LI LUI and LEO ROJAS, petitioners, vs. SPOUSES EULOGIO and PAULINA MATILLANO, respondents.

Sometime in September 1987, then seventeen-year-old Elenito Lariosa visited his aunt, his fathers older sister, Paulina Lariosa Matillano, at Lily Street, Poblacion Bansalan, Davao del Sur. On May 2, 1988, Lariosa was employed as a laborer at the Davao United Products Enterprise store, with a monthly salary of P800.00. The store was owned by Leong Shiu Ben and King Kiao and was located at the corner of Monteverde and Gempesaw Streets, Davao City. Lariosa was tasked to close the store during lunchtime and after store hours in the afternoon. Ben himself opened the store in the mornings and after lunchtime. Adjacent to the said store was another store owned by Kiaos son, Eli Lui, who also happened to be Bens nephew. Aside from Lariosa, Ben and Kiao employed Maximo Pagsa and Rene Malang. On October 17, 1988, Lariosa was taken ill and was permitted to take the day off. He went to the house of his aunt, Paulina Matillano, and her husband Eulogio Matillano in Bansalan City, where he rested until the next day, October 18, 1988. Lariosa reported for work the day after, or on October 19, 1988, but Kiao told him that his employment was terminated. Lariosa was not paid his salary for the month of October. Kiao warned Lariosa not to report the matter to the Department of Labor. Lariosa decided to return to Bansalan without retrieving his things from Kiaos house. On October 27, 1988, Lariosa returned to Davao City and was able to collect his backwages from Ben in the amount of P500.00. Lariosa withdrew his savings from the Mindanao Savings Bank in Bansalan City and on November 1, 1988, applied for a job at his cousins place, at Quimpo Boulevard, Davao City. He bought a radio cassette for P2,500.00 and a pair of Rayban sunglasses for P900.00. That day, Ben informed his nephew, Eli Lui, that he had lost P45,000.00 in cash at the store. Ben reported the matter to NBI Senior Agent Ruperto Galvez, and forthwith executed an affidavit wherein he alleged that after Lariosas employment was terminated on October 19, 1988, he discovered that he had lost P45,000.00 in cash. He suspected that Lariosa was the culprit because the latter, as a former employee, had a duplicate key to the side door of the United Products Enterprise Store. At 9:00 a.m. on November 6, 1988, a Sunday, Lariosa went to the house of Pagsa and Malang to retrieve his things. The two invited Lariosa to go with them to the beach, and when Lariosa agreed, they borrowed Luis Ford Fierra for their transportation. The vehicle stopped at the Almendras Hall where Pagsa alighted on the pretext that he was going to buy fish. Lariosa, Rene, and his wife remained in the Fierra. Pagsa contacted Lui and informed the latter that Lariosa was with him. After about an hour, Lui arrived on board a vehicle. With him were Pagsa and two others, Alan Mendoza and Henry Tan. Lui told Lariosa that he wanted to talk, and asked the latter to go with him. Pagsa urged Lariosa to go along with Lui. Lariosa agreed and boarded Luis vehicle. The car stopped in front of Luis house, where the latter alighted and went inside, while his companions and Lariosa remained in the car. When Lui returned, he was armed with a 9 mm. caliber gun and poked Lariosa with the weapon. He warned Lariosa not to run, otherwise, he would be killed. The group went to Bens house to get the keys to the store. Ben joined them as they drove towards the store. Lui mauled Lariosa and tried to force the latter to admit that he had stolen Bens money. Lariosa refused to do so. Lui then brought Lariosa to the comfort room of the store and pushed his face into the toilet bowl, in an attempt to force him into confessing to the crime. Lariosa still refused to admit to anything. Lui then made a telephone call to the Metrodiscom (PNP) based in Davao City. Sgt. Alberto Genise of the Metrodiscom (PNP) issued Mission Order No. MRF-A-004-88 dated November 6, 1988, directing Pat. Leo Rojas to follow up a theft case committed in Davao City from 12:30 p.m. to 5:00 p.m. Rojas was directed to coordinate with the nearest PNP headquarters and/or stations. He was authorized to carry his firearm for the mission. He then left the police station on board a police car and proceeded to the corner of Magsaysay and Gempesaw Streets. In the meantime, a police car arrived at the store with two policemen on board. One of them handcuffed Lariosa at gunpoint and ordered him to open the store with the use of the keys. As Lariosa opened the lock as ordered, one of Luis companions took his picture. Another picture was taken as Lariosa held the door knob to open the door. Lariosa was then boarded in the police car and brought to the corner of Magsaysay and Gemphesaw Streets where he was transferred to the police car driven by Rojas. He was brought to the Metrodiscom headquarters. Lui once more mauled Lariosa, still trying to force the latter to confess that he stole P45,000.00 from his uncle and to reveal what he did with the money. When a policeman asked him where he slept the night before, Lariosa replied that he spent the night in the house of his girlfriends parents at New Matina, Davao City. The policemen brought Lariosa there, where they asked Nancy if Lariosa had left anything while he slept thereat. Nancy replied that Lariosa had left a radio cassette and a pair of sunglasses. The policemen took these and brought Lariosa back to the Metrodiscom headquarters where Lui and his two companions were waiting. Lui asked Lariosa where he stayed when he went to Bansalan, and Lariosa replied that he used to stay in the house of his aunt and uncle, the Spouses Matillano, in Lily Street, Poblacion Bansalan. Rojas and Lui then brought Lariosa, with his hands still handcuffed, to a car. Luis companions, Alan Mendoza and Henry Tan boarded another car and proceeded to the Matillano residence.

Without prior coordination with the Bansalan PNP, Rojas, who was in civilian clothes, Lui, Tan and Mendoza arrived at the house of the Spouses Matillano at about 3:00 p.m, with the handcuffed Lariosa in tow. With handguns drawn, they kicked the door to the kitchen and gained entry into the house. They then proceeded to the sala where they found Lariosas aunt, Paulina Matillano. In the adjacent room were Julieta, Lariosas sister, Paulinas daughter-in-law, Virginia, the latters sister, Erlinda, and a seven-month-old baby. Paulina was shocked. Rojas told Paulina, Mrs., we are authorities. We are here to get something. Paulina remonstrated, Why are you meddling (manghilabot)? Lui poked his gun at Paulina and warned her not to talk anymore because something might happen. He then said, All right, where is your aparador because we are getting something. Paulina told Lui to wait for her husband Eulogio. Lui ignored her protest and told her that they were in a hurry. Paulina was then impelled to bring Lui and his two companions, Mendoza and Tan, to the second floor where her aparador was located. Rojas and the handcuffed Lariosa remained in the sala. Lui and his two companions then took two mats and two pairs of ladies shoes belonging to Paulina and Eulogio, two pairs of pants, leather shoes, two t-shirts and two polo shirts which belonged to the latters children. They also ordered Paulina to open a chest and when she did, Lui and his companions took her old Bulova wristwatch, necklace, ring and old coins. Lui and his two companions then went down to the ground floor. When Julieta went out of the room, one of Luis companions recognized her as Lariosas sister. Lui and his companions brought her along with them as they left the house. Paulina was so unnerved by the incident. Her vision blurred, her stomach ached and she was on the verge of losing consciousness. Concerned, Erlinda massaged Paulinas stomach. However, Erlinda had to leave because she was worried about her mother. Paulina then went to the kitchen, prepared hot water and put a soothing ointment on her stomach to relieve the pain. In the meantime, Lui and his companions proceeded to the Bansalan Police Station and caused an entry in the police blotter at 3:20 p.m. that he had recovered the following items from the Matillano residence -- one pair of colored blue pants valued at P89.00; one floor mat costing P290.00; a pair of black ladies shoes worth P126.00; and another pair of ladies shoes worth P69.00. At 4:30 p.m., Paulina reported to the barangay captain that persons identifying themselves as policemen had gained entry into their house and took the following: two polo shirts; two t-shirts; two pairs of pants; two floor mats; two pairs of ladies shoes; one Bulova wristwatch; one necklace; one ring; and old coins.1[3] At 7:35 p.m., Eulogio Matillano made an entry in the Bansalan police blotter that earlier that day, at 4:00 p.m., Rojas took the following from his house: two polo shirts; two t-shirts; 2 pairs of pants; two floor mats; two pairs of ladies shoes; 1 Bulova wristwatch; 1 necklace; one ring; and, old coins, without his and his wifes consent and without a search warrant.2[4] In the meantime, Doroteo Barawan, officer-in-charge of the Office of the Barangay Captain, filed a complaint against Kim Kiao, et al., based on the complaint of Paulina, docketed as Barangay Case No. 168.3[5] On November 8, 1988, Lariosa executed an uncounselled confession where he stated that he stole P40,000.00 on October 15, 1988 from the Davao United Products, and that he used part of the money to buy appliances, a Sony cassette tape-recorder, two pairs of ladies shoes, a Seiko wristwatch, two pairs of maong pants, Rayban sunglasses and floor mats.4[6] On November 16, 1988, an Information was filed in the Regional Trial Court of Davao City, charging Lariosa with robbery with force upon things. The case was docketed as Criminal Case No. 17,136,88.5[7] The trial court

rendered judgment on June 14, 1989, acquitting Lariosa of the crime charged on reasonable doubt. The trial court held that Lui procured Lariosas confession through force and intimidation, in connivance with police authorities.6[8] The trial court, likewise, found that Lui had an ulterior motive for charging Lariosa of robbery:

The Issues The issues in this case may be synthesized, thus: (a) whether or not respondent Paulina Matillano consented to the petitioners entry into her house, as well as to the taking of the clothes, shoes and pieces of jewelry owned by her and her family; (b) whether or not the petitioners are liable for damages to the respondents; and, (c) if so, the extent of the petitioners liability to the respondents. Considering that the assignments of errors are interrelated, this Court shall delve into and resolve them simultaneously. The Courts Ruling The petition has no merit. The petitioners aver that the Court of Appeals committed a reversible error in discarding the factual findings of the trial court. Contrary to the disquisitions of the appellate court, the petitioners assert that the inconsistencies between the testimonies of Rojas and Lui are peripheral. Lui did not conduct any search in the second floor of the respondents house and even if he did so, respondent Paulina Matillano waived her right against unreasonable search when she allowed the petitioners to enter. According to the petitioners, the respondents failed to prove that they forced their way into the house of the respondents, and that the facts and circumstances which the appellate court found the trial court to have overlooked are not, in fact, substantial enough to warrant a reversal of the factual findings of the court a quo. According to the petitioners, the appellate court failed to discern that the action filed by the respondents with the trial court was merely a leverage to the charge of robbery against Lariosa, the respondents nephew. We agree with the Court of Appeals. The evidence of the respondents show that the petitioners, Tan and Mendoza, guns drawn and with the handcuffed Lariosa in tow, kicked the kitchen door and barged into the house of the respondents. They proceeded to the sala where respondent Paulina Matillano was. Over her vehement protests, and because of petitioner Luis warning that she might be harmed, respondent Paulina Matillano was forced to accompany the petitioner and his cohorts to the second floor of their house. Although petitioner Rojas did not follow petitioner Lui and his cohorts to the second floor of the respondents house and himself conduct a search therein, he allowed them to search the premises without a warrant. The petitioners and their cohorts were not authorized to conduct a search in the house of the respondents, much less divest the latter of their personal belongings. As a police officer, it was petitioner Rojas duty to prevent the commission of crimes in his presence, and to arrest the persons committing such crimes. The trial court rejected the testimony of respondent Paulina Matillano on the following grounds: (a) she had known petitioner Lui for ten years as a businessman doing business in Bansalan; (b) the occupants of the respondents house when the petitioners and their cohorts arrived were all women; (c) the respondents failed to report the incident to the Bansalan police authorities; and, (d) the provincial prosecutors resolution recommending the dismissal of Criminal Case No. 880-B for robbery against the petitioners, which was sustained by the Secretary of Justice, and the ruling of the National Police Commission exonerating petitioner Rojas from any liability. The petitioners contention that respondent Paulina Matillano waived her right against unreasonable search and seizure deserves scant consideration. Under 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. This provision protects not only those who appear to be innocent but also those who appear to be guilty, who must nevertheless be presumed innocent until the contrary is proved.7[40] The general rule is that a search and seizure must be carried through or with judicial

warrant; otherwise, such a search and seizure becomes unconstitutional within the context of the constitutional provision8[41] because a warrantless search is in derogation of a constitutional right. Peace officers who effect a warrantless search cannot invoke regularity in the performance of official functions.9[42] The right against unreasonable searches and seizures is a personal right which may be waived expressly or impliedly. But a waiver by implication cannot be presumed.10[43] There must be clear and convincing evidence of an actual intention to relinquish the right to constitute a waiver of a constitutional right. There must be proof of the following: (a) that the right exists; (b) that the person involved had knowledge, either actual or constructive, of the existence of such right; and, (c) that the said person had an actual intention to relinquish the right.11[44] The waiver must be made voluntarily, knowingly and intelligently. The Court indulges every reasonable presumption against any waiver of fundamental constitutional rights.12[45] The fact that the aggrieved person did not object to the entry into her house by the police officers does not amount to a permission to make a search therein.13[46] A peaceful submission to search and seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law.14[47] In this case, the petitioners failed to prove, with clear and convincing evidence, that respondent Paulina Matillano waived her right against unreasonable search and seizure by consenting thereto, either expressly or impliedly. Admittedly, respondent Paulina Matillano did not object to the opening of her wooden closet and the taking of their personal properties. However, such failure to object or resist did not amount to an implied waiver of her right against unreasonable search and seizure. The petitioners were armed with handguns; petitioner Lui threatened and intimidated her. Respondent Eulogio Matillano, her husband, was out of the house when the petitioner and his cohorts conducted the search and seizure. He could, thus, not have waived his constitutional right. Furthermore, the petitioners claim that respondent Paulina Matillano voluntarily handed over the articles to petitioner Lui is incredible. There is no evidence that there was foreknowledge on the part of the petitioners of the articles they wanted to retrieve from the respondents house. Even if respondent Paulina Matillano did hand over the articles to the petitioner, it was only because the petitioner and his cohorts had earlier threatened and intimidated her into doing so.

We agree with the ruling of the Court of Appeals that the petitioners are liable to the respondents for moral and exemplary damages in the amounts respectively awarded by it. Petitioner Rojas, a policeman of Davao City, conspired with petitioner Lui and, with drawn guns, gained entry into the respondents house, and threatened and intimidated respondent Paulina Matillano. Although petitioner Rojas did not himself conduct the search, he assented thereto by allowing petitioner Lui and his cohorts to go up to the second floor and divest the respondents of their belongings. The petitioners even left together after the incident. JOSE ANTONIO C. LEVISTE, Petitioner, vs. HON. ELMO M. ALAMEDA, HON. RAUL M. GONZALEZ, HON. EMMANUEL Y. VELASCO, HEIRS OF THE LATE RAFAEL DE LAS ALAS, Respondents. FACTS: Petitioner was, by Information3 of January 16, 2007, charged with homicide for the death of Rafael de las Alas on January 12, 2007 before the Regional Trial Court (RTC) of Makati City. Branch 150 to which the case was raffled, presided by Judge Elmo Alameda, forthwith issued a commitment order4 against petitioner who was placed under police custody while confined at the Makati Medical Center.5 After petitioner posted a P40,000 cash bond which the trial court approved,6 he was released from detention, and his arraignment was set on January 24, 2007. petitioner filed an Urgent Ex-Parte Manifestation and Motion before the trial court to defer acting on the public prosecutors recommendation on the proper offense until after the appellate court resolves his application for injunctive reliefs, or alternatively, to grant him time to comment on the prosecutors recommendation and thereafter set a hearing for the judicial determination of probable cause.10 Petitioner also separately moved for the inhibition of Judge Alameda with prayer to defer action on the admission of the Amended Information.

The appellate court dismissed petitioners petition, hence, his present petition, arguing that: PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO CAUSE THE REINVESTIGATION OF THE CRIMINAL CASE BELOW WHEN THE CRIMINAL INFORMATION HAD ALREADY BEEN FILED WITH THE LOWER COURT. HENCE, THE COURT OF APPEALS COMMITTED A GRAVE ERROR IN FINDING THAT RESPONDENT JUDGE DID NOT ACT WITH GRAVE ABUSE OF DISCRETION IN GRANTING SUCH REINVESTIGATION DESPITE HAVING NO BASIS IN THE RULES OF COURT[;] RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION IN ADMITTING STATE PROSECUTOR VELASCOS AMENDED INFORMATION, ISSUING A WARRANT OF ARREST, AND SETTING THE CASE BELOW FOR ARRAIGNMENT, CONSIDERING THAT THE VALIDITY AND LEGALITY OF HIS ORDERS DATED 24 AND 31 JANUARY 2007, WHICH LED TO THE QUESTIONABLE REINVESTIGATION AND ILLEGAL AMENDED INFORMATION[,] ARE YET TO BE RESOLVED BY THIS HONORABLE COURT (sic); [AND] CONSIDERING THAT PROSECUTOR VELASCOS FINDINGS IN HIS RESOLUTION DATED 2 FEBRUARY 2007 ARE BLATANTLY BASED ON MERE SPECULATIONS AND CONJECTURES, WITHOUT ANY SUBSTANTIAL OR MATERIAL NEW EVIDENCE BEING ADDUCED DURING THE REINVESTIGATION, RESPONDENT JUDGE SHOULD HAVE AT LEAST ALLOWED PETITIONERS MOTION FOR A HEARING FOR JUDICIAL DETERMINATION OF PROBABLE CAUSE.

By applying for bail, petitioner did not waive his right to challenge the regularity of the reinvestigation of the charge against him, the validity of the admission of the Amended Information, and the legality of his arrest under the Amended Information, as he vigorously raised them prior to his arraignment. During the arraignment on March 21, 2007, petitioner refused to enter his plea since the issues he raised were still pending resolution by the appellate court, thus prompting the trial court to enter a plea of "not guilty" for him. The principle that the accused is precluded after arraignment from questioning the illegal arrest or the lack of or irregular preliminary investigation applies "only if he voluntarily enters his plea and participates during trial, without previously invoking his objections thereto."19 There must be clear and convincing proof that petitioner had an actual intention to relinquish his right to question the existence of probable cause. When the only proof of intention rests on what a party does, his act should be so manifestly consistent with, and indicative of, an intent to voluntarily and unequivocally relinquish the particular right that no other explanation of his conduct is possible.20 The judgment convicting petitioner of homicide under the Amended Information for murder operates as a supervening event that mooted the present petition. Assuming that there is ground25 to annul the finding of probable cause for murder, there is no practical use or value in abrogating the concluded proceedings and retrying the case under the original Information for homicide just to arrive, more likely or even definitely, at the same conviction of homicide. Mootness would have also set in had petitioner been convicted of murder, for proof beyond reasonable doubt, which is much higher than probable cause, would have been established in that instance.

Instead, however, of denying the petition outright on the ground of mootness, the Court proceeds to resolve the legal issues in order to formulate controlling principles to guide the bench, bar and public.26 In the present case, there is compelling reason to clarify the remedies available before and after the filing of an information in cases subject of inquest.

HELD From the given circumstances, the Court cannot reasonably infer a valid waiver on the part of petitioner to preclude him from obtaining a definite resolution of the objections he so timely invoked. Other than its allegation of active participation, the OSG offered no clear and convincing proof that petitioners participation in the trial was unconditional with the intent to voluntarily and unequivocally abandon his petition. In fact, on January 26, 2010, petitioner still moved for the early resolution of the present petition That the evidence of guilt was not strong as subsequently assessed in the bail hearings does not affect the prior determination of probable cause because, as the appellate court correctly stated, the standard of strong evidence of guilt which is sufficient to deny bail to an accused is markedly higher than the standard of judicial probable cause which is sufficient to initiate a criminal case.76 In his third assignment of error, petitioner faults the trial court for not conducting, at the very least, a hearing for judicial determination of probable cause, considering the lack of substantial or material new evidence adduced during the reinvestigation. Petitioners argument is specious.

There are two kinds of determination of probable cause: executive and judicial. The
executive determination of probable cause is one made during preliminary investigation. It is a function that properly pertains to the public prosecutor who is given a broad discretion to determine whether probable cause exists and to charge those whom he believes to have committed the crime as defined by law and thus should be held for trial. Otherwise stated, such official has the quasi-judicial authority to determine whether or not a criminal case must be filed in court. Whether that function has been correctly discharged by the public prosecutor, i.e., whether he has made a correct ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does not and may not be compelled to pass upon.77 The judicial determination of probable cause is one made by the judge to ascertain whether a warrant of arrest should be issued against the accused. The judge must satisfy himself that based on the evidence submitted, there is necessity for placing the accused under custody in order not to frustrate the ends of justice. If the judge finds no probable cause, the judge cannot be forced to issue the arrest warrant.78 Paragraph (a), Section 5,79 Rule 112 of the Rules of Court outlines the procedure to be followed by the RTC. To move the court to conduct a judicial determination of probable cause is a mere superfluity, for with or without such motion, the judge is duty-bound to personally evaluate the resolution of the public prosecutor and the supporting evidence. In fact, the task of the presiding judge when the Information is filed with the court is first and foremost to determine the existence or non-existence of probable cause for the arrest of the accused.80 What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. But the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall (1) personally evaluate the report and the supporting documents submitted by the prosecutor regarding the existence of probable cause, and on the basis thereof, he may already make a personal determination of the existence of probable cause; and (2) if he is not satisfied that probable cause exists, he may disregard the prosecutors report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.81 (emphasis and underscoring supplied) The rules do not require cases to be set for hearing to determine probable cause for the issuance of a warrant of arrest of the accused before any warrant may be issued.82 Petitioner thus cannot, as a matter of right, insist on a hearing for judicial determination of probable cause. Certainly, petitioner "cannot determine beforehand how cursory or exhaustive the [judge's] examination of the records should be [since t]he extent of the judges examination depends on the exercise of his sound discretion as the circumstances of the case require."83 In one case, the Court emphatically stated: The periods provided in the Revised Rules of Criminal Procedure are mandatory, and as such, the judge must determine the presence or absence of probable cause within such periods. The Sandiganbayans determination of probable cause is made ex parte and is summary in nature, not adversarial. The Judge should not be stymied and distracted from his determination of probable cause by needless motions for determination of probable cause filed by the accused.84 (emphasis and underscoring supplied) Petitioner proceeds to discuss at length evidentiary matters, arguing that no circumstances exist that would qualify the crime from homicide to murder.

The allegation of lack of substantial or material new evidence deserves no credence, because new pieces of evidence are not prerequisites for a valid conduct of reinvestigation. It is not material that no new matter or evidence was presented during the reinvestigation of the case. It should be stressed that reinvestigation, as the word itself implies, is merely a repeat investigation of the case. New matters or evidence are not prerequisites for a reinvestigation, which is simply a chance for the prosecutor to review and re-evaluate its findings and the evidence already submitted.85 Moreover, under Rule 45 of the Rules of Court, only questions of law may be raised in, and be subject of, a petition for review on certiorari since this Court is not a trier of facts. The Court cannot thus review the evidence adduced by the parties on the issue of the absence or presence of probable cause, as there exists no exceptional circumstances to warrant a factual review.86 In a petition for certiorari, like that filed by petitioner before the appellate court, the jurisdiction of the court is narrow in scope. It is limited to resolving only errors of jurisdiction.1avvphi1 It is not to stray at will and resolve questions and issues beyond its competence, such as an error of judgment.87 The courts duty in the pertinent case is confined to determining whether the executive and judicial determination of probable cause was done without or in excess of jurisdiction or with grave abuse of discretion. Although it is possible that error may be committed in the discharge of lawful functions, this does not render the act amenable to correction and annulment by the extraordinary remedy of certiorari, absent any showing of grave abuse of discretion amounting to excess of jurisdiction.88 WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 97761 are AFFIRMED.

TEODORO C. BORLONGAN, JR., CORAZON M. BEJASA, ARTURO E. MANUEL, JR., ERIC L. LEE, P. SIERVO H. DIZON, BENJAMIN DE LEON, DELFIN C. GONZALES, JR., and BEN YU LIM, JR., Petitioners, vs. MAGDALENO M. PEA and HON. MANUEL Q. LIMSIACO, JR., as Judge Designate of the Municipal Trial Court in Cities, Bago City, Respondents. Respondent Atty. Magdaleno M. Pea (Atty. Pea) instituted a civil case for recovery of agents compensation and expenses, damages, and attorneys fees2 against Urban Bank and herein petitioners, before the Regional Trial Court (RTC) of Negros Occidental, Bago City.. Atty. Pea anchored his claim for compensation on the Contract of Agency3 allegedly entered into with the petitioners, wherein the former undertook to perform such acts necessary to prevent any intruder and squatter from unlawfully occupying Urban Banks property located along Roxas Boulevard, Pasay City. Petitioners filed a Motion to Dismiss4 arguing that they never appointed the respondent as agent or counsel. Attached to the motion were the following documents: 1) a Letter5 dated 19 December 1994 signed by Herman Ponce and Julie Abad on behalf of Isabela Sugar Company, Inc. (ISCI), the original owner of the subject property; 2) an unsigned Letter6 dated 7 December 1994 addressed to Corazon Bejasa from Marilyn G. Ong; 3) a Letter7 dated 9 December 1994 addressed to Teodoro Borlongan, Jr. and signed by Marilyn G. Ong; and 4) a Memorandum8 dated 20 November 1994 from Enrique Montilla III. Said documents were presented in an attempt to show that the respondent was appointed as agent by ISCI and not by Urban Bank or by the petitioners. In view of the introduction of the above-mentioned documents, Atty. Pea filed his Complaint-Affidavit9 with the Office of the City Prosecutor, Bago City.10 He claimed that said documents were falsified because the alleged signatories did not actually affix their signatures, and the signatories were neither stockholders nor officers and employees of ISCI.11 Worse, petitioners introduced said documents as evidence before the RTC knowing that they were falsified. In a Resolution12 dated 24 September 1998, the City Prosecutor found probable cause for the indictment of petitioners for four (4) counts of the crime of Introducing Falsified Documents, penalized by the second paragraph of Article 172 of the Revised Penal Code. The City Prosecutor concluded that the documents were falsified because the alleged signatories untruthfully stated that ISCI was the principal of the respondent; that petitioners knew that the documents were falsified considering that the signatories were mere dummies; and that the documents formed part of the record of Civil Case No. 754 where they were used by petitioners as evidence in support of their motion to dismiss, and then adopted in their answer and in their Pre-Trial Brief.13 Subsequently, the corresponding Informations14 were filed with the MTCC, Bago City. The cases were docketed as Criminal Case Nos. 6683, 6684, 6685, and 6686. Thereafter, Judge Primitivo Blanca issued the warrants15 for the arrest of the petitioners. On 1 October 1998, petitioners filed an Omnibus Motion to Quash, Recall Warrants of Arrest and/or For Reinvestigation.16 Petitioners insisted that they were denied due process because of the non-observance of the proper procedure on preliminary investigation prescribed in the Rules of Court. Specifically, they claimed that they were not afforded the right to submit their counter-affidavit. Then they argued that since no such counteraffidavit and supporting documents were submitted by the petitioners, the trial judge merely relied on the complaint-affidavit and attachments of the respondent in issuing the warrants of arrest, also in contravention with the Rules of Court. Petitioners further prayed that the information be quashed for lack of probable cause. Moreover, one of the accused, i.e., Ben Lim, Jr., is not even a director of Urban Bank, contrary to what

complainant stated. Lastly, petitioners posited that the criminal cases should have been suspended on the ground that the issue being threshed out in the civil case is a prejudicial question. In an Order17 dated 13 November 1998, the MTCC denied the omnibus motion primarily on the ground that preliminary investigation was not available in the instant case

HELD:
Petitioners were charged with violation of par. 2, Article 172 of the Revised Penal Code or Introduction of Falsified Document in a judicial proceeding. The elements of the offense are as follows: 1. That the offender knew that a document was falsified by another person. 2. That the false document is embraced in Article 171 or in any subdivisions Nos. 1 or 2 of Article 172. 3. That he introduced said document in evidence in any judicial proceeding.49 The falsity of the document and the defendants knowledge of its falsity are essential elements of the offense. The Office of the City Prosecutor filed the Informations against the petitioners on the basis of the ComplaintAffidavit of respondent Atty. Pea, attached to which were the documents contained in the Motion to Dismiss filed by the petitioners in Civil Case No. 754. Also included as attachments to the complaint were the Answers, Pre-Trial Brief, the alleged falsified documents, copy of the regular meetings of ISCI during the election of the Board of Directors and the list of ISCI Stockholders.50 Based on these documents and the complaint-affidavit of Atty. Pea, the City Prosecutor concluded that probable cause for the prosecution of the charges existed. On the strength of the same documents, the trial court issued the warrants of arrest. This Court, however, cannot find these documents sufficient to support the existence of probable cause. Probable cause is such set of facts and circumstances as would lead a reasonably discreet and prudent man to believe that the offense charged in the Information or any offense included therein has been committed by the person sought to be arrested. In determining probable cause, the average man weighs the facts and circumstances without restoring to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused. Probable cause demands more than suspicion; it requires less than evidence that would justify conviction.51 As enunciated in Baltazar v. People,52 the task of the presiding judge when the Information is filed with the court is first and foremost to determine the existence or non-existence of probable cause for the arrest of the accused. The purpose of the mandate of the judge to first determine probable cause for the arrest of the accused is to insulate from the very start those falsely charged with crimes from the tribulations, expenses and anxiety of a public trial.53 We do not see how it can be concluded that the documents mentioned by respondent in his complaint-affidavit were falsified. In his complaint, Atty. Pea stated that Herman Ponce, Julie Abad and Marilyn Ong, the alleged signatories of the questioned letters, did not actually affix their signatures therein; and that they were not actually officers or stockholders of ISCI.54 He further claimed that Enrique Montillas signature appearing in another memorandum addressed to respondent was forged.55 These averments are mere assertions which are insufficient to warrant the filing of the complaint or worse the issuance of warrants of arrest. These averments cannot be considered as proceeding from the personal knowledge of herein respondent who failed to, basically, allege that he was present at the time of the execution of the documents. Neither was there any mention in the complaint-affidavit that herein respondent was familiar with the signatures of the mentioned signatories to be able to conclude that they were forged. What Atty. Pea actually stated were but sweeping assertions that the signatories are mere dummies of ISCI and that they are not in fact officers, stockholders or representatives of the corporation. Again, there is no indication that the assertion was based on the personal knowledge of the affiant. The reason for the requirement that affidavits must be based on personal knowledge is to guard against hearsay evidence. A witness, therefore, may not testify as what he merely learned from others either because he was told or read or heard the same. Such testimony is considered hearsay and may not be received as proof of the truth of what he has learned.56 Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as evidence applies to written, as well as oral statements.57 The requirement of personal knowledge should have been strictly applied considering that herein petitioners were not given the opportunity to rebut the complainants allegation through counter-affidavits. Quite noticeable is the fact that in the letter dated 19 December 1994 of Herman Ponce and Julie Abad, neither of the two made the representation that they were the president or secretary of ISCI. It was only Atty. Pea who asserted that the two made such representation. He alleged that Marilyn Ong was never a stockholder of ISCI but he did not present the stock and transfer book of ISCI. And, there was neither allegation nor proof that Marilyn

Ong was not connected to ISCI in any other way.lawphil Moreover, even if Marilyn Ong was not a stockholder of ISCI, such would not prove that the documents she signed were falsified. The Court may not be compelled to pass upon the correctness of the exercise of the public prosecutors function without any showing of grave abuse of discretion or manifest error in his findings.58 Considering, however, that the prosecution and the court a quo committed manifest errors in their findings of probable cause, this Court therefore annuls their findings. Our pronouncement in Jimenez v. Jimenez59 as reiterated in Baltazar v. People is apropos: It is x x x imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reasons. The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by visualizing and not denigrating constitutional rights. So it has been before. It should continue to be so. On the foregoing discussion, we find that the Court of Appeals erred in affirming the findings of the prosecutor as well as the court a quo as to the existence of probable cause. The criminal complaint against the petitioners should be dismissed. WHEREFORE, the petition is hereby GRANTED. The Decision of the Court of Appeals dated 20 June 2000, in CA-G.R. SP No. 49666, is REVERSED and SET ASIDE. The Temporary Restraining Order dated 2 August 2000 is hereby made permanent. Accordingly, the Municipal Trial Court in Cities, Negros Occidental, Bago City, is hereby DIRECTED to DISMISS Criminal Case Nos. 6683, 6684, 6685 and 6686.

PEOPLE VS. CA, 291 SCRA 400

Narvasa, CJ In applying for a search warrant, the police officers had in their mind the first four (4) separate apartment units at the rear of ABIGAIL VARIETY STORE in Quezon City to be the subject of their search. The same was not, however, what the Judge who issued the warrant had in mind, AND WAS NOT WHAT WAS ULTIMATELY DESCRIBED IN THE SEARCH WARRANT. As such, any evidence obtained from the place searched which is different from that indicated in the search warrant is inadmissible in evidence for any purpose and in any proceeding. This is so because it is neither licit nor fair to allow police officers to search a place different from that stated in the warrant on the claim that the place actually searchedalthough not that specified in the search warrantis exactly what they had in view when they applied for the warrant and had demarcated in their supporting evidence. WHAT IS MATERIAL IN DETERMINING THE VALIDITY OF A SEARCH IS THE PLACE STATED IN THE WARRANT ITSELF, NOT WHAT THE APPLICANTS HAD IN THEIR THOUGHTS, OR HAD REPRESENTED IN THE PROOFS THEY SUBMITTED TO THE COURT ISSUING THE WARRANT. As such, it was not just a case of obvious typographical error, but a clear case of a search of a place different from that clearly and without ambiguity identified in the search warrant. NOTE: Very Important: Where a search warrant is issued by one court and the criminal action base don the results of the search is afterwards commenced in another court, IT IS NOT THE RULE THAT A MOTION TO QUASH THE WARRANT (or to retrieve the things seized) MAY BE FILED ONLY IN THE ISSUING COURTSUCH A MOTION MAY BE FILED FOR THE FIRST TIME IN EITHER THE ISSUING COURT OR THAT IN WHICH THE CRIMINAL PROCEEDING IS PENDING. d. Validity of a warrantless search and seizure as a result of an informers tip. Note the two (2) conflicting decisions of the Supreme Court.

PEOPLE VS. ARUTA, 288 SCRA 626

On December 13, 1988, P/Lt. Abello of the Olongapo PNP was tipped off by an informer that Aling Rosa would be arriving from Baguio City the following day with a large volume of marijuana. As a result of the tip, the policemen waited for a Victory Bus from Baguio City near the PNB Olongapo, near Rizal Ave. When the accused got off, she was pointed to by the informer. She was carrying a traveling bag at that time. She was not acting suspiciously. She was arrested without a warrant. The bag allegedly contained 8.5 kilos of marijuana. After trial, she was convicted and imposed a penalty of life imprisonment. Issue:

Whether or not the marijuana allegedly taken from the accused is admissible in evidence. Held: Warrantless search is allowed in the following instances: 1. 2. 3. 4. 5. 6. customs searches; searches of moving vehicle; seizure of evidence in plain view; consented searches; search incidental to a lawful arrest; and stop and frisk measures.

The above exceptions to the requirement of a search warrant, however, should not become unbridled licenses for law enforcement officers to trample upon the conditionally guaranteed and more fundamental right of persons against unreasonable search and seizures. The essential requisite of probable cause must still be satisfied before a warrantless search and seizure can be lawfully conducted. In order that the information received by the police officers may be sufficient to be the basis of probable cause, it must be based on reasonable ground of suspicion or belief a crime has been committed or is about to be committed. The marijuana obtained reasons: a. b. c. d. as a result of a warrantless search is inadmissible as evidence for the following

the policemen had sufficient time to apply for a search warrant the accused was not acting suspiciously;

but they failed to do so;

the accuseds identity was previously ascertained so applying for a warrant should have been easy; the accused in this case was searched while innocently crossing a street

Consequently, there was no legal basis for the police to effect a warrantless search of the accuseds bag, there being no probable cause and the accuseds not having been legally arrested. The arrest was made only after the accused was pointed to by the informant at a time when she was not doing anything suspicious. The arresting officers do not have personal knowledge that the accused was committing a crime at that time. Since there was no valid warrantless arrest, it logically follows that the subsequent search is similarly illegal, it being not incidental to a lawful arrest. This is so because if a search is first undertaken, and an arrest effected based on the evidence produced by the search, both such search and arrest would be unlawful, for being contrary to law. This case is similar tot he case of PEOPLE VS. AMINNUDIN, and PEOPLE VS. ENCINADA.

PEOPLE VS. MONTILLA, 284 SCRA 703

On June 19, 1994, at about 2 p.m., SPO1 Talingting and SPO1 Clarin of the Dasmarinas, Cavite PNP were informed by an INFORMER that a drug courier would be arriving in Barangay Salitran, Dasmarinas, Cavite, from Baguio City, with an undetermined amount of marijuana. The informer likewise informed them that he could recognize said person. At about 4 in the morning of June 20, 1994, the appellant was arrested by the above-named police officers while alighting from a passenger jeepney near a waiting shed in Salitran, Dasmarinas, Cavite, upon being pointed to by the informer. The policemen recovered 28 kilos of dried marijuana leaves. The arrest was without warrant. The trial court convicted the appellant for transporting marijuana based on the testimonies of the Above-named police officers without presenting the alleged informer. Issue: Was the warrantless arrest valid?

Held: The accused claims that the warrantless search and seizure is illegal because the alleged information was received by the police on June 19, 1994 and therefore, they could have applied for a search warrant. The said contention is without merit considering that the information given by the informer is too sketchy and not detailed enough for the obtention of the corresponding arrest or search warrant. While there is indication that the informer knows the courier, the records do not show that he knew his name. On bare information, the police could not have secured a warrant from a judge. Furthermore, warrantless search is allowed in the following instances: 1. 2. 3. 4. 5. 6. customs searches; searches of moving vehicle; seizure of evidence in plain view; consented searches; search incidental to a lawful arrest; and stop and frisk measures.

Since the accused was arrested for transporting marijuana, the subsequent search on his person is justified. An arresting officer has the right to validly search and seize from the offender (1) dangerous weapons; and (2) those that may be used as proof of the commission of the offense. In the case at bar, upon being pointed to by the informer as the drug courier, the policemen requested the accused to open and show them the contents of his bag and the cartoon he was carrying and he voluntarily opened the same and upon cursory inspection, it was found out that it contains marijuana. Hence the arrest. The accused insists that it is normal for a person traveling with a bag and cartoon which should not elicit the slightest suspicion that he was committing a crime. In short, there was no probable cause for these policemen to think that he was committing a crime. The said contention was considered without merit by the Supreme Court considering the fact that he consented to the search as well as the fact that the informer was a reliable one who had supplied similar information to the police in the past which proved positive. (NOTE: The SC held that the non-presentation of the informer does not affect the case for the prosecution because he is not even the best witness. He is merely a corroborative witness to the arresting officers. ) JUSTICE PANGANIBAN: To say that reliable tips from informers constitute probable cause for a warrantless arrest or search IS A DANGEROUS PRECEDENT AND PLACES IN GREAT JEOPARDY THE DOCTRINES LAID DOWN IN MANY DECISIONS MADE BY THIS COURT. (PEOPLE VS. BURGOS, 144 SCRA 1; PEOPLE VS. AMINNUDIN, 163 SCRA 402; PEOPLE VS. ENCINADA, October 2, 1997; PEOPLE VS. MENGOTE, 220 SCRA). The case is similar to the case of People vs. Encimada where the appellant was searched without a warrant while disembarking from a ship on the strength of a tip from an informer received by the police the previous afternoon that the appellant would be transporting prohibited drugs. The search yielded a plastic package containing marijuana. On Appeal, the SC reversed the decision of conviction and held that Encinada did not manifest any suspicious behavior that would necessarily and reasonably invite the attention of the police.

PEOPLE OF THE PHILIPPINES, Appellee, vs. JACK RACHO y RAQUERO, Appellant.

D E C I S I O N NACHURA, J.: On appeal is the Court of Appeals (CA) Decision1 dated May 22, 2008 in CA-G.R. CR-H.C. No. 00425 affirming the Regional Trial Court2 (RTC) Joint Decision3 dated July 8, 2004 finding appellant Jack Racho y Raquero guilty beyond reasonable doubt of Violation of Section 5, Article II of Republic Act (R.A.) No. 9165.

The case stemmed from the following facts: On May 19, 2003, a confidential agent of the police transacted through cellular phone with appellant for the purchase of shabu. The agent later reported the transaction to the police authorities who immediately formed a team composed of member of the Philippine Drug Enforcement Agency (PDEA), the Intelligence group of the Philippine Army and the local police force to apprehend the appellant.4 The agent gave the police appellants name, together with his physical description. He also assured them that appellant would arrive in Baler, Aurora the following day. On May 20, 2003, at 11:00 a.m., appellant called up the agent and informed him that he was on board a Genesis bus and would arrive in Baler, Aurora, anytime of the day wearing a red and white striped T-shirt. The team members then posted themselves along the national highway in Baler, Aurora. At around 3:00 p.m. of the same day, a Genesis bus arrived in Baler. When appellant alighted from the bus, the confidential agent pointed to him as the person he transacted with earlier. Having alighted from the bus, appellant stood near the highway and waited for a tricycle that would bring him to his final destination. As appellant was about to board a tricycle, the team approached him and invited him to the police station on suspicion of carrying shabu. Appellant immediately denied the accusation, but as he pulled out his hands from his pants pocket, a white envelope slipped therefrom which, when opened, yielded a small sachet containing the suspected drug.5 The team then brought appellant to the police station for investigation. The confiscated specimen was turned over to Police Inspector Rogelio Sarenas De Vera who marked it with his initials and with appellants name. The field test and laboratory examinations on the contents of the confiscated sachet yielded positive results for methamphetamine hydrochloride.6 Appellant was charged in two separate Informations, one for violation of Section 5 of R.A. 9165, for transporting or delivering; and the second, of Section 11 of the same law for possessing, dangerous drugs, the accusatory portions of which read: "That at about 3:00 oclock (sic) in the afternoon on May 20, 2003 in Baler, Aurora and within the jurisdiction of this Honorable Court, the said accused, did then and there, unlawfully, feloniously and willfully have in his possession five point zero one (5.01) [or 4.54] grams of Methamphetamine Hydrochloride commonly known as "Shabu", a regulated drug without any permit or license from the proper authorities to possess the same. CONTRARY TO LAW."7 "That at about 3:00 oclock (sic) in the afternoon on May 20, 2003 in Baler, Aurora, the said accused did then and there, unlawfully, feloniously and willfully transporting or delivering dangerous drug of 5.01 [or 4.54] grams of shabu without any permit or license from the proper authorities to transport the same. CONTRARY TO LAW."8 During the arraignment, appellant pleaded "Not Guilty" to both charges. At the trial, appellant denied liability and claimed that he went to Baler, Aurora to visit his brother to inform him about their ailing father. He maintained that the charges against him were false and that no shabu was taken from him. As to the circumstances of his arrest, he explained that the police officers, through their van, blocked the tricycle he was riding in; forced him to alight; brought him to Sea Breeze Lodge; stripped his clothes and underwear; then brought him to the police station for investigation.9 On July 8, 2004, the RTC rendered a Joint Judgment10 convicting appellant of Violation of Section 5, Article II, R.A. 9165 and sentencing him to suffer the penalty of life imprisonment and to pay a fine of P500,000.00; but acquitted him of the charge of Violation of Section 11, Article II, R.A. 9165. On appeal, the CA affirmed the RTC decision.11 Hence, the present appeal. In his brief,12 appellant attacks the credibility of the witnesses for the prosecution. He likewise avers that the prosecution failed to establish the identity of the confiscated drug because of the teams failure to mark the specimen immediately after seizure. In his supplemental brief, appellant assails, for the first time, the legality of his arrest and the validity of the subsequent warrantless search. He questions the admissibility of the confiscated sachet on the ground that it was the fruit of the poisonous tree. The appeal is meritorious. We have repeatedly held that the trial courts evaluation of the credibility of witnesses and their testimonies is entitled to great respect and will not be disturbed on appeal. However, this is not a hard and fast rule. We have reviewed such factual findings when there is a showing that the trial judge overlooked, misunderstood, or misapplied some fact or circumstance of weight and substance that would have affected the case.13

Appellant focuses his appeal on the validity of his arrest and the search and seizure of the sachet of shabu and, consequently, the admissibility of the sachet. It is noteworthy that although the circumstances of his arrest were briefly discussed by the RTC, the validity of the arrest and search and the admissibility of the evidence against appellant were not squarely raised by the latter and thus, were not ruled upon by the trial and appellate courts. It is well-settled that an appeal in a criminal case opens the whole case for review.1avvphi1 This Court is clothed with ample authority to review matters, even those not raised on appeal, if we find them necessary in arriving at a just disposition of the case. Every circumstance in favor of the accused shall be considered. This is in keeping with the constitutional mandate that every accused shall be presumed innocent unless his guilt is proven beyond reasonable doubt.14 After a thorough review of the records of the case and for reasons that will be discussed below, we find that appellant can no longer question the validity of his arrest, but the sachet of shabu seized from him during the warrantless search is inadmissible in evidence against him. The records show that appellant never objected to the irregularity of his arrest before his arraignment. In fact, this is the first time that he raises the issue. Considering this lapse, coupled with his active participation in the trial of the case, we must abide with jurisprudence which dictates that appellant, having voluntarily submitted to the jurisdiction of the trial court, is deemed to have waived his right to question the validity of his arrest, thus curing whatever defect may have attended his arrest. The legality of the arrest affects only the jurisdiction of the court over his person. Appellants warrantless arrest therefore cannot, in itself, be the basis of his acquittal. 15 As to the admissibility of the seized drug in evidence, it is necessary for us to ascertain whether or not the search which yielded the alleged contraband was lawful.16 The 1987 Constitution states that a search and consequent seizure must be carried out with a judicial warrant; otherwise, it becomes unreasonable and any evidence obtained therefrom shall be inadmissible for any purpose in any proceeding.17 Said proscription, however, admits of exceptions, namely: 1. Warrantless search incidental to a lawful arrest; 2. Search 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.18 What constitutes a reasonable or unreasonable warrantless search or seizure is purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured.19 The RTC concluded that appellant was caught in flagrante delicto, declaring that he was caught in the act of actually committing a crime or attempting to commit a crime in the presence of the apprehending officers as he arrived in Baler, Aurora bringing with him a sachet of shabu.20 Consequently, the warrantless search was considered valid as it was deemed an incident to the lawful arrest. Recent jurisprudence holds that in searches incident to a lawful arrest, the arrest must precede the search; generally, the process cannot be reversed. Nevertheless, a search substantially contemporaneous with an arrest can precede the arrest if the police have probable cause to make the arrest at the outset of the search.21 Thus, given the factual milieu of the case, we have to determine whether the police officers had probable cause to arrest appellant. Although probable cause eludes exact and concrete definition, it ordinarily signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person accused is guilty of the offense with which he is charged.22 The determination of the existence or absence of probable cause necessitates a reexamination of the established facts. On May 19, 2003, a confidential agent of the police transacted through cellular phone with appellant for the purchase of shabu. The agent reported the transaction to the police authorities who immediately formed a team to apprehend the appellant. On May 20, 2003, at 11:00 a.m., appellant called up the agent with the information that he was on board a Genesis bus and would arrive in Baler, Aurora anytime of the day wearing a red and white striped T-shirt. The team members posted themselves along the national highway in Baler, Aurora, and at around 3:00 p.m. of the same day, a Genesis bus arrived in Baler. When appellant alighted from the bus,

the confidential agent pointed to him as the person he transacted with, and when the latter was about to board a tricycle, the team approached him and invited him to the police station as he was suspected of carrying shabu. When he pulled out his hands from his pants pocket, a white envelope slipped therefrom which, when opened, yielded a small sachet containing the suspected drug.23 The team then brought appellant to the police station for investigation and the confiscated specimen was marked in the presence of appellant. The field test and laboratory examinations on the contents of the confiscated sachet yielded positive results for methamphetamine hydrochloride. Clearly, what prompted the police to apprehend appellant, even without a warrant, was the tip given by the informant that appellant would arrive in Baler, Aurora carrying shabu. This circumstance gives rise to another question: whether that information, by itself, is sufficient probable cause to effect a valid warrantless arrest. The long standing rule in this jurisdiction is that "reliable information" alone is not sufficient to justify a warrantless arrest. The rule requires, in addition, that the accused perform some overt act that would indicate that he has committed, is actually committing, or is attempting to commit an offense.24 We find no cogent reason to depart from this well-established doctrine. The instant case is similar to People v. Aruta,25 People v. Tudtud,26 and People v. Nuevas.27 In People v. Aruta, a police officer was tipped off by his informant that a certain "Aling Rosa" would be arriving from Baguio City the following day with a large volume of marijuana. Acting on said tip, the police assembled a team and deployed themselves near the Philippine National Bank (PNB) in Olongapo City. While thus positioned, a Victory Liner Bus stopped in front of the PNB building where two females and a man got off. The informant then pointed to the team members the woman, "Aling Rosa," who was then carrying a traveling bag. Thereafter, the team approached her and introduced themselves. When asked about the contents of her bag, she handed it to the apprehending officers. Upon inspection, the bag was found to contain dried marijuana leaves.28 The facts in People v. Tudtud show that in July and August, 1999, the Toril Police Station, Davao City, received a report from a civilian asset that the neighbors of a certain Noel Tudtud (Tudtud) were complaining that the latter was responsible for the proliferation of marijuana in the area. Reacting to the report, the Intelligence Section conducted surveillance. For five days, they gathered information and learned that Tudtud was involved in illegal drugs. On August 1, 1999, the civilian asset informed the police that Tudtud had headed to Cotabato and would be back later that day with a new stock of marijuana. At around 4:00 p.m. that same day, a team of police officers posted themselves to await Tudtuds arrival. At 8:00 p.m., two men disembarked from a bus and helped each other carry a carton. The police officers approached the suspects and asked if they could see the contents of the box which yielded marijuana leaves.29 In People v. Nuevas, the police officers received information that a certain male person, more or less 54" in height, 25 to 30 years old, with a tattoo mark on the upper right hand, and usually wearing a sando and maong pants, would make a delivery of marijuana leaves. While conducting stationary surveillance and monitoring of illegal drug trafficking, they saw the accused who fit the description, carrying a plastic bag. The police accosted the accused and informed him that they were police officers. Upon inspection of the plastic bag carried by the accused, the bag contained marijuana dried leaves and bricks wrapped in a blue cloth. In his bid to escape charges, the accused disclosed where two other male persons would make a delivery of marijuana leaves. Upon seeing the two male persons, later identified as Reynaldo Din and Fernando Inocencio, the police approached them, introduced themselves as police officers, then inspected the bag they were carrying. Upon inspection, the contents of the bag turned out to be marijuana leaves.30 In all of these cases, we refused to validate the warrantless search precisely because there was no adequate probable cause. We required the showing of some overt act indicative of the criminal design. As in the above cases, appellant herein was not committing a crime in the presence of the police officers. Neither did the arresting officers have personal knowledge of facts indicating that the person to be arrested had committed, was committing, or about to commit an offense. At the time of the arrest, appellant had just alighted from the Gemini bus and was waiting for a tricycle. Appellant was not acting in any suspicious manner that would engender a reasonable ground for the police officers to suspect and conclude that he was committing or intending to commit a crime. Were it not for the information given by the informant, appellant would not have been apprehended and no search would have been made, and consequently, the sachet of shabu would not have been confiscated. We are not unaware of another set of jurisprudence that deems "reliable information" sufficient to justify a search incident to a lawful warrantless arrest. As cited in People v. Tudtud, these include People v. Maspil, Jr.,31 People v. Bagista,32 People v. Balingan,33 People v. Lising,34 People v. Montilla,35 People v. Valdez,36 and People v. Gonzales.37 In these cases, the Court sustained the validity of the warrantless searches notwithstanding the absence of overt acts or suspicious circumstances that would indicate that the accused had committed, was actually committing, or attempting to commit a crime. But as aptly observed by the Court, except in Valdez and Gonzales, they were covered by the other exceptions to the rule against warrantless searches.38 Neither were the arresting officers impelled by any urgency that would allow them to do away with the requisite warrant. As testified to by Police Officer 1 Aurelio Iniwan, a member of the arresting team, their office received the "tipped information" on May 19, 2003. They likewise learned from the informant not only the

appellants physical description but also his name. Although it was not certain that appellant would arrive on the same day (May 19), there was an assurance that he would be there the following day (May 20). Clearly, the police had ample opportunity to apply for a warrant.39 Obviously, this is an instance of seizure of the "fruit of the poisonous tree," hence, the confiscated item is inadmissible in evidence consonant with Article III, Section 3(2) of the 1987 Constitution, "any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding." Without the confiscated shabu, appellants conviction cannot be sustained based on the remaining evidence. Thus, an acquittal is warranted, despite the waiver of appellant of his right to question the illegality of his arrest by entering a plea and his active participation in the trial of the case. As earlier mentioned, the legality of an arrest affects only the jurisdiction of the court over the person of the accused. A waiver of an illegal, warrantless arrest does not carry with it a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest.40 One final note. As clearly stated in People v. Nuevas,41 x x x In the final analysis, we in the administration of justice would have no right to expect ordinary people to be law-abiding if we do not insist on the full protection of their rights. Some lawmen, prosecutors and judges may still tend to gloss over an illegal search and seizure as long as the law enforcers show the alleged evidence of the crime regardless of the methods by which they were obtained. This kind of attitude condones lawbreaking in the name of law enforcement. Ironically, it only fosters the more rapid breakdown of our system of justice, and the eventual denigration of society. While this Court appreciates and encourages the efforts of law enforcers to uphold the law and to preserve the peace and security of society, we nevertheless admonish them to act with deliberate care and within the parameters set by the Constitution and the law. Truly, the end never justifies the means.42 WHEREFORE, premises considered, the Court of Appeals Decision dated May 22, 2008 in CA-G.R. CR-H.C. No. 00425 is REVERSED and SET ASIDE. Appellant Jack Raquero Racho is ACQUITTED for insufficiency of evidence. The Director of the Bureau of Corrections is directed to cause the immediate release of appellant, unless the latter is being lawfully held for another cause; and to inform the Court of the date of his release, or the reasons for his confinement, within ten (10) days from notice.

ELI LUI, ET AL. VS. MATILLANO, May 27, 2004

Right against unreasonable searches and seizures; Mission Order does not authorize an illegal search. Waiver of the right against an unreasonable search and seizure. In search of the allegedly missing amount of P45,000.00 owned by the employer, the residence of a relative of the suspect was forcibly open by the authorities by kicking the kitchen door to gain entry into the house. Thereafter, they confiscated different personal properties therein which were allegedly part of those stolen from the employer. They were in possession of a mission order but later on claimed that the owner of the house gave his consent to the warrantless search. Are the things admissible in evidence? Can they be sued for damages as a result of the said warrantless search and seizure? Held: The right against unreasonable searches and seizures is a personal right which may be waived expressly or impliedly. BUT A WAIVER BY IMPLICATION CANNOT BE PRESUMED. There must be clear and convincing evidence of an actual intention to relinquish the right. There must be proof of the following: a. b. right; c. that the right exists; that the person involved had knowledge, either constructive or actual, of the existence of said

that the said person had an actual intention to relinquish the right.

Finally, the waiver must be made voluntarily, knowingly and intelligently in order that the said is to be valid. The search was therefore held illegal and the members of the searching party held liable for damages in accordance with the doctrine laid down in Lim vs. Ponce de Leon and MHP Garments vs. CA. e. General or roving warrants

Read: 1. Stonehill vs. Diokno,June 19,1967

Concepcion, C.J. The petitioners are questioning the validity of a total of 42 search warrants issued on different dates against them and the corporations in which they are officers, directing the peace officer to search the persons abovenamed and/or the premises of their offices, warehouses and to seize and take possession of the following personal property, to wit: Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals, typewriters and other documents or papers showing all business transactions including disbursement receipts, balance sheets and profit and loss statements since they are the subject of the offense of violating the CENTRAL BANK LAWS, TARIFF AND CUSTOMS LAWS, INTERNAL REVENUE CODE AND THE REVISED PENAL CODE. The petitioners claim that the search warrants are void being violative of the Constitutional provision on search and seizure on the ground that: a. The search warrants did not particularly describe the documents, books and things to be seized; b. cash money not mentioned in the warrant were actually seized; c. The warrants were issued to fish evidence in the deportation cases against them; d. the searches and seizures were made in an illegal manner; e. the things seized were not delivered to the court to be disposed of in a manner provided for by law. Issue: Were the searches and seizures made in the offices and residences of the petitioners valid? a. As to the searches made on their offices, they could not question the same in their personal capacities because the corporations have a personality separate and distinct with its officers. An objection to an unlawful search and seizure IS PURELY PERSONAL AND CANNOT BE AVAILED OF BY THIRD PARTIES. CONSEQUENTLY, THE PETITIONERS MAY NOT VALIDLY OBJECT TO THE USE IN EVIDENCE AGAINST THEM OF THE DOCUMENTS, PAPERS AND THINGS SEIZED FROM THE OFFICES AND PREMISES OF THE CORPORATIONS, TO WHOM THE SEIZED EFFECTS BELONG, AND MAY NOT BE INVOKED BY THE CORPORATE OFFICERS IN PROCEEDINGS AGAINST THEM IN THEIR INDIVIDUAL CAPACITY. b. As to the documents seized in the residences of the petitioners, the same may not be used in evidence against them because the warrants issued were in the nature of a general warrant for failure to comply with the constitutional requirement that: 1. that no warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth in said provision; and 2. that the warrant shall particularly describe the things to be seized. None of these requirements has been complied with in the contested warrants. They were issued upon applications stating that the natural and juridical persons therein named had committed a violation of Central bank Laws, Tariff and Customs Laws, Internal revenue Code and Revised Penal Code. IN OTHER WORDS, NO SPECIFIC OFFENSE HAD BEEN ALLEGED IN SAID APPLICATIONS. THE AVERMENTS THEREOF WITH RESPECT TO THE OFFENSE COMMITTED WERE ABSTRACT. AS A CONSEQUENCE, IT WAS IMPOSSIBLE FOR THE JUDGE WHO ISSUED THE WARRANTS TO HAVE FOUND THE EXISTENCE OF PROBABLE CAUSE, FOR THE SAME PRESUPPOSES THE INTRODUCTION OF COMPETENT PROOF THAT THE PARTY AGAINST WHOM IT IS SOUGHT HAS PERFORMED PARTICULAR ACTS, OR COMMITTED SPECIFIC OMISSIONS, VIOLATING A GIVEN PROVISION OF OUR CRIMINAL LAWS.