allegation that the next lower to that prescribed by the
Code for the offense; and if the
accused has no license or permit to carry a firearm offense is punished by any other
law, the court shall sentence the
lies with the prosecution; under the Omnibus accused to an indeterminate
sentence, the maximum term of
Election Code, howeve r, the burden to adduce which shall not exceed the maximum
fixed by said law and the minimum
evidence that accused is exempt from the COMELEC shall not be less than the minimum
term prescribed by the same.
Gun Ban, lies with the accused.

Thus, the penalty that should be meted out

Section 32 of R.A. No. 7166 is clear and
to petitioner should have a minimum and a
unequivocal[25] that the prohibited act to which
maximum period. The Court deems it reasonable
this provision refers is made up of the following
that petitioner should suffer imprisonment for a
elements: 1) the person is bearing, carrying, or
period of one (1) year as the minimum and two (2)
transporting firearms or other deadly weapons; 2)
years, as the maximum.
such possession occurs during the election period;

and, 3) the weapon is carried in a public

Furthermore, under Section 34 of R.A. No.
place. Under said provision, it is explicit that even
7166, the subject firearm shall be disposed of
if the accused can prove that he is holding a valid
according to existing laws, which, in this case,
license to possess such firearm, this circumstance
must be read in light of Article 45 of the Revised
by itself cannot exculpate him from criminal
Penal Code, to wit:
liability. The burden is on the accused to show that Art. 45. Confiscation and
forfeiture of the proceeds or
he has a written authority to possess such firearm
instruments of the crime. Every
issued by no less than the COMELEC. penalty imposed for the commission
of a felony shall carry with it the
forefeiture of the proceeds of the
crime and the instruments or tools
On this point, the petitioner failed to with which it was committed.

present any form of such authority, and, therefore, Such proceeds and
instruments or tools shall be
his conviction must be affirmed. confiscated and forfeited in favor of
the Government, unless they be the
property of a third person not liable
for the offense, but those articles
Section 264 of the Omnibus Election Code
which are not subject of lawful
provides: commerce shall be destroyed.

Sec. 264. Penalties . Any person

found guilty of any election offense WHEREFORE, the petition is
under this Code shall be punished
with imprisonment of not less than partly GRANTED. The Decision dated November
one year but not more than six
years and shall not be subject to 29, 2002 of the Court of Appeals
probation. In addition, the guilty
party shall be sentenced to suffer is REVERSED and SET ASIDEinsofar as Criminal
disqualification to hold public office
and deprivation of the right of C a s e N o . 4 5 5 9 - 9 8 i s c o nc e r n e d . P e t i t i o n e r R o d o l f o
suffrage. If he is a foreigner, he
shall be sentenced to deportation Abenes Y Gacutan is ACQUITTED from the charge
which shall be enforced after the
of illegal possession of firearm under P.D. No.
prison term has been serve d.
1866, as amended, for failure of the prosecution

to prove his guilt beyond unreasonable doubt.

The CA affirmed the penalty imposed by the

RTC. However, the RTC failed to apply Section 1 of

With respect to Criminal Case No. 4563 -98,
the Indeterminate Sentence Law [26] which
the assailed Decision of the Court of Appeals
provides:
is AFFIRMED with MODIFICATIONS that
SECTION 1. Hereafter, in imposing a
prison sentence for an offense petitioner is sentenced to an indeterminate
punished by the Revised Penal Code,
or its amendments, the court shall sentence of one year of imprisonment as minimum

to two years of imprisonment as maximum, not
subject to probation; and he shall
suffer DISQUALIFICATION to hold public office
and DEPRIVATION of the right of suffrage. The
subject firearm
is CONFISCATED and FORFEITED in favor of the
Government.
SO ORDERED.
G.R. No. 204589 November 19, 2014
RIZALDY SANCHEZ y CAJILI, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
MENDOZA, J.:
This is a petition for certiorari under Rule 65 seeking to
reverse and set aside the July 25, 2012 Decision1 and the
November 20, 2012 Resolution2 of the Court of Appeals (CA),
in CA-G.R. CR No. 31742 filed by petitioner Rizaldy Sanchez y
Cajili (Sanchez), affirming the April 21, 2005 Decision3 of the
Regional Trial Court of Imus, Cavite, Branch 20 (RTC), which
convicted him for Violation of Section 11, Article l l of Republic
Act (R.A.) No. 9165. The dispositive portion of the RTC
decision reads:
WHEREFORE, premises considered, judgment is rendered
convicting accused Rizaldy Sanchez y Cajili of Violation of
Section 11, Article II of Republic Act No. 9165 and hereby
sentences him to suffer imprisonment from twelve (12) to
fifteen (15) years and to pay a fine of Php300,000.00. SO
ORDERED.4
Sanchez was charged with violation of Section 11, Article II of
R.A. No. 9165, otherwise known as the Comprehensive
Dangerous Drugs Act of 2002, in the Information,5 dated
March 20, 2003, filed before the RTC and docketed as
Criminal Case No. 10745-03. The accusatory portion of the
Information indicting Sanchez reads:
That on or about the 19th day of March 2003, in the
Municipality of Imus, Province of Cavite, Philippines, and
within the jurisdiction of this Honorable Court, the above-
named accused, not being authorized by law, did then and
there willfully, unlawfully and feloniously have in his
possession, control and custody, 0.1017 gram of
Methamphetamine Hydrochloride, commonly known as
"shabu," a dangerous drug, in violation of the provisions of
Republic Act No. 9165, otherwise known as the
Comprehensive Dangerous Drugs Act of 2002.
When arraigned, Sanchez pleaded not guilty to the offense
charged. During the pre-trial, the prosecution and the defense
stipulated on the existence and due execution of the following
pieces of evidence: 1] the request for laboratory examination;
2]certification issued by the National Bureau of Investigation
(NBI);3] Dangerous Drugs Report; and 4] transparent plastic
sachet containing small transparent plastic sachet of white
crystalline substance.6Thereafter, trial on the merits ensued.
Version of the Prosecution
The prosecutions version of the events as summarized by the
Office of the Solicitor General (OSG)in its Comment7on the
petition is as follows:
Around 2:50 pm of March 19, 2003, acting on the information
that Jacinta Marciano, aka "Intang," was selling drugs to
tricycle drivers, SPO1 Elmer Amposta, together with CSU
Edmundo Hernandez, CSU Jose Tagle, Jr., and CSU Samuel
Monzon, was dispatched to Barangay Alapan 1-B, Imus,
Cavite to conduct an operation.
While at the place, the group waited for a tricycle going to,
and coming from, the house of Jacinta. After a few minutes,
they spotted a tricycle carrying Rizaldy Sanchez coming out of
the house. The group chased the tricycle. After catching up
with it, they requested Rizaldy to alight. It was then that they
noticed Rizaldy holding a match box.
SPO1 Amposta asked Rizaldy if he could see the contents of
the match box. Rizaldy agreed. While examining it, SPO1
Amposta found a small transparent plastic sachet which
contained a white crystalline substance. Suspecting that the
substance was a regulated drug, the group accosted Rizaldy
and the tricycle driver. The group brought the two to the
police station.
On March 20, 2003, Salud M. Rosales, a forensic chemist
from the NBI, submitted a Certification which reads:
This certifies that on the above date at 9:25 a.m. one PO1
Edgardo Nario of Imus, Mun. PS, PNP, Imus, Cavite submitted
to this office for laboratory examinations the following
specimen/s to wit:
White crystalline substance contained in a small plastic
sachet, marked "RSC," placed in a plastic pack, marked "Mar.
19, 2003." (net wt. = 0.1017 gm)
Examinations conducted on the above-mentioned specimen/s
gave POSITIVE RESULTS for METHAMPHETAMINE
HYDROCHLORIDE.
Said specimen/s were allegedly confiscated from RIZALDY
SANCHEZ y CAJILI and DARWIN REYES y VILLARENTE.
Official report follows:
This certification was issued uponrequest for purpose of filing
the case.8
Version of the Defense
In the present petition,9 Sanchez denied the accusation
against him and presented a different version of the events
that transpired in the afternoon of March 19, 2003, to
substantiate his claim of innocence:
On 24 February 2005, the accused Rizaldy Sanchez took the
witness stand. He testified that on the date and time in
question, he, together with a certain Darwin Reyes, were on
their way home from Brgy. Alapan, Imus, Cavite, where they
transported a passenger, when their way was blocked by four
(4) armed men riding an owner-type jeepney. Without a
word, the four men frisked him and Darwin. He protested and
asked what offense did they commit. The arresting officers
told him that they had just bought drugs from Alapan. He
reasoned out that he merely transported a passenger there
but the policemen still accosted him and he was brought to
the Imus Police Station where hewas further investigated. The
police officer, however, let DarwinReyes go. On cross-
examination, the accused admitted that it was the first time
that he saw the police officers at the time he was arrested. He
also disclosed that he was previously charged with the same
offense before Branch 90 of this court which was already
dismissed, and that the police officers who testified in the said
case are not the same as those involved in this case.10
The Ruling of the RTC
On April 21, 2005, the RTC rendered its decision11 finding that
Sanchez was caught in flagrante delicto,in actual possession
of shabu. It stated that the police operatives had reasonable
ground to believe that Sanchez was in possession of the said
dangerous drug and such suspicion was confirmed when the
match box Sanchez was carrying was found to contain shabu.
The RTC lent credence to the testimony of prosecution
witness, SPO1 Elmer Amposta (SPO1 Amposta) because there
was no showing that he had been impelled by any ill motive
to falsely testify against Sanchez. The dispositive portion of
which reads:
WHEREFORE, premises considered, judgment is rendered
convicting accused Rizaldy Sanchez y Cajili of Violation of
Section 11, Article II of Republic Act No. 9165 and hereby
sentences him to suffer imprisonment from twelve (12) to
fifteen (15) years and to pay a fine of Php300,000.00. SO
ORDERED.12
Unfazed, Sanchez appealed the RTC judgment of conviction
before the CA. He faulted the RTC for giving undue weight on
the testimony of SPO1 Amposta anchored merely on the
presumption of regularity in the performance of duty of the
said arresting officer. He insisted that the prosecution
evidence was insufficient to establish his guilt.
The Ruling of the CA
The CA found no cogent reason to reverse or modify the
findings of facts and conclusions reached by the RTC and,
thus, upheld the conviction of the accused for violation of
Section 11, Article II of R.A. No. 9165. According to the CA,
there was probable cause for the police officers to believe that
Sanchez was then and there committing a crime considering
that he was seen leaving the residence of a notorious drug
dealer where, according to a tip they received, illegal drug
activities were being perpetrated. It concluded that the
confiscation by the police operative of the subject narcotic
from Sanchez was pursuant to a valid search. The CA then
went on to write that non-compliance by the police officers on
the requirements of Section 21, paragraph 1, Article II of R.A.
No. 9165, particularly on the conduct of inventory and
photograph of the seized drug, was not fatal to the
prosecutions causesince its integrity and evidentiary value
had been duly preserved. The falloof the decision reads:
WHEREFORE, the Decision of the Regional Trial Court, Branch
20, Imus, Cavite dated April 21, 2005 and Order dated
October 1, 2007 in Criminal Case No. 10745-03 finding
accused appellant Rizaldy C. Sanchez guilty beyond
reasonable doubt of violation of Section 11, Article II of
Republic Act No. 9165, is AFFIRMED.
SO ORDERED.13
Sanchez filed a motion for reconsideration of the July 25,
2012 Decision, but it was denied by the CA in its November
20, 2012 Resolution.
Hence, this petition.
Bewailing his conviction, Sanchez filed the present petition for
"certiorari"under Rule 65 of the Rules of Court and anchored
on the following
GROUNDS:
1. THE HONORABLE COURT OF APPEALS, WITH ALL
DUE RESPECT, COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK AND/OR EXCESS
OF JURISDICTION WHEN IT HELD THAT ACCUSED
WAS CAUGHT IN FLAGRANTE DELICTO, HENCE,A
SEARCH WARRANT WAS NO LONGER NECESSARY;
AND
2. THE HONORABLE COURT OFAPPEALS, WITH DUE
RESPECT, COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK AND/OR EXCESS
OF JURISDICTION WHEN IT HELD THAT NON-
COMPLIANCE WITH SECTION 21, PARAGRAPH 1,
ARTICLE II OF REPUBLIC ACT NO. 9165 DOES NOT
AUTOMATICALLY RENDER THE SEIZED ITEMS
INADMISSIBLE IN EVIDENCE.14
Sanchez insists on his acquittal. He argues that the
warrantless arrest and search on him were invalid due to the
absence of probable cause on the part of the police officers to
effect an in flagrante delicto arrest under Section 15, Rule
113 of the Rules of Court. He also contends that the failure of
the police operatives to comply with Section 21, paragraph 1,
Article II of R.A. No. 9165 renders the seized item
inadmissible in evidence and creates reasonable doubt on his
guilt. By way of Comment15 to the petition, the OSG prays for
the affirmance of the challenged July 25, 2012 decision of the
CA. The OSG submits that the warrantless search and seizure
of the subject narcotic were justified under the plain view
doctrine where a police officer is not searching for evidence
against the accused, but nonetheless inadvertently comes
across an incriminating object.
The Courts Ruling
Preliminarily, the Court notes that this petition suffers from
procedural infirmity. Under Section 1, Rule 45 of the Rules of
Court, the proper remedy to question the CA judgment,final
order or resolution, as in the present case, is a petition for
review on certiorari, which would be but a continuation of the
appellate process over the original case.16By filing a special
civil action for certiorari under Rule 65, Sanchez therefore
clearly availed himself of the wrong remedy.
Be that as it may, the Court, in several cases before, had
treated a petition for certiorari as a petition for review under
Rule 45, in accordance with the liberal spirit and in the
interest of substantial justice, particularly (1) if the petition
was filed within the reglementary period for filing a petition
for review; (2) errors of judgment are averred; and (3) there
is sufficient reason to justify the relaxation of the rules.17 The
case at bench satisfies all the above requisites and, hence,
there is ample justification to treat this petition for certiorari
as a petition for review. Besides, it is axiomatic that the
nature of an action is determined by the allegations of the
complaint or petition and the character of the relief
sought.18 Here, stripped of allegations of "grave abuse of
discretion," the petition actually avers errors of judgment
rather than of jurisdiction, which are the appropriate subjects
of a petition for review on certiorari.
Going now into the substance of the petition, the Court finds
the same to be impressed with merit.
Although it is true that the trial courts evaluation of the
credibility of witnesses and their testimonies is entitled to
great respect and not to be disturbed on appeal, this rule,
however, is not a hard and fast one. It is a time-honored rule
that the assessment of the trial court with regard to the
credibility of witnesses deserves the utmost respect, if not
finality, for the reason that the trial judge has the
prerogative, denied to appellate judges, of observing the
demeanor of the declarants in the course of their testimonies.
But an exception exists if there is a showing that the trial
judge overlooked, misunderstood, or misapplied some facts or
circumstances of weight and substance that would have
affected the case.19 After going over the records of the case
at bench, the Court finds some facts of weight and substance
that have been overlooked, misapprehended, or misapplied
by the trial court which cast doubt on the guilt of Sanchez.
In sustaining the conviction of Sanchez, the CA ratiocinated
that this was a clear case of an in flagrante delicto arrest
under paragraph (a) Section 5, Rule 113 of the Rules on
Criminal Procedure. In this regard, the CA wrote:
In the case at Bar, the acquisition of the regulated drug by
the police officers qualifies as a valid search following a lawful
operation by the police officers. The law enforcers acted on
the directive of their superior based on an information that
the owner of the residence where Sanchez came from was a
notorious drug dealer. As Sanchez was seen leaving the said
residence, the law enforcers had probable cause to stop
Sanchez on the road since there was already a tip that illegal
drug-related activities were perpetrated in the place where he
came from and seeing a match box held on one hand, the
police officers action were justified to inspect the same. The
search therefore, is a sound basis for the lawful seizure of the
confiscated drug, arrest and conviction of Sanchez.
The case of People vs. Valdez (G.R. No. 127801, March 3,
1999) is instructive. In that case, the police officers, by virtue
of an information that a person having been previously
described by the informant, accosted Valdez and upon
inspection of the bag he was carrying, the police officers
found the information given to them to be true as it yielded
marijuana leaves hidden in the water jug and lunch box inside
Valdezs bag. The Supreme Court in affirming the trial courts
ruling convicting Valdez declared that:
In this case, appellant was caught in flagrante since he was
carrying marijuana at the time of his arrest.1wphi1 A crime
was actually being committed by the appellant, thus, the
search made upon his personal effects falls squarely under
paragraph (a) of the foregoing provisions of law, which allow assure himself that the person with whom he deals is not
a warrantless search incident to lawful arrest. While it is true armed with a deadly weapon that could unexpectedly and
that SPO1 Mariano was not armed with a search warrant fatally be used against the police officer.22
when the search was conducted over the personal effects of
appellant, nevertheless, under the circumstances of the case,
In the case at bench, neither the in flagrante delictoarrest nor
there was sufficient probable cause for said police officer to
the stop- and-frisk principle was applicableto justify the
believe that appellant was then and there committing a crime.
warrantless search and seizure made by the police operatives
The cited case is akin to the circumstances in the instant
on Sanchez. An assiduous scrutiny of the factual backdrop of
appeal as in this case, Sanchez, coming from the house of the
this case shows that the search and seizure on Sanchez was
identified drug dealer, previously tipped by a concerned
unlawful. A portion of SPO1 Ampostas testimony on direct
citizen, walked to a parked tricycle and sped towards the
examination is revelatory, viz:
direction of Kawit, Cavite. The search that gave way to the
seizure of the match box containing shabu was a reasonable
course of event that led to the valid warrantless arrest since Pros. Villarin:
there was sufficient probable cause for chasing the tricycle he
was in. (Underscoring supplied) Q: On March 19, 2003 at around 2:50 p.m., can you recall
where were you?
A judicious examination of the evidence on record belies the
findings and conclusions of the RTC and the CA. A: Yes, Mam.

At the outset, it is observed that the CA confused the search Q: Where were you? A: We were in Brgy. Alapan 1-B, Imus,
incidental to a lawful arrest withthe stop-and-frisk principle, a Cavite.
wellrecognized exception to the warrant requirement. Albeit it
did not expressly state so, the CA labored under the confused
view that one and the other were indistinct and identical. That Q: What were you doing at Alapan 1-B, Imus, Cavite? A: We
confused view guided the CA to wrongly affirm the petitioner's were conducting an operation against illegal drugs.
conviction. The Court must clear this confusion and correct
the error. Q: Who were with you? A: CSU Edmundo Hernandez, CSU
Jose Tagle, Jr. and CSU Samuel
It is necessary to remind the RTC and the CA that the
Terry20 stop- and-frisk search is entirely different from and Monzon.
should not be confused with the search incidental to a lawful
arrest envisioned under Section 13, Rule 126 of the Rules on
Criminal Procedure. The distinctions have been made clear in Q: Was the operation upon the instruction of your Superior?
Malacat v. Court of Appeals21:
A: Our superior gave us the information that there were
In a search incidental to a lawful arrest, as the precedent tricycle drivers buying drugs from "Intang" or Jacinta
arrest determines the validity of the incidental search, the Marciano.
legality of the arrest is questioned in a large majority of these
cases, e.g., whether an arrest was merely used as a pretext Q: What did you do after that?
for conducting a search. In this instance, the law requires that
there first be a lawful arrest before a search can be made --
A: We waited for a tricycle who will go to the house of Jacinta
the process cannot be reversed. At bottom, assuming a valid
Marciano.
arrest, the arresting officer may search the person of the
arrestee and the area within which the latter may reach for a
weapon or for evidence to destroy, and seize any money or Q: After that what did you do?
property found which was used in the commission of the
crime, or the fruit of the crime, or that which may be used as A: A tricycle with a passenger went to the house of "Intang"
evidence, or which might furnish the arrestee with the means and when the passenger boarded the tricycle, we chase[d]
of escaping or committing violence. them.

xxxx Q: After that, what happened next?

We now proceed to the justification for and allowable scope of A: When we were able to catch the tricycle, the tricycle driver
a "stop-and-frisk" as a "limited protective search of outer and the passenger alighted from the tricycle.
clothing for weapons," as laid down in Terry, thus:

Q: What did you do after they alighted from the tricycle?

We merely hold today that where a police officer observes
unusual conduct which leads him reasonably to conclude in
light of his experience that criminal activity may be afoot and A: I saw the passenger holding a match box.
that the persons with whom he is dealing may be armed and
presently dangerous, where in the course of investigating this Q: What did you do after you saw the passenger holding a
behavior he identifies himself as a policeman and makes match box?
reasonable inquiries, and where nothing in the initial stages of
the encounter serves to dispel his reasonable fear for his own
or others' safety, he is entitled for the protection of himself A: I asked him if I can see the contents of the match box.
and others in the area to conduct a carefully limited search of
the outer clothing of such persons in an attempt to discover Q: Did he allow you?
weapons which might be used to assault him. Such a search
is a reasonable search under the Fourth Amendment x x x x.
A: Yes, mam. He handed to me voluntarily the match box.

Other notable points of Terry are that while probable cause is

Court:
not required to conduct a "stop-and-frisk," it nevertheless
holds that mere suspicion or a hunch will not validate a "stop-
and-frisk." A genuine reason must exist, in light of the police Q: Who, the driver or the passenger?
officer's experience and surrounding conditions, to warrant
the belief that the person detained has weapons concealed
A: The passenger, sir.
about him. Finally, a "stop-and-frisk" serves a two-fold
interest: (1) the general interest of effective crime prevention
and detection, which underlies the recognition that a police Pros. Villarin:
officer may, under appropriate circumstances and in an
appropriate manner, approach a person for purposes of Q: After that what did you find out?
investigating possible criminal behavior even without probable
cause; and (2) the more pressing interest of safety and self-
preservation which permit the police officer to take steps to
A: I opened the match box and I found out that it contained a
small transparent plastic sachet containing white crystalline
substance.23
A search as an incident to a lawfularrest is sanctioned by the
Rules of Court.24 It bears emphasis that the law requires that
the search be incidental to a lawful arrest. Therefore it is
beyond cavil that a lawful arrest must precede the search of a
person and his belongings; the process cannot be reversed.25
Here, the search preceded the arrest of Sanchez. There was
no arrest prior to the conduct of the search. Arrest is defined
under Section 1, Rule 113 of the Rules of Court as the taking
of a person into custody that he may be bound to answer for
the commission of an offense. Under Section 2, of the same
rule, an arrest is effected by an actual restraint of the person
to be arrested or by his voluntary submission to the custody
of the person making the arrest.26 Even casting aside the
petitioners version and basing the resolution of this case on
the general thrust of the prosecution evidence, no arrest was
effected by the police operatives upon the person of Sanchez
before conducting the search on him. It appears from the
above quoted testimony of SPO1 Amposta that after they
caught up with the tricycle, its driver and the passenger,
Sanchez, alighted from it; that he noticed Sanchez holding a
match box; and that he requested Sanchez if he could see the
contents of the match box, to which the petitioner acceded
and handed it over to him. The arrest of Sanchez was made
only after the discovery by SPO1 Amposta of the shabu inside
the match box. Evidently, what happened in this case was
that a search was first undertaken and then later an arrest
was effected based on the evidence produced by the search.
Even granting arguendo that Sanchez was arrested before the
search, still the warrantless search and seizure must be
struck down as illegal because the warrantless arrest was
unlawful. Section 5, Rule 113 of the Rules of Criminal
Procedure lays down the basic rules on lawful warrantless
arrests, either by a peace officer or a private person, as
follows:
Sec. 5. Arrest without warrant; when lawful. - A peace officer
or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested
has committed, is actuallly committing, or is
attempting to commit an offense;
(b) When an offense has just been committed and he
has probable cause to believe based on personal
knowledge of facts or circumstances that the person
to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who
has escaped from a penal establishment or place
where he is serving final judgment or is temporarily
confined while his case is pending, or has escaped
while being transferred from one confinement to
another.
xxx
For warrantless arrest under paragraph (a) of Section 5 (in
flagrante delicto arrest) to operate, two elements must
concur: (1) the person to be arrested must execute an overt
act indicating that he has just committed, is actually
committing, or is attempting tocommit a crime; and (2) such
overt act is done in the presence or withinthe view of the
arresting officer.27 On the other hand, paragraph (b) of
Section 5 (arrest effected in hot pursuit) requires for its
application that at the time of the arrest, an offense has in
fact just been committed and the arresting officer has
personal knowledge of facts indicating that the person to be
apprehended has committed it. These elements would be
lacking in the case at bench.
The evidence on record reveals that no overt physical act
could be properly attributed to Sanchez as to rouse suspicion
in the minds of the police operatives that he had just
committed, was committing, or was about to commit a crime.
Sanchez was merely seen by the police operatives leaving the
residence of a known drug peddler, and boarding a tricycle
that proceeded towards the direction of Kawit, Cavite. Such
acts cannot in any way be considered criminal acts. In fact,
even if Sanchez had exhibited unusual or strange acts, or at
the veryleast appeared suspicious, the same would not have
been considered overt acts in order for the police officers to
effect a lawful warrantless arrest under paragraph (a) of
Section 5, Rule 113.
It has not been established either that the rigorous conditions
set forth in paragraph (b) of Section 5 have been complied
with in this warrantless arrest. When the police officers
chased the tricycle, they had no personal knowledge to
believe that Sanchez bought shabu from the notorious drug
dealer and actually possessed the illegal drug when he
boarded the tricycle. Probable cause has been held to signify
a reasonable ground of suspicion supported by circumstances
sufficiently strong in themselves to warrant a cautious man's
belief that the person accused is guilty of the offense with
which he is charged.28 The police officers in this case had no
inkling whatsoever as to what Sanchez did inside the house of
the known drug dealer. Besides, nowhere in the prosecution
evidence does it show that the drug dealer was conducting
her nefarious drug activities inside her house so as to warrant
the police officers to draw a reasonable suspicion that
Sanchez must have gotten shabu from her and possessed the
illegal drug when he came out of the house. In other words,
there was no overt manifestation on the part of Sanchez that
he had just engaged in, was actually engaging in or was
attempting to engage in the criminal activity of illegal
possession of shabu. Verily, probable cause in thiscase was
more imagined than real.
In the same vein, there could be no valid "stop-and-frisk"
search in the case at bench. Elucidating on what constitutes
"stop-and-frisk" operation and how it is to be carried out, the
Court in People v. Chua29 wrote:
A stop and frisk was defined as the act of a police officer to
stop a citizen on the street, interrogate him, and pat him for
weapon(s) or contraband. The police officer should properly
introduce himself and make initial inquiries, approach and
restrain a person who manifests unusual and suspicious
conduct, in order to check the latters outer clothing for
possibly concealed weapons. The apprehending police officer
must have a genuine reason, in accordance with the police
officers experience and the surrounding conditions, to
warrant the belief that the person to be held has weapons (or
contraband) concealed about him. It should therefore be
emphasized that a search and seizure should precede the
arrest for this principle to apply.30
In this jurisdiction, what may be regarded as a genuine
reason or a reasonable suspicion justifying a Terry stop-and-
frisk search had been sufficiently illustrated in two cases. In
Manalili v. Court of Appeals and People,31 a policeman
chanced upon Manalili in front of the cemetery who appeared
to be "high" on drugs as he was observed to have reddish
eyes and to be walking in a swaying manner. Moreover, he
appeared to be trying to avoid the policemen and when
approached and asked what he was holding in his hands, he
tried to resist. When he showed his wallet, it contained
marijuana. The Court held that the policeman had sufficient
reason to accost Manalili to determine if he was actually
"high" on drugs due to his suspicious actuations, coupled with
the fact that the area was a haven for drug addicts.
In People v. Solayao,32 the Court also found justifiable reason
for the police to stop and frisk the accused after considering
the following circumstances: the drunken actuations of the
accused and his companions; the fact that his companions
fled whenthey saw the policemen; and the fact that the peace
officers were precisely on an intelligence mission to verify
reports that armed persons where roaming the vicinity.
Seemingly, the common thread of these examples isthe
presence of more than one seemingly innocent activity,
which, taken together, warranted a reasonable inference of
criminal activity. It was not so in the case at bench.
The Court does not find the totality of the circumstances
described by SPO1 Amposta as sufficient to incite a
reasonable suspicion that would justify a stop-and-frisk
search on Sanchez. Coming out from the house of a drug
pusher and boarding a tricycle, without more, were innocuous
movements, and by themselves alone could not give rise in
the mind of an experienced and prudent police officer of any
belief that hehad shabu in his possession, or that he was
probably committing a crime in the presence of the officer.
There was even no allegation that Sanchez left the house of
the drug dealer in haste or that he acted in any other
suspicious manner. There was no showing either that he tried
toevade or outmaneuver his pursuers or that he attempted to
flee when the police officers approached him. Truly, his acts
and the surrounding circumstances could not have
engendered any reasonable suspicion on the part of the police
officers that a criminal activity had taken place or was afoot.
In the recent case of People v. Cogaed,33 where not a single
suspicious circumstance preceded the search on the accused,
the Court ruled that the questioned act of the police officer
did not constitute a valid stop-and-frisk operation. Cogaed
was a mere passenger carrying a blue bag and a sack and
travelling aboard a jeepney. He did not exhibit any unusual or
suspicious behavior sufficient to justify the law enforcer in
believing that he was engaged in a criminal activity. Worse,
the assessment of suspicion was made not by the police
officer but by the jeepney driver, who signaled to the police
officer that Cogaed was "suspicious." In view of the illegality
of the search and seizure, the 12,337.6 grams of marijuana
confiscated from the accused was held as inadmissible.
The OSG characterizes the seizure of the subject shabu from
Sanchez as seizure of evidence in plain view. The Court
disagrees.
Under the plain view doctrine, objects falling in the plain view
of an officer who has a right to be in the position to have that
view are subject to seizure and may be presented as
evidence.34 The plain view doctrine applies when the following
requisites concur: (1) the law enforcement officer in search of
the evidence has a prior justification for an intrusion or is in a
position from which he can view a particular area; (2) the
discovery of the evidence in plain view is inadvertent; and (3)
it is immediately apparent to the officer that the item he
observes may be evidence of a crime, contraband or
otherwise subject to seizure.35
Measured against the foregoing standards, it is readily
apparent that the seizure of the subject shabu does notfall
within the plain view exception. First, there was no valid
intrusion. As already discussed, Sanchez was illegally
arrested. Second, subject shabu was not inadvertently
discovered, and third, it was not plainly exposed to sight.
Here, the subject shabu was allegedly inside a match box
being thenheld by Sanchez and was not readily apparent or
transparent to the police officers. In fact, SPO1 Amposta had
to demand from Sanchez the possession of the match box in
order for him to open it and examine its content. The shabu
was not in plain view and its seizure without the requisite
search warrant is in violation of the law and the Constitution.
In the light of the foregoing, there being no lawful warrantless
arrest and warrantless search and seizure, the shabu
purportedly seized from Sanchez is inadmissible in evidence
for being the proverbial fruit of the poisonous tree. As the
confiscated shabu is the very corpus delicti of the crime
charged, the accused must be acquitted and exonerated from
the criminal charge of violation of Section 11, Article II of R.A.
No. 9165.
Furthermore, the Court entertains doubts whether the shabu
allegedly seized from Sanchez was the very same item
presented during the trial of this case. The Court notes that
there wereseveral lapses in the law enforcers handling of the
seized item which, when taken collectively, render the
standards of chain of custody seriously breached.
Chain of custody means the duly recorded authorized
movements and custody of seized drugs or controlled
chemicals from the time of seizure/confiscation to receipt in
the forensic laboratory to safekeeping to presentation in court
for destruction.36 The function of the chain of custody
requirement is to ensure that the integrity and evidentiary
value of the seized items are preserved, so much so that
unnecessary doubts as to the identity of the evidence are
removed.37 Thus, the chain of custody requirement has a two-
fold purpose: (1) the preservation of the integrity and
evidentiary value of the seized items, and (2) the removal of
unnecessary doubts as to the identity of the evidence.38
In this case, the prosecution failed to account for each and
every link in the chain of custody of the shabu, from the
moment it was allegedly confiscated up to the time it was
presented before the court as proof of the corpus delicti. The
testimony of SPO 1 Amposta was limited to the fact that he
placed the marking "RSC" on the seized drug; and that he
and the three other police officers brought Sanchez and the
subject shabu to their station and turned them over to their
investigator. The prosecution evidence did not disclose where
the marking of the confiscated shabu took place and who
witnessed it. The evidence does not show who was in
possession of the seized shabu from the crime scene to the
police station. A reading of the Certification, dated March 20,
2003, issued by Forensic Chemist Salud Rosales shows that a
certain PO I Edgardo Nario submitted the specimen to the NBI
for laboratory examination, but this piece of evidence does
not establish the identity of the police investigator to whom
SPO 1 Amposta and his group turned over the seized shabu.
The identities of the person who received the specimen at the
NBI laboratory and the person who had the custody and
safekeeping of the seized marijuana after it was chemically
analyzed pending its presentation in court were also not
disclosed.
Given the procedural lapses pointed out above, a serious
uncertainty hangs over the identity of the seized shabu that
the prosecution introduced in evidence. The prosecution failed
to establish an unbroken chain of custody, resulting in
rendering the seizure and confiscation of the shabu open to
doubt and suspicion. Hence, the incriminatory evidence
cannot pass judicial scrutiny. WHEREFORE, the petition is
GRANTED. The assailed July 25, 2012 Decision and the
November 20, 2012 Resolution of the Court of Appeals in CA-
G.R. CR No. 31742 are REVERSED and SET ASIDE. Petitioner
Rizaldy Sanchez y Cajili is ACQUITTED on reasonable doubt.
Accordingly, the Court orders the immediate release of the
petitioner, unless the latter is being lawfully held for another
cause; and to inform the Court of the date of his release, or
reason for his continued confinement, within ten (10) days
from receipt of notice.
SO ORDERED.
G.R. No. 205926 July 22, 2015
ALVIN COMERCIANTE y GONZALES, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the
Decision 2 dated October 20, 2011 and the Resolution 3dated
February 19, 2013 of the Court of Appeals (CA) in CA-G.R. CR
No. 32813, which affirmed in toto the Judgment 4dated July
28, 2009 of the Regional Trial Court of Mandaluyong City,
Branch 213 (RTC) in Crim. Case No. MC-03-7242-D convicting
petitioner Alvin Comerciante y Gonzales (Comerciante) of the
crime of illegal Possession of Dangerous Drugs defined and
penalized under Section 11, Article II of Republic Act No. (RA)
9165, 5 otherwise known as the Comprehensive Dangerous
Drugs Act of 2002.
The Facts
On July 31, 2003, an Information was filed before the RTC
charging Comerciante of violation of Section 11, Article II of
RA 9165, to wit:
That on or about the 30th day of July 2003, in the City of
Mandaluyong, Philippines, a place within the jurisdiction of
this Honorable Court, the above-named accused, not having
been lawfully authorized to possess any dangerous drugs, did
then and there willfully, unlawfully and feloniously and
knowingly have in his possession, custody and control Two
(2) heat-sealed transparent plastic sachet (sic) each
containing 0.15 gram (sic) and 0.28 gram (sic) of white
crystalline substance with a total of 0.43 grams which was
found positive to the test for Methamphetamine Hydrochloride
commonly known as "shabu", a dangerous drug.
CONTRARY TO LA W. 6
According to the prosecution, at around 10 o'clock in the
evening of July 30, 2003, Agent Eduardo Radan (Agent
Radan) of the NARCOTICS group and P03 Bienvy Calag II
(P03 Calag) were aboard a motorcycle, patrolling the area
while on their way to visit a friend at Private Road, Barangay
Hulo, Mandaluyong City. Cruising at a speed of 30 kilometers
per hour along Private Road, they spotted, at a distance of
about 10 meters, two (2) men - later identified as
Comerciante and a certain Erick Dasilla 7 (Dasilla) - standing
and showing "improper and unpleasant movements," with one
of them handing plastic sachets to the other. Thinking that
the sachets may contain shabu, they immediately stopped
and approached Comerciante and Dasilla At a distance of
around five (5) meters, P03 Calag introduced himself as a
police officer, arrested Comerciante and Dasilla, and
confiscated two (2) plastic sachets containing white crystalline
substance from them. A laboratory examination later
confirmed that said sachets contained methamphetamine
hydrochloride or shabu. 8
After the prosecution rested its case, Dasilla filed a demurrer
to evidence, which was granted by the RTC, thus his
acquittal. However, due to Comerciante's failure to file his
own demurrer to evidence, the RTC considered his right to do
so waived and ordered him to present his evidence.9
In his defense, Comerciante averred that P03 Calag was
looking for a certain "Barok", who was a notorious drug
pusher in the area, when suddenly, he and Dasilla, who were
just standing in front of a jeepney along Private Road, were
arrested and taken to a police station. There, the police
officers claimed to have confiscated illegal drugs from them
and were asked money in exchange for their release. When
they failed to accede to the demand, they were brought to
another police station to undergo inquest proceedings, and
thereafter, were charged with illegal possession of dangerous
drugs. 10
The RTC Ruling
In. a Judgment 11 dated July 28, 2009, the RTC found
Comerciante guilty beyond reasonable doubt of violation of
Section 11, Article II of RA 9165, and accordingly, sentenced
him to suffer the penalty of imprisonment for twelve (12)
years and one (1) day to twenty (20) years, and ordered him
to pay a fine in the amount of 300,000.00.12
The R TC found that P03 Calag conducted a valid warrantless
arrest on Comerciante, which yielded two (2) plastic sachets
containing shabu. In this relation, the R TC opined that there
was probable cause to justify the warrantless arrest,
considering that P03 Calag saw, in plain view, that
Comerciante was carrying the said sachets when he decided
to approach and apprehend the latter. Further, the RTC found
that absent any proof of intent that P03 Calag was impelled
by any malicious motive, he must be presumed to have
properly performed his duty when he arrested Comerciante.13
Aggrieved, Comerciante appealed to the CA.
The CA Ruling
In a Decision 14 dated October 20, 2011 the CA affirmed
Comerciante's conviction. It held that P03 Calag had probable
cause to effect the warrantless arrest of Comerciante, given
that the latter was committing a crime in flagrante delicto;
and that he personally saw the latter exchanging plastic
sachets with Dasilla. According to the CA, this was enough to
draw a reasonable suspicion that those sachets might be
shabu, and thus, P03 Calag had every reason to inquire on
the matter right then and there.15
Dissatisfied, Comerciante moved for reconsideration 16 which
was, however, denied in a Resolution 17 dated February 19,
2013. Hence, this petition. 18
The Issue before the Court
The core issue for the Court's resolution is whether or not the
CA correctly affirmed Comerciante's conviction for violation of
Section 11, Article II of RA 9165.
In his petition, Comerciante essentially contends that P03
Carag did not effect a valid warrantless arrest on him.
Consequently, the evidence gathered as a result of such
illegal warrantless arrest, i.e., the plastic sachets containing
shabu should be rendered inadmissible, necessarily resulting
in his acquittal. 19
On the other hand, the Office of the Solicitor General, on
behalf of respondent People of the Philippines, maintains that
Comerciante's warrantless arrest was validly made pursuant
to the "stop and frisk" rule, especially considering that he was
caught in flagrante delicto in possession of illegal drugs. 20
The Court's Ruling
The petition is meritorious.
Section 2, Article III 21 of the Constitution mandates that a
search and seizure must be carried out through or on the
strength of a judicial warrant predicated upon the existence of
probable cause; in the absence of such warrant, such search
and seizure becomes, as a general rule, "unreasonable" within
the meaning of said constitutional provision. To protect
people from unreasonable searches and seizures, Section 3
(2), Article III 22 of the Constitution provides an exclusionary
rule which instructs that evidence obtained and confiscated on
the occasion of such unreasonable searches and seizures are
deemed tainted and should be excluded for being the
proverbial fruit of a poisonous tree. In other words, evidence
obtained from unreasonable searches and seizures shall be
inadmissible in evidence for any purpose in any proceeding. 23
The exclusionary rule is not, however, an absolute and rigid
proscription. One of the recognized exceptions established by
jurisprudence is a search incident to a lawful arrest. 24 In this
instance, the law requires that there first be a lawful arrest
before a search can be made - the process cannot be
reversed. 25 Section 5, Rule 113 of the Revised Rules on
Criminal Procedure lays down the rules on lawful warrantless
arrests, as follows:
SEC.5. Arrest without warrant; when lawful. - A peace officer
or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested
has committed, is actually committing, or is
attempting to commit an offense;
(b) When an offense has just been committed and he
has probable cause to believe based on personal
knowledge of facts or circumstances that the person
to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who
has escaped from a penal establishment or place
where he is serving final judgment or is temporarily
confined while his case is pending, or has escaped
while being transferred from one confinement to
another.
In cases falling under paragraphs (a) and (b) above, the
person arrested without a warrant shall be forthwith delivered
to the nearest police station or jail and shall be proceeded
against in accordance with Section 7 of Rule 112.
The aforementioned provision provides three (3) instances
when a warrantless arrest may be lawfully effected: (a) arrest
of a suspect in flagrante delicto; (b) arrest of a suspect
where, based on personal knowledge of the arresting officer,
there is probable cause that said suspect was the perpetrator
of a crime which had just been committed; ( c) arrest of a
prisoner who has escaped from custody serving final
judgment or temporarily confined during the pendency of his
case or has escaped while being transferred from one
confinement to another. 26
For a warrantless arrest under Section 5 (a) to operate, two
(2) elements must concur, namely: (a) the person to be
arrested must execute an overt act indicating that he has just
committed, is actually committing, or is attempting to commit
a crime; and ( b) such overt act is done in the presence or
within the view of the arresting officer. 27 On the other hand,
Section 5 (b) requires for its application that at the time of
the arrest, an offense had in fact just been committed and
the arresting officer had personal knowledge of facts
indicating that the accused had committed it.28
In both instances, the officer's personal knowledge of the fact
of the commission of an offense is absolutely required. Under
Section 5 (a), the officer himself witnesses the crime; while in
Section (b), he knows for a fact that a crime has just been
committed. 29
A judicious review of the factual milieu of the instant case
reveals that there could have been no lawful warrantless
arrest made on Comerciante. P03 Calag himself admitted that
he was aboard a motorcycle cruising at a speed of around 30
kilometers per hour when he saw Comerciante and Dasilla
standing around and showing "improper and unpleasant
movements," with one of them handing plastic sachets to the
other. On the basis of the foregoing, he decided to effect an
arrest. P03 Calag's testimony on direct examination is
revelatory:
Pros. Silao:
Q: Now on July 30, 2003 around 10:00 o'clock in the evening,
kindly tell the court where were you?
A: We were then conducting our patrol on a motorbike ma'
am.
xxxx
Q: And who were with you while you were patrolling?
A: Eduardo Radan, Ma' am.
Q: And who is this Eduardo Radan?
A: He is an agent of the Narcotics Group, ma'am.
Q: While you were along Private Road, Hulo, Mandaluyong
City, what unusual incident that happened if any?
A: We spotted somebody who was then as if handing a plastic
sachet to someone.
xxxx
Q: Now how far were you when you saw this incident from
these two male persons you already identified?
A: About ten (10) meters away ma'am.
Q: What were their positions in relation to you when you saw
them in that particular act?
A: They were quite facing me then.
0: What was the speed of your motorcycle when you were
traversing this Private Road, Hulo, Mandaluyong City?
A: About thirty (30) kilometers per hour, ma'am.
Q: And who was driving the motorcycle?
A: Eduardo Radan, ma'am.
Q: When you spotted them as if handing something to each
other, what did you do?
A: We stopped ma'am.
Q: And how far were you from them when you stopped, more
or less?
A: We passed by them for a short distance before we stopped
ma'am.
Q: And after you passed by them and you said you stopped,
what was the reaction of these two male persons?
A: They were surprised, ma'am.
xxxx
Q: And what was their reaction when you said you introduced
yourself as police officer?
A: They were surprised.
Q: When you say "nabigla" what was their reaction that made
you say that they were surprised?
A: They were stunned.
Q: After they were stunned, what did you do next, police
officer?
A: I arrested them, ma' am. I invited them.
Q: What did you say to them? How did you invite them? In
short, napakasimple Lang ng tanong ko sa yo eh. Did you say
anything?
Court:
Mr. Witness, stop making unnecessary movements, just
listens.
Pros. Silao: Are you fit to testify? May sakit ka ba o wala?
Witness: Wala po.
Pros. Silao: Eh, bakit di ka makapagsalita?
Court: You keep touching your eyes. Just relax. Answer the
question, ano sinabi mo sa kanila?
Pros. Silao: Are you fit to testify? Wala ka bang sakit?
Witness: Wala po.
xxxx
Q: From what portion of his body, I am referring to Alvin
Comerciante did you recover the plastic sachet?
A: From his hand ma'am.
Q: Left or right hand?
Pros. Silao: You cannot recall? Hindi mo matandaan. Sabihin
mo Kung Hindi mo matandaan, no problem. Kaliwa, kanan or
you cannot recall? 30
(Emphases and underscoring supplied)
On the basis of such testimony, the Court finds it highly
implausible that P03 Calag, even assuming that he has
perfect vision, would be able to identify with reasonable
accuracy - especially from a distance of around 10 meters,
and while aboard a motorcycle cruising at a speed of 30
kilometers per hour - miniscule amounts of white crystalline
substance inside two (2) very small plastic sachets held by
Comerciante. The Court also notes that no other overt act
could be properly attributed to Comerciante as to rouse
suspicion in the mind of P03 Calag that the former had just
committed, was committing, or was about to commit a crime.
Verily, the acts of standing around with a companion and
handing over something to the latter cannot in any way be
considered criminal acts. In fact, even if Comerciante and his
companion were showing "improper and unpleasant
movements" as put by P03 Calag, the same would not have
been sufficient in order to effect a lawful warrantless arrest
under Section 5 (a), Rule 113 of the Revised Rules on
Criminal Procedure. 31 That his reasonable suspicion bolstered
by (a) the fact that he had seen his fellow officers arrest
persons in possession of shabu; and (b) his trainings and
seminars on illegal drugs when he was still assigned in the
province are insufficient to create a conclusion that what he
purportedly saw in Comerciante was indeed shabu. 32
Neither has the prosecution established that the rigorous
conditions set forth in Section 5 (b), Rule 113, have been
complied with, i.e., that an offense had in fact just been
committed and the arresting officer had personal knowledge
of facts indicating that the accused had committed it. As
already discussed, the factual backdrop of the instant case
failed to show that P03 Calag had personal knowledge that a
crime had been indisputably committed by Comerciante.
Verily, it is not enough that the arresting officer had
reasonable ground to believe that the accused had just
committed a crime; a crime must, in fact, have been
committed first, which does not obtain in this case. 33
In this relation, the Court finds respondent's assertion that
there was a valid "stop and frisk" search made on
Comerciante untenable. In People v. Cogaed, 34 the Court had
an opportunity to exhaustively explain "stop and frisk"
searches:
"Stop and frisk" searches (sometimes referred to as Terry
searches) are necessary for law enforcement.1a\^/phi1 That
is, law enforcers should be given the legal arsenal to prevent
the commission of offenses. However, this should be balanced
with the need to protect the privacy of citizens in accordance
with Article III, Section 2 of the Constitution.
The balance lies in the concept of "suspiciousness" present
where the police officer finds himself or herself in. This may
be undoubtedly based on the experience of the police officer.
Experienced police officers have personal experience dealing
with criminals and criminal behavior. Hence, they should have
the ability to discern - based on facts that they themselves
observe - whether an individual is acting in a suspicious
manner. Clearly, a basic criterion would be that the police
officer, with his or her personal knowledge, must observe the
facts leading to the suspicion of an illicit act.
xxxx
Normally, "stop and frisk" searches do not give the law
enforcer an opportunity to confer with a judge to determine
probable cause. In Posadas v. Court of Appeals, one of the
earliest cases adopting the "stop and frisk" doctrine in
Philippine jurisprudence, this court approximated the
suspicious circumstances as 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.
For warrantless searches, probable cause was defined as "a
reasonable ground of suspicion supported by circumstances
sufficiently strong in themselves to warrant a cautious man to
believe that the person accused is guilty of the offense with
which he is charged.
Malacat v. Court of Appeals clarifies the requirement further.
It does not have to be probable cause, but it cannot be mere
suspicion. It has to be a genuine reason to serve the
purposes of the "stop and frisk" exception:
Other notable points of Terry are that while probable cause is
not required to conduct a "stop and frisk," it nevertheless
holds that mere suspicion or a hunch will not validate a "stop
and frisk." A genuine reason must exist, in light of the police
officer's experience and surrounding conditions, to warrant
the belief that the person detained has weapons concealed
about him.
In his dissent for Esquillo v. People, Justice Bersamin reminds
us that police officers must not rely on a single suspicious
circumstance. There should be "presence of more than one
seemingly innocent activity, which, taken together, warranted
a reasonable inference of criminal activity." The Constitution
prohibits "umeasonable searches and seizures." Certainly,
reliance on only one suspicious circumstance or none at all
will not result in a reasonable search. [35]] (Emphases and
underscoring supplied)
In this case, the Court reiterates that Comerciante' s acts of
standing around with a companion and handing over
something to the latter do not constitute criminal
acts.1wphi1 These circumstances are not enough to create a
reasonable inference of criminal activity which would
constitute a "genuine reason" for P03 Calag to conduct a
"stop and frisk" search on the former. In this light, the "stop
and frisk" search made on Comerciante should be deemed
unlawful.
In sum, there was neither a valid warrantless arrest nor a
valid "stop and frisk" search made on Comerciante. As such,
the shabu purportedly seized from him is rendered
inadmissible in evidence for being the proverbial fruit of the
poisonous tree. Since the confiscated shabu is the very
corpus delicti of the crime charged, Comerciante must
necessarily be acquitted and exonerated from all criminal
liability.
WHEREFORE, the petition is GRANTED. Accordingly, 'the
Decision dated October 20, 2011 and the Resolution dated
February 19, 2013 of the Court of Appeals in CA-G.R. CR No.
32813 are hereby REVERSED and SET ASIDE. Accordingly,
petitioner Alvin Comerciante y Gonzales is hereby ACQUITTED
of the crime of violating Section 11, Article II of Republic Act
No. 9165. The Director of the Bureau of Corrections is
ordered to cause his immediate release, unless he is being
lawfully held for any other reason.
SO ORDERED.
[G.R. No. 113447. October 9, 1997]
ALAIN MANALILI y DIZON, petitioner, vs. COURT OF
APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
DECISION
PANGANIBAN, J.:
When dealing with a rapidly unfolding and potentially
criminal situation in the city streets where unarguably there is
no time to secure an arrest or a search warrant, policemen
should employ limited, flexible responses -- like stop-and-frisk
-- which are graduated in relation to the amount of information
they possess, the lawmen being ever vigilant to respect and
not to violate or to treat cavalierly the citizens constitutional
rights against unreasonable arrest, search and seizure.
The Case
This rule is reiterated as we resolve this petition for review
on certiorari under Rule 45 of the Rules of Court, seeking the
reversal of the Decision of the Court of Appeals dated April 19,
1993 and its Resolution dated January 20, 1994 in CA G.R. CR
No. 07266, entitled People of the Philippines vs. Alain
Manalili y Dizon.
In an Information dated April 11, 1988,[1] Petitioner Alain
Manalili y Dizon was charged by Assistant Caloocan City Fiscal
E. Juan R. Bautista with violation of Section 8, Article II of
Republic Act No. 6425, allegedly committed as follows:[2]
That on or about the 11th day of April 1988 in Caloocan City,
MM, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused without any authority of
law, did then and there wilfully, unlawfully and feloniously
have in his custody, possession and control crushed
marijuana residue, which is a prohibited drug and knowing
the same to be such.
Contrary to Law.
Upon his arraignment on April 21, 1988, appellant
pleaded not guilty to the charge.[3] With the agreement of the
public prosecutor, appellant was released after filing
a P10,000.00 bail bond.[4] After trial in due course, the
Regional Trial Court of Caloocan City, Branch 124, acting as a
Special Criminal Court, rendered on May 19, 1989 a
decision[5] convicting appellant of illegal possession of
marijuana residue. The dispositive portion of the decision
reads:[6]
WHEREFORE, in view of all the foregoing, this Court finds the
accused ALAIN MANALILI Y DIZON guilty beyond reasonable
doubt of violation of Section 8, Article II, of Republic Act No.
6425, as amended (Illegal Possession of Marijuana residue),
and hereby snetences (sic) said accused to suffer
imprisonment of SIX (6) YEARS and ONE (1) DAY; and to pay
a fine of P6,000.00; and to pay the costs.
xxx xxx xxx.
Appellant remained on provisional liberty.[7] Atty.
Benjamin Razon, counsel for the defense, filed a Notice of
Appeal[8] dated May 31, 1989. On April 19, 1993, Respondent
Court[9]promulgated its assailed Decision, denying the appeal
and affirming the trial court:[10]
ACCORDINGLY, the decision appealed from dated May 19,
1989 is hereby AFFIRMED in all respects. Costs against
appellant.
Respondent Court[11] denied reconsideration via its
assailed Resolution dated January 20, 1994, disposing:
ACCORDINGLY, accused-appellants motion for reconsideration
is, as is hereby DENIED.
The Facts
Version of the Prosecution
The facts, as found by the trial court, are as follows:[12]
At about 2:10 oclock in the afternoon of April 11, 1988,
policemen from the Anti-Narcotics Unit of the Kalookan City
Police Station were conducting a surveillance along A. Mabini
street, Kalookan City, in front of the Kalookan City
Cemetery. The policemen were Pat. Romeo Espiritu and Pat.
Anger Lumabas and a driver named Arnold Enriquez was
driving a Tamaraw vehicle which was the official car of the
Police Station of Kalookan City. The surveillance was being
made because of information that drug addicts were roaming
the area in front of the Kalookan City Cemetery.
Upon reaching the Kalookan City Cemetery, the policemen
alighted from their vehicle. They then chanced upon a male
person in front of the cemetery who appeared high on
drugs. The male person was observed to have reddish eyes
and to be walking in a swaying manner. When this male
person tried to avoid the policemen, the latter approached
him and introduced themselves as police officers. The
policemen then asked the male person what he was holding in
his hands. The male person tried to resist. Pat. Romeo
Espiritu asked the male person if he could see what said male
person had in his hands. The latter showed the wallet and
allowed Pat. Romeo Espiritu to examine the same. Pat.
Espiritu took the wallet and examined it. He found suspected
crushed marijuana residue inside. He kept the wallet and its
marijuana contents.
The male person was then brought to the Anti-Narcotics Unit
of the Kalookan City Police Headquarters and was turned over
to Cpl. Wilfredo Tamondong for investigation. Pat. Espiritu
also turned over to Cpl. Tamondong the confiscated wallet
and its suspected marijuana contents. The man turned out to
be the accused ALAIN MANALILI y DIZON.
Upon receipt of the confiscated suspected marijuana residue
from Pat. Espiritu, Cpl. Tamondong wrapped the same with a
white sheet of paper on which he wrote Evidence A 4/11/88
Alain Manalili. The white sheet of paper was marked as
Exhibit E-3. The residue was originally wrapped in a smaller
sheet of folded paper. (Exhibit E-4).
Cpl. Tamondong next prepared a referral slip addressed to
the NBI Forensic Chemistry Section requesting a chemical
analysis of the subject marijuana residue (Exhibit D). Cpl.
Tamondong thereafter prepared a Joint Affidavit of the
apprehending policemen (Exhibit A). Pat. Angel Lumabas
handcarried the referral slip (Exhibit D) to the National
Bureau of Investigation (NBI), including the subject
marijuana residue for chemical analysis. The signature of Pat.
Lumabas appears on the left bottom corner of Exhibit D.
The Forensic Chemistry Section of the NBI received the
aforesaid referral slip and the subject marijuana residue at
7:40 oclock in the evening of April 11, 1988 as shown on the
stamped portion of Exhibit D.
It was NBI Aida Pascual who conducted the microscopic
and chemical examinations of the specimen which she
identified. (Exhibit E)[13] Mrs. Pascual referred to the subject
specimen as crushed marijuana leaves in her Certification
dated April 11, 1988 (Exhibit F).[14] These crushed marijuana
leaves gave positive results for marijuana, according to the
Certificate.
Mrs. Pascual also conducted a chromatographic examination
of the specimen. In this examination, she also found that the
crushed marijuana leaves gave positive results for
marijuana. She then prepared a Final Report of her
examinations (Exhibit G).
After conducting the examinations, Ms. Pascual placed the
specimen in a white letter-envelope and sealed it. (Exhibit
E). She then wrote identification notes on this letter-
envelope. (Exhibit E-1).
Pat. Lumabas carried the Certification marked as Exhibit F
from the NBI Forensic Chemistry Section to Cpl.
Tamondong. Upon receipt thereof, Cpl. Tamondong prepared
a referral slip addressed to the City Fiscal of Kalookan
City. (Exhibit C)
On rebuttal, Pat. Espiritu testified that appellant was not
riding a tricycle but was walking in front of the cemetery when
he was apprehended.[15]
Version of the Defense
The trial court summarized the testimonies of the defense
witnesses as follows:[16]
At about 2:00 oclock in the afternoon of April 11, 1988, the
accused ALAIN MANALILI was aboard a tricycle at A. Mabini
street near the Kalookan City Cemetery on the way to his
boarding house. Three policemen ordered the driver of the
tricycle to stop because the tricycle driver and his lone
passenger were under the influence of marijuana. The
policemen brought the accused and the tricycle driver inside
the Ford Fiera which the policemen were riding in. The
policemen then bodily searched the accused and the tricycle
driver. At this point, the accused asked the policemen why he
was being searched and the policemen replied that he
(accused) was carrying marijuana. However, nothing was
found on the persons of the accused and the driver. The
policemen allowed the tricycle driver to go while they brought
the accused to the police headquarters at Kalookan City
where they said they would again search the accused.
On the way to the police headquarters, the accused saw a
neighbor and signaled the latter to follow him. The neighbor
thus followed the accused to the Kalookan City Police
Headquarters. Upon arrival thereat, the accused was asked to
remove his pants in the presence of said neighbor and
another companion. The policemen turned over the pants of
the accused over a piece of bond paper trying to look for
marijuana. However, nothing was found, except for some dirt
and dust. This prompted the companion of the neighbor of the
accused to tell the policemen to release the accused. The
accused was led to a cell.The policemen later told the accused
that they found marijuana inside the pockets of his pants.
At about 5:00 oclock in the afternoon on the same day, the
accused was brought outside the cell and was led to the Ford
Fiera. The accused was told by the policemen to call his
parents in order to settle the case. The policemen who led the
accused to the Ford Fiera were Pat. Lumabas, Pat. Espiritu
and Cpl. Tamondong. Pat. Lumabas was the policeman who
told the accused to call his parents. The accused did not call
his parents and he told the policemen that his parents did not
have any telephone.
At about 5:30 oclock in the afternoon of the same day, the
accused was brought in the office of an inquest Fiscal. There,
the accused told the Fiscal that no marijuana was found on
his person but the Fiscal told the accused not to say
anything. The accused was then brought back to the Kalookan
City Jail.
Loreto Medenilla, the tricycle driver who was allegedly with
the accused when he and the accused were stopped by
policemen and then bodily searched on April 11, 1988,
testified. He said that the policemen found nothing either on
his person or on the person of the accused when both were
searched on April 11, 1988.
Roberto Abes, a neighbor of the accused, testified that he
followed the accused at the Kalookan City Police Headquarters
on April 11, 1988. He said that the police searched the
accused who was made to take off his pants at the police
headquarters but no marijuana was found on the body of the
accused.
Appellant, who was recalled to the stand as sur-rebuttal
witness, presented several pictures showing that tricycles were
allowed to ply in front of the Caloocan Cemetery.[17]
The Rulings of the Trial and the Appellate Courts
The trial court convicted petitioner of illegal possession of
marijuana residue largely on the strength of the arresting
officers testimony. Patrolmen Espiritu and Lumabas were
neutral and disinterested witnesses, testifying only on what
transpired during the performance of their
duties. Substantially, they asserted that the appellant was
found to be in possession of a substance which was later
identified as crushed marijuana residue.
The trial court disbelieved appellants defense that this
charge was merely trumped up, because the appellant neither
took any legal action against the allegedly erring policemen nor
moved for a reinvestigation before the city fiscal of Kalookan
City.
On appeal, Respondent Court found no proof that the
decision of the trial court was based on speculations, surmises
or conjectures. On the alleged serious discrepancies in the
testimonies of the arresting officers, the appellate court ruled
that the said inconsistencies were insubstantial to impair the
essential veracity of the narration. It further found petitioners
contention -- that he could not be convicted of illegal
possession of marijuana residue -- to be without merit,
because the forensic chemist reported that what she examined
were marijuana leaves.
Issues
Petitioner assigns the following errors on the part of
Respondent Court:
I others in the area to conduct a carefully limited search of the
The Court of Appeals erred in upholding the findings of
fact of the trial court.
II
The Court of Appeals erred in upholding the conviction of
(the) accused (and) in ruling that the guilt of the
accused had been proved (beyond) reasonable doubt.
III
The Court of Appeals erred in not ruling that the
inconsistencies in the testimonies of the prosecution
witnesses were material and substantial and not minor.
IV
The Court of Appeals erred in not appreciating the
evidence that the accused was framed for the purpose
of extorting money.
V
The Court of Appeals erred in not acquitting the accused
when the evidence presented is consistent with both
innocence and guilt.
VI
The Court of Appeals erred in admitting the evidence of
the prosecution which are inadmissible in evidence.
Restated more concisely, petitioner questions (1) the
admissibility of the evidence against him, (2) the credibility of
prosecution witnesses and the rejection by the trial and the
appellate courts of the defense of extortion, and (3) the
sufficiency of the prosecution evidence to sustain his
conviction.
The Courts Ruling
The petition has no merit.
First Issue: Admissibility of the Evidence Seized During
a Stop-and-Frisk
Petitioner protests the admission of the marijuana leaves
found in his possession, contending that they were products of
an illegal search. The Solicitor General, in his Comment, dated
July 5, 1994, which was adopted as memorandum for
respondent, counters that the inadmissibility of the marijuana
leaves was waived because petitioner never raised this issue in
the proceedings below nor did he object to their admissibility
in evidence. He adds that, even assuming arguendo that there
was no waiver, the search was legal because it was incidental
to a warrantless arrest under Section 5 (a), Rule 113 of the
Rules of Court.
We disagree with petitioner and hold that the search was
valid, being akin to a stop-and-frisk. In the landmark case
of Terry vs. Ohio,[18] a stop-and-frisk was defined as the
vernacular designation of the right of a police officer to stop a
citizen on the street, interrogate him, and pat him for
weapon(s):
x x x (W)here a police officer observes an unusual conduct
which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot and that the
persons with whom he is dealing may be armed and presently
dangerous, where in the course of investigating this behavior
he identified himself as a policeman and makes reasonable
inquiries, and where nothing in the initial stages of the
encounter serves to dispel his reasonable fear for his own or
others safety, he is entitled for the protection of himself and
outer clothing of such persons in an attempt to discover
weapons which might be used to assault him. Such a search
is a reasonable search under the Fourth Amendment, and any
weapon seized may properly be introduced in evidence
against the person from whom they were taken.[19]
In allowing such a search, the United States Supreme
Court held that the interest of effective crime prevention and
detection allows a police officer to approach a person, in
appropriate circumstances and manner, for purposes of
investigating possible criminal behavior even though there is
insufficient probable cause to make an actual arrest. This was
the legitimate investigative function which Officer McFadden
discharged in that case, when he approached petitioner and his
companion whom he observed to have hovered alternately
about a street corner for an extended period of time, while not
waiting for anyone; paused to stare in the same store window
roughly 24 times; and conferred with a third person. It would
have been sloppy police work for an officer of 30 years
experience to have failed to investigate this behavior further.
In admitting in evidence two guns seized during the stop-
and-frisk, the US Supreme Court held that what justified the
limited search was the more immediate interest of the police
officer in taking steps to assure himself that the person with
whom he was dealing was not armed with a weapon that could
unexpectedly and fatally be used against him.
It did not, however, abandon the rule that the police
must, whenever practicable, obtain advance judicial approval
of searches and seizures through the warrant procedure,
excused only by exigent circumstances.
In Philippine jurisprudence, the general rule is that a
search and seizure must be validated by a previously secured
judicial warrant; otherwise, such search and seizure is
unconstitutional and subject to challenge.[20] Section 2, Article
III of the 1987 Constitution, gives this guarantee:
SEC. 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined
personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched
and the persons or things to be seized.
Any evidence obtained in violation of the mentioned
provision is legally inadmissible in evidence as a fruit of the
poisonous tree, falling under the exclusionary rule:
SEC. 3. x x x
(2) Any evidence obtained in violation of x x x the preceding
section shall be inadmissible for any purpose in any
proceeding.
This right, however, is not absolute.[21] The recent case
of People vs. Lacerna enumerated five recognized exceptions
to the rule against warrantless search and seizure, viz.: (1)
search incidental to a lawful arrest, (2) search of moving
vehicles, (3) seizure in plain view, (4) customs search, and (5)
waiver by the accused themselves of their right against
unreasonable search and seizure.[22] In People vs.
Encinada,[23] the Court further explained that [i]n these cases,
the search and seizure may be made only with probable cause
as the essential requirement. Although the term eludes exact
definition, probable cause for a search is, at best, defined as a
reasonable ground of suspicion, supported by circumstances
sufficiently strong in themselves to warrant a cautious man in
the belief that the person accused is guilty of the offense with
which he is charged; or the existence of such facts and
circumstances which could lead a reasonably discreet and
prudent man to believe that an offense has been committed
and that the item(s), article(s) or object(s) sought in
connection with said offense or subject to seizure and
destruction by law is in the place to be searched.
Stop-and-frisk has already been adopted as another
exception to the general rule against a search without a
warrant. In Posadas vs. Court of Appeals ,[24] the Court held
that there are many instances where a search and seizure can
be effected without necessarily being preceded by an arrest,
one of which is stop-and-frisk. In said case, members of the
Integrated National Police of Davao stopped petitioner, who
was carrying a buri bag and acting suspiciously. They found
inside petitioners bag one .38-cal. revolver with two rounds of
live ammunition, two live ammunitions for a .22-cal. gun and
a tear gas grenade. In upholding the legality of the search, the
Court said that to require the police officers to search the bag
only after they had obtained a search warrant might prove to
be useless, futile and much too late under the
circumstances. In such a situation, it was reasonable for a
police officer to stop a suspicious individual briefly in order to
determine his identity or to maintain the status quo while
obtaining more information, rather than to simply shrug his
shoulders and allow a crime to occur.
In the case at hand, Patrolman Espiritu and his
companions observed during their surveillance that appellant
had red eyes and was wobbling like a drunk along the Caloocan
City Cemetery, which according to police information was a
popular hangout of drug addicts. From his experience as a
member of the Anti-Narcotics Unit of the Caloocan City Police,
such suspicious behavior was characteristic of drug addicts who
were high. The policemen therefore had sufficient reason to
stop petitioner to investigate if he was actually high on
drugs. During such investigation, they found marijuana in
petitioners possession:[25]
FISCAL RALAR:
Q And why were you conducting surveillance in front
of the Caloocan Cemetery, Sangandaan,
Caloocan City?
A Because there were some informations that some
drug dependents were roaming around at A.
Mabini Street in front of the Caloocan
Cemetery, Caloocan City.
xxx xxx xxx
Q While you were conducting your surveillance,
together with Pat. Angel Lumabas and one
Arnold Enriquez, what happened, if any?
A We chanced upon one male person there in front
of the Caloocan Cemetery then when we called
his attention, he tried to avoid us, then
prompting us to approach him and introduce
ourselves as police officers in a polite manner.
xxx xxx xxx
Q Could you describe to us the appearance of that
person when you chanced upon him?
A That person seems like he is high on drug.
Q How were you able to say Mr. Witness that that
person that you chanced upon was high on
drug?
A Because his eyes were red and he was walking on
a swaying manner.
Q What was he doing in particular when you
chanced upon him?
A He was roaming around, sir.
Q You said that he avoided you, what did you do
when he avoided you?
A We approached him and introduced ourselves as
police officers in a polite manner, sir.
Q How did you introduce yourselves?
A In a polite manner, sir.
Q What did you say when you introduced
yourselves?
A We asked him what he was holding in his hands,
sir.
Q And what was the reaction of the person when you
asked him what he was holding in his hands?
A He tried to resist, sir.
Q When he tried to resist, what did you do?
A I requested him if I can see what was he was(sic)
holding in his hands.
Q What was the answer of the person upon your
request?
A He allowed me to examine that something in his
hands, sir.
xxx xxx xxx
Q What was he holding?
A He was holding his wallet and when we opened it,
there was a marijuana (sic) crushed residue.
Furthermore, we concur with the Solicitor Generals
contention that petitioner effectively waived the inadmissibility
of any evidence illegally obtained when he failed to raise this
issue or to object thereto during the trial. A valid waiver of a
right, more particularly of the constitutional right against
unreasonable search, requires the concurrence of the following
requirements: (1) the right to be waived existed; (2) the
person waiving it had knowledge, actual or constructive,
thereof; and (3) he or she had an actual intention to relinquish
the right.[26] Otherwise, the Courts will indulge every
reasonable presumption against waiver of fundamental
safeguards and will not deduce acquiescence from the failure
to exercise this elementary right. In the present case,
however, petitioner is deemed to have waived such right for
his failure to raise its violation before the trial court. In
petitions under Rule 45, as distinguished from an ordinary
appeal of criminal cases where the whole case is opened for
review, the appeal is generally limited to the errors assigned
by petitioner. Issues not raised below cannot be pleaded for
the first time on appeal.[27]
Second Issue: Assessment of Evidence
Petitioner also contends that the two arresting officers
testimony contained polluted, irreconcilable and unexplained
contradictions which did not support petitioners conviction.
We disagree. Time and again, this Court has ruled that
the trial courts assessment of the credibility of witnesses,
particularly when affirmed by the Court of Appeals as in this
case, is accorded great weight and respect, since it had the
opportunity to observe their demeanor and deportment as they
testified before it. Unless substantial facts and circumstances
have been overlooked or misappreciated by the trial court
which, if considered, would materially affect the result of the
case, we will not countenance a departure from this rule.[28]
We concur with Respondent Courts ruling:
(e)ven assuming as contended by appellant that there had
been some inconsistencies in the prosecution witnesses
testimonies, We do not find them substantial enough to
impair the essential veracity of their narration. In People vs.
Avila, it was held that As long as the witnesses concur on the
material points, slight differences in their remembrance of the
details, do not reflect on the essential veracity of their
statements.
However, we find that, aside from the presumption of
regularity in the performance of duty, the bestowal of full
credence on Pat. Espiritus testimony is justified by tangible
evidence on record. Despite Pat. Lumabas contradictory
testimony, that of Espiritu is supported by the Joint
Affidavit[29] signed by both arresting policemen. The question
of whether the marijuana was found inside petitioners wallet or
inside a plastic bag is immaterial, considering that petitioner
did not deny possession of said substance. Failure to present
the wallet in evidence did not negate that marijuana was found
in petitioners possession. This shows that such contradiction is
minor, and does not destroy Espiritus credibility.[30]
Third Issue: Sufficiency of Evidence
The elements of illegal possession of marijuana are: (a)
the accused is in possession of an item or object which is
identified to be a prohibited drug; (b) such possession is not
authorized by law; and (c) the accused freely and consciously
possessed the said drug.[31]
The substance found in petitioners possession was
identified by NBI Forensic Chemist Aida Pascual to be crushed
marijuana leaves. Petitioners lack of authority to possess these
leaves was established. His awareness thereof was undeniable,
considering that petitioner was high on drugs when stopped by
the policemen and that he resisted when asked to show and
identify the thing he was holding. Such behavior clearly shows
that petitioner knew that he was holding marijuana and that it
was prohibited by law.
Furthermore, like the trial and the appellate courts, we
have not been given sufficient grounds to believe the extortion
angle in this case. Petitioner did not file any administrative or
criminal case against the arresting officers or present any
evidence, other than his bare claim. His argument that he
feared for his life was lame and unbelievable, considering that
he was released on bail and continued to be on bail as early as
April 26, 1988.[32] Since then, he could have made the charge
in relative safety, as he was no longer in the custody of the
police. His defense of frame-up, like alibi, is viewed by this
Court with disfavor, because it is easy to concoct and
fabricate.[33]
The Proper Penalty
The trial and the appellate courts overlooked the
Indeterminate Sentence Law (Act No. 4103, as amended) by
sentencing petitioner to a straight penalty of six years and one
day of imprisonment, aside from the imposed fine of six
thousand pesos. This Act requires the imposition of an
indeterminate penalty:
SECTION 1. Hereafter, in imposing a prison sentence for an
offense punished by the Revised Penal Code, or its
amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall be
that which, in view of the attending circumstances, could be
properly imposed under the rules of the said Code, and the
minimum which shall be within the range of the penalty next
lower to that prescribed by the Code for the offense; and if
the offense is punished by any other law, the court shall
sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed
by said law and the minimum shall not be less than the
minimum term prescribed by the same. (As amended by Act
No. 4225.)
SEC. 2. This Act shall not apply to persons convicted of
offenses punished with death penalty or life-imprisonment; to
those convicted of treason; to those convicted of misprision of
treason, rebellion, sedition or espionage; to those convicted
of piracy; to those who are habitual delinquents; to those who
shall have escaped from confinement or evaded sentence; to
those who having been granted conditional pardon by the
Chief Executive shall have violated the terms thereof; to
those whose maximum term of imprisonment does not
exceed one year, not to those already sentenced by final
judgment at the time of approval of this Act, except as
provided in Section 5 hereof. (Underscoring supplied)
The Dangerous Drugs Law, R.A. 6425, as amended by
B.P. 179, imposes the following penalty for illegal possession
of marijuana:
Sec. 8. x x x x
The penalty of imprisonment ranging from six years and one
day to twelve years and a fine ranging from six thousand to
twelve thousand pesos shall be imposed upon any person
who, unless authorized by law, shall possess or use Indian
hemp.
Prescinding from the foregoing, the Court holds that the
proper penalty is an indeterminate sentence of imprisonment
ranging from six years and one day to twelve years.[34]
WHEREFORE, the assailed Decision and Resolution are
hereby AFFIRMED with MODIFICATION. Petitioner is
sentenced to suffer IMPRISONMENT of SIX (6) YEARS, as
minimum, to TWELVE (12) YEARS, as maximum, and
to PAY a FINE of SIX THOUSAND PESOS. Costs against
petitioner.
SO ORDERED.
PEOPLE OF G.R. No. 175783
THE PHILIPPINES,
Plaintiff-Appellee, Present:
YNARES-
SANTIAGO, J.,
Chairperson,
versus - AUSTRIA-MARTINEZ,
CHICO-NAZARIO, and
NACHURA, and
REYES, JJ.
 BERNARDO TUAZON Y
NICOLAS, Promulgated:
Accused-Appellant.
September 3, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - -x
DECISION
CHICO-NAZARIO, J.:
For Review is the Decision[1] of the Court of Appeals
promulgated on 31 July 2006 in CA-G.R. CR-HC No. 01799
entitled, People of the Philippines v. Bernardo Tuazon y
Nicolas, affirming the Decision [2]
dated 14 October 2002 of the
Regional Trial Court (RTC), Antipolo City, Branch 71, in
Criminal Case No. 99-16114, finding accused-appellant guilty
beyond reasonable doubt of violation of Section 16, Article III
of Republic Act No. 6425,[3] as amended.
The Information filed against appellant alleged:
The undersigned State Prosecutor accuses
BERNARDO TUAZON y NICOLAS of the crime
of Violation of Section 16, Article III, R.A.
6425, as amended, committed as follows:
That, on or about the 7th day of March, 1999,
in the City of Antipolo, Philippines and within
the jurisdiction of this Honorable Court, the
above-named accused, not being lawfully
authorized to possess any regulated drug,
did then and there willfully, unlawfully and
feloniously have in his possession, custody
and control seven (7) heat-sealed
transparent plastic bags each containing
97.92 grams, 95.46 grams, 40.47 grams,
5.36 grams, 5.41 grams, 2.95 grams and
3.17 grams for a total weight of 250.74
grams of white crystalline substance, which
after the corresponding laboratory
examination conducted gave positive result
to the test for methylamphetamine
hydrochloride also known as shabu a
regulated drug, in violation of the above-
cited law.[4]
Upon arraignment, appellant, duly assisted by counsel de
oficio, pleaded not guilty.[5]
The prosecutions version of the case relied heavily on
the testimony of PO3 Glenon Bueno (PO3 Bueno) who testified
that in the morning of 7 March 1999, the Antipolo City Police
Station received through telephone, a confidential information
that a Gemini car bearing plate number PFC 411[6] would
deliver an unspecified amount of shabu in
Subdivision, Antipolo City. Acting on said tip, Antipolo City
Chief of Police Major Rene Quintana dispatched a team of
policemen to the area to conduct a surveillance.When the team
arrived in Marville Subdivision, they saw the said Gemini car
and immediately flagged it down. The driver of the car pulled
to a stop and opened a window of said vehicle giving the
policemen the opportunity to identify themselves as members
of the Antipolo City Police Station. It was then that PO1 Manuel
Padlan (PO1 Padlan) saw a gun tucked on appellants
waist. PO1 Padlan inquired about the gun and appellant
allegedly replied it did not belong to him nor could he produce
any pertinent document relating to said firearm. This prompted
PO3 Bueno to order appellant to get down from the car. As
soon as appellant stepped down from the vehicle, PO3 Bueno
saw five plastic sachets on the drivers seat, the contents of
which appellant allegedly admitted to be shabu. Appellant was
thereafter immediately brought to the police station.
In the Joint Affidavit executed by PO3 Bueno and PO1 Padlan,
it was stated that when they frisked appellant, they discovered
2 big plastic bag (sic) and 5 medium size plastic (sic) and a 9
mm. pistol marked Parabellum bearing serial number C-9890
with one loaded magazine with eleven ammunition.[7]
The white crystalline substance confiscated from
appellant was then forwarded to the Philippine National Police
Crime Laboratory in Camp Crame, Quezon City for
examination. The test conducted on the specimen turned over
to the crime laboratory yielded the following:
FINDINGS:
Qualitative examination conducted on the
above-stated specimen gave POSITIVE result
to the test for Methylamphetamine
Hydrochloride, a regulated drug. x x x.
CONCLUSION:
Specimens A-1 through A-7 contains
Methylamphetamine Hydrochloride, a
regulated drug. x x x.[8]
Expectedly, appellant presented a vastly different account of
the events that led to his indictment. According to him, he used
to work as a caretaker of Curacha, a beer house/videoke bar
located along Circumferential Road, Marville II Subdivision and
owned by a certain Bong Reyes. On 6 March 1999, he reported
for work at six oclock in the evening. Later that night,
unidentified men walked up to him. One of these men asked
him regarding the ownership of the car parked outside the
bar. He allegedly accompanied the men outside so he could
confirm the identity of the owner of the car that the men were
inquiring about. Thereupon, the men pointed to him a green
colored Isuzu Gemini car which according to him was driven by
his employer, Reyes. After revealing this information to the
unidentified men, the latter purportedly pointed guns at him
and ordered him to board an owner-type jeepney. The men
allegedly asked him regarding the whereabouts of Reyes and
threatened to include him in whatever trouble Reyes was in. A
Marville
few hours passed and he was then brought to the police
headquarters where he was asked regarding his address and
the name of his employer. After two days, he was allegedly
forced to admit that he was in fact the owner of the Gemini car
as well as of the shabu and the gun recovered from said
vehicle. He learned later on that he was charged with violations
of Republic Act No. 6425 for illegal possession of shabu and
Presidential Decree No. 1866 for illegal possession of
firearm. The latter case was eventually dismissed. At the end
of his direct examination, appellant reiterated that he should
not have been the one charged with illegal possession
of shabu, but Reyes who was driving the Gemini car.

The trial court found the evidence presented by the prosecution
sufficient to support a guilty verdict and imposed upon
appellant the penalty of reclusion perpetua and to pay a fine
of P500,000.00.[9]
Appellant is again before this Court pleading his innocence by
making a lone assignment of error
THE TRIAL COURT GRAVELY ERRED IN
CONVICTING THE ACCUSED-APPELLANT FOR
VIOLATION OF SECTION 16, ARTICLE III,
REPUBLIC ACT 6425, AS AMENDED.[18]

On 17 September 2003, we resolved to accept the appeal

Appellant contends that the trial courts reliance on the
interposed by appellant, the records of the case having been
prosecutions evidence was erroneous considering that he, as a
forwarded to this Court by the RTC, Antipolo City, Branch
mere grade school graduate, could not have concocted his
71. We also required the parties to file their respective
narration of the events that led to his arrest.[19] He also
briefs.[10]
maintains that he was an easy target of police operatives, since
he was a new employee in the videoke bar and was therefore
In addition to the required brief, appellant filed a
unfamiliar with the people who frequented said
supplementary pleading in which he questioned the validity of
establishment. In addition, he insists that the prosecution
his arrest and the admissibility of the evidence presented
failed to meet the exacting test of moral certainty required for
against him. He contends that at the time of his warrantless
conviction and that the trial court should not have applied the
arrest, he was merely driving within Marville Subdivision. He
presumption of regularity in the performance of duties on the
had not committed, was not committing, and was not about to
part of the police officers. [20]
commit any crime which could have justified his
apprehension. He goes on to argue that even if he had waived
Appellant likewise points out the trial courts supposed failure
the issue regarding the validity of his arrest by his failure to
to substantiate the factual and legal bases for his
raise the matter before entering his plea, such waiver did not
conviction. He notes that the court a quos evaluation of the
affect the unlawfulness of the search and seizure conducted by
facts and evidence was contained in only two paragraphs and
the police. Appellant claims that as the confidential informant
was utterly lacking in substantial discussion, in contravention
had been cooperating with the police for three weeks prior to
of this Courts edict that the decisions must distinctly and
his arrest, the authorities were already informed of his identity
clearly express their factual and legal bases.[21]
and his alleged illegal activities. They should have conducted a
prior surveillance and then sought a search warrant from the
On 19 February 2007, we required the parties to file their
court. Absent said warrant, the shabu seized from him should
respective supplemental briefs, if they so desired. On 17 April
be excluded from evidence.[11]
2007, appellant filed a Manifestation stating that he would no
On 23 February 2005, we ordered the transfer of this case to
longer file a supplemental brief as all relevant matters for his
the Court of Appeals conformably with our decision in People
defense were already discussed in his previous
v. Mateo, which modified the pertinent provisions of the Rules
pleadings. [22]
The Office of the Solicitor General likewise
of Court with respect to direct appeals from the RTCs to this
manifested that it would no longer file a supplemental brief.[23]
Court of cases where the penalty imposed is death, reclusion
perpetua, or life imprisonment.[12]
The appeal must fail.

The Court of Appeals affirmed the findings and conclusion of

In insisting that the trial court should not have given
the court a quo. The dispositive portion of the Court of Appeals
credence to the testimony of PO3 Bueno, appellant is basically
Decision states:
making an issue about a witnesss credibility. In this regard, we
WHEREFORE, the October 14, 2002 Decision reiterate the rule that appellate courts will generally not disturb
of the Regional Trial Court, Branch
factual findings of the trial court since the latter has the unique
71, Antipolo City, in Criminal Case No. 99-
16114, is hereby AFFIRMED.[13] opportunity to weigh conflicting testimonies, having heard the
witnesses themselves and observed their deportment and
manner of testifying.[24] Thus, unless attended with
In sustaining the trial court, the Court of Appeals found PO3
arbitrariness or plain disregard of pertinent facts or
Buenos testimony to be clear and unequivocal[14] and should
circumstances, the factual findings are accorded the highest
therefore prevail over appellants defense of denial.[15] The
degree of respect on appeal.[25] Our careful review of the
Court of Appeals likewise brushed aside appellants contention
records of this case reveals that the trial court did not err in
that he was a victim of frame-up as this defense has been
relying on the testimony of PO3 Bueno. In open court, PO3
viewed with disfavor and has become a standard line of
Bueno recounted their encounter with appellant as follows:
defense in most prosecutions arising from violations of the
Dangerous Drugs Act.[16] It also took note of appellants failure
PROS. LUNA:
to give any credible reason why the police singled him out
Thank you, your honor.
considering that they were strangers to one another prior to
the date of the incident.[17] Q: Mr. Witness, where were you assigned as
police officer sometime in the
month of March 1999?
WITNESS: Q: Where is this located?

A: At the Antipolo Police Station, sir. A: In Barangay San Roque fronting along the
highway in Antipolo City.
Q: Mr. Witness, do you know accused
Bernardo Tuazon? Q: Upon reaching that place what happened?

A: Yes, sir. A: When we arrived in the subdivision we

saw a Gemini car with plate number
Q: How did you come to know him? PFC 411, sir.

A: Because we arrested Bernardo Tuazon. Q: If a picture of that car would be shown to

you would you be able to identify it?
Q: If the accused in this case is present
before this Court, will you please A: Yes, sir.
point him out?
Q: I am showing to you a picture already
A: He is that person wearing yellow T-shirt. marked as Exhibit B,. B-1 and B-
2. What relation has this to the one
LEGAL RESEARCHER ACTING AS you mentioned?
INTERPRETER:
A: This is the car where the accused was
The witness is pointing to a male person then on board, sir.
inside the courtroom when
confronted give his name as Q: Upon seeing the car what did you do?
Bernardo Tuazon.
A: We immediately conduct a check point,
PROS. LUNA: sir.

Q: Do you recall where were you at Q: Specifically, what did you do?
about 12:10 in the morning
of March 7, 1999? A: We flagged down the vehicle, sir.

WITNESS: Q: What happened after flagging down the

car?
A: At the Antipolo Police Station, sir.
A: When we flagged down the vehicle, we
Q: What were you doing then at that time? identified ourselves as police
officers, sir.
A: We were doing our duty as police
investigator, sir. Q: What was the reaction of the driver of the
vehicle?
Q: Who were your companions at that time?
A: The driver opened the window and we
A: PO1 Manuel Padlan, and CA Ronald Naval, identified ourselves as members of
sir. the Antipolo City Police Station, sir.

Q: While performing your functions, do you Q: What was the reaction of the driver?
remember any unusual incident at
that time? A: When he opened the window, PO1 Padlan
saw a gun tucked on his waist.
A: One of our confidential agents gave an
information thru telephone, sir. Q: What did you do next? In your case what
did you do?
Q: About what?
A: We identified ourselves as policem[e]n.
A: About delivery of shabu of undetermined
amount in the area of Marville COURT:
Subdivision, Antipolo City, sir.
Q: Did you know what Padlan did?
Q: Do you know that person involved or who
is the person supposed to deliver an
undetermined amount of shabu? WITNESS:

A: The asset did not say who will deliver A: Yes, sir.
the shabu but he only said on the
telephone that the car is a Gemini Q: What did he do?
bearing plate number PFC 411 who
will deliver at said place. A: He questioned his gun and it turned out
that there is no pertinent document
Q: Upon receipt of said information what did for his gun.
you do next?
Q: What do you mean he was asked? Who
A: We informed our Chief of Police Major was asked?
Rene Quintana, sir.
A: The driver, Bernardo Tuazon, sir.
Q: What was the reaction of Major Quintana?
PROS. LUNA:
A: Our Chief of Police told us to do
surveillance in the area. Q: What was the reaction of Bernardo
Tuazon?
Q: What did you do next?
WITNESS:
A: We immediately recorded the dispatch
and we boarded a marked vehicle A: He said that the gun is not his.
and proceeded to the area in
Marville Subdivision, sir.
 Q: Upon hearing that the gun was not owned
by Bernardo Tuazon what did you
do as police officer?
A: I ordered him to get down from the car.
COURT:
Q: After he got down from the car, what
happened?
WITNESS:
A: I saw five (5) plastic bags on the drivers
seat.
Q: Upon seeing that plastic bag what did you
do?
A: I asked him the contents of that plastic
and he replied that it
contained shabu, sir.
Q: What did you do upon hearing the answer
of the accused?
A: We immediately brought him to the
headquarters together with the
evidence, sir.
Q: What did you do with the shabu?
A: We brought it to the PNP Crime
Laboratory for examination, sir.
Q: What was the result of the examination, if
you know?
A: It gave positive result to the tests for
methylamphetamine hydrochloride
sir.[26]
We agree with the Court of Appeals that the foregoing
testimony of PO3 Bueno establishes beyond reasonable doubt
appellants culpability. His testimony regarding
circumstances that occurred in the early hours of 7 March 1999
from the moment their office received a confidential tip from
their informer up to the time they accosted appellant deserved
to be given significance as it came from the mouth of a law
enforcement officer who enjoys the presumption of regularity
in the performance of his duty. Police officers are presumed to
have acted regularly in the performance of their official
functions in the absence of clear and convincing proof to the
contrary or that they were moved by ill-will.[27]
Appellants bare-faced defense of denial
surmount the positive and affirmative testimony offered by the
prosecution. It is well-settled that positive declarations of a
prosecution witness prevail over the bare denials of an
accused.[28] A defense of denial which is unsupported and
unsubstantiated by clear and convincing evidence becomes
negative and self-serving, deserving no weight in law and
cannot be given greater evidentiary value over convincing,
straightforward and probable testimony on affirmative
matters. [29]
Denial is an inherently weak defense which must
be supported by strong evidence of non-culpability to merit
credibility.[30]
We shall now resolve the issue raised by appellant
regarding the admissibility of the physical evidence presented
against him. No less than our Constitution recognizes the right
of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures. This right
is encapsulated in Article III, Section 2 of the Constitution
which states:
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.
Complementing this provision is the so-called exclusionary rule
embodied in Section 3(2) of the same article
(2) Any evidence obtained in violation of this
or the preceding section shall be inadmissible
for any purpose in any proceeding.
It is recognized, however, that these constitutional
provisions against warrantless searches and seizures admit of
certain exceptions, as follows: (1) warrantless search incidental
to a lawful arrest recognized under Section 12, Rule 126 of the
Rules of Court and by prevailing jurisprudence; (2) seizure of
evidence in plain view; (3) search of a moving vehicle; (4)
consented warrantless search; (5) customs search; (6) stop and
frisk; and (7) exigent and emergency circumstances.[31]
In the case of People v. Lo Ho Wing,[32] this Court had
the the occasion to elucidate on the rationale for the exemption of
searches of moving vehicles from the requirement of search
warrant, thus:
[T]he rules governing search and seizure have
over the years been steadily liberalized
whenever a moving vehicle is the object of the
search on the basis of practicality. This is so
considering that before a warrant could be
obtained, the place, things and persons to be
searched must be described to the satisfaction
of the issuing judge a requirement which
borders on the impossible in the case of
smuggling effected by the use of a moving
vehicle that can transport contraband from
one place to another with impunity. We might
cannot add that a warrantless search of a moving
vehicle is justified on the ground that it is not
practicable to secure a warrant because the
vehicle can be quickly moved out of the
locality or jurisdiction in which the warrant
must be sought.
Nevertheless, the exception from securing a search warrant
when it comes to moving vehicles does not give the police
authorities unbridled discretion to conduct a warrantless
search of an automobile. To do so would render the
aforementioned constitutional stipulations inutile and expose
the citizenry to indiscriminate police distrust which could
amount to outright harassment. Surely, the policy
consideration behind the exemption of search of moving
vehicles does not encompass such arbitrariness on the part of
the police authorities. In recognition of the possible abuse,
jurisprudence dictates that at all times, it is required that and distinctly the facts and the law on which it is
probable cause exist in order to justify the warrantless search based. [37]
Again, we disagree.
of a vehicle.[33]
Faithful adherence to the aforementioned
In Caballes v. Court of Appeals, [34]
the term probable cause constitutional provision is a vital component of due process and
was explained to mean fair play.[38] The rule takes an even more important
significance for the losing party who is entitled to know why he
[A] reasonable ground of suspicion
lost so that he may appeal to a higher court, if permitted,
supported by circumstances sufficiently
strong in themselves to warrant a cautious should he believe that the decision needs to be reversed. A
mans belief that the person accused is guilty
of the offense with which he is charged; or decision that does not clearly and distinctly state the facts and
the existence of such facts and the law on which it is based leaves the parties in the dark as
circumstances which could lead a reasonably
discreet and prudent man to believe that an to how it was reached and is especially prejudicial to the losing
offense has been committed and that the party, who is unable to pinpoint the possible errors of the court
items, articles or objects sought in
connection with said offense or subject to for review by a higher tribunal.[39]
seizure and destruction by law is in the place
to be searched. The required probable cause
that will justify a warrantless search and In this case, we find that the assailed decision of the
seizure is not determined by a fixed formula
trial court substantially complied with the requirements of the
but is resolved according to the facts of the
case. Constitution. The decision contained a summary of the facts of
the case as presented by the prosecution and by the
When a vehicle is flagged down and subjected to an extensive defense. It likewise contained an explanation as to why it found
search, such a warrantless search has been held to be valid as appellant guilty as charged. Admittedly, the decision is brief
long as the officers conducting the search have reasonable or but to our mind, it sufficiently informed appellant as regards
probable cause to believe prior to the search that they would the bases for his conviction. It readily informs appellant that
find the instrumentality or evidence pertaining to a crime, in the trial court disregarded his defense of bare denial in favor
the vehicle to be searched. [35]
of the presumption of regularity in the performance of duties
enjoyed by police officers.
In this case, we hold that the police had probable cause to
effect the warrantless search of the Gemini car driven by WHEREFORE, premises considered, the Decision of
appellant. A confidential informer tipped them off that said car the Court of Appeals in CA-G.R. CR-HC No. 01799 dated 31
was going to deliver shabu at Marville Subdivision. Pursuing July 2006, finding appellant Bernardo Tuazon y Nicolas guilty
said lead, the Antipolo City police sent a team to Marville beyond reasonable doubt of violation of Section 16, Article III
Subdivision to monitor said vehicle. The information provided of Republic Act No. 6425, as amended, is AFFIRMED. No
by the informer turned out to be correct as, indeed, the Gemini costs.
car was spotted in the place where it was said to be
SO ORDERED.
bringing shabu. When they stopped the car, they saw a gun
tucked in appellants waist. Appellant did not have any
document to support his possession of said firearm which all
the more strengthened the polices suspicion. After he was told
to step out of the car, they found on the drivers seat plastic
sachets containing white powdery substance. These
circumstances, taken together, are sufficient to establish
probable cause for the warrantless search of the Gemini car
and the eventual admission into evidence of the plastic packets
against appellant.

In any case, appellant failed to timely object to the

admissibility of the evidence against him on the ground that
the same was obtained through a warrantless search. His
failure amounts to a waiver of the objection on the legality of
the search and the admissibility of the evidence obtained by
the police. It was only proper for the trial court to admit said
evidence. [36]

Appellant also faults the trial court for its failure to

abide by the Constitutional requirement that (n)o decision shall
be rendered by any court without expressing therein clearly