G.R. No.

81561

January 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee

vs.
ANDRE MARTI, accused-appellant.
The Solicitor General for plaintiff-appellee.
Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.

BIDIN, J.:
This is an appeal from a decision * rendered by the Special Criminal Court of
Manila (Regional Trial Court, Branch XLIX) convicting accused-appellant of
violation of Section 21 (b), Article IV in relation to Section 4, Article 11 and
Section 2 (e) (i), Article 1 of Republic Act 6425, as amended, otherwise known as
the Dangerous Drugs Act.
The facts as summarized in the brief of the prosecution are as follows:
On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and
his common-law wife, Shirley Reyes, went to the booth of the "Manila
Packing and Export Forwarders" in the Pistang Pilipino Complex, Ermita,
Manila, carrying with them four (4) gift wrapped packages. Anita Reyes
(the proprietress and no relation to Shirley Reyes) attended to them.
The appellant informed Anita Reyes that he was sending the packages to
a friend in Zurich, Switzerland. Appellant filled up the contract necessary
for the transaction, writing therein his name, passport number, the date
of shipment and the name and address of the consignee, namely,
"WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)
Anita Reyes then asked the appellant if she could examine and inspect
the packages. Appellant, however, refused, assuring her that the
packages simply contained books, cigars, and gloves and were gifts to
his friend in Zurich. In view of appellant's representation, Anita Reyes no
longer insisted on inspecting the packages. The four (4) packages were
then placed inside a brown corrugated box one by two feet in size (1' x
2'). Styro-foam was placed at the bottom and on top of the packages
before the box was sealed with masking tape, thus making the box
ready for shipment (Decision, p. 8).

Before delivery of appellant's box to the Bureau of Customs and/or

Bureau of Posts, Mr. Job Reyes (proprietor) and husband of Anita
(Reyes), following standard operating procedure, opened the boxes for
final inspection. When he opened appellant's box, a peculiar odor
emitted therefrom. His curiousity aroused, he squeezed one of the
bundles allegedly containing gloves and felt dried leaves inside. Opening
one of the bundles, he pulled out a cellophane wrapper protruding from
the opening of one of the gloves. He made an opening on one of the
cellophane wrappers and took several grams of the contents thereof
(tsn, pp. 29-30, October 6, 1987; Emphasis supplied).
Job Reyes forthwith prepared a letter reporting the shipment to the NBI
and requesting a laboratory examination of the samples he extracted
from the cellophane wrapper (tsn, pp. 5-6, October 6, 1987).
He brought the letter and a sample of appellant's shipment to the
Narcotics Section of the National Bureau of Investigation (NBI), at about
1:30 o'clock in the afternoon of that date, i.e., August 14, 1987. He was
interviewed by the Chief of Narcotics Section. Job Reyes informed the
NBI that the rest of the shipment was still in his office. Therefore, Job
Reyes and three (3) NBI agents, and a photographer, went to the Reyes'
office at Ermita, Manila (tsn, p. 30, October 6, 1987).
Job Reyes brought out the box in which appellant's packages were
placed and, in the presence of the NBI agents, opened the top flaps,
removed the styro-foam and took out the cellophane wrappers from
inside the gloves. Dried marijuana leaves were found to have been
contained inside the cellophane wrappers (tsn, p. 38, October 6, 1987;
Emphasis supplied).
The package which allegedly contained books was likewise opened by
Job Reyes. He discovered that the package contained bricks or cake-like
dried marijuana leaves. The package which allegedly contained
tabacalera cigars was also opened. It turned out that dried marijuana
leaves were neatly stocked underneath the cigars (tsn, p. 39, October 6,
1987).
The NBI agents made an inventory and took charge of the box and of
the contents thereof, after signing a "Receipt" acknowledging custody of
the said effects (tsn, pp. 2-3, October 7, 1987).

Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's
stated address in his passport being the Manila Central Post Office, the agents
requested assistance from the latter's Chief Security. On August 27, 1987,
appellant, while claiming his mail at the Central Post Office, was invited by the
NBI to shed light on the attempted shipment of the seized dried leaves. On the
same day the Narcotics Section of the NBI submitted the dried leaves to the
Forensic Chemistry Section for laboratory examination. It turned out that the
dried leaves were marijuana flowering tops as certified by the forensic chemist.
(Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).
Thereafter, an Information was filed against appellant for violation of RA 6425,
otherwise known as the Dangerous Drugs Act.

affirmation of the complainant and the witnesses he may produce, and

particularly describing the place to be searched and the persons or
things to be seized.
Sec. 3. (1) The privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or when public safety
or order requires otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section
shall be inadmissible for any purpose in any proceeding.
Our present constitutional provision on the guarantee against unreasonable
search and seizure had its origin in the 1935 Charter which, worded as follows:

After trial, the court a quo rendered the assailed decision.

In this appeal, accused/appellant assigns the following errors, to wit:
THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY
SEARCHED AND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS.
THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE
UNDISPUTED FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE
UNDER CUSTODIAL PROCEEDINGS WERE NOT OBSERVED.
THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE
EXPLANATION OF THE APPELLANT ON HOW THE FOUR PARCELS CAME
INTO HIS POSSESSION (Appellant's Brief, p. 1; Rollo, p. 55)
1. Appellant contends that the evidence subject of the imputed offense had
been obtained in violation of his constitutional rights against unreasonable
search and seizure and privacy of communication (Sec. 2 and 3, Art. III,
Constitution) and therefore argues that the same should be held inadmissible in
evidence (Sec. 3 (2), Art. III).
Sections 2 and 3, Article III of the Constitution provide:
Sec. 2. The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or

The right of the people to be secure in their persons, houses, papers

and effects against unreasonable searches and seizures shall not be
violated, and no warrants shall issue but upon probable cause, to be
determined by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce, and particularly
describing the place to be searched, and the persons or things to be
seized. (Sec. 1 [3], Article III)
was in turn derived almost verbatim from the Fourth Amendment ** to the
United States Constitution. As such, the Court may turn to the pronouncements
of the United States Federal Supreme Court and State Appellate Courts which
are considered doctrinal in this jurisdiction.
Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal
Supreme Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, in
Stonehill v. Diokno (20 SCRA 383 [1967]), declared as inadmissible any evidence
obtained by virtue of a defective search and seizure warrant, abandoning in the
process the ruling earlier adopted in Moncado v. People's Court (80 Phil. 1
[1948]) wherein the admissibility of evidence was not affected by the illegality of
its seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill
ruling and is carried over up to the present with the advent of the 1987
Constitution.
In a number of cases, the Court strictly adhered to the exclusionary rule and has
struck down the admissibility of evidence obtained in violation of the
constitutional safeguard against unreasonable searches and seizures. (Bache &
Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299

[1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA 687
[1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990).
It must be noted, however, that in all those cases adverted to, the evidence so
obtained were invariably procured by the State acting through the medium of its
law enforcers or other authorized government agencies.
On the other hand, the case at bar assumes a peculiar character since the
evidence sought to be excluded was primarily discovered and obtained by a
private person, acting in a private capacity and without the intervention and
participation of State authorities. Under the circumstances, can
accused/appellant validly claim that his constitutional right against unreasonable
searches and seizure has been violated? Stated otherwise, may an act of a
private individual, allegedly in violation of appellant's constitutional rights, be
invoked against the State?
We hold in the negative. In the absence of governmental interference, the
liberties guaranteed by the Constitution cannot be invoked against the State.
As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:
1. This constitutional right (against unreasonable search and seizure)
refers to the immunity of one's person, whether citizen or alien, from
interference by government, included in which is his residence, his
papers, and other possessions. . . .
. . . There the state, however powerful, does not as such have the access
except under the circumstances above noted, for in the traditional
formulation, his house, however humble, is his castle. Thus is outlawed
any unwarranted intrusion by government, which is called upon to
refrain from any invasion of his dwelling and to respect the privacies of
his life. . . . (Cf. Schermerber v. California, 384 US 757 [1966] and Boyd v.
United States, 116 US 616 [1886]; Emphasis supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the
Court there in construing the right against unreasonable searches and seizures
declared that:
(t)he Fourth Amendment gives protection against unlawful searches and
seizures, and as shown in previous cases, its protection applies to
governmental action. Its origin and history clearly show that it was

intended as a restraint upon the activities of sovereign authority, and

was not intended to be a limitation upon other than governmental
agencies; as against such authority it was the purpose of the Fourth
Amendment to secure the citizen in the right of unmolested occupation
of his dwelling and the possession of his property, subject to the right of
seizure by process duly served.
The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a
parking attendant who searched the automobile to ascertain the owner thereof
found marijuana instead, without the knowledge and participation of police
authorities, was declared admissible in prosecution for illegal possession of
narcotics.
And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that
the search and seizure clauses are restraints upon the government and its
agents, not upon private individuals (citing People v. Potter, 240 Cal. App.2d 621,
49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v.
Olsen, Or., 317 P.2d 938 (1957).
Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court
there said:
The search of which appellant complains, however, was made by a
private citizen the owner of a motel in which appellant stayed
overnight and in which he left behind a travel case containing the
evidence*** complained of. The search was made on the motel owner's
own initiative. Because of it, he became suspicious, called the local
police, informed them of the bag's contents, and made it available to
the authorities.
The fourth amendment and the case law applying it do not require
exclusion of evidence obtained through a search by a private citizen.
Rather, the amendment only proscribes governmental action."
The contraband in the case at bar having come into possession of the
Government without the latter transgressing appellant's rights against
unreasonable search and seizure, the Court sees no cogent reason why the same
should not be admitted against him in the prosecution of the offense charged.

Appellant, however, would like this court to believe that NBI agents made an
illegal search and seizure of the evidence later on used in prosecuting the case
which resulted in his conviction.
The postulate advanced by accused/appellant needs to be clarified in two days.
In both instances, the argument stands to fall on its own weight, or the lack of it.
First, the factual considerations of the case at bar readily foreclose the
proposition that NBI agents conducted an illegal search and seizure of the
prohibited merchandise. Records of the case clearly indicate that it was Mr. Job
Reyes, the proprietor of the forwarding agency, who made search/inspection of
the packages. Said inspection was reasonable and a standard operating
procedure on the part of Mr. Reyes as a precautionary measure before delivery
of packages to the Bureau of Customs or the Bureau of Posts (TSN, October 6 &
7, 1987, pp. 15-18; pp. 7-8; Original Records, pp. 119-122; 167-168).
It will be recalled that after Reyes opened the box containing the illicit cargo, he
took samples of the same to the NBI and later summoned the agents to his place
of business. Thereafter, he opened the parcel containing the rest of the
shipment and entrusted the care and custody thereof to the NBI agents. Clearly,
the NBI agents made no search and seizure, much less an illegal one, contrary to
the postulate of accused/appellant.
Second, the mere presence of the NBI agents did not convert the reasonable
search effected by Reyes into a warrantless search and seizure proscribed by the
Constitution. Merely to observe and look at that which is in plain sight is not a
search. Having observed that which is open, where no trespass has been
committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135).
Where the contraband articles are identified without a trespass on the part of
the arresting officer, there is not the search that is prohibited by the constitution
(US v. Lee 274 US 559, 71 L.Ed. 1202 [1927]; Ker v. State of California 374 US 23,
10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122 [1968]).

law of the land must always be subject to protection. But protection against
whom? Commissioner Bernas in his sponsorship speech in the Bill of Rights
answers the query which he himself posed, as follows:
First, the general reflections. The protection of fundamental liberties in
the essence of constitutional democracy. Protection against whom?
Protection against the state. The Bill of Rights governs the relationship
between the individual and the state. Its concern is not the relation
between individuals, between a private individual and other individuals.
What the Bill of Rights does is to declare some forbidden zones in the
private sphere inaccessible to any power holder. (Sponsorship Speech of
Commissioner Bernas , Record of the Constitutional Commission, Vol. 1,
p. 674; July 17, 1986; Emphasis supplied)
The constitutional proscription against unlawful searches and seizures therefore
applies as a restraint directed only against the government and its agencies
tasked with the enforcement of the law. Thus, it could only be invoked against
the State to whom the restraint against arbitrary and unreasonable exercise of
power is imposed.
If the search is made upon the request of law enforcers, a warrant must
generally be first secured if it is to pass the test of constitutionality. However, if
the search is made at the behest or initiative of the proprietor of a private
establishment for its own and private purposes, as in the case at bar, and
without the intervention of police authorities, the right against unreasonable
search and seizure cannot be invoked for only the act of private individual, not
the law enforcers, is involved. In sum, the protection against unreasonable
searches and seizures cannot be extended to acts committed by private
individuals so as to bring it within the ambit of alleged unlawful intrusion by the
government.

In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where
the property was taken into custody of the police at the specific request of the
manager and where the search was initially made by the owner there is no
unreasonable search and seizure within the constitutional meaning of the term.

Appellant argues, however, that since the provisions of the 1935 Constitution
has been modified by the present phraseology found in the 1987 Charter,
expressly declaring as inadmissible any evidence obtained in violation of the
constitutional prohibition against illegal search and seizure, it matters not
whether the evidence was procured by police authorities or private individuals
(Appellant's Brief, p. 8, Rollo, p. 62).

That the Bill of Rights embodied in the Constitution is not meant to be invoked
against acts of private individuals finds support in the deliberations of the
Constitutional Commission. True, the liberties guaranteed by the fundamental

The argument is untenable. For one thing, the constitution, in laying down the
principles of the government and fundamental liberties of the people, does not
govern relationships between individuals. Moreover, it must be emphasized that

the modifications introduced in the 1987 Constitution (re: Sec. 2, Art. III) relate
to the issuance of either a search warrant or warrant of arrest vis-a-vis the
responsibility of the judge in the issuance thereof (See Soliven v. Makasiar, 167
SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30,
1987]. The modifications introduced deviate in no manner as to whom the
restriction or inhibition against unreasonable search and seizure is directed
against. The restraint stayed with the State and did not shift to anyone else.
Corolarilly, alleged violations against unreasonable search and seizure may only
be invoked against the State by an individual unjustly traduced by the exercise of
sovereign authority. To agree with appellant that an act of a private individual in
violation of the Bill of Rights should also be construed as an act of the State
would result in serious legal complications and an absurd interpretation of the
constitution.
Similarly, the admissibility of the evidence procured by an individual effected
through private seizure equally applies, in pari passu, to the alleged violation,
non-governmental as it is, of appellant's constitutional rights to privacy and
communication.
2. In his second assignment of error, appellant contends that the lower court
erred in convicting him despite the undisputed fact that his rights under the
constitution while under custodial investigation were not observed.
Again, the contention is without merit, We have carefully examined the records
of the case and found nothing to indicate, as an "undisputed fact", that appellant
was not informed of his constitutional rights or that he gave statements without
the assistance of counsel. The law enforcers testified that accused/appellant was
informed of his constitutional rights. It is presumed that they have regularly
performed their duties (See. 5(m), Rule 131) and their testimonies should be
given full faith and credence, there being no evidence to the contrary. What is
clear from the records, on the other hand, is that appellant refused to give any
written statement while under investigation as testified by Atty. Lastimoso of the
NBI, Thus:
Fiscal Formoso:
You said that you investigated Mr. and Mrs. Job Reyes. What about the
accused here, did you investigate the accused together with the girl?
WITNESS:

Yes, we have interviewed the accused together with the girl but the
accused availed of his constitutional right not to give any written
statement, sir. (TSN, October 8, 1987, p. 62; Original Records, p. 240)
The above testimony of the witness for the prosecution was not contradicted by
the defense on cross-examination. As borne out by the records, neither was
there any proof by the defense that appellant gave uncounselled confession
while being investigated. What is more, we have examined the assailed judgment
of the trial court and nowhere is there any reference made to the testimony of
appellant while under custodial investigation which was utilized in the finding of
conviction. Appellant's second assignment of error is therefore misplaced.
3. Coming now to appellant's third assignment of error, appellant would like us
to believe that he was not the owner of the packages which contained
prohibited drugs but rather a certain Michael, a German national, whom
appellant met in a pub along Ermita, Manila: that in the course of their 30minute conversation, Michael requested him to ship the packages and gave him
P2,000.00 for the cost of the shipment since the German national was about to
leave the country the next day (October 15, 1987, TSN, pp. 2-10).
Rather than give the appearance of veracity, we find appellant's disclaimer as
incredulous, self-serving and contrary to human experience. It can easily be
fabricated. An acquaintance with a complete stranger struck in half an hour
could not have pushed a man to entrust the shipment of four (4) parcels and
shell out P2,000.00 for the purpose and for appellant to readily accede to
comply with the undertaking without first ascertaining its contents. As stated by
the trial court, "(a) person would not simply entrust contraband and of
considerable value at that as the marijuana flowering tops, and the cash amount
of P2,000.00 to a complete stranger like the Accused. The Accused, on the other
hand, would not simply accept such undertaking to take custody of the packages
and ship the same from a complete stranger on his mere say-so" (Decision, p. 19,
Rollo, p. 91). As to why he readily agreed to do the errand, appellant failed to
explain. Denials, if unsubstantiated by clear and convincing evidence, are
negative self-serving evidence which deserve no weight in law and cannot be
given greater evidentiary weight than the testimony of credible witnesses who
testify on affirmative matters (People v. Esquillo, 171 SCRA 571 [1989]; People
vs. Sariol, 174 SCRA 237 [1989]).
Appellant's bare denial is even made more suspect considering that, as per
records of the Interpol, he was previously convicted of possession of hashish by
the Kleve Court in the Federal Republic of Germany on January 1, 1982 and that

the consignee of the frustrated shipment, Walter Fierz, also a Swiss national, was
likewise convicted for drug abuse and is just about an hour's drive from
appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66; Original
Records, p. 244; Decision, p. 21; Rollo, p. 93).
Evidence to be believed, must not only proceed from the mouth of a credible
witness, but it must be credible in itself such as the common experience and
observation of mankind can approve as probable under the circumstances
(People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van Dyke, 37 N.J. Eg. 130;
see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123 SCRA 327
[1983]); Castaares v. CA, 92 SCRA 567 [1979]). As records further show,
appellant did not even bother to ask Michael's full name, his complete address
or passport number. Furthermore, if indeed, the German national was the owner
of the merchandise, appellant should have so indicated in the contract of
shipment (Exh. "B", Original Records, p. 40). On the contrary, appellant signed
the contract as the owner and shipper thereof giving more weight to the
presumption that things which a person possesses, or exercises acts of
ownership over, are owned by him (Sec. 5 [j], Rule 131). At this point, appellant
is therefore estopped to claim otherwise.
Premises considered, we see no error committed by the trial court in rendering
the assailed judgment.
WHEREFORE, the judgment of conviction finding appellant guilty beyond
reasonable doubt of the crime charged is hereby AFFIRMED. No costs.
SO ORDERED.

G.R. No. L-19550

June 19, 1967

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

petitioners,
vs.
HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE LUKBAN, in
his capacity as Acting Director, National Bureau of Investigation; SPECIAL
PROSECUTORS PEDRO D. CENZON, EFREN I. PLANA and MANUEL VILLAREAL, JR.
and ASST. FISCAL MANASES G. REYES; JUDGE AMADO ROAN, Municipal Court of
Manila; JUDGE ROMAN CANSINO, Municipal Court of Manila; JUDGE
HERMOGENES CALUAG, Court of First Instance of Rizal-Quezon City Branch, and
JUDGE DAMIAN JIMENEZ, Municipal Court of Quezon City, respondents.
CONCEPCION, C.J.:
Upon application of the officers of the government named on the margin1
hereinafter referred to as Respondents-Prosecutors several judges2
hereinafter referred to as Respondents-Judges issued, on different dates,3 a
total of 42 search warrants against petitioners herein4 and/or the corporations
of which they were officers,5 directed to the any peace officer, to search the
persons above-named and/or the premises of their offices, warehouses and/or
residences, and to seize and take possession of the following personal property
to wit:
Books of accounts, financial records, vouchers, correspondence,
receipts, ledgers, journals, portfolios, credit journals, typewriters, and
other documents and/or papers showing all business transactions
including disbursements receipts, balance sheets and profit and loss
statements and Bobbins (cigarette wrappers).
as "the subject of the offense; stolen or embezzled and proceeds or fruits of the
offense," or "used or intended to be used as the means of committing the
offense," which is described in the applications adverted to above as "violation
of Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and the
Revised Penal Code."
Alleging that the aforementioned search warrants are null and void, as
contravening the Constitution and the Rules of Court because, inter alia: (1)
they do not describe with particularity the documents, books and things to be
seized; (2) cash money, not mentioned in the warrants, were actually seized; (3)
the warrants were issued to fish evidence against the aforementioned

petitioners in deportation cases filed against them; (4) the searches and seizures
were made in an illegal manner; and (5) the documents, papers and cash money
seized were not delivered to the courts that issued the warrants, to be disposed
of in accordance with law on March 20, 1962, said petitioners filed with the
Supreme Court this original action for certiorari, prohibition, mandamus and
injunction, and prayed that, pending final disposition of the present case, a writ
of preliminary injunction be issued restraining Respondents-Prosecutors, their
agents and /or representatives from using the effects seized as aforementioned
or any copies thereof, in the deportation cases already adverted to, and that, in
due course, thereafter, decision be rendered quashing the contested search
warrants and declaring the same null and void, and commanding the
respondents, their agents or representatives to return to petitioners herein, in
accordance with Section 3, Rule 67, of the Rules of Court, the documents,
papers, things and cash moneys seized or confiscated under the search warrants
in question.
In their answer, respondents-prosecutors alleged, 6 (1) that the contested search
warrants are valid and have been issued in accordance with law; (2) that the
defects of said warrants, if any, were cured by petitioners' consent; and (3) that,
in any event, the effects seized are admissible in evidence against herein
petitioners, regardless of the alleged illegality of the aforementioned searches
and seizures.
On March 22, 1962, this Court issued the writ of preliminary injunction prayed
for in the petition. However, by resolution dated June 29, 1962, the writ was
partially lifted or dissolved, insofar as the papers, documents and things seized
from the offices of the corporations above mentioned are concerned; but, the
injunction was maintained as regards the papers, documents and things found
and seized in the residences of petitioners herein.7
Thus, the documents, papers, and things seized under the alleged authority of
the warrants in question may be split into two (2) major groups, namely: (a)
those found and seized in the offices of the aforementioned corporations, and
(b) those found and seized in the residences of petitioners herein.
As regards the first group, we hold that petitioners herein have no cause of
action to assail the legality of the contested warrants and of the seizures made in
pursuance thereof, for the simple reason that said corporations have their
respective personalities, separate and distinct from the personality of herein
petitioners, regardless of the amount of shares of stock or of the interest of each
of them in said corporations, and whatever the offices they hold therein may

be.8 Indeed, it is well settled that the legality of a seizure can be contested only
by the party whose rights have been impaired thereby,9 and that the objection
to an unlawful search and seizure is purely personal and cannot be availed of by
third parties. 10 Consequently, petitioners herein may not validly object to the
use in evidence against them of the documents, papers and things seized from
the offices and premises of the corporations adverted to above, since the right
to object to the admission of said papers in evidence belongs exclusively to the
corporations, to whom the seized effects belong, and may not be invoked by the
corporate officers in proceedings against them in their individual capacity. 11
Indeed, it has been held:
. . . that the Government's action in gaining possession of papers
belonging to the corporation did not relate to nor did it affect the
personal defendants. If these papers were unlawfully seized and thereby
the constitutional rights of or any one were invaded, they were the
rights of the corporation and not the rights of the other defendants.
Next, it is clear that a question of the lawfulness of a seizure can be
raised only by one whose rights have been invaded. Certainly, such a
seizure, if unlawful, could not affect the constitutional rights of
defendants whose property had not been seized or the privacy of whose
homes had not been disturbed; nor could they claim for themselves the
benefits of the Fourth Amendment, when its violation, if any, was with
reference to the rights of another. Remus vs. United States (C.C.A.)291
F. 501, 511. It follows, therefore, that the question of the admissibility
of the evidence based on an alleged unlawful search and seizure does
not extend to the personal defendants but embraces only the
corporation whose property was taken. . . . (A Guckenheimer & Bros. Co.
vs. United States, [1925] 3 F. 2d. 786, 789, Emphasis supplied.)

Petitioners maintain that the aforementioned search warrants are in the nature
of general warrants and that accordingly, the seizures effected upon the
authority there of are null and void. In this connection, the Constitution 13
provides:
The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures shall not be
violated, and no warrants shall issue but upon probable cause, to be
determined by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce, and particularly
describing the place to be searched, and the persons or things to be
seized.
Two points must be stressed in connection with this constitutional mandate,
namely: (1) that no warrant shall issue but upon probable cause, to be
determined by the judge in the manner set forth in said provision; and (2) that
the warrant shall particularly describe the things to be seized.

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

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

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

To uphold the validity of the warrants in question would be to wipe out

completely one of the most fundamental rights guaranteed in our Constitution,
for it would place the sanctity of the domicile and the privacy of communication
and correspondence at the mercy of the whims caprice or passion of peace
officers. This is precisely the evil sought to be remedied by the constitutional
provision above quoted to outlaw the so-called general warrants. It is not

difficult to imagine what would happen, in times of keen political strife, when
the party in power feels that the minority is likely to wrest it, even though by
legal means.
Such is the seriousness of the irregularities committed in connection with the
disputed search warrants, that this Court deemed it fit to amend Section 3 of
Rule 122 of the former Rules of Court 14 by providing in its counterpart, under
the Revised Rules of Court 15 that "a search warrant shall not issue but upon
probable cause in connection with one specific offense." Not satisfied with this
qualification, the Court added thereto a paragraph, directing that "no search
warrant shall issue for more than one specific offense."
The grave violation of the Constitution made in the application for the contested
search warrants was compounded by the description therein made of the effects
to be searched for and seized, to wit:
Books of accounts, financial records, vouchers, journals,
correspondence, receipts, ledgers, portfolios, credit journals,
typewriters, and other documents and/or papers showing all business
transactions including disbursement receipts, balance sheets and
related profit and loss statements.
Thus, the warrants authorized the search for and seizure of records pertaining to
all business transactions of petitioners herein, regardless of whether the
transactions were legal or illegal. The warrants sanctioned the seizure of all
records of the petitioners and the aforementioned corporations, whatever their
nature, thus openly contravening the explicit command of our Bill of Rights
that the things to be seized be particularly described as well as tending to
defeat its major objective: the elimination of general warrants.
Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors
maintain that, even if the searches and seizures under consideration were
unconstitutional, the documents, papers and things thus seized are admissible in
evidence against petitioners herein. Upon mature deliberation, however, we are
unanimously of the opinion that the position taken in the Moncado case must be
abandoned. Said position was in line with the American common law rule, that
the criminal should not be allowed to go free merely "because the constable has
blundered," 16 upon the theory that the constitutional prohibition against
unreasonable searches and seizures is protected by means other than the
exclusion of evidence unlawfully obtained, 17 such as the common-law action for
damages against the searching officer, against the party who procured the

issuance of the search warrant and against those assisting in the execution of an
illegal search, their criminal punishment, resistance, without liability to an
unlawful seizure, and such other legal remedies as may be provided by other
laws.
However, most common law jurisdictions have already given up this approach
and eventually adopted the exclusionary rule, realizing that this is the only
practical means of enforcing the constitutional injunction against unreasonable
searches and seizures. In the language of Judge Learned Hand:
As we understand it, the reason for the exclusion of evidence
competent as such, which has been unlawfully acquired, is that
exclusion is the only practical way of enforcing the constitutional
privilege. In earlier times the action of trespass against the offending
official may have been protection enough; but that is true no longer.
Only in case the prosecution which itself controls the seizing officials,
knows that it cannot profit by their wrong will that wrong be
repressed.18
In fact, over thirty (30) years before, the Federal Supreme Court had already
declared:
If letters and private documents can thus be seized and held and used in
evidence against a citizen accused of an offense, the protection of the
4th Amendment, declaring his rights to be secure against such searches
and seizures, is of no value, and, so far as those thus placed are
concerned, might as well be stricken from the Constitution. The efforts
of the courts and their officials to bring the guilty to punishment,
praiseworthy as they are, are not to be aided by the sacrifice of those
great principles established by years of endeavor and suffering which
have resulted in their embodiment in the fundamental law of the land.19
This view was, not only reiterated, but, also, broadened in subsequent decisions
on the same Federal Court. 20 After reviewing previous decisions thereon, said
Court held, in Mapp vs. Ohio (supra.):
. . . Today we once again examine the Wolf's constitutional
documentation of the right of privacy free from unreasonable state
intrusion, and after its dozen years on our books, are led by it to close
the only courtroom door remaining open to evidence secured by official
lawlessness in flagrant abuse of that basic right, reserved to all persons

as a specific guarantee against that very same unlawful conduct. We

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

liberties of the people rest. Having once recognized that the right to
privacy embodied in the Fourth Amendment is enforceable against the
States, and that the right to be secure against rude invasions of privacy
by state officers is, therefore constitutional in origin, we can no longer
permit that right to remain an empty promise. Because it is enforceable
in the same manner and to like effect as other basic rights secured by its
Due Process Clause, we can no longer permit it to be revocable at the
whim of any police officer who, in the name of law enforcement itself,
chooses to suspend its enjoyment. Our decision, founded on reason and
truth, gives to the individual no more than that which the Constitution
guarantees him to the police officer no less than that to which honest
law enforcement is entitled, and, to the courts, that judicial integrity so
necessary in the true administration of justice. (emphasis ours.)
Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to
the spirit of the constitutional injunction against unreasonable searches and
seizures. To be sure, if the applicant for a search warrant has competent
evidence to establish probable cause of the commission of a given crime by the
party against whom the warrant is intended, then there is no reason why the
applicant should not comply with the requirements of the fundamental law.
Upon the other hand, if he has no such competent evidence, then it is not
possible for the Judge to find that there is probable cause, and, hence, no
justification for the issuance of the warrant. The only possible explanation (not
justification) for its issuance is the necessity of fishing evidence of the
commission of a crime. But, then, this fishing expedition is indicative of the
absence of evidence to establish a probable cause.
Moreover, the theory that the criminal prosecution of those who secure an
illegal search warrant and/or make unreasonable searches or seizures would
suffice to protect the constitutional guarantee under consideration, overlooks
the fact that violations thereof are, in general, committed By agents of the party
in power, for, certainly, those belonging to the minority could not possibly abuse
a power they do not have. Regardless of the handicap under which the minority
usually but, understandably finds itself in prosecuting agents of the
majority, one must not lose sight of the fact that the psychological and moral
effect of the possibility 21 of securing their conviction, is watered down by the
pardoning power of the party for whose benefit the illegality had been
committed.
In their Motion for Reconsideration and Amendment of the Resolution of this
Court dated June 29, 1962, petitioners allege that Rooms Nos. 81 and 91 of

Carmen Apartments, House No. 2008, Dewey Boulevard, House No. 1436,
Colorado Street, and Room No. 304 of the Army-Navy Club, should be included
among the premises considered in said Resolution as residences of herein
petitioners, Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl Beck,
respectively, and that, furthermore, the records, papers and other effects seized
in the offices of the corporations above referred to include personal belongings
of said petitioners and other effects under their exclusive possession and
control, for the exclusion of which they have a standing under the latest rulings
of the federal courts of federal courts of the United States. 22
We note, however, that petitioners' theory, regarding their alleged possession of
and control over the aforementioned records, papers and effects, and the
alleged "personal" nature thereof, has Been Advanced, not in their petition or
amended petition herein, but in the Motion for Reconsideration and
Amendment of the Resolution of June 29, 1962. In other words, said theory
would appear to be readjustment of that followed in said petitions, to suit the
approach intimated in the Resolution sought to be reconsidered and amended.
Then, too, some of the affidavits or copies of alleged affidavits attached to said
motion for reconsideration, or submitted in support thereof, contain either
inconsistent allegations, or allegations inconsistent with the theory now
advanced by petitioners herein.
Upon the other hand, we are not satisfied that the allegations of said petitions
said motion for reconsideration, and the contents of the aforementioned
affidavits and other papers submitted in support of said motion, have sufficiently
established the facts or conditions contemplated in the cases relied upon by the
petitioners; to warrant application of the views therein expressed, should we
agree thereto. At any rate, we do not deem it necessary to express our opinion
thereon, it being best to leave the matter open for determination in appropriate
cases in the future.
We hold, therefore, that the doctrine adopted in the Moncado case must be, as
it is hereby, abandoned; that the warrants for the search of three (3) residences
of herein petitioners, as specified in the Resolution of June 29, 1962, are null and
void; that the searches and seizures therein made are illegal; that the writ of
preliminary injunction heretofore issued, in connection with the documents,
papers and other effects thus seized in said residences of herein petitioners is
hereby made permanent; that the writs prayed for are granted, insofar as the
documents, papers and other effects so seized in the aforementioned residences
are concerned; that the aforementioned motion for Reconsideration and
Amendment should be, as it is hereby, denied; and that the petition herein is

dismissed and the writs prayed for denied, as regards the documents, papers
and other effects seized in the twenty-nine (29) places, offices and other
premises enumerated in the same Resolution, without special pronouncement
as to costs.
It is so ordered.
Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.

A.M. No. RTJ-93-964

February 28, 1996

LEOVIGILDO U. MANTARING, complainant,

vs.
JUDGE MANUEL A. ROMAN, JR., RTC Branch 42, Pinamalayan, Oriental Mindoro;
and JUDGE IRENEO B. MOLATO, MTC, Bongabon, Oriental Mindoro, respondents.
DECISION
MENDOZA, J.:
Respondent Judge Ireneo B. Molato is the presiding judge of the Municipal Trial
Court of Bongabon, Oriental Mindoro. On January 7, 1993, an administrative
complaint was filed against him and Judge Manuel A. Roman, Jr., presiding judge
of the Regional Trial Court of Pinamalayan, Oriental Mindoro, Branch 42, by
Leovigildo U. Mantaring, Sr., who charged them with conduct unbecoming of
members of the judiciary. On February 21, 1994, after the parties had filed their
respective pleadings and supporting documents, this Court dismissed the
complaint against the two for lack of merit. The motion for reconsideration filed
by complainant was subsequently denied.
What is before us now is the Supplemental Complaint filed by Leovigildo U.
Mantaring, Sr. against Judge Ireneo B. Molato, which charges him with
harassment. It is alleged that because of the filing of the first complaint against
him, respondent Judge Ireneo B. Molato should have inhibited himself from
conducting the preliminary investigation of a criminal case considering that the
respondents in that case were complainant and his son. Instead, it is alleged, he
took cognizance of the case and ordered the arrest of complainant and his son,
Leovigildo Mantaring, Jr., out of hatred and revenge for them because of the
filing of the first case by the complainant.
The Supplemental Complaint was referred to the Office of the Court
Administrator which, in a Memorandum dated 25 November 1994,
recommended the dismissal of the case for lack of merit. Nonetheless, the Court
required the respondent Judge Ireneo B. Molato to comment.
In his Comment dated July 6, 1995, respondent judge denies the allegations
against him. He avers that on the application by SPO4 Pacifico L. Fradejas, he
issued a search warrant which resulted in the seizure from a certain Joel Gamo
of a home-made gun, a hand grenade, five live ammunitions for Cal. 38 and
three live ammunitions for 12 gauge shotgun; that on August 25, 1993, a

complaint for Illegal Possession of Firearms and Ammunition was filed against
Joel Gamo in which the herein complainant Leovigildo, Sr. and his son,
Leovigildo, Jr., were included; that finding that the house in which the firearms
and ammunition had been found was owned by complainant and his son, he
concluded that there was probable cause to believe that complainant and his
son were guilty of illegal possession of firearms and ammunition and accordingly
ordered their arrest. Respondent judge claims that he inhibited himself from the
case after he was ordered by the Executive Judge, RTC, Branch 41, Pinamalayan
Oriental Mindoro.
In his Reply complainant contends that as the search warrant was issued only
against Joel Gamo and Mantaring, Jr. it was wrong for respondent judge to find
probable cause against him on the theory that, as owners of the house in which
the firearms and ammunition were found, they had constructive possession of
the same. He likewise contends that respondent judge did not inhibit himself
until after the preliminary examination was terminated and the warrant of arrest
issued, and only after complainant had filed a petition for inhibition which the
Executive Judge found to be well taken.
On October 16, 1995, this case was referred to the OCA for reevaluation, report
and recommendation. On January 12, 1996, the OCA submitted a Memorandum,
recommending dismissal of the supplemental complaint for lack of merit, for the
following reasons:
(1) It is erroneous for herein complainant to equate the application for
the issuance of search warrant with the institution and prosecution of
criminal action in a trial court. (Malaloan vs. Court of Appeals, 232 SCRA
249) Complainant cannot insist that since his name was not included in
the search warrant, the house designated to be searched did not belong
to him, and that he was not present at the preliminary investigation of
witnesses preparatory to the issuance of the questioned warrant of
arrest, there was no basis for respondent judge to order his arrest.
(2) No taint of irregularity attended the issuance by respondent judge of
the warrant of arrest against complainant and his son. Neither was the
charge that the warrant of arrest was issued by respondent judge in the
spirit of anger, hatred or harassment purposes substantiated.
To begin with, it cannot be contended that complainant Leovigildo Mantaring,
Sr. could not be proceeded against simply because he was not included in the
search warrant issued against Gamo and Leovigildo Mantaring, Jr., who is

apparently his son. The determination of probable cause in preliminary

investigations is based solely on the evidence presented by the complainant,
regardless of whether or not the respondent in that case is named in the
proceedings for a search warrant. As correctly pointed out by, the OCA,1 the
issuance of a search warrant and of a warrant of arrest requires the showing of
probabilities as to different facts. In the case of search warrants, the
determination is based on the finding that (1) the articles to be seized are
connected to a criminal activity and (2) they are found in the place to be
searched. It is not necessary that a particular person be implicated. On the other
hand, in arrest cases, the determination of probable cause is based on a finding
that a crime has been committed and that the person to be arrested has
committed it.
In this case, the arrest of herein complainant and his son, together with Joel
Gamo, was ordered on the basis of respondent's finding that the place from
where the guns and ammunition were seized belonged to complainant
Leovigildo Mantaring, Sr. and the testimonies of witnesses presented by SPO4
Fradejas. Of course complainant denies that the house in which the firearms and
ammunition were found belonged to him and claims that at the time of the
search he was in Manila. The provincial prosecutor subsequently dismissed the
case against complainant on precisely these grounds, i.e., that the house did not
belong to complainant and he was in Manila at the time the search and seizure
were conducted. But to say this is not to say that respondent acted arbitrarily or
that he abused his powers so as to give ground for administrative disciplinary
action against him. It is only to say that he committed an error of judgment for
which complainant's remedy is judicial.
What we think requires serious consideration is the contention by the
complainant that respondent judge should have inhibited himself from
conducting the preliminary investigation of the criminal case, considering that
the respondent was the present complainant, who had earlier filed an
administrative case against the judge and another one.
We are not unmindful of the cases in which it was stated that the mere filing of
an administrative case against a judge by one of the parties before him is not a
ground for disqualifying him from hearing a case.2 An examination of these cases
reveals, however, that the administrative cases were filed during the pendency
of the cases, and it is evident that the administrative cases were filed only to
force the judge to inhibit himself from the consideration of the case before him.
As this Court held, if on every occasion the party apparently aggrieved were
allowed to stop the proceedings in order to await the final decision on the

desired disqualification, or demand the immediate inhibition of the judge on the

basis alone of his being so charged, many cases would have to be kept pending
or perhaps there would not be enough judges left to handle all the cases
pending in all the courts.3 On the other hand, there is a remedy available to the
party seeking the disqualification of the judge. If he is denied a fair and impartial
trial, caused by the judge's bias or prejudice, he can ask for a new trial in the
interest of justice which will be granted if that is really the case. 4
But, in the case at bar, an administrative complaint against respondent and
Judge Manuel A. Roman, Jr. had previously been filed and it was paramount that
respondent was free from any appearance of bias against, or hostility toward,
the complainant. The impression could not be helped that his action in that case
was dictated by a spirt of revenge against complainant for the latter's having
filed an administrative disciplinary action against the judge. The situation called
for sedulous regard on his part for the principle that a party is entitled to nothing
less than the cold neutrality of an impartial judge.
This circumstance should have underscored for respondent the need of steering
clear of the case because he might be perceived, rightly or wrongly, to be
susceptible to bias and partiality. For his judgment must not be tainted by even
the slightest suspicion of improbity or preconceived interest in order to preserve
at all times the faith and confidence in courts of justice by any party to the
litigation.5
Indeed prudence should have made respondent judge heed the admonition that
"a spotless dispensation of justice requires not only that the decision rendered
be intrinsically fair but that the judge rendering it must at all times maintain the
appearance of fairness and impartiality."6
Moreover, we think it was improper for respondent judge to have issued the
warrants of arrest against complainant and his son without any finding that it
was necessary to place them in immediate custody in order to prevent a
frustration of justice. It is now settled7 that in issuing warrants of arrest in
preliminary investigations, the investigating judge must:
(a) have examined in writing and under oath the complainant and his
witnesses by searching questions and answers;
(b) be satisfied that probable cause exists; and

(c) that there is a need to place the respondent under immediate

custody in order not to frustrate the ends of justice.

SO ORDERED.
Regalado, Romero and Puno, JJ., concur.

In this case, respondent judge justified the issuance of the warrant of arrest on
the following ground:
In view of the above considerations [referring to the antecedent facts],
it is the honest belief and finding of the Court that there is sufficient
probable cause that the crime of Illegal Possession of Firearm and
Ammunition was committed and that the named three (3) accused Joel
Gamo, Leovigildo Mantaring, Sr. and Leovigildo Mantaring, Jr. are the
ones probably guilty thereof for which reason Warrant of Arrest was
issued by undersigned against them.
He thus ordered the issuance of warrant of arrest solely on his finding of
probable cause, totally omitting to consider the third requirement that there
must be a need to place the respondent under immediate custody "in order not
to frustrate the ends of justice."
The framers of the Constitution confined the determination of probable cause as
basis for the issuance of warrants of arrest and search warrants to judges the
better to secure the people against unreasonable searches and seizures.
Respondent judge failed to live up to this expectation by refusing to inhibit
himself even when his very impartiality was in question and worse by issuing a
warrant of arrest without determining whether or not it was justified by the
need to prevent a frustration of the ends of justice. Parenthetically, the records
show that the criminal complaints against herein complainant and his son were
eventually dismissed by the Provincial Prosecutor, but not without the following
parting words:
It cannot be gainsaid that respondents Mantarings were greatly
prejudiced and suffered damages as a consequence of their inclusion in
the criminal complaint. The unfortunate incident could have been
avoided had the Honorable Municipal Trial Judge exercised the
necessary prudence and judicial perpecuity [sic] expected of an
impartial Judge in the conduct of preliminary investigation before
issuance of warrant of arrest.
WHEREFORE, respondent judge Ireneo B. Molato is REPRIMANDED and WARNED
that commission of similar acts in the future will be dealt with more severely. All
other charges are dismissed for lack of merit.

G.R. No. 82585 November 14, 1988

MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and
GODOFREDO L. MANZANAS, petitioners,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of
Manila, Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the Department of
Justice, LUIS C. VICTOR, THE CITY FISCAL OF MANILA and PRESIDENT CORAZON C.
AQUINO, respondents.
G.R. No. 82827 November 14, 1988
LUIS D. BELTRAN, petitioner,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial
Court, at Manila, THE HON. LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE OF THE
PHILIPPINES, SUPERINTENDENT OF THE WESTERN POLICE DISTRICT, and THE
MEMBERS OF THE PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF
MANILA, respondents.
G.R. No. 83979 November 14, 1988.
LUIS D. BELTRAN, petitioner,
vs.
EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY
ORDOEZ, UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE CITY FISCAL OF
MANILA JESUS F. GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding Judge of
Branch 35 of the Regional Trial Court, at Manila, respondents.
RESOLUTION
PER CURIAM:
In these consolidated cases, three principal issues were raised: (1) whether or
not petitioners were denied due process when informations for libel were filed
against them although the finding of the existence of a prima facie case was still
under review by the Secretary of Justice and, subsequently, by the President; (2)
whether or not the constitutional rights of Beltran were violated when
respondent RTC judge issued a warrant for his arrest without personally
examining the complainant and the witnesses, if any, to determine probable
cause; and (3) whether or not the President of the Philippines, under the

Constitution, may initiate criminal proceedings against the petitioners through

the filing of a complaint-affidavit.
Subsequent events have rendered the first issue moot and academic. On March
30, 1988, the Secretary of Justice denied petitioners' motion for reconsideration
and upheld the resolution of the Undersecretary of Justice sustaining the City
Fiscal's finding of a prima facie case against petitioners. A second motion for
reconsideration filed by petitioner Beltran was denied by the Secretary of Justice
on April 7, 1988. On appeal, the President, through the Executive Secretary,
affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion
for reconsideration was denied by the Executive Secretary on May 16, 1988.
With these developments, petitioners' contention that they have been denied
the administrative remedies available under the law has lost factual support.
It may also be added that with respect to petitioner Beltran, the allegation of
denial of due process of law in the preliminary investigation is negated by the
fact that instead of submitting his counter- affidavits, he filed a "Motion to
Declare Proceedings Closed," in effect waiving his right to refute the complaint
by filing counter-affidavits. Due process of law does not require that the
respondent in a criminal case actually file his counter-affidavits before the
preliminary investigation is deemed completed. All that is required is that the
respondent be given the opportunity to submit counter-affidavits if he is so
minded.
The second issue, raised by petitioner Beltran, calls for an interpretation of the
constitutional provision on the issuance of warrants of arrest. The pertinent
provision reads:
Art. III, Sec. 2. The right of the people to be secure in their
persons, houses, papers and effects against unreasonable
searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined
personally by the judge after examination nder oath or
affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched
and the persons or things to be seized.
The addition of the word "personally" after the word "determined" and the
deletion of the grant of authority by the 1973 Constitution to issue warrants to
"other responsible officers as may be authorized by law," has apparently

convinced petitioner Beltran that the Constitution now requires the judge to
personally examine the complainant and his witnesses in his determination of
probable cause for the issuance of warrants of arrest. This is not an accurate
interpretation.
What the Constitution underscores is the exclusive and personal responsibility of
the issuing judge to satisfy himself of the existence of probable cause. In
satisfying himself of the existence of probable cause for the issuance of a
warrant of arrest, the judge is not required to personally examine the
complainant and his witnesses. Following established doctrine and procedure,
he shall: (1) personally evaluate the report and the supporting documents
submitted by the fiscal regarding the existence of probable cause and, on the
basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no
probable cause, he may disregard the fiscal's report and require the submission
of supporting affidavits of witnesses to aid him in arriving at a conclusion as to
the existence of probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden
with the preliminary examination and investigation of criminal complaints
instead of concentrating on hearing and deciding cases filed before their courts.
On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12,
setting down guidelines for the issuance of warrants of arrest. The procedure
therein provided is reiterated and clarified in this resolution.
It has not been shown that respondent judge has deviated from the prescribed
procedure. Thus, with regard to the issuance of the warrants of arrest, a finding
of grave abuse of discretion amounting to lack or excess of jurisdiction cannot be
sustained.
Anent the third issue, petitioner Beltran argues that "the reasons which
necessitate presidential immunity from suit impose a correlative disability to file
suit." He contends that if criminal proceedings ensue by virtue of the President's
filing of her complaint-affidavit, she may subsequently have to be a witness for
the prosecution, bringing her under the trial court's jurisdiction. This, continues
Beltran, would in an indirect way defeat her privilege of immunity from suit, as
by testifying on the witness stand, she would be exposing herself to possible
contempt of court or perjury.
The rationale for the grant to the President of the privilege of immunity from suit
is to assure the exercise of Presidential duties and functions free from any

hindrance or distraction, considering that being the Chief Executive of the

Government is a job that, aside from requiring all of the office holder's time, also
demands undivided attention.
But this privilege of immunity from suit, pertains to the President by virtue of the
office and may be invoked only by the holder of the office; not by any other
person in the President's behalf. Thus, an accused in a criminal case in which the
President is complainant cannot raise the presidential privilege as a defense to
prevent the case from proceeding against such accused.
Moreover, there is nothing in our laws that would prevent the President from
waiving the privilege. Thus, if so minded the President may shed the protection
afforded by the privilege and submit to the court's jurisdiction. The choice of
whether to exercise the privilege or to waive it is solely the President's
prerogative. It is a decision that cannot be assumed and imposed by any other
person.
As regards the contention of petitioner Beltran that he could not be held liable
for libel because of the privileged character or the publication, the Court
reiterates that it is not a trier of facts and that such a defense is best left to the
trial court to appreciate after receiving the evidence of the parties.
As to petitioner Beltran's claim that to allow the libel case to proceed would
produce a "chilling effect" on press freedom, the Court finds no basis at this
stage to rule on the point.
The petitions fail to establish that public respondents, through their separate
acts, gravely abused their discretion as to amount to lack of jurisdiction. Hence,
the writs of certiorari and prohibition prayed for cannot issue.
WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of
jurisdiction on the part of the public respondents, the Court Resolved to DISMISS
the petitions in G. R. Nos. 82585, 82827 and 83979. The Order to maintain the
status quo contained in the Resolution of the Court en banc dated April 7, 1988
and reiterated in the Resolution dated April 26, 1988 is LIFTED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino Medialdea and Regalado, JJ.,
concur.

G.R. No. 81756 October 21, 1991

NICOMEDES SILVA @ " Comedes", MARLON SILVA, @ "Tama" and ANTONIETA
SILVA, petitioners,
vs.
THE HONORABLE PRESIDING JUDGE, REGIONAL TRIAL COURT OF NEGROS
ORIENTAL, BRANCH XXXIII, DUMAGUETE CITY, respondent.

and sufficient reasons to believe that marijuana dried leaves,

cigarettes, joint has in possession and/or control at Tama's
Room (Rgt. side lst Floor) located at Nono-Limbaga Drive,
Tanjay, Neg. Or. which is/are:
X (Subject of the offense stated above
(Stolen or embezzled or other proceeds of fruits of the offense;

Marcelo G. Flores for petitioners.

X (Used or intended to be used as means of committing an
offense.
FERNAN, C.J.:p
In this special civil action for certiorari, petitioners seek the nullification of Search
Warrant No. 1 issued by respondent Judge as well as the return of the money in
the amount of P1,231.00 seized from petitioner Antonieta Silva.
The antecedent facts are as follows:
On June 13, 1986, M/Sgt. Ranulfo Villamor, Jr., as chief of the PC Narcom
Detachment in Dumaguete City, Negros Oriental, filed an "Application for Search
Warrant" with the Regional Trial Court, Branch XXXIII, Dumaguete City against
petitioners Nicomedes Silva and Marlon Silva. 1 This application was
accompanied by a "Deposition of Witness" executed by Pfc. Arthur M. Alcoran
and Pat. Leon T. Quindo, also dated June 13, 1986. 2
On the same day. Judge Nickarter A. Ontal, then Presiding Judge of the Regional
Trial Court, Branch XXXIII, Dumaguete City, pursuant to the said "Application for
Search Warrant" and "Deposition of Witness", issued Search Warrant No. 1,
directing the aforesaid police officers to search the room of Marlon Silva in the
residence of Nicomedes Silva for violation of Republic Act No. 6425, otherwise
known as the Dangerous Drugs Act of 1972. as amended. Pertinent portions of
Search Warrant No. 1 read as follows:
It appearing to the satisfaction of the undersigned after
examining oath (sic) MSGT. Ranulfo T. Villamor, Jr. and his
witnesses (sic) Pfc. Arthur M. Alcoran and Pat. Leon T. Quindo
that there is probable cause to believe that possession and
control of Marijuana dried leaves, cigarettes, joint has been
committed or is about to be committed and that there are good

You are hereby commanded to make an immediate search at

any time of the day (night) of the room of Tama Silva residence
of his father Comedes Silva to open (sic) aparadors, lockers,
cabinets, cartoons, containers, forthwith seize and take
possession of the following property Marijuana dried leaves,
cigarettes, joint and bring the said property to the undersigned
to be dealt with as the law directs. 3
In the course of the search, the serving officers also seized money belonging to
Antonieta Silva in the amount of P1,231.40.
On June 16, 1986, Antonieta Silva filed a motion for the return of the said
amount on the grounds that the search warrant only authorized the serving
officers to seize marijuana dried leaves, cigarettes and joint, and that said
officers failed or refused to make a return of the said search warrant in gross
violation of Section 11, Rule 126 of the Rules of Court. 4
Acting on said motion, Judge Ontal issued an Order dated July 1, 1986, stating
that the court "holds in abeyance the disposition of the said amount of
P1,231.40 pending the filing of appropriate charges in connection with the
search warrant." 5
On July 28, 1987, petitioners filed a motion to quash Search Warrant No. 1 on
the grounds that (1) it was issued on the sole basis of a mimeographed
"Application for Search Warrant" and "Deposition of Witness", which were
accomplished by merely filling in the blanks and (2) the judge failed to personally
examine the complainant and witnesses by searching questions and answers in
violation of Section 3, Rule 126 of the Rules of Court. 6

On August 11, 1987, respondent trial court, through Judge Eugenio M. Cruz,
who, by then, had replaced retired Judge Ontal, issued an Order denying the
motion for lack of merit, finding the requisites necessary for the issuance of a
valid search warrant duly complied with. 7
A motion for reconsideration dated September 1, 1987 filed by petitioners was
likewise denied by Judge Cruz in an order dated October 19, 1987.
Hence, this special civil action for certiorari.
Petitioners allege that the issuance of Search Warrant No. 1 was tainted with
illegality and that respondent Judge should be viewed to have acted without or
in excess of jurisdiction, or committed grave abuse of discretion amounting to
lack of jurisdiction when he issued the Order dated August 11, 1987, denying
their motion to quash Search Warrant No, 1.
We rule for petitioners.
Section 2, Article III (Bill of Rights) of the 1987 Constitution guarantees the right
to personal liberty and security of homes against unreasonable searches and
seizures. This section provides:
Sec. 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons
or things to be seized.
The purpose of the constitutional provision against unlawful searches and
seizures is to prevent violations of private security in person and property, and
unlawful invasion of the sanctity of the home, by officers of the law acting under
legislative or judicial sanction, and to give remedy against such usurpations when
attempted. 8
Thus, Sections 3 and 4, Rule 126 of the Rules of Court provide for the requisites
for the issuance of a search warrant, to wit:

SEC. 3. Requisite for issuing search warrant. A search warrant

shall not issue but upon probable cause in connection with one
specific offense to be determined personally by the judge after
examination under oath or affirmation of the complainant and
the witnesses he may produce, and particularly describing the
place to be searched and the things to be seized.
SEC. 4. Examination of complainant; record. The judge must,
before issuing the warrant, personally examine in the form of
searching questions and answers, in writing and under oath the
complainant and any witnesses he may produce on facts
personally known to them and attach to the record their sworn
statements together with any affidavits submitted.
Based on the aforecited constitutional and statutory provisions, the judge must,
before issuing a search warrant, determine whether there is probable cause by
examining the complainant and witnesses through searching questions and
answers.
In the case of Prudente vs. Dayrit, G.R. No. 82870, December 14, 1989, 180 SCRA
69, 767 this Court defined "probable cause" as follows:
The "probable cause" for a valid search warrant, has been
defined "as such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense
has been committed, and that objects sought in connection
with the offense are in the place sought to be searched". This
probable cause must be shown to be within the personal
knowledge of the complainant or the witnesses he may
produce and not based on mere hearsay.
In the case at bar, we have carefully examined the questioned search warrant as
well as the "Application for Search Warrant" and "Deposition of Witness", and
found that Judge Ontal failed to comply with the legal requirement that he must
examine the applicant and his witnesses in the form of searching questions and
answers in order to determine the existence of probable cause. The joint
"Deposition of Witness" executed by Pfc. Alcoran and Pat. Quindo, which was
submitted together with the "Application for Search Warrant" contained, for the
most part suggestive questions answerable by merely placing "yes" or "no" in the
blanks provided thereon. In fact there were only four (4) questions asked, to wit:

Q Do you personally know M/Sgt. Ranulfo

Villamor, Jr. the applicant for a search
warrant?

and merely repetitious of the deposition of said witness. Mere

generalization will not suffice and does not satisfy the
requirements or probable cause upon which a warrant may
issue.

A Yes, sir.
Q Do you have personal knowledge that the
said premises subject of the offense stated
above, and other proceeds of fruit of the
offense, used or obtain (sic) or intended to be
used as means of committing an offense?
A Yes, sir.
Q Do you know personally who is/are the
person who has/have the property in his/their
possession and control?
A Yes, sir.
Q How did you know all this (sic) things?
A Through discreet surveillance. 9
The above deposition did not only contain leading questions but it was also very
broad. The questions propounded to the witnesses were in fact, not probing but
were merely routinary. The deposition was already mimeogragphed and all that
the witnesses had to do was fill in their answers on the blanks provided.
In the case of Nolasco vs. Pao, G.R. No. 69803, October 8, 1985, 139 SCRA 152,
163, this Court held:
The "probable cause" required to justify the issuance of a
search warrant comprehends such facts and circumstances as
will induce a cautious man to rely upon them and act in
pursuant thereof. Of the 8 questions asked, the 1st, 2nd and
4th pertain to identity. The 3rd and 5th are leading not
searching questions. The 6th, 7th and 8th refer to the
description of the personalities to be seized, which is identical
to that in the Search Warrant and suffers from the same lack of
particularity. The examination conducted was general in nature

Likewise, in the Prudente case cited earlier, this Court declared the search
warrant issued as invalid due to the failure of the judge to examine the witness
in the form of searching questions and answers. Pertinent portion of the
decision reads:
Moreover, a perusal of the deposition of P/Lt. Florencio Angeles
shows that it was too brief and short. Respondent Judge did not
examine him "in the form of searching questions and answers".
On the contrary, the questions asked were leading as they
called for a simple "yes" or "no" answer. As held in Quintero vs.
NBI, "the questions propounded by respondent Executive Judge
to the applicant's witness' are not sufficiently searching to
establish probable cause. Asking of leading questions to the
deponent in an application for search warrant, and conducting
of examination in a general manner, would not satisfy the
requirements for issuance of a valid search warrant. 10
Thus, in issuing a search warrant, the judge must strictly comply with the
constitutional and statutory requirement that he must determine the existence
of probable cause by personally examining the applicant and his witnesses in the
form of searching questions and answers. His failure to comply with this
requirement constitutes grave abuse of discretion. As declared in Marcelo vs. De
Guzman, G.R. No. L-29077, June 29, 1982, 114 SCRA 657, "the capricious
disregard by the judge in not complying with the requirements before issuance
of search warrants constitutes abuse of discretion".
The officers implementing the search warrant clearly abused their authority
when they seized the money of Antonieta Silva. This is highly irregular
considering that Antonieta Silva was not even named as one of the respondents,
that the warrant did not indicate the seizure of money but only of marijuana
leaves, cigarettes and joints, and that the search warrant was issued for the
seizure of personal property (a) subject of the offense and (b) used or intended
to be used as means of committing an offense and NOT for personal property
stolen or embezzled or other proceeds of fruits of the offense. Thus, the then
presiding Judge Ontal likewise abused his discretion when he rejected the
motion of petitioner Antonieta Silva seeking the return of her seized money.

WHEREFORE, the petition is granted. Search Warrant No. 1 is hereby declared

null and void. Respondent Judge of the Regional Trial Court of Negros Oriental,
Branch XXXIII is directed to order the return to petitioner Antonieta Silva of the
amount of P1,231.40 which had earlier been seized from her by virtue of the
illegal search warrant. This decision is immediately executory. No costs.
SO ORDERED.
Gutierrez, Jr., Feliciano, Bidin and Davide, Jr., JJ., concur.

G.R. No. L-22196

June 30, 1967

ESTEBAN MORANO, CHAN SAU WAH and FU YAN FUN, petitioners-appellants,

vs.
HON. MARTINIANO VIVO in his capacity as Acting Commissioner of Immigration,
respondent-appellant.
Engracio Fabre Law Office for petitioners-appellants.
Office of the Solicitor General Arturo A. Alafriz and Solicitor A. M. Amores for
respondent-appellant.
SANCHEZ, J.:
Chan Sau Wah, a Chinese citizen born in Fukien, China on January 6, 1932,
arrived in the Philippines on November 23, 1961 to visit her cousin, Samuel Lee
Malaps. She left in mainland China two of her children by a first marriage: Fu Tse
Haw and Fu Yan Kai With her was Fu Yan Fun, her minor son also by the first
marriage, born in Hongkong on September 11, 1957.
Chan Sau Wah and her minor son Fu Yan Fun were permitted only into the
Philippines under a temporary visitor's visa for two (2) months and after they
posted a cash bond of P4,000.00.
On January 24, 1962, Chan Sau Wah married Esteban Morano, a native-born
Filipino citizen. Born to this union on September 16, 1962 was Esteban Morano,
Jr.
To prolong their stay in the Philippines, Chan Sau Wah and Fu Yan Fun obtained
several extensions. The last extension expired on September 10,
1962.1wph1.t
In a letter dated August 31, 1962, the Commissioner of Immigration ordered
Chan Sau Wah and her son, Fu Yan Fun, to leave the country on or before
September 10, 1962 with a warning that upon failure so to do, he will issue a
warrant for their arrest and will cause the confiscation of their bond.
Instead of leaving the country, on September 10, 1962, Chan Sau Wah (with her
husband Esteban Morano) and Fu Yan Fun petitioned the Court of First Instance
of Manila for mandamus to compel the Commissioner of Immigration to cancel
petitioners' Alien Certificates of Registration; prohibition to stop the
Commissioner from issuing a warrant for their arrest, and preliminary injunction

to restrain the Commissioner from confiscating their cash bond and from issuing
warrants of arrest pending resolution of this case.1 The trial court, on November
3, 1962, issued the writ of preliminary injunction prayed for, upon a P2,000bond. After trial and the stipulations of facts filed by the parties, the Court of
First Instance rendered judgment, viz:
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered as
follows:
(a) Granting this petition for Mandamus and Prohibition with respect to
petitioner CHAN SAU WAH, who is hereby declared a citizen of the
Philippines; ordering the respondent to cancel her Alien Certificate of
Registration and other immigration papers, upon the payment of proper
dues; and declaring the preliminary injunction with respect to her
permanent, prohibiting the respondent, his representatives or
subordinates from arresting and/or deporting said petitioner;
(b) Dismissing this petition with respect to petitioner FU YAN FUN, and
dissolving the writ of preliminary injunction issued herein, restraining
the respondent, his representatives or subordinates from arresting
and/or deporting said petitioner;
(c) Authorizing respondent Commissioner to forfeit the bond filed by
herein petitioners CHAN SAU WAH and FU YAN FUN in the amount of
P4,000.00; and
(d) Denying, for lack of merit, the prayer to declare Sec. 37 (a) of the
Philippine Immigration Act of 1940 unconstitutional;
Without pronouncement, as to costs.
Petitioners and respondent Commissioner both appealed.
We will deal with the claims of both appellants in their proper sequence.
1. The Solicitor General's brief assails the trial court's declaration that Chan Sau
Wah is a citizen of the Philippines. The court a quo took the position that "Chan
Sau Wah became, by virtue of, and upon, her marriage to Esteban Morano, a
natural-born Filipino, a Filipino citizen.2

Placed to the fore is paragraph 1, Section 15 of Commonwealth Act 473 [Revised

Naturalization Act], which reads:
Sec. 15. Effect of the naturalization on wife children. Any woman who
is now or may hereafter be married to a citizen of the Philippines, and
who might herself be lawfully naturalized shall be deemed a citizen of
the Philippines.
To apply this provision, two requisites must concur: (a) valid marriage of an alien
woman to a citizen of the Philippines and (b) the alien woman herself might be
lawfully naturalized.
We may concede that the first requisite has been properly met. The validity of
the marriage is presumed.
But can the same be said of the second requisite? This question by all means is
not new. In a series of cases, this Court has declared that the marriage of an
alien woman to a Filipino citizen does not ipso facto make her a Filipino citizen.
She must satisfactorily show that she has all the qualifications and none of the
disqualifications required by the Naturalization Law.3 Ly Giok Ha alias Wy Giok
Ha et al. vs. Emilio Galang, L-21332, March 18, 1966,* clearly writes down the
philosophy behind the rule in the following expressive language, viz:
Reflection will reveal why this must be so. The qualifications prescribed
under section 2 of the Naturalization Act, and the disqualifications
enumerated in its section 4, are not mutually exclusive; and if all that
were to be required is that the wife of a Filipino be not disqualified
under section 4, the result might well be that citizenship would be
conferred upon persons in violation of the policy of the statute. For
example, section 4 disqualifies only

Similarly, the citizen's wife might be a convinced believer in racial

supremacy, in government by certain selected classes, in the right to
vote exclusively by certain "herrenvolk," and thus disbelieve in the
principles underlying the Philippine Constitution; yet she would not be
disqualified under section 4, as long as she is not "opposed to organized
government," nor affiliated to groups "upholding or teaching doctrines
opposing all organized governments," nor "defending or teaching the
necessity or propriety of violence, personal assault or assassination for
the success or predominance of their ideas." Et sic de caeteris.
Upon the principle of selective citizenship, we cannot afford to depart from the
wise precept affirmed and reaffirmed in the cases heretofore noted.
In the additional stipulation of facts of July 3, 1963, petitioners admit that Chan
Sau Wah is not possessed of all the qualifications required by the Naturalization
Law.
Because of all these we are left under no doubt that petitioner Chan Sau Wah
did not become a Filipino citizen.
2. Squarely put in issue by petitioners is the constitutionality of Section 37 (a) of
the Immigration Act of 1940, which reads:
Sec. 37. (a) The following aliens shall be arrested upon the warrant of
the Commissioner of Immigration or of any other officer designated by
him for the purpose and deported upon the warrant of the
Commissioner of Immigration after a determination by the Board of
Commissioners of the existence of the ground for deportation as
charged against the alien:
xxx

xxx

xxx

"(c) Polygamists or believers in the practice of polygamy; and

(b) Persons convicted of crimes involving moral turpitude,"
so that a blackmailer, or a maintainer of gambling or bawdy houses, not
previously convicted by a competent court, would not be thereby
disqualified; still it is certain that the law did not intend such a person
to, be admitted as a citizen in view of the requirement of section 2 that
an applicant for citizenship "must be of good moral character."

(7) Any alien who remains in the Philippines in violation of any limitation
or condition under which he was admitted as a nonimmigrant.
Petitioners argue that the legal precept just quoted trenches upon the
constitutional mandate in Section 1 (3), Article III [Bill of Rights] of the
Constitution, to wit:
(3) The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures shall not be

violated, and no warrants shall issue but upon probable cause, to be

determined by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce, and particularly
describing the place to be searched, and the persons or things to be
seized.
They say that the Constitution limits to judges the authority to issue warrants of
arrest and that the legislative delegation of such power to the Commissioner of
Immigration is thus violative of the Bill of Rights.
Section 1 (3), Article III of the Constitution, we perceive, does not require judicial
intervention in the execution of a final order of deportation issued in accordance
with law. The constitutional limitation contemplates an order of arrest in the
exercise of judicial power4 as a step preliminary or incidental to prosecution or
proceedings for a given offense or administrative action, not as a measure
indispensable to carry out a valid decision by a competent official, such as a legal
order of deportation, issued by the Commissioner of Immigration, in pursuance
of a valid legislation.
The following from American Jurisprudence,5 is illuminating:
It is thoroughly established that Congress has power to order the
deportation of aliens whose presence in the country it deems hurtful.
Owing to the nature of the proceeding, the deportation of an alien who
is found in this country in violation of law is not a deprivation of liberty
without due process of law. This is so, although the inquiry devolves
upon executive officers, and their findings of fact, after a fair though
summary hearing, are made conclusive.
xxx

xxx

xxx

The determination of the propriety of deportation is not a prosecution

for, or a conviction of, crime; nor is the deportation a punishment, even
though the facts underlying the decision may constitute a crime under
local law. The proceeding is in effect simply a refusal by the government
to harbor persons whom it does not want. The coincidence of local
penal law with the policy of Congress is purely accidental, and, though
supported by the same facts, a criminal prosecution and a proceeding
for deportation are separate and independent.

In consequence, the constitutional guarantee set forth in Section 1 (3), Article III
of the Constitution aforesaid, requiring that the issue of probable cause be
determined by a judge, does not extend to deportation proceedings.6
The view we here express finds support in the discussions during the
constitutional convention. The convention recognized, as sanctioned by due
process, possibilities and cases of deprivation of liberty, other than by order of a
competent court.7
Indeed, the power to deport or expel aliens is an attribute of sovereignty. Such
power is planted on the "accepted maxim of international law, that every
sovereign nation has the power, as inherent in sovereignty, and essential to selfpreservation, to forbid the entrance of foreigners within its dominions."8 So it is,
that this Court once aptly remarked that there can be no controversy on the fact
that where aliens are admitted as temporary visitors, "the law is to the effect
that temporary visitors who do not depart upon the expiration of the period of
stay granted them are subject to deportation by the Commissioner of
Immigration, for having violated the limitation or condition under which they
were admitted as non-immigrants (Immigration Law, Sec. 37 (a), subsection (7);
C.A. 613, as amended)."9
And, in a case directly in point, where the power of the Commissioner to issue
warrants of arrest was challenged as unconstitutional, because "such power is
only vested in a judge by Section 1, paragraph 3, Article III of our Constitution,"
this Court declared
This argument overlooks the fact that the stay of appellant Ng Hua To as
temporary visitor is subject to certain contractual stipulations as
contained in the cash bond put up by him, among them, that in case of
breach the Commissioner may require the recommitment of the person
in whose favor the bond has been filed. The Commissioner did nothing
but to enforce such condition. Such a step is necessary to enable the
Commissioner to prepare the ground for his deportation under section
37 (a) of Commonwealth Act 613. A contrary interpretation would
render such power nugatory to the detriment of the State.10
It is in this context that we rule that Section 37 (a) of the Immigration Act of
1940 is not constitutionally proscribed.
3. A sequel to the questions just discussed is the second error set forth in the
government's brief. The Solicitor General balks at the lower court's ruling that

petitioner Chan Sau Wah is entitled to permanent residence in the Philippines

without first complying with the requirements of Sections 9 and 13 of the
Immigration Act of 1940, as amended by Republic Act 503.
We first go to the law, viz:
SEC. 9 [last paragraph]
An alien who is admitted as a nonimmigrant cannot remain in the
Philippines permanently. To obtain permanent admission, a
nonimmigrant alien must depart voluntarily to some foreign country
and procure from the appropriate Philippine consul the proper visa and
thereafter undergo examination by the officers of the Bureau of
Immigration at a Philippine port of entry for determination of his
admissibility in accordance with the requirements of this Act.
SEC. 13. Under the conditions set forth in this Act there may be
admitted into the Philippines immigrants, termed "quota immigrants"
not in excess of fifty (50) of any one nationality or without nationality
for any one calendar year, except that the following immigrants, termed
"nonquota immigrants," maybe admitted without regard to such
numerical limitations.
The corresponding Philippine Consular representative abroad shall
investigate and certify the eligibility of a quota immigrant previous to his
admission into the Philippines. Qualified and desirable aliens who are in
the Philippines under temporary stay may be admitted within the quota,
subject to the provisions of the last paragraph of section 9 of this Act.
(a) The wife or the husband or the unmarried child under twenty-one
years of age of a Philippine citizen, if accompanying or following to join
such citizen;
(b) A child of alien parents born during the temporary visit abroad of the
mother, the mother having been previously lawfully admitted into the
Philippine for permanent residence, if the child is accompanying or
coming to join a parent and applies for admission within five years from
the date of its birth;

therefore be admitted if she were a qualified and desirable alien and subject to
the provisions of the last paragraph of Section 9. Therefore, first, she must
depart voluntarily to some foreign country; second, she must procure from the
appropriate consul the proper visa; and third, she must thereafter undergo
examination by the officials of the Bureau of Immigration at the port of entry for
determination of her admissibility in accordance with the requirements of the
immigration Act.
This Court in a number of cases has ruled, and consistently too, that an alien
admitted as a temporary visitor cannot change his or her status without first
departing from the country and complying with the requirements of Section 9 of
the Immigration Act. 11
The gravamen of petitioners' argument is that Chan Sau Wah has, since her
entry, married in Manila a native-born Filipino, Esteban Morano. It will not
particularly help analysis for petitioners to appeal to family solidarity in an effort
to thwart her deportation. Chan Sau Wah, seemingly is not one who has a high
regard for such solidarity. Proof: She left two of her children by the first
marriage, both minors, in the care of neighbors in Fukien, China.
Then, the wording of the statute heretofore adverted to is a forbidding obstacle
which will prevent this Court from writing into the law an additional provision
that marriage of a temporary alien visitor to a Filipino would ipso facto make her
a permanent resident in his country. This is a field closed to judicial action. No
breadth of discretion is allowed us. We cannot insulate her from the State's
power of deportation.
Really, it would be an easy matter for an alien woman to enter the Philippines as
a temporary visitor, go through a mock marriage, but actually live with another
man as husband and wife, and thereby skirt the provisions of our immigration
law. Also, a woman of undesirable character may enter this country, ply a
pernicious trade, marry a Filipino, and again throw overboard Sections 9 and 13
of the Act. Such a flanking movement, we are confident, is impermissible.
Recently we confirmed the rule that an alien wife of a Filipino may not stay
permanently without first departing from the Philippines. Reason: Discourage
entry under false pretenses. 12
The ruling of the trial court on this score should be reversed.

Concededly, Chan Sau Wah entered the Philippines on a tourist-temporary

visitor's visa. She is a non-immigrant. Under Section 13 just quoted, she may

4. It is petitioners' turn to point as error the dismissal of the petition for

mandamus and prohibition with respect to petitioner Fu Yan Fun.
Petitioners' line of thought is this: Fu Yan Fun follows the citizenship of his
mother. They cite Section 15, paragraph 3, Commonwealth Act 473, which says
that:
A foreign-born minor child, if dwelling in the Philippines at the time of
the naturalization of the parent, shall automatically become a Philippine
citizen. . . .
Petitioners' position is based on the assumption that Chan Sau Wah, the mother,
is a Filipino citizen. We have held that she is not. At best, Fu Yan Fun is a step-son
of Esteban Morano, husband of Chan Sau Wah. A step-son is not a foreign-born
child of the step-father. The word child, we are certain, means legitimate child,
not a step-child. We are not wanting in precedents. Thus, when the Constitution
provides that "[t]hose whose fathers are citizens of the Philippines" are citizens
thereof, 13 the fundamental charter intends "those" to apply to legitimate
children. 14 In another case, the term "minor children" or "minor child" in Section
15 of the Revised Naturalization Law refers only to legitimate children of Filipino
citizens. This Court, thru Mr. Chief Justice Roberto Concepcion, there said: 15
It is claimed that the phrases "minor children" and "minor child," used in
these provisions, include adopted children. The argument is predicated
upon the theory that an adopted child is, for all intents and purposes, a
legitimate child. Whenever, the word "children" or "child" is used in
statutes, it is generally understood, however, to refer to legitimate
children, unless the context of the law and its spirit indicate clearly the
contrary. Thus, for instance, when the Constitution provides that "those
whose fathers are citizens of the Philippines," and "those whose
mothers are citizens of the Philippines" who shall elect Philippine
citizenship upon reaching the age of majority, are citizens of the
Philippines (Article IV, Section 1, subdivisions [3] and [4]), our
fundamental law clearly refers to legitimate children (Chiongbian vs. De
Leon, 46 Off. Gaz., 3652-3654; Serra v. Republic, L-4223, May 12, 1952).
At any rate, Fu Yan Fun entered the Philippines as a temporary visitor. The status
of a temporary visitor cannot be converted into, that of a permanent resident, as
we have heretofore held, without first complying with Section 9 of the
Immigration Law.

5. Petitioners finally aver that the lower court erred in authorizing respondent
Commissioner to forfeit the bond filed by petitioners Chan Sau Wah and Fu Yan
Fun in the amount of P4,000.00.
Here is petitioners' posture. They enjoyed their stay in the Philippines upon a
bond. Now they come to court and say that as the prescribed form of this bond
was not expressly approved by the Secretary of Justice in accordance with
Section 3 of Commonwealth Act 613, which reads
SEC. 3. . . . He [Commissioner of Immigration] shall issue, subject to the
approval of the Department Head, such rules and regulations and
prescribes such forms of bond, reports, and other papers, and shall
issue from time to time such instruction, not inconsistent with law, as he
shall deem best calculated to carry out the provisions of the
immigration laws. . . .
that bond is void.
Reasons there are which prevent us from giving our imprimatur to this
argument.
The provision requiring official approval of a bond is merely directory.
"Irregularity or entire failure in this respect does not affect the validity of the
bond. 16 The reason for the rule, is found in 9 C.J., p. 26 (footnote), which reads:
(a) Reason for rule. "Statutes requiring bonds to be approved by certain
officials are not for the purpose of protecting the obligors in the bond, but are
aimed to protect the public, to insure their solvency, and to create evidence of
an unimpeachable character of the fact of their execution. When they are
executed for a legal purpose, before a proper tribunal, and are in fact accepted
and approved by the officer or body, whose duty it was to approve them, it
could serve no useful purpose of the law to hold them invalid, to release all the
obligors thereon, and to defeat every purpose of its execution, simply because
the fact of approval was not indorsed precisely as had been directed by the
Legislature." American Book Co. vs. Wells, 83 SW 622, 627, 26 Ky L-1159.
(emphasis supplied)
And another. This bond was accepted by the government. It had been there. The
form of the bond here used is of long continued usage. If the government did
not question the form of the bond at all, then we must assume that it counted

with the Secretary's approval. For the presumption is that official duty has been
legally performed.
Surely enough, equitable considerations will stop petitioners from pleading
invalidity of the bond. They offered that bond to enable them to enter and stay
in this country. They enjoyed benefits therefrom. They cannot, "in law, and good
conscience, be allowed to reap the fruits" of that bond, and then jettison the
same. They are "precluded from attacking the validity" of such bond. 17
Actually, to petitioners the bond was good while they sought entry into the
Philippines; they offered it as security for the undertaking; that they "will actually
depart from the Philippines" when their term of stay expires. Now that the bond
is being confiscated because they overstayed, they make an about-face and say
that such bond is null and void. They shall not profit from this inconsistent
position. Their bond should be confiscated.
Conformably to the foregoing, the judgment under review is hereby modified as
follows:
(1) The portion thereof which reads:
(a) Granting their petition for Mandamus and Prohibition with respect
to petitioner CHAN SAU WAH, who is hereby declared a citizen of the
Philippines; ordering the respondent to cancel her Alien Certificate of
Registration and other immigration papers, upon the payment of proper
dues; and declaring preliminary injunction with respect to her
permanent, prohibiting the respondent, his representatives or
subordinates from arresting and/or deporting said petitioner;
is hereby reversed: and, in consequence
The petition for mandamus and prohibition with respect to petitioner Chan Sau
Wah is hereby denied; and the judgment declaring her a citizen of the
Philippines, directing respondent to cancel her Alien Certificate of Registration
and other immigration papers, and declaring the preliminary injunction with
respect to her permanent, are all hereby set aside; and
(2) In all other respects, the decision appealed from is hereby affirmed.
No costs. So ordered.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Bengzon J.P., Zaldivar and Castro, J.J.,
concur.

G.R. No. 82544 June 28, 1988

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF: ANDREW HARVEY,
JOHN SHERMAN and ADRIAAN VAN DEL ELSHOUT, petitioners,
vs.
HONORABLE COMMISSIONER MIRIAM DEFENSOR SANTIAGO, COMMISSION ON
IMMIGRATION AND DEPORTATION, respondent.

ANDREW MARK HARVEY was found together with two young

boys.
RICHARD SHERMAN was found with two naked boys inside his
room.
In respect of Van Den Elshout the "After Mission Report," dated 27 February
1988 read in part:

MELENCIO-HERRERA, J.:
Noted:
A petition for Habeas Corpus.
Petitioners Andrew Harvey and John Sherman, 52 and 72 years, respectively, are
both American nationals residing at Pagsanjan, Laguna, while Adriaan Van
Elshout, 58 years old, is a Dutch citizen also residing at Pagsanjan, Laguna.
The case stems from the apprehension of petitioners on 27 February 1988 from
their respective residences by agents of the Commission on Immigration and
Deportation (CID) by virtue of Mission Orders issued by respondent
Commissioner Miriam Defensor Santiago of the CID. Petitioners are presently
detained at the CID Detention Center.
Petitioners were among the twenty-two (22) suspected alien pedophiles who
were apprehended after three months of close surveillance by CID agents in
Pagsanjan, Laguna. Two (2) days after apprehension, or on 29 February 1988,
seventeen (17) of the twenty-two (22) arrested aliens opted for self-deportation
and have left the country. One was released for lack of evidence; another was
charged not for being a pedophile but for working without a valid working visa.
Thus, of the original twenty two (22), only the three petitioners have chosen to
face deportation.
Seized during petitioners apprehension were rolls of photo negatives and photos
of the suspected child prostitutes shown in salacious poses as well as boys and
girls engaged in the sex act. There were also posters and other literature
advertising the child prostitutes.
The "Operation Report," on Andrew Harvey and Richard Sherman dated 29
February 1988 stated:
xxx xxx xxx

There were two (2) children ages 14 & 16

which subject readily accepted having been in
his care and live-in for quite sometime.
On 4 March 1988, deportation proceedings were instituted against petitioners
for being undesirable aliens under Section 69 of the Revised Administrative Code
(Deportation Case No. 88-13). The "Charge Sheet" read inter alia:
Wherefore, this Office charges the respondents for
deportation, as undesirable aliens, in that: they, being
pedophiles, are inimical to public morals, public health and
public safety as provided in Section 69 of the Revised
Administrative Code.
On 7 March 1988, Warrants of Arrest were issued by respondent against
petitioners for violation of Sections 37, 45 and 46 of the Immigration Act and
Section 69 of the Revised Administrative Code On the same date, the Board of
Special Inquiry III commenced trial against petitioners.
On 14 March 1988, petitioners filed an Urgent Petition for Release Under Bond
alleging that their health was being seriously affected by their continuous
detention. Upon recommendation of the Board of Commissioners for their
provisional release, respondent ordered the CID doctor to examine petitioners,
who certified that petitioners were healthy.
On 22 March 1988, petitioners filed a Petition for Bail which, however,
respondent denied considering the certification by the CID physician that
petitioners were healthy. To avoid congestion, respondent ordered petitioners'
transfer to the CID detention cell at Fort Bonifacio, but the transfer was deferred

pending trial due to the difficulty of transporting them to and from the CID
where trial was on-going.
On 4 April 1988 petitioner Andrew Harvey filed a Manifestation/Motion stating
that he had "finally agreed to a self-deportation" and praying that he be
"provisionally released for at least 15 days and placed under the custody of Atty.
Asinas before he voluntarily departs the country." On 7 April 1988, the Board of
Special Inquiry III allowed provisional release of five (5) days only under
certain conditions. However, it appears that on the same date that the aforesaid
Manifestation/ Motion was filed, Harvey and his co-petitioners had already filed
the present petition.
On 4 April 1988, as heretofore stated, petitioners availed of this Petition for a
Writ of Habeas Corpus. A Return of the Writ was filed by the Solicitor General
and the Court heard the case on oral argument on 20 April 1988. A Traverse to
the Writ was presented by petitioners to which a Reply was filed by the Solicitor
General.
Petitioners question the validity of their detention on the following grounds:
1) There is no provision in the Philippine Immigration Act of 1940 nor under
Section 69 of the Revised Administrative Code, which legally clothes the
Commissioner with any authority to arrest and detain petitioners pending
determination of the existence of a probable cause leading to an administrative
investigation.
2) Respondent violated Section 2, Article III of the 1987 Constitution prohibiting
unreasonable searches and seizures since the CID agents were not clothed with
valid Warrants of arrest, search and seizure as required by the said provision.
3) Mere confidential information made to the CID agents and their suspicion of
the activities of petitioners that they are pedophiles, coupled with their
association with other suspected pedophiles, are not valid legal grounds for their
arrest and detention unless they are caught in the act. They further allege that
being a pedophile is not punishable by any Philippine Law nor is it a crime to be a
pedophile.
We reject petitioners' contentions and uphold respondent's official acts ably
defended by the Solicitor General.

There can be no question that the right against unreasonable searches and
seizures guaranteed by Article III, Section 2 of the 1987 Constitution, is available
to all persons, including aliens, whether accused of crime or not (Moncado vs.
People's Court, 80 Phil. 1 [1948]. One of the constitutional requirements of a
valid search warrant or warrant of arrest is that it must be based upon probable
cause. Probable cause has been defined as referring to "such facts and
circumstances antecedent to the issuance of the warrant that in themselves are
sufficient to induce a cautious man to rely on them and act in pursuance
thereof." (People vs. Syjuco 64 Phil. 667 [1937]; Alverez vs. CFI, 64 Phil. 33
[1937]).
The 1985 Rules on Criminal Procedure also provide that an arrest wit a warrant
may be effected by a peace officer or even a private person (1) when such
person has committed, actually committing, or is attempting to commit an
offense in his presence; and (2) when an offense has, in fact, been committed
and he has personal knowledge of facts indicating that the person to be arrested
has committed it (Rule 113, Section 5).
In this case, the arrest of petitioners was based on probable cause determined
after close surveillance for three (3) months during which period their activities
were monitored. The existence of probable cause justified the arrest and the
seizure of the photo negatives, photographs and posters without warrant (See
Papa vs. Mago, L-27360, February 28, 1968,22 SCRA 857; People vs. Court of
First Instance of Rizal, L-41686, November 17, 1980, 101 SCRA 86, cited in CRUZ,
Constitutional Law, 1987 ed., p. 143). Those articles were seized as an incident to
a lawful arrest and, are therefore, admissible in evidence (Section 12, Rule
126,1985 Rules on criminal Procedure).
But even assuming arguendo that the arrest of petitioners was not valid at its
inception, the records show that formal deportation charges have been filed
against them, as undesirable aliens, on 4 March 1988. Warrants of arrest were
issued against them on 7 March 1988 "for violation of Section 37, 45 and 46 of
the Immigration Act and Section 69 of the Administrative Code." A hearing is
presently being conducted by a Board of Special Inquiry. The restraint against
their persons, therefore, has become legal. The Writ has served its purpose. The
process of the law is being followed (Cruz vs. Montoya, L-39823, February 25,
1975, 62 SCRA 543). "were a person's detention was later made by virtue of a
judicial order in relation to criminal cases subsequently filed against the
detainee, his petition for hebeas corpus becomes moot and academic" (Beltran
vs. Garcia, L-49014, April 30, 1979, 89 SCRA 717). "It is a fumdamental rule that a
writ of habeas corpus will not be granted when the confinement is or has

become legal, although such confinement was illegal at the beginning" (Matsura
vs. Director of Prisons, 77 Phil. 1050 [1947]).
That petitioners were not "caught in the act" does not make their arrest illegal.
Petitioners were found with young boys in their respective rooms, the ones with
John Sherman being naked. Under those circumstances the CID agents had
reasonable grounds to believe that petitioners had committed "pedophilia"
defined as "psychosexual perversion involving children" (Kraft-Ebbing
Psychopatia Sexualis p. 555; Paraphilia (or unusual sexual activity) in which
children are the preferred sexual object" (Webster's Third New International
Dictionary, 1971 ed., p. 1665) [Solicitor General's Return of the Writ, on p. 101.
While not a crime under the Revised Penal Code, it is behavior offensive to
public morals and violative of the declared policy of the State to promote and
protect the physical, moral, spiritual, and social well-being of our youth (Article
II, Section 13, 1987 Constitution).
At any rate, the filing by petitioners of a petition to be released on bail should be
considered as a waiver of any irregularity attending their arrest and estops them
from questioning its validity (Callanta v. Villanueva, L-24646 & L-24674, June 20,
1977, 77 SCRA 377; Bagcal vs. Villaraza, L-61770, January 31, 1983, 120 SCRA
525).
The deportation charges instituted by respondent Commissioner are in
accordance with Section 37(a) of the Philippine Immigration Act of 1940, in
relation to Section 69 of the Revised Administrative Code. Section 37(a) provides
in part:
(a) The following aliens shall be arrested upon the warrant of
the Commissioner of Immigration and Deportation or any other
officer designated by him for the purpose and deported upon
the warrant of the Commissioner of Immigration and
Deportation after a determination by the Board of
Commissioners of the existence of the ground for deportation
as charged against the alien;
xxx xxx xxx
The foregoing provision should be construed in its entirety in view of the
summary and indivisible nature of a deportation proceeding, otherwise, the very
purpose of deportation proceeding would be defeated.

Section 37(a) is not constitutionally proscribed (Morano vs. Vivo, L-22196, June
30, 1967, 20 SCRA 562). The specific constraints in both the 1935 1 and 1987 2
Constitutions, which are substantially Identical, contemplate prosecutions
essentially criminal in nature. Deportation proceedings, on the other hand, are
administrative in character. An order of deportation is never construed as a
punishment. It is preventive, not a penal process. It need not be conducted
strictly in accordance with ordinary Court proceedings.
It is of course well-settled that deportation proceedings do not
constitute a criminal action. The order of deportation is not a
punishment, (Maliler vs. Eby, 264 U.S., 32), it being merely the
return to his country of an alien who has broken the conditions
upon which he could continue to reside within our borders (U.S.
vs. De los Santos, 33 Phil., 397). The deportation proceedings
are administrative in character, (Kessler vs. Stracker 307 U.S.,
22) summary in nature, and need not be conducted strictly in
accordance with the ordinary court proceedings (Murdock vs.
Clark, 53 F. [2d], 155). It is essential, however, that the warrant
of arrest shall give the alien sufficient information about the
charges against him, relating the facts relied upon. (U.S. vs. Uhl
211 F., 628.) It is also essential that he be given a fair hearing
with the assistance of counsel, if he so desires, before
unprejudiced investigators (Strench vs. Pedaris, 55 F. [2d], 597;
Ex parte Jew You On, 16 F. [2d], 153). However, all the strict
rules of evidence governing judicial controversies do not need
to be observed; only such as are fumdamental and essential like
the right of cross-examination. (U.S. vs. Hughes, 104 F. [2d], 14;
Murdock vs. Clark, 53 F. [2d], 155.) Hearsay evidence may even
be admitted, provided the alien is given the opportunity to
explain or rebut it (Morrell vs. Baker, 270 F., 577; Sercerchi vs.
Ward, 27 F. Supp., 437). (Lao Tang Bun vs. Fabre 81 Phil. 682
[1948]).
The ruling in Vivo vs. Montesa (G. R. No. 24576, July 29, 1968, 24 SCRA 155) that
"the issuance of warrants of arrest by the Commissioner of Immigration, solely
for purposes of investigation and before a final order of deportation is issued,
conflicts with paragraph 3, Section I of Article III of the Constitution" (referring to
the 1935 Constitution) 3 is not invocable herein. Respondent Commissioner's
Warrant of Arrest issued on 7 March 1988 did not order petitioners to appear
and show cause why they should not be deported. They were issued specifically
"for violation of Sections 37, 45 and 46 of the Immigration Act and Section 69 of

the Revised Administrative Code." Before that, deportation proceedings had

been commenced against them as undesirable aliens on 4 March 1988 and the
arrest was a step preliminary to their possible deportation.
Section 37 of the Immigration Law, which empowers the
Commissioner of Immigration to issue warrants for the arrest of
overstaying aliens is constitutional. The arrest is a stop
preliminary to the deportation of the aliens who had violated
the condition of their stay in this country. (Morano vs. Vivo, L22196, June 30, 1967, 20 SCRA 562).
To rule otherwise would be to render the authority given the Commissioner
nugatory to the detriment of the State.
The pertinent provision of Commonwealth Act No. 613, as
amended, which gives authority to the Commissioner of
Immigration to order the arrest of an alien temporary visitor
preparatory to his deportation for failure to put up new bonds
required for the stay, is not unconstitutional.
xxx xxx xxx
... Such a step is necessary to enable the Commissioner to
prepare the ground for his deportation under Section 37[al of
Commonwealth Act 613. A contrary interpretation would
render such power nugatory to the detriment of the State. (Ng
Hua To vs. Galang, G. R. No. 10145, February 29, 1964, 10 SCRA
411).
"The requirement of probable cause, to be determined by a Judge, does not
extend to deportation proceedings." (Morano vs. Vivo, supra, citing Tiu Chun Hai
vs. Commissioner, infra). There need be no "truncated" recourse to both judicial
and administrative warrants in a single deportation proceedings.
The foregoing does not deviate from the ruling in Qua Chee Gan vs. Deportation
Board (G. R. No. 10280, September 30, 1963, 9 SCRA 27 [1963]) reiterated in
Vivo vs. Montesa, supra, that "under the express terms of our Constitution (the
1935 Constitution), it is therefore even doubtful whether the arrest of an
individual may be ordered by any authority other than a judge if the purpose is
merely to determine the existence of a probable cause, leading to an

administrative investigation." For, as heretofore stated, probable cause had

already been shown to exist before the warrants of arrest were issued.
What is essential is that there should be a specific charge against the alien
intended to be arrested and deported, that a fair hearing be conducted (Section
37[c]) with the assistance of counsel, if desired, and that the charge be
substantiated by competent evidence. Thus, Section 69 of the Revised
Administrative Code explicitly provides:
Sec. 69. Deportation of subject of foreign power. A subject of a
foreign power residing in the Philippines shall not be deported,
expelled, or excluded from said Islands or repatriated to his
own country by the President of the Philippines except upon
prior investigation, conducted by said Executive or his
authorized agent, of the ground upon which such action is
contemplated. In such a case the person concerned shall be
informed of the charge or charges against him and he shall be
allowed not less than 3 days for the preparation of his defense.
He shall also have the right to be heard by himself or counsel,
to produce witnesses in his own behalf, and to cross-examine
the opposing witnesses.
The denial by respondent Commissioner of petitioners' release on bail, also
challenged by them, was in order because in deportation proceedings, the right
to bail is not a matter of right but a matter of discretion on the part of the
Commissioner of Immigration and Deportation. Thus, Section 37(e) of the
Philippine Immigration Act of 1940 provides that "any alien under arrest in a
deportation proceeding may be released under bond or under such other
conditions as may be imposed by the Commissioner of Immigration." The use of
the word "may" in said provision indicates that the grant of bail is merely
permissive and not mandatory on the part of the Commissioner. The exercise of
the power is wholly discretionary (Ong Hee Sang vs. Commissioner of
Immigration, L-9700, February 28,1962, 4 SCRA 442). "Neither the Constitution
nor Section 69 of the Revised Administrative Code guarantees the right of aliens
facing deportation to provisional liberty on bail." (Tiu Chun Hai et al vs.
Deportation Board, 104 Phil. 949 [1958]). As deportation proceedings do not
partake of the nature of a criminal action, the constitutional guarantee to bail
may not be invoked by aliens in said proceedings (Ong Hee Sang vs.
Commissioner of Immigration, supra).

Every sovereign power has the inherent power to exclude aliens from its
territory upon such grounds as it may deem proper for its self-preservation or
public interest (Lao Tan Bun vs. Fabre 81 Phil. 682 [1948]). The power to deport
aliens is an act of State, an act done by or under the authority of the sovereign
power (In re McCulloch Dick, 38 Phil. 41 [1918]). It is a police measure against
undesirable aliens whose continued presence in the country is found to be
injurious to the public good and the domestic tranquility of the people (Forbes
vs. Chuoco Tiaco et al., 16 Phil. 534 [1910]). Particularly so in this case where the
State has expressly committed itself to defend the tight of children to assistance
and special protection from all forms of neglect, abuse, cruelty, exploitation, and
other conditions prejudicial to their development (Article XV, Section 3[2]).
Respondent Commissioner of Immigration and Deportation, in instituting
deportation proceedings against petitioners, acted in the interests of the State.
WHEREFORE, the Petition is dismissed and the Writ of Habeas Corpus is hereby
denied.
SO ORDERED.
Yap, C.J., Paras, Padilla and Sarmiento, JJ., concur.

G.R. No. 109633 July 20, 1994

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NORMANDO DEL ROSARIO Y LOPEZ, accused-appellant.
MELO, J.:
Normando del Rosario was charged before Branch 17 of the Regional Trial Court
of the Fourth Judicial Region stationed in Cavite City with Illegal Possession of
Firearm and Ammunitions in Criminal Case No. 236-91 and Illegal Sale of
Regulated Drugs in Criminal Case No. 237-91, under two informations reading,
respectively, as follows:
Criminal Case No. 236-91
That on or about September 4, 1991, in the City of Cavite,
Republic of the Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, without legal
authority, did, then and there, willfully, unlawfully, feloniously
and knowingly have in his possession and control a homemade
(paltik)caliber .22 revolver with three (3) live ammunition.

Upon arraignment, accused-appellant pleaded not guilty to both charges, and

after joint trial of the two cases, the court a quo rendered a decision, the
dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the Court finds the
accused Normando del Rosario y Lopez guilty beyond
reasonable doubt in the above-entitled cases and he is hereby
sentenced to undergo imprisonment: in Crim. Case No. 236-91
for Violation of P.D. 1866 of Seventeen (17) years, Four (4)
months and One (1) day of reclusion temporal, as minimum to
Twenty (20) years of reclusion temporal, as maximum and in
Crim. Case No. 237-91 for a violation of Section 15, Article III of
Republic Act 6425, as amended of life imprisonment and to pay
a fine of P30,000.00, without subsidiary imprisonment in case
of insolvency and to pay the costs in both cases.
The shabu, the One Hundred Peso bill and other paraphernalia
are hereby ordered confiscated in favor of the government.
(pp. 28-29, Rollo.)
From said decision, the instant appeal has been interposed.
The prosecution's version of the case, as set forth in appellee's brief, is as
follows:

Contrary to law.
Criminal Case No. 237-91
That on or about September 4, 1991, in the City of Cavite,
Republic of the Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, without legal
authority, did, then and there, willfully, unlawfully, feloniously
and knowingly sell to a poseur buyer an aluminum foil
containing Methamphetamine Hydrochloride also known as
"Shabu", a regulated drug.
Contrary to law.
(pp. 20-21, Rollo.)

Upon application of SPO3 Raymundo Untiveros of the

Philippine National Police (PNP) of Cavite City, Regional Trial
Court Judge Arturo de Guia issued in the morning of September
4, 1991 a search warrant
(Exh. T, p. 50, Rec. Crim. Case No. 237-91) authorizing the
search and seizure of an "undetermined quantity of
Methamphetamine Hydrochloride commonly known as shabu
and its paraphernalias" in the premises of appellant's house
located at 828 R. Basa St., San Roque, Cavite City. However, the
search warrant was not implemented immediately due to the
lack of police personnel to form the raiding team (pp. 4, 7, tsn.,
Feb. 4, 1992).
At about 9 o'clock in the evening of that day, a raiding team
was finally organized. SPO3 Untiveros headed the raiding team

with PO3 Rogelio Francisco, SPO1 Eduardo Novero, SPO3

Reynaldo de la Cruz, PO1 Carlito Barbuco, PO3 Onrubio and
SPO2 Villegas as members
(pp. 5, 10, tsn., Feb. 4, 1992; p. 7, tsn., Dec. 11, 1991).
In the final briefing of the raiding team at the police station, it
was agreed upon that PO1 Venerando Luna will buy shabu from
appellant and after his return from appellant's house, the
raiding team will implement the search warrant (p. 10, tsn.,
Feb. 4, 1992; pp. 17-18, tsn., Dec. 11, 1991). A marked money
consisting of a P100 bill bearing serial no. PQ 329406
(Exh. P, p. 51, Rec.) was given by the Station Commander to
PO1 Luna and entered in the police logbook (p. 12, Feb. 4,
1992). PO1 Luna with a companion proceeded to appellant's
house to implement the search warrant. Barangay Capt.
Maigue, Norma del Rosario and appellant witnessed the search
at appellant's house (p. 10, tsn., Dec. 11, 1991). SPO3 de la Cruz
and PO3 Francisco found a black canister containing shabu, an
aluminum foil, a paltik .22 caliber (Exh. O) atop the TV set, three
used ammunitions in a cup and three wallets (Exhs. Q, R, S), one
containing the marked money (Exh. P; pp. 11-12, tsn., Dec. 11,
1992). SPO1 Novero found inside a show box aluminum foils,
napkins and a burner (p. 9, tsn., March 11, 1992). SPO3 de la
Cruz turned over the wallet containing the marked money to
PO3 Onrubio (p. 8, 32, tsn., Jan. 7, 1992). The seized items were
photographed thereat by Fred Agana and then turned over to
PO3 Onrubio (pp. 8, 32, tsn., Jan. 7, 1992). SPO3 Untiveros
issued receipts (Exhs. V, V-1, pp. 53-54, Rec.) for the seized
items with Barangay Capt. Maigue and appellant's sister Norma
as signing witnesses. He also made a return (Exh. U, p. 52, Rec.)
of the seized items to the court (pp. 11-155, tsn., Feb. 18,
1992.).
At police station, the seized items were taped and initialed by
SPO3 de la Cruz (p. 33, tsn., Jan. 7, 1992). The next day, SPO4
Pilapil, through PO1 Barbuco, forwarded to NBI Forensic
Chemist Mary Ann Aranas for laboratory analysis the aluminum
foil (Exhs. A, J, pp. 37, 46, Rec.) containing suspected shabu
bought by PO1 Luna from appellant in the
buy-bust operation as well as the aluminum foils (Exhs. G, K, pp.

43, 47, Rec.) containing suspected marijuana which were

confiscated by virtue of the search warrant.
The findings of NBI Forensic Chemist Aranas disclosed that all
the specimen submitted to her for laboratory analysis by SPO1
Pilapil, thru PO1 Barbuco, gave positive results for
Methamphetamine Hydrochloride (pp. 2-9, tsn., Dec. 3, 1991;
Exh. B, C, H, I, pp. 38, 39, 44, 45, Rec.).
(pp. 102-105, Rollo.)
Carefully evaluating the evidence on record, we believe that the prosecution has
failed to prove the guilt of accused-appellant. Much is to be desired in the
manner the police authorities effected the arrest of accused-appellant and the
same observation may be made with regard to the way the prosecution
conducted its case.
Foremost among the inadequacies of the prosecution is its failure to call to the
witness stand PO1 Venerando Luna, the alleged poseur-buyer. There is, thus, a
total absence of evidence to establish the purported sale of shabu by accusedappellant to Venerando Luna, the supposed poseur-buyer. The omission to
present the poseur-buyer casts serious doubts that an illegal sale of a dangerous
drug actually took place.
The trial court gave much weight to the testimonies of the
police members of the buy-bust operation. However, the
prosecution did not present as witness the supposed poseurbuyer. Such omission casts serious doubt on appellant's guilt
because without the testimony of the
poseur-buyer, there is no convincing evidence to show that
appellant sold marijuana. The testimonies of the rest of the
buy-bust operation are hearsay in view of the fact that the
poseur-buyer, was never presented at the trial. There was even
no testimony that when the accused-appellant handed the stuff
to the poseur-buyer that the latter in turn handed the marked
money. The failure of the prosecution to present the alleged
buyer of the marijuana was a fatal flaw in the case against the
accused.
(People vs. Fulgarillas, 212 SCRA 76, 80 [1992])

The testimony of prosecution witness PO3 Rogelio Francisco that Veneracion

Luna, the alleged Poseur-buyer, bought shabu from accused-appellant was
derived solely from what Luna supposedly told him (pp. 19-20, tsn., December
11, 1991) and, therefore, is patently hearsay evidence, without any evidentiary
weight whatsoever. Likewise, the statements of prosecution witnesses
Policemen Reynaldo de la Cruz, Raymundo Untiveros, and Eduardo Novera, Jr. as
to the alleged sale of shabu are hearsay, without weight, as all of them were not
present during the alleged sale.
According to the version of the prosecution, during the alleged buy-bust
operation, accused-appellant handed over to Veneracion Luna, the alleged
poseur-buyer, a quantity of shabu, and Luna in turn paid accused-appellant a
marked P100 bill and then returned to the police station and informed the
raiding team that he had already bought the shabu from accused-appellant.
Thereupon, the raiding team proceeded to the house of accused-appellant to
implement the search warrant. The version of the prosecution is highly
incredible. The record is devoid of any reason why the police officers did not
make any attempt to arrest accused-appellant at the time he allegedly sold the
shabu to Veneracion Luna who was accompanied by another police officer. That
was the opportune moment to arrest accused-appellant. The version foisted by
the prosecution upon this Court is contrary to human experience in the ordinary
course of human conduct. The usual procedure in a buy-bust operation is for the
police officers to arrest the pusher of drugs at the very moment he hands over
the dangerous drug to the poseur-buyer. That is the very reason why such a
police operation is called a "buy-bust" operation. The police poseur-buyer "buys"
dangerous drugs from the pusher and "busts" (arrests) him the moment the
pusher hands over the drug to the police officer.
We thus entertain serious doubts that the shabu contained in a small canister
was actually seized or confiscated at the residence of accused-appellant. In
consequence, the manner the police officers conducted the subsequent and
much-delayed search is highly irregular. Upon bargaining into the residence of
accused-appellant, the police officers found him lying down and they
immediately arrested and detained him in the living room while they searched
the other parts of the house. Although they fetched two persons to witness the
search, the witnesses were called in only after the policemen had already
entered accused-appellant's residence (pp. 22-23, tsn, December 11, 1991), and,
therefore, the policemen had more than ample time to plant the shabu.
Corollary to the constitutional precept that, in all criminal prosecutions, the
accused shall be presumed innocent until the contrary is proved (Sec. 14(2),
Article III, Constitution of the Republic of the Philippines) is the rule that in order

to convict an accused the circumstances of the case must exclude all and each
and every hypothesis consistent with his innocence (People vs. Tanchoco; 76
Phil. 463 [1946]; People vs. Constante, 12 SCRA 653 [1964]; People vs. Jara, 144
SCRA 516 [1986]). The facts of the case do not rule out the hypothesis that
accused- appellant is innocent.
At any rate, accused-appellant cannot be convicted of possession of the shabu
contained in a canister and allegedly seized at his house, for the charge against
him was for selling shabu with the information alleging that the "accused,
without legal authority did . . . sell to a poseur buyer an aluminum foil containing
Methamphetamine Hydrochloride . . ." Sale is totally different from possession.
Article 1458 of the Civil Code defines sale as a contract whereby "one of the
contracting parties obligates himself to transfer the ownership of and to deliver
a determine thing, and the other to pay therefor a price certain in money or its
equivalent", while "possession is the holding of a thing or the enjoyment of a
right" as defined by Article 523 of the Civil Code. Accused-appellant cannot be
convicted of a crime which is not charged in the information for to do so would
deny him the due process of law (People vs. Despavellador, 1 SCRA 205 [1961];
People vs. Mori, 55 SCRA 382 [1974]).
Neither can accused-appellant be convicted of illegal possession of firearm and
ammunition. The search warrant implemented by the raiding party authorized
only the search and seizure of ". . . the described quantity of Methamphetamine
Hydrochloride commonly known as shabu and its paraphernalia" (Exh. O, p. 50,
original record). Thus, the raiding party was authorized to seize only shabu and
paraphernalia for the use thereof and no other. A search warrant is not a
sweeping authority empowering a raiding party to undertake a finishing
expedition to seize and confiscate any and all kinds of evidence or articles
relating to a crime. The Constitution itself (Section 2, Article III) and the Rules of
Court (Section 3, Rule 126) specifically mandate that the search warrant must
particularly describe the things to be seized. Thus, the search warrant was no
authority for the police officers to seize the firearm which was not mentioned,
much less described with particularity, in the search warrant. Neither may it be
maintained that the gun was seized in the course of an arrest, for as earlier
observed, accused-appellant's arrest was far from regular and legal. Said firearm,
having been illegally seized, the same is not admissible in evidence (Stonehill vs.
Diokno, 20 SCRA 383 [1967]). The Constitution expressly ordains the exclusion in
evidence of illegally seized articles.
Any evidence obtained in violation of this or the preceding
section shall be inadmissible for any purpose in any proceeding.

(Section 3[2], Article III, Constitution of the Republic of the

Philippines).
With the exclusion in evidence of the illegally seized firearm, there is, therefore,
a total absence of evidence to support the charge of illegal possession of
firearm, against accused-appellant.
The same may be said of the charge of illegal possession of ammunition.
WHEREFORE, the decision appealed from is hereby REVERSED and accusedappellant is hereby ACQUITTED in Criminal Case No. 236-91 and Criminal Case
No. 237-91.
The immediate release of accused-appellant is hereby ordered unless there
exists a pending valid cause against him.
The shabu, the marked P100 bill, firearm, and ammunition are hereby ordered
confiscated in favor of the government.
SO ORDERED.

G.R. No. 81510 March 14, 1990

S. Sa bahay ni Horty Salazar.

HORTENCIA SALAZAR, petitioner,

vs.
HON. TOMAS D. ACHACOSO, in his capacity as Administrator of the Philippine
Overseas Employment Administration, and FERDIE MARQUEZ, respondents.

06. T: Paano naman naganap ang pangyayari?

Gutierrez & Alo Law Offices for petitioner.

SARMIENTO, J.:
This concerns the validity of the power of the Secretary of Labor to issue
warrants of arrest and seizure under Article 38 of the Labor Code, prohibiting
illegal recruitment.
The facts are as follows:
xxx xxx xxx
1. On October 21, 1987, Rosalie Tesoro of 177 Tupaz Street,
Leveriza, Pasay City, in a sworn statement filed with the
Philippine Overseas Employment Administration (POEA for
brevity) charged petitioner Hortencia Salazar, viz:
04. T: Ano ba ang dahilan at
ikaw ngayon ay narito at
nagbibigay ng salaysay.
S: Upang ireklamo sa dahilan ang aking PECC
Card ay
ayaw ibigay sa akin ng dati kong manager.
Horty
Salazar 615 R.O. Santos, Mandaluyong, Mla.
05. T: Kailan at saan naganap
and ginawang panloloko sa
iyo ng tao/mga taong
inireklamo mo?

S. Pagkagaling ko sa Japan ipinatawag niya ako. Kinuha

ang PECC Card ko at sinabing hahanapan ako ng
booking sa Japan. Mag 9 month's na ako sa Phils. ay
hindi pa niya ako napa-alis. So lumipat ako ng ibang
company pero ayaw niyang ibigay and PECC Card
ko.
2. On November 3, 1987, public respondent Atty. Ferdinand
Marquez to whom said complaint was assigned, sent to the
petitioner the following telegram:
YOU ARE HEREBY DIRECTED TO APPEAR
BEFORE FERDIE MARQUEZ POEA ANTI ILLEGAL
RECRUITMENT UNIT 6TH FLR. POEA BLDG.
EDSA COR. ORTIGAS AVE. MANDALUYONG
MM ON NOVEMBER 6, 1987 AT 10 AM RE
CASE FILED AGAINST YOU. FAIL NOT UNDER
PENALTY OF LAW.
4. On the same day, having ascertained that the petitioner had
no license to operate a recruitment agency, public respondent
Administrator Tomas D. Achacoso issued his challenged
CLOSURE AND SEIZURE ORDER NO. 1205 which reads:
HORTY SALAZAR
No. 615 R.O. Santos St.
Mandaluyong, Metro Manila
Pursuant to the powers vested in me under Presidential Decree
No. 1920 and Executive Order No. 1022, I hereby order the
CLOSURE of your recruitment agency being operated at No. 615
R.O. Santos St., Mandaluyong, Metro Manila and the seizure of
the documents and paraphernalia being used or intended to be
used as the means of committing illegal recruitment, it having
verified that you have

(1) No valid license or authority from the

Department of Labor and Employment to
recruit and deploy workers for overseas
employment;
(2) Committed/are committing acts prohibited
under Article 34 of the New Labor Code in
relation to Article 38 of the same code.
This ORDER is without prejudice to your
criminal prosecution under existing laws.
Done in the City of Manila, this 3th day of
November, 1987.
5. On January 26, 1988 POEA Director on Licensing and
Regulation Atty. Estelita B. Espiritu issued an office order
designating respondents Atty. Marquez, Atty. Jovencio Abara
and Atty. Ernesto Vistro as members of a team tasked to
implement Closure and Seizure Order No. 1205. Doing so, the
group assisted by Mandaluyong policemen and mediamen Lito
Castillo of the People's Journal and Ernie Baluyot of News Today
proceeded to the residence of the petitioner at 615 R.O. Santos
St., Mandaluyong, Metro Manila. There it was found that
petitioner was operating Hannalie Dance Studio. Before
entering the place, the team served said Closure and Seizure
order on a certain Mrs. Flora Salazar who voluntarily allowed
them entry into the premises. Mrs. Flora Salazar informed the
team that Hannalie Dance Studio was accredited with Moreman
Development (Phil.). However, when required to show
credentials, she was unable to produce any. Inside the studio,
the team chanced upon twelve talent performers practicing
a dance number and saw about twenty more waiting outside,
The team confiscated assorted costumes which were duly
receipted for by Mrs. Asuncion Maguelan and witnessed by
Mrs. Flora Salazar.
6. On January 28, 1988, petitioner filed with POEA the following
letter:
Gentlemen:

On behalf of Ms. Horty Salazar of 615 R.O. Santos,

Mandaluyong, Metro Manila, we respectfully request that the
personal properties seized at her residence last January 26,
1988 be immediately returned on the ground that said seizure
was contrary to law and against the will of the owner thereof.
Among our reasons are the following:
1. Our client has not been given any prior
notice or hearing, hence the Closure and
Seizure Order No. 1205 dated November 3,
1987 violates "due process of law" guaranteed
under Sec. 1, Art. III, of the Philippine
Constitution.
2. Your acts also violate Sec. 2, Art. III of the
Philippine Constitution which guarantees 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."
3. The premises invaded by your Mr. Ferdi
Marquez and five (5) others (including 2
policemen) are the private residence of the
Salazar family, and the entry, search as well as
the seizure of the personal properties
belonging to our client were without her
consent and were done with unreasonable
force and intimidation, together with grave
abuse of the color of authority, and constitute
robbery and violation of domicile under Arts.
293 and 128 of the Revised Penal Code.
Unless said personal properties worth around
TEN THOUSAND PESOS (P10,000.00) in all (and
which were already due for shipment to
Japan) are returned within twenty-four (24)
hours from your receipt hereof, we shall feel
free to take all legal action, civil and criminal,
to protect our client's interests.

We trust that you will give due attention to

these important matters.
7. On February 2, 1988, before POEA could answer the letter,
petitioner filed the instant petition; on even date, POEA filed a
criminal complaint against her with the Pasig Provincial Fiscal,
docketed as IS-88-836. 1
On February 2, 1988, the petitioner filed this suit for prohibition. Although the
acts sought to be barred are already fait accompli, thereby making prohibition
too late, we consider the petition as one for certiorari in view of the grave public
interest involved.
The Court finds that a lone issue confronts it: May the Philippine Overseas
Employment Administration (or the Secretary of Labor) validly issue warrants of
search and seizure (or arrest) under Article 38 of the Labor Code? It is also an
issue squarely raised by the petitioner for the Court's resolution.
Under the new Constitution, which states:
. . . 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.
2

it is only a judge who may issue warrants of search and arrest. 3 In one case, it
was declared that mayors may not exercise this power:
xxx xxx xxx
But it must be emphasized here and now that what has just
been described is the state of the law as it was in September,
1985. The law has since been altered. No longer does the
mayor have at this time the power to conduct preliminary
investigations, much less issue orders of arrest. Section 143 of
the Local Government Code, conferring this power on the
mayor has been abrogated, rendered functus officio by the
1987 Constitution which took effect on February 2, 1987, the
date of its ratification by the Filipino people. Section 2, Article III

of the 1987 Constitution pertinently provides that "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 person or things to be seized."
The constitutional proscription has thereby been manifested
that thenceforth, the function of determining probable cause
and issuing, on the basis thereof, warrants of arrest or search
warrants, may be validly exercised only by judges, this being
evidenced by the elimination in the present Constitution of the
phrase, "such other responsible officer as may be authorized by
law" found in the counterpart provision of said 1973
Constitution, who, aside from judges, might conduct
preliminary investigations and issue warrants of arrest or search
warrants. 4
Neither may it be done by a mere prosecuting body:
We agree that the Presidential Anti-Dollar Salting Task Force
exercises, or was meant to exercise, prosecutorial powers, and
on that ground, it cannot be said to be a neutral and detached
"judge" to determine the existence of probable cause for
purposes of arrest or search. Unlike a magistrate, a prosecutor
is naturally interested in the success of his case. Although his
office "is to see that justice is done and not necessarily to
secure the conviction of the person accused," he stands,
invariably, as the accused's adversary and his accuser. To
permit him to issue search warrants and indeed, warrants of
arrest, is to make him both judge and jury in his own right,
when he is neither. That makes, to our mind and to that extent,
Presidential Decree No. 1936 as amended by Presidential
Decree No. 2002, unconstitutional. 5
Section 38, paragraph (c), of the Labor Code, as now written, was entered as an
amendment by Presidential Decrees Nos. 1920 and 2018 of the late President
Ferdinand Marcos, to Presidential Decree No. 1693, in the exercise of his
legislative powers under Amendment No. 6 of the 1973 Constitution. Under the
latter, the then Minister of Labor merely exercised recommendatory powers:

(c) The Minister of Labor or his duly authorized representative

shall have the power to recommend the arrest and detention of
any person engaged in illegal recruitment. 6
On May 1, 1984, Mr. Marcos promulgated Presidential Decree No. 1920, with
the avowed purpose of giving more teeth to the campaign against illegal
recruitment. The Decree gave the Minister of Labor arrest and closure powers:
(b) The Minister of Labor and Employment shall have the power
to cause the arrest and detention of such non-licensee or nonholder of authority if after proper investigation it is determined
that his activities constitute a danger to national security and
public order or will lead to further exploitation of job-seekers.
The Minister shall order the closure of companies,
establishment and entities found to be engaged in the
recruitment of workers for overseas employment, without
having been licensed or authorized to do so. 7
On January 26, 1986, he, Mr. Marcos, promulgated Presidential Decree No.
2018, giving the Labor Minister search and seizure powers as well:
(c) The Minister of Labor and Employment or his duly
authorized representatives shall have the power to cause the
arrest and detention of such non-licensee or non-holder of
authority if after investigation it is determined that his activities
constitute a danger to national security and public order or will
lead to further exploitation of job-seekers. The Minister shall
order the search of the office or premises and seizure of
documents, paraphernalia, properties and other implements
used in illegal recruitment activities and the closure of
companies, establishment and entities found to be engaged in
the recruitment of workers for overseas employment, without
having been licensed or authorized to do so. 8
The above has now been etched as Article 38, paragraph (c) of the Labor Code.
The decrees in question, it is well to note, stand as the dying vestiges of
authoritarian rule in its twilight moments.
We reiterate that the Secretary of Labor, not being a judge, may no longer issue
search or arrest warrants. Hence, the authorities must go through the judicial

process. To that extent, we declare Article 38, paragraph (c), of the Labor Code,
unconstitutional and of no force and effect.
The Solicitor General's reliance on the case of Morano v. Vivo 9 is not well-taken.
Vivo involved a deportation case, governed by Section 69 of the defunct Revised
Administrative Code and by Section 37 of the Immigration Law. We have ruled
that in deportation cases, an arrest (of an undesirable alien) ordered by the
President or his duly authorized representatives, in order to carry out a final
decision of deportation is valid. 10 It is valid, however, because of the recognized
supremacy of the Executive in matters involving foreign affairs. We have held: 11
xxx xxx xxx
The State has the inherent power to deport undesirable aliens
(Chuoco Tiaco vs. Forbes, 228 U.S. 549, 57 L. Ed. 960, 40 Phil.
1122, 1125). That power may be exercised by the Chief
Executive "when he deems such action necessary for the peace
and domestic tranquility of the nation." Justice Johnson's
opinion is that when the Chief Executive finds that there are
aliens whose continued presence in the country is injurious to
the public interest, "he may, even in the absence of express
law, deport them". (Forbes vs. Chuoco Tiaco and Crossfield, 16
Phil. 534, 568, 569; In re McCulloch Dick, 38 Phil. 41).
The right of a country to expel or deport aliens because their
continued presence is detrimental to public welfare is absolute
and unqualified (Tiu Chun Hai and Go Tam vs. Commissioner of
Immigration and the Director of NBI, 104 Phil. 949, 956). 12
The power of the President to order the arrest of aliens for deportation is,
obviously, exceptional. It (the power to order arrests) can not be made to extend
to other cases, like the one at bar. Under the Constitution, it is the sole domain
of the courts.
Moreover, the search and seizure order in question, assuming, ex gratia
argumenti, that it was validly issued, is clearly in the nature of a general warrant:
Pursuant to the powers vested in me under Presidential Decree
No. 1920 and Executive Order No. 1022, I hereby order the
CLOSURE of your recruitment agency being operated at No. 615
R.O. Santos St., Mandaluyong, Metro Manila and the seizure of

the documents and paraphernalia being used or intended to be

used as the means of committing illegal recruitment, it having
verified that you have
(1) No valid license or authority from the
Department of Labor and Employment to
recruit and deploy workers for overseas
employment;

3) Motor vehicles used in the distribution/circulation of the

"WE FORUM" and other subversive materials and
propaganda, more particularly,
1) Toyota-Corolla, colored yellow with Plate No. NKA 892;
2) DATSUN, pick-up colored white with Plate No. NKV 969;
3) A delivery truck with Plate No. NBS 542;

(2) Committed/are committing acts prohibited

under Article 34 of the New Labor Code in
relation to Article 38 of the same code.
This ORDER is without prejudice to your criminal prosecution
under existing laws. 13
We have held that a warrant must identify clearly the things to be seized,
otherwise, it is null and void, thus:
xxx xxx xxx
Another factor which makes the search warrants under
consideration constitutionally objectionable is that they are in
the nature of general warrants. The search warrants describe
the articles sought to be seized in this wise:
1) All printing equipment, paraphernalia, paper, ink, photo
equipment, typewriters, cabinets, tables, communications/
recording equipment, tape recorders, dictaphone and the
like used and/or connected in the printing of the "WE
FORUM" newspaper and any and all
documents/communications, letters and facsimile of prints
related to the "WE FORUM" newspaper.
2) Subversive documents, pamphlets, leaflets, books, and
other publications to promote the objectives and purposes
of the subversive organizations known as Movement for
Free Philippines, Light-a-Fire Movement and April 6
Movement; and

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

665; and
5) TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472
with marking "Bagong Silang."
In Stanford v. State of Texas, the search warrant which
authorized the search for "books, records, pamphlets, cards,
receipts, lists, memoranda, pictures, recordings and other
written instruments concerning the Communist Parties of
Texas, and the operations of the Community Party in Texas,"
was declared void by the U.S. Supreme Court for being too
general. In like manner, directions to "seize any evidence in
connection with the violation of SDC 13-3703 or otherwise"
have been held too general, and that portion of a search
warrant which authorized the seizure of any "paraphernalia
which could be used to violate Sec. 54-197 of the Connecticut
General Statutes (the statute dealing with the crime of
conspiracy)" was held to be a general warrant, and therefore
invalid. The description of the articles sought to be seized under
the search warrants in question cannot be characterized
differently.
In the Stanford case, the U.S. Supreme court calls to mind a
notable chapter in English history; the era of disaccord between
the Tudor Government and the English Press, when "Officers of
the Crown were given roving commissions to search where they
pleased in order to suppress and destroy the literature of
dissent both Catholic and Puritan." Reference herein to such
historical episode would not be relevant for it is not the policy
of our government to suppress any newspaper or publication

that speaks with "the voice of non-conformity" but poses no

clear and imminent danger to state security. 14
For the guidance of the bench and the bar, we reaffirm the following principles:
1. Under Article III, Section 2, of the l987 Constitution, it is only
judges, and no other, who may issue warrants of arrest and
search:
2. The exception is in cases of deportation of illegal and
undesirable aliens, whom the President or the Commissioner of
Immigration may order arrested, following a final order of
deportation, for the purpose of deportation.
WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of the Labor
Code is declared UNCONSTITUTIONAL and null and void. The respondents are
ORDERED to return all materials seized as a result of the implementation of
Search and Seizure Order No. 1205.
No costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin, Cortes, Grio-Aquino, Medialdea and Regalado, JJ.,
concur.

G.R. No. L-45358

January 29, 1937

NARCISO ALVAREZ, petitioner,

vs.
THE COURT OF FIRST INSTANCE OF TAYABAS and THE ANTI-USURY BOARD,
respondents.
Godofredo Reyes for petitioner.
Adolfo N. Feliciano for respondents Anti-Usury Board.
No appearance for other respondent.
IMPERIAL, J.:
The petitioner asks that the warrant of June 3, 1936, issued by the Court of First
Instance of Tayabas, ordering the search of his house and the seizure, at any
time of the day or night, of certain accounting books, documents and papers
belonging to him in his residence situated in Infanta, Province of Tayabas, as well
as the order of a later date, authorizing the agents of the Anti-Usury Board to
retain the articles seized, be declared illegal and set aside, and prays that all the
articles in question be returned to him.
On the date above-mentioned, the chief of the secret service of the Anti-Usury
Board, of the Department of Justice, presented to Judge Eduardo Gutierrez
David then presiding over the Court of First Instance of Tayabas, an affidavit
alleging that according to reliable information, the petitioner kept in his house in
Infanta, Tayabas, books, documents, receipts, lists, chits and other papers used
by him in connection with his activities as a money-lender charging usurious
rates of interest in violation of the law. In his oath at the and of the affidavit, the
chief of the secret service stated that his answers to the questions were correct
to the best of his knowledge and belief. He did not swear to the truth of his
statements upon his own knowledge of the facts but upon the information
received by him from a reliable person. Upon the affidavit in question the Judge,
on said date, issued the warrant which is the subject matter of the petition,
ordering the search of the petitioner's house at nay time of the day or night, the
seizure of the books and documents above-mentioned and the immediate
delivery thereof to him to be disposed of in accordance with the law. With said
warrant, several agents of the Anti-Usury Board entered the petitioner's store
and residence at seven o'clock on the night of June 4, 1936, and seized and took
possession of the following articles: internal revenue licenses for the years 1933
to 1936, one ledger, two journals, two cashbooks, nine order books, four
notebooks, four checks stubs, two memorandums, three bankbooks, two

contracts, four stubs, forty-eight stubs of purchases of copra, two inventories,

two bundles of bills of lading, one bundle of credit receipts, one bundle of stubs
of purchases of copra, two packages of correspondence, one receipt book
belonging to Luis Fernandez, fourteen bundles of invoices and other papers
many documents and loan contracts with security and promissory notes, 504
chits, promissory notes and stubs of used checks of the Hongkong & Shanghai
Banking Corporation. The search for and a seizure of said articles were made
with the opposition of the petitioner who stated his protest below the
inventories on the ground that the agents seized even the originals of the
documents. As the articles had not been brought immediately to the judge who
issued the search warrant, the petitioner, through his attorney, filed a motion on
June 8, 1936, praying that the agent Emilio L. Siongco, or any other agent, be
ordered immediately to deposit all the seized articles in the office of the clerk of
court and that said agent be declared guilty of contempt for having disobeyed
the order of the court. On said date the court issued an order directing Emilio L.
Siongco to deposit all the articles seized within twenty-four hours from the
receipt of notice thereof and giving him a period of five (5) days within which to
show cause why he should not be punished for contempt of court. On June 10th,
Attorney Arsenio Rodriguez, representing the Anti-Usury Board, filed a motion
praying that the order of the 8th of said month be set aside and that the AntiUsury Board be authorized to retain the articles seized for a period of thirty (30)
days for the necessary investigation. The attorney for the petitioner, on June
20th, filed another motion alleging that, notwithstanding the order of the 8th of
said month, the officials of the Anti-Usury Board had failed to deposit the articles
seized by them and praying that a search warrant be issued, that the sheriff be
ordered to take all the articles into his custody and deposit of the Anti-Usury
Board be punished for contempt of court. Said attorney, on June 24th, filed an
ex parte petition alleging that while agent Emilio L. Siongco had deposited some
documents and papers in the office of the clerk of court, he had so far failed to
file an inventory duly verified by oath of all the documents seized by him, to
return the search warrant together with the affidavit it presented in support
thereof, or to present the report of the proceedings taken by him; and prayed
that said agent be directed to filed the documents in question immediately. On
the 25th of said month the court issued an order requiring agent Emilio L.
Siongco forthwith to file the search warrant and the affidavit in the court,
together with the proceedings taken by him, and to present an inventory duly
verified by oath of all the articles seized. On July 2d of said year, the attorney for
the petitioner filed another petition alleging that the search warrant issue was
illegal and that it had nit yet been returned to date together with the
proceedings taken in connection therewith, and praying that said warrant be
cancelled, that an order be issued directing the return of all the articles seized to
the petitioner, that the agent who seized them be declared guilty of contempt of

court, and that charges be filed against him for abuse of authority. On
September 10, 1936, the court issued an order holding: that the search warrant
was obtained and issued in accordance with the law, that it had been duly
complied with and, consequently, should not be cancelled, and that agent Emilio
L. Siongco did not commit any contempt of court and must, therefore, be
exonerated, and ordering the chief of the Anti-Usury Board in Manila to show
case, if any, within the unextendible period of two (2) days from the date of
notice of said order, why all the articles seized appearing in the inventory, Exhibit
1, should not be returned to the petitioner. The assistant chief of the Anti-Usury
Board of the Department of Justice filed a motion praying, for the reasons stated
therein, that the articles seized be ordered retained for the purpose of
conducting an investigation of the violation of the Anti-Usury Law committed by
the petitioner. In view of the opposition of the attorney for the petitioner, the
court, on September 25th, issued an order requiring the Anti-Usury Board to
specify the time needed by it to examine the documents and papers seized and
which of them should be retained, granting it a period of five (5) days for said
purpose. On the 30th of said month the assistant chief of the Anti-Usury Board
filed a motion praying that he be granted ten (10) days to comply with the order
of September 25th and that the clerk of court be ordered to return to him all the
documents and papers together with the inventory thereof. The court, in an
order of October 2d of said year, granted him the additional period of ten(10)
days and ordered the clerk of court to send him a copy of the inventory. On
October 10th, said official again filed another motion alleging that he needed
sixty (60) days to examine the documents and papers seized, which are
designated on pages 1 to 4 of the inventory by Nos. 5, 1016, 23, 25, 26, 27, 30,
31, 34, 36, 37, 38, 39, 40, 41, 42, 43 and 45, and praying that he be granted said
period of sixty (60) days. In an order of October 16th, the court granted him the
period of sixty (60) days to investigate said nineteen (19) documents. The
petitioner alleges, and it is not denied by the respondents, that these nineteen
(19)documents continue in the possession of the court, the rest having been
returned to said petitioner.
I. A search warrant is an order in writing, issued in the name of the
People of the Philippine Islands, signed by a judge or a justice of the
peace, and directed to a peace officer, commanding him to search for
personal property and bring it before the court (section 95, General
Orders. No. 58, as amended by section 6 of Act No. 2886). Of all the
rights of a citizen, few are of greater importance or more essential to his
peace and happiness than the right of personal security, and that
involves the exemption of his private affairs, books, and papers from the
inspection and scrutiny of others (In re Pacific Railways Commission, 32
Fed., 241; Interstate Commerce Commission vs Brimson, 38 Law. ed.,

1047; Broyd vs. U. S., 29 Law. ed., 746; Caroll vs. U. S., 69 Law. ed., 543,
549). While the power to search and seize is necessary to the public
welfare, still it must be exercised and the law enforced without
transgressing the constitutional rights or citizen, for the enforcement of
no statue is of sufficient importance to justify indifference to the basis
principles of government (People vs. Elias, 147 N. E., 472).
II. As the protection of the citizen and the maintenance of his
constitutional right is one of the highest duties and privileges of the
court, these constitutional guaranties should be given a liberal
construction or a strict construction in favor of the individual, to prevent
stealthy encroachment upon, or gradual depreciation on, the rights
secured by them(State vs. Custer County, 198 Pac., 362; State vs.
McDaniel, 231 Pac., 965; 237 Pac., 373). Since the proceeding is a
drastic one, it is the general rule that statutes authorizing searches and
seizure or search warrants must be strictly construed (Rose vs. St. Clair,
28 Fed., [2d], 189; Leonard vs. U. S., 6 Fed. [2d], 353; Perry vs. U. S. 14
Fed. [2d],88; Cofer vs. State, 118 So., 613).
III. The petitioner claims that the search warrant issued by the court is
illegal because it has been based upon the affidavit of agent Mariano G.
Almeda in whose oath he declared that he had no personal knowledge
of the facts which were to serve as a basis for the issuance of the
warrant but that he had knowledge thereof through mere information
secured from a person whom he considered reliable. To the question
"What are your reason for applying for this search warrant", appearing
in the affidavit, the agent answered: "It has been reported to me by a
person whom I consider to be reliable that there are being kept in said
premises, books, documents, receipts, lists, chits, and other papers used
by him in connection with his activities as a money-lender, charging a
usurious rate of interest, in violation of the law" and in attesting the
truth of his statements contained in the affidavit, the said agent states
that he found them to be correct and true to the best of his knowledge
and belief.
Section 1, paragraph 3, of Article III of the Constitution, relative to the
bill of rights, provides that "The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable searches and
seizures shall not be violated, and no warrants shall issue but upon
probable cause, to be determined by the judge after examination under
oath or affirmation of the complainant and the witnesses he may

produce, and particularly describing the place top be searched, and the
persons or things to be seized." Section 97 of General Orders, No. 58
provides that "A search warrant shall not issue except for probable
cause and upon application supported by oath particularly describing
the place to be searched and the person or thing to be seized." It will be
noted that both provisions require that there be not only probable
cause before the issuance of a search warrant but that the search
warrant must be based upon an application supported by oath of the
applicant ands the witnesses he may produce. In its broadest sense, an
oath includes any form of attestation by which a party signifies that he is
bound in conscience to perform an act faithfully and truthfully; and it is
sometimes defined asan outward pledge given by the person taking it
that his attestation or promise is made under an immediate sense of his
responsibility to God (Bouvier's Law Dictionary; State vs. Jackson, 137 N.
W., 1034; In re Sage, 24 Oh. Cir. Ct. [N. S.], 7; Pumphery vs. State, 122 N.
W., 19; Priest vs. State, 6 N. W., 468; State vs. Jones, 154 Pac., 378;
Atwood vs. State, 111 So., 865). The oath required must refer to the
truth of the facts within the personal knowledge of the petitioner or his
witnesses, because the purpose thereof is to convince the committing
magistrate, not the individual making the affidavit and seeking the
issuance of the warrant, of the existence of probable cause (U. S. vs.
Tureaud, 20 Fed., 621; U. S. vs. Michalski, 265 Fed., 8349; U. S. vs.
Pitotto, 267 Fed., 603; U. S. vs. Lai Chew, 298 Fed., 652). The true test of
sufficiency of an affidavit to warrant issuance of a search warrant is
whether it has been drawn in such a manner that perjury could be
charged thereon and affiant be held liable for damages caused (State vs.
Roosevelt Country 20th Jud. Dis. Ct., 244 Pac., 280; State vs. Quartier,
236 Pac., 746).
It will likewise be noted that section 1, paragraph 3, of Article III of the
Constitution prohibits unreasonable searches and seizure. Unreasonable
searches and seizures are a menace against which the constitutional
guarantee afford full protection. The term "unreasonable search and
seizure" is not defined in the Constitution or in General Orders No. 58,
and it is said to have no fixed, absolute or unchangeable meaning,
although the term has been defined in general language. All illegal
searches and seizure are unreasonable while lawful ones are
reasonable. What constitutes a reasonable or unreasonable search or
seizure in any particular case is purely a judicial question, determinable
from a consideration of the circumstances involved, including the
purpose of the search, the presence or absence or probable cause, the
manner in which the search and seizure was made, the place or thing

searched, and the character of the articles procured (Go-Bart Importing

Co. vs. U. S. 75 Law. ed., 374; Peru vs. U. S., 4 Fed., [2d], 881;U. S. vs.
Vatune, 292 Fed., 497; Angelo vs. U. S. 70 Law, ed., 145; Lambert vs. U.
S. 282 Fed., 413; U. S. vs. Bateman, 278 Fed., 231; Mason vs. Rollins, 16
Fed. Cas. [No. 9252], 2 Biss., 99).
In view of the foregoing and under the above-cited authorities, it
appears that the affidavit, which served as the exclusive basis of the
search warrant, is insufficient and fatally defective by reason of the
manner in which the oath was made, and therefore, it is hereby held
that the search warrant in question and the subsequent seizure of the
books, documents and other papers are illegal and do not in any way
warrant the deprivation to which the petitioner was subjected.
IV. Another ground alleged by the petitioner in asking that the search
warrant be declared illegal and cancelled is that it was not supported by
other affidavits aside from that made by the applicant. In other words, it
is contended that the search warrant cannot be issued unless it be
supported by affidavits made by the applicant and the witnesses to be
presented necessity by him. Section 1, paragraph 3, of Article III of the
Constitution provides that no warrants shall issue but upon probable
cause, to be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce.
Section 98 of General Orders, No. 58 provides that the judge or justice
must, before issuing the warrant, examine under oath the complainant
and any witnesses he may produce and take their depositions in writing.
It is the practice in this jurisdiction to attach the affidavit of at least the
applicant or complainant to the application. It is admitted that the judge
who issued the search warrant in this case, relied exclusively upon the
affidavit made by agent Mariano G. Almeda and that he did not require
nor take the deposition of any other witness. Neither the Constitution
nor General Orders. No. 58 provides that it is of imperative necessity to
take the deposition of the witnesses to be presented by the applicant or
complainant in addition to the affidavit of the latter. The purpose of
both in requiring the presentation of depositions is nothing more than
to satisfy the committing magistrate of the existence of probable cause.
Therefore, if the affidavit of the applicant or complainant is sufficient,
the judge may dispense with that of other witnesses. Inasmuch as the
affidavit of the agent in this case was insufficient because his knowledge
of the facts was not personal but merely hearsay, it is the duty of the
judge to require the affidavit of one or more witnesses for the purpose

of determining the existence of probable cause to warrant the issuance

of the search warrant. When the affidavit of the applicant of the
complaint contains sufficient facts within his personal and direct
knowledge, it is sufficient if the judge is satisfied that there exist
probable cause; when the applicant's knowledge of the facts is mere
hearsay, the affidavit of one or more witnesses having a personal
knowledge of the fact is necessary. We conclude, therefore, that the
warrant issued is likewise illegal because it was based only on the
affidavit of the agent who had no personal knowledge of the facts.
V. The petitioner alleged as another ground for the declaration of the
illegality of the search warrant and the cancellation thereof, the fact
that it authorized its execution at night. Section 101 of General Orders,
No. 58 authorizes that the search be made at night when it is positively
asserted in the affidavits that the property is on the person or in the
place ordered to be searched. As we have declared the affidavits
insufficient and the warrant issued exclusively upon it illegal, our
conclusion is that the contention is equally well founded and that the
search could not legally be made at night.
VI. One of the grounds alleged by the petitioner in support of his
contention that the warrant was issued illegally is the lack of an
adequate description of the books and documents to be seized. Section
1, paragraphs 3, of Article III of the Constitution, and section 97 of
General Orders, No. 58 provide that the affidavit to be presented, which
shall serve as the basis for determining whether probable cause exist
and whether the warrant should be issued, must contain a particular
description of the place to be searched and the person or thing to be
seized. These provisions are mandatory and must be strictly complied
with (Munch vs. U. S., 24 Fed. [2d], 518; U. S. vs. Boyd, 1 Fed. [2d], 1019;
U. S. vs. Carlson, 292 Fed., 463; U. S. vs. Borkowski, 268 Fed., 408; In re
Tri-State Coal & Coke Co., 253 Fed., 605; People vs. Mayen, 188 Cal.,
237; People vs. Kahn, 256 Ill. App., 4125); but where, by the nature of
the goods to be seized, their description must be rather generally, it is
not required that a technical description be given, as this would mean
that no warrant could issue (People vs. Rubio, 57 Phil., 284; People vs.
Kahn, supra). The only description of the articles given in the affidavit
presented to the judge was as follows: "that there are being kept in said
premises books, documents, receipts, lists, chits and other papers used
by him in connection with his activities as money-lender, charging a
usurious rate of interest, in violation of the law." Taking into

consideration the nature of the article so described, it is clear that no

other more adequate and detailed description could have been given,
particularly because it is difficult to give a particular description of the
contents thereof. The description so made substantially complies with
the legal provisions because the officer of the law who executed the
warrant was thereby placed in a position enabling him to identify the
articles, which he did.
VII. The last ground alleged by the petitioner, in support of his claim that
the search warrant was obtained illegally, is that the articles were seized
in order that the Anti-Usury Board might provide itself with evidence to
be used by it in the criminal case or cases which might be filed against
him for violation of the Anti-usury Law. At the hearing of the incidents of
the case raised before the court it clearly appeared that the books and
documents had really been seized to enable the Anti-Usury Board to
conduct an investigation and later use all or some of the articles in
question as evidence against the petitioner in the criminal cases that
may be filed against him. The seizure of books and documents by means
of a search warrant, for the purpose of using them as evidence in a
criminal case against the person in whose possession they were found,
is unconstitutional because it makes the warrant unreasonable, and it is
equivalent to a violation of the constitutional provision prohibiting the
compulsion of an accused to testify against himself (Uy Kheytin vs.
Villareal, 42 Phil,, 886; Brady vs. U. S., 266 U. S., 620; Temperani vs. U.
S., 299 Fed., 365; U. S. vs. Madden, 297 Fed., 679; Boyd vs. U. S.,116 U.
S., 116; Caroll vs. U. S., 267 U. S., 132). Therefore, it appearing that at
least nineteen of the documents in question were seized for the
purpose of using them as evidence against the petitioner in the criminal
proceeding or proceedings for violation against him, we hold that the
search warrant issued is illegal and that the documents should be
returned to him.
The Anti-Usury Board insinuates in its answer that the petitioner cannot now
question the validity of the search warrant or the proceedings had subsequent
to the issuance thereof, because he has waived his constitutional rights in
proposing a compromise whereby he agreed to pay a fine of P200 for the
purpose of evading the criminal proceeding or proceedings. We are of the
opinion that there was no such waiver, first, because the petitioner has
emphatically denied the offer of compromise and, second, because if there was
a compromise it reffered but to the institution of criminal proceedings fro
violation of the Anti-Usury Law. The waiver would have been a good defense for

the respondents had the petitioner voluntarily consented to the search and
seizure of the articles in question, but such was not the case because the
petitioner protested from the beginning and stated his protest in writing in the
insufficient inventory furnished him by the agents.
Said board alleges as another defense that the remedy sought by the petitioner
does not lie because he can appeal from the orders which prejudiced him and
are the subject matter of his petition. Section 222 of the Code of Civil Procedure
in fact provides that mandamus will not issue when there is another plain,
speedy and adequate remedy in the ordinary course of law. We are of the
opinion, however, that an appeal from said orders would have to lapse before he
recovers possession of the documents and before the rights, of which he has
been unlawfully deprived, are restored to him (Fajardo vs. Llorente, 6 Phil., 426;
Manotoc vs. McMicking and Trinidad, 10 Phil., 119; Cruz Herrera de Lukban vs.
McMicking, 14 Phil., 641; Lamb vs. Phipps, 22 Phil., 456).

5. That although it is not mandatory to present affidavits of witnesses to

corroborate the applicant or a complainant in cases where the latter has
personal knowledge of the facts, when the applicant's or complainant's
knowledge of the facts is merely hearsay, it is the duty of the judge to
require affidavits of other witnesses so that he may determine whether
probable cause exists;
6. That a detailed description of the person and place to be searched
and the articles to be seized is necessary, but whereby, by the nature of
the articles to be seized, their description must be rather general, but is
not required that a technical description be given, as this would mean
that no warrant could issue;
7. That the petitioner did not waive his constitutional rights because the
offer of compromise or settlement attributed to him, does not mean, if
so made, that he voluntarily tolerated the search and seizure; and

Summarizing the foregoing conclusions, we hold:

1. That the provisions of the Constitution and General Orders, No. 58,
relative to search and seizure, should be given a liberal construction in
favor of the individual in order to maintain the constitutional guaranties
whole and in their full force;
2. That since the provisions in question are drastic in their form and
fundamentally restrict the enjoyment of the ownership, possession and
use of the personal property of the individual, they should be strictly
construed;
3. That the search and seizure made are illegal for the following reasons:
(a) Because the warrant was based solely upon the affidavit of the
petitioner who had no personal knowledge of the facts of probable
cause, and (b) because the warrant was issued for the sole purpose of
seizing evidence which would later be used in the criminal proceedings
that might be instituted against the petitioner, for violation of the AntiUsury Law;
4. That as the warrant had been issued unreasonably, and as it does not
appear positively in the affidavit that the articles were in the possession
of the petitioner and in the place indicated, neither could the search
and seizure be made at night;

8. That an appeal from the orders questioned by the petitioner, if taken

by him, would not be an effective, speedy or adequate remedy in the
ordinary course of law, and, consequently, the petition for mandamus
filed by him, lies.
For the foregoing considerations, the search warrant and the seizure of June 3,
1936, and the orders of the respondent court authorizing the relation of the
books and documents, are declared illegal and are set aside, and it is ordered
that the judge presiding over the Court of First Instance of Tayabas direct the
immediate return to the petitioner of the nineteen (19) documents designated
on pages 1 to 4 of the inventory by Nos. 5, 10, 16, 23, 25,26, 27, 30, 31, 34, 36,
37, 38, 39, 40, 41, 42, 43 and 45, without special pronouncement as to costs. So
ordered.
Avancea, C.J., Villa-Real, Diaz and Concepcion, JJ., concur.

[G.R. No. 50720. March 26, 1984.]

SORIANO MATA, Petitioner, v. HON. JOSEPHINE K. BAYONA, in her capacity as
Presiding Judge of the City Court of Ormoc, BERNARDO GOLES and REYNALDO
MAYOTE, Respondents.
Valeriano R. Ocubillo for Petitioner.
The Solicitor General for Respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNLAWFUL SEARCH

AND SEIZURE; REQUISITES FOR ISSUANCE OF SEARCH WARRANT. Under the
Constitution "no search warrant shall issue but upon probable cause to be
determined by the Judge or such other responsible officer as may be authorized
by law after examination under oath or affirmation of the complainant and the
witnesses he may produce." More emphatic and detailed is the implementing
rule of the constitutional injunction, Section 4 of Rule 126 which provides that
the judge must before issuing the warrant personally examine on oath or
affirmation the complainant and any witnesses he may produce and take their
depositions in writing, and attach them to the record, in addition to any
affidavits presented to him.
2. ID.; ID.; ID.; ID.; INSUFFICIENCY OF AFFIDAVITS OF COMPLAINANT AND HIS
WITNESSES IN THE CASE AT BAR. Before issuing a search warrant, the
examining Judge has to take depositions in writing of the complainant and the
witnesses he may produce and to attach them to the record. Such written
deposition is necessary in order that the Judge may be able to properly
determine the existence or non-existence of the probable cause, and to hold
liable for perjury the person giving it if it will be found later that his declarations
are false. Mere affidavits of the complainant and his witnesses are thus not
sufficient.
3. ID.; ID.; ID.; ID.; NO "DEPOSITION IN WRITING" ATTACHED TO RECORDS OF
CASE IN CASE AT BAR. The judges insistence that she examined the
complainants under oath has become dubious by petitioners claim that at the
particular time when he examined all the relevant papers connected with the
issuance of the questioned search warrant, after he demanded the same from
the lower court since they were not attached to the records, he did not find any

certification at the back of the joint affidavit of the complainants. Before he filed
his motion to quash the search warrant and for the return of the articles seized,
he was furnished, upon his request, certified true copies of the said affidavits by
the Clerk of Court but which certified true copies do not bear any certification at
the back. Petitioner likewise claims that his xerox copy of the said joint affidavit
obtained at the outset of this case does not show also the certification of
respondent judge. This doubt becomes more confirmed by respondent Judges
own admission, while insisting that she did examine thoroughly the applicants,
that "she did not take the deposition of Mayote and Goles because to have done
so would be to hold a judicial proceeding which will be open and public", such
that, according to her, the persons subject of the intended raid will just
disappear and move his illegal operations somewhere else. Could it be that the
certification was made belatedly to cure the defect of the warrant? Be that as it
may, there was no "deposition in writing" attached to the records of the case in
palpable disregard of the statutory prohibition heretofore quoted.
4. ID.; ID.; ID.; ID.; DEPOSITIONS, HOW TAKEN. The searching questions
propounded to the applicants of the search warrant and his witnesses must
depend to a large extent upon the discretion of the Judge just as long as the
answers establish a reasonable ground to believe the commission of a specific
offense and that the applicant is one authorized by law, and said answers
particularly describe with certainty the place to be searched and the persons or
things to be seized. The examination or investigation which must be under oath
may not be in public. It may even be held in the secrecy of his chambers. Far
more important is that the examination or investigation is not merely routinary
but one that is thorough and elicit the required information. To repeat, it must
be under oath and must be in writing.
5. ID.; ID.; ID.; ID.; MUST BE STRICTLY COMPLIED WITH; CASE AT BAR. Nothing
can justify the issuance of the search warrant but the fulfillment of the legal
requisites. Thus, in issuing a search warrant the Judge must strictly comply with
the requirements of the Constitution and the statutory provisions. In the case at
bar, the search warrant is tainted with illegality by the failure of the Judge to
conform with essential requisites of taking the depositions in writing and
attaching them to record, rendering the search warrant invalid.
6. ID.; ID.; ID.; ALTHOUGH ILLEGAL, THINGS SEIZED CANNOT BE RETURNED; CASE
AT BAR. While the search warrant is illegal, the return of the things seized
cannot be ordered. In Castro v. Pabalan (70 SCRA 478), it was held that the
illegality of the search warrant does not call for the return of the things seized,
the possession of which is prohibited.

DECISION

that this Court declare the search warrant to be invalid and all the articles
confiscated under such warrant as inadmissible as evidence in the case, or in any
proceedings on the matter.
DE CASTRO, J.:
We hold that the search warrant is tainted with illegality for being violative of
the Constitution and the Rules of Court.

The validity of the search warrant issued by respondent Judge (not reappointed)
is challenged by petitioner for its alleged failure to comply with the requisites of
the Constitution and the Rules of Court.
Specifically, the contention is that the search warrant issued by respondent
Judge was based merely on the application for search warrant and a joint
affidavit of private respondents which were wrongfully it is alleged subscribed,
and sworn to before the Clerk of Court of respondent Judge. Furthermore, there
was allegedly a failure on the part of respondent Judge to attach the necessary
papers pertinent to the issuance of the search warrant to the records of Criminal
Case No. 4298-CC wherein petitioner is accused under PD 810, as amended by
PD 1306, the information against him alleging that Soriano Mata offered, took
and arranged bets on the Jai Alai game by "selling illegal tickets known as
Masiao tickets without any authority from the Philippine Jai Alai & Amusement
Corporation or from the government authorities concerned." 1
Petitioner claims that during the hearing of the case, he discovered that
nowhere from the records of the said case could be found the search warrant
and other pertinent papers connected to the issuance of the same, so that he
had to inquire from the City Fiscal its whereabouts, and to which inquiry
respondent Judge replied, "it is with the court." The Judge then handed the
records to the Fiscal who attached them to the records.chanrobles.com : virtual
law library
This led petitioner to file a motion to quash and annul the search warrant and for
the return of the articles seized, citing and invoking, among others, Section 4 of
Rule 126 of the Revised Rules of Court. The motion was denied by respondent
Judge on March 1, 1979, stating that the court has made a thorough
investigation and examination under oath of Bernardo U. Goles and Reynaldo T.
Mayote, members of the Intelligence Section of 352nd PC Co./Police District II
INP; that in fact the court made a certification to that effect; and that the fact
that documents relating to the search warrant were not attached immediately to
the record of the criminal case is of no moment, considering that the rule does
not specify when these documents are to be attached to the records. 2
Petitioners motion for reconsideration of the aforesaid order having been
denied, he came to this Court, with the instant petition, praying, among others,

Under the Constitution "no search warrant shall issue but upon probable cause
to be determined by the Judge or such other responsible officer as may be
authorized by law after examination under oath or affirmation of the
complainant and the witnesses he may produce." More emphatic and detailed is
the implementing rule of the constitutional injunction, Section 4 of Rule 126
which provides that the judge must before issuing the warrant personally
examine on oath or affirmation the complainant and any witnesses he may
produce and take their depositions in writing, and attach them to the record, in
addition to any affidavits presented to him.
Mere affidavits of the complainant and his witnesses are thus not sufficient. The
examining Judge has to take depositions in writing of the complainant and the
witnesses he may produce and to attach them to the record. Such written
deposition is necessary in order that the Judge may be able to properly
determine the existence or non-existence of the probable cause, to hold liable
for perjury the person giving it if it will be found later that his declarations are
false.
We, therefore, hold that the search warrant is tainted with illegality by the
failure of the Judge to conform with the essential requisites of taking the
depositions in writing and attaching them to the record, rendering the search
warrant invalid.chanroblesvirtualawlibrary
The judges insistence that she examined the complainants under oath has
become dubious by petitioners claim that at the particular time when he
examined all the relevant papers connected with the issuance of the questioned
search warrant, after he demanded the same from the lower court since they
were not attached to the records, he did not find any certification at the back of
the joint affidavit of the complainants. As stated earlier, before he filed his
motion to quash the search warrant and for the return of the articles seized, he
was furnished, upon his request, certified true copies of the said affidavits by the
Clerk of Court but which certified true copies do not bear any certification at the
back. Petitioner likewise claims that his xerox copy of the said joint affidavit
obtained at the outset of this case does not show also the certification of
respondent judge. This doubt becomes more confirmed by respondent Judges

own admission, while insisting that she did examine thoroughly the applicants,
that "she did not take the deposition of Mayote and Goles because to have done
so would be to hold a judicial proceeding which will be open and public", 3 such
that, according to her, the persons subject of the intended raid will just
disappear and move his illegal operations somewhere else.
Could it be that the certification was made belatedly to cure the defect of the
warrant? Be that as it may, there was no "deposition in writing" attached to the
records of the case in palpable disregard of the statutory prohibition heretofore
quoted.
Respondent Judge impresses this Court that the urgency to stop the illegal
gambling that lures every man, woman and child, and even the lowliest laborer
who could hardly make both ends meet justifies her action. She claims that in
order to abate the proliferation of this illegal "masiao" lottery, she thought it
more prudent not to conduct the taking of deposition which is done usually and
publicly in the court room.
Two points must be made clear. The term "depositions" is sometimes used in a
broad sense to describe any written statement verified by oath; but in its more
technical and appropriate sense the meaning of the word is limited to written
testimony of a witness given in the course of a judicial proceeding in advance of
the trial or hearing upon oral examination. 4 A deposition is the testimony of a
witness, put or taken in writing, under oath or affirmation before a
commissioner, examiner or other judicial officer, in answer to interlocutory and
cross interlocutory, and usually subscribed by the witnesses. 5 The searching
questions propounded to the applicants of the search warrant and his witnesses
must depend to a large extent upon the discretion of the Judge just as long as
the answers establish a reasonable ground to believe the commission of a
specific offense and that the applicant is one authorized by law, and said
answers particularly describe with certainty the place to be searched and the
persons or things to be seized. The examination or investigation which must be
under oath may not be in public. It may even be held in the secrecy of his
chambers. Far more important is that the examination or investigation is not
merely routinary but one that is thorough and elicit the required information. To
repeat, it must be under oath and must be in writing.cralawnad
The other point is that nothing can justify the issuance of the search warrant but
the fulfillment of the legal requisites. It might be well to point out what has been
said in Asian Surety & Insurance Co., Inc. v. Herrera:jgc:chanrobles.com.ph
"It has been said that of all the rights of a citizen, few are of greater importance

or more essential to his peace and happiness than the right of personal security,
and that involves the exemption of his private affairs, books, and papers from
inspection and scrutiny of others. While the power to search and seize is
necessary to the public welfare, still it must be exercised and the law enforced
without transgressing the constitutional rights of the citizens, for the
enforcement of no statute is of sufficient importance to justify indifference to
the basic principles of government." 6
Thus, in issuing a search warrant the Judge must strictly comply with the
requirements of the Constitution and the statutory provisions. A liberal
construction should be given in favor of the individual to prevent stealthy
encroachment upon, or gradual depreciation of the rights secured by the
Constitution. 7 No presumption of regularity are to be invoked in aid of the
process when an officer undertakes to justify it. 8
While We hold that the search warrant is illegal, the return of the things seized
cannot be ordered. In Castro v. Pabalan, 9 it was held that the illegality of the
search warrant does not call for the return of the things seized, the possession of
which is prohibited.
WHEREFORE, the writ of certiorari is granted and the order of March 1, 1979
denying the motion to annul the search warrant as well as the order of March
21, 1979 denying the motion for reconsideration are hereby reversed, the search
warrant, being declared herein as illegal. Notwithstanding such illegality, the
things seized under such warrant, such as stock of "masiao" tickets; "masiao"
issue tickets; bet money; control pad or "masiao" numbers; stamping pad with
rubber stamp marked Ormoc City Jai-Alai," cannot be returned as sought by
petitioner. No costs.
SO ORDERED.

G.R. No. 95847-48. March 10, 1993.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GABRIEL GERENTE y BULLO,
accused-appellant.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT;
LAWFUL WHEN ARRESTING OFFICER HAS PERSONAL KNOWLEDGE THAT THE
PERSON TO BE ARRESTED HAS COMMITTED THE CRIME; CASE AT BAR. The
policemen arrested Gerente only some three (3) hours after Gerente and his
companions had killed Blace. They saw Blace dead in the hospital and when they
inspected the scene of the crime, they found the instruments of death: a piece
of wood and a concrete hollow block which the killers had used to bludgeon him
to death. The eye-witness, Edna Edwina Reyes, reported the happening to the
policemen and pinpointed her neighbor, Gerente, as one of the killers. Under
those circumstances, since the policemen had personal knowledge of the violent
death of Blace and of facts indicating that Gerente and two others had killed
him, they could lawfully arrest Gerente without a warrant. If they had postponed
his arrest until they could obtain a warrant, he would have fled the law as his
two companions did.

Echigoren to kill Blace despite the testimony of Dr. Valentin Bernales that the
fracture on the back of the victim's skull could have been inflicted by one person
only. what Dr. Bernales stated was a mere possibility that only one person
dropped the concrete hollow block on the head of the victim, smashing it. That
circumstance, even if true, does not absolve the other two co-conspirators in the
murder of Blace for when there is a conspiracy to commit a crime, the act of one
conspirator is the act of all. The conspiracy was proven by the eyewitnesstestimony of Edna Edwina Reyes, that she overheard the appellant and his
companions conspire to kill Blace, that acting in concert, they attacked their
victim with a piece of wood and a hollow block and caused his death. "When
there is no evidence indicating that the principal witness for the prosecution was
moved by improper motive, the presumption is that he was not so moved and
his testimony is entitled to full faith and credit" (People vs. Belibet, 199 SCRA
587, 588). Hence, the trial court did not err in giving full credit to Edna Reyes'
testimony.
4. ID.; CIVIL INDEMNITY FOR DEATH; INCREASED TO P50,000.00. The Solicitor
General correctly pointed out in the appellee's brief that the award of
P30,000.00 as civil indemnity for the death of Clarito Blace should be increased
to P50,000.00 in accordance with our ruling in People vs. Sison, 189 SCRA 643.
DECISION

2. ID.; ID.; SEARCH AND SEIZURE; VALID EVEN WITHOUT A WARRANT WHEN
MADE AS AN INCIDENT TO LAWFUL ARREST; RATIONALE. The search
conducted on Gerente's person was likewise lawful because it was made as an
incident to a valid arrest. This is in accordance with Section 12, Rule 126 of the
Revised Rules of Court which provides: "Section 12. Search incident to lawful
arrest. A person lawfully arrested may be searched for dangerous weapons or
anything which may be used as proof of the commission of an offense, without a
search warrant." The frisk and search of appellant's person upon his arrest was a
permissible precautionary measure of arresting officers to protect themselves,
for the person who is about to be arrested may be armed and might attack them
unless he is first disarmed. In Adams vs. Williams, 47 U.S. 143, cited in Justice
Isagani A. Cruz's Constitutional Law, 1991 Edition, p. 150, it was ruled that "the
individual being arrested may be frisked for concealed weapons that may be
used against the arresting officer and all unlawful articles found his person, or
within his immediate control may be seized."
3. CRIMINAL LAW; CONSPIRACY; LIABILITY OF CONSPIRATORS; RULE; CASE AT
BAR. There is no merit in appellant's allegation that the trial court erred in
convicting him of having conspired and cooperated with Fredo and Totoy

GRIO-AQUINO, J p:
This is an appeal from the decision of the Regional Trial Court of Valenzuela,
Metro Manila, Branch 172, which found the appellant guilty of Violation of
Section 8 of Republic Act 6425 (Dangerous Drugs Act of 1972) and sentenced
him to suffer the penalty of imprisonment for a term of twelve (12) years and
one (1) day, as minimum, to twenty (20) years, as maximum; and also found him
guilty of Murder for which crime he was sentenced to suffer the penalty of
reclusion perpetua. The dispositive portion of the appealed decision reads:
"WHEREFORE, in view of the foregoing the Court finds the accused Gabriel
Gerente in Criminal Case No. 10255-V-90 guilty beyond reasonable doubt of
Violation of Section 8 of R.A. 6425 and hereby sentences him to suffer the
penalty of imprisonment of twelve years and one day as minimum to twenty
years as maximum, and a fine of twelve thousand, without subsidiary
imprisonment in case of insolvency, and to pay the costs.

"In Criminal Case No. 10256-V-90, the Court finds the accused Gabriel Gerente
guilty beyond reasonable doubt of the crime of Murder, and there by (sic) no
aggravating circumstances nor mitigating circumstances, is hereby sentenced to
suffer the penalty of reclusion perpetua; to indemnify the heirs of the victim in
the sum of P30,000.00, and in the amount of P17,609.00 as funeral expenses,
without subsidiary imprisonment in case of insolvency, and to pay the costs. The
accused Gabriel Gerente shall be credited with the full term of his preventive
imprisonment." (p. 25, Rollo.)
Appellant Gabriel Gerente y Bullo was charged with Violation of Section 8, Art. II
of R.A. 6425, which was docketed as Criminal Case No. 10255-V-90 of the
Regional Trial Court of Valenzuela, Metro Manila. The Information reads:
"That on or about the 30th day of April, 1990, in the municipality of Valenzuela,
Metro Manila, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, without justification, did then and there wilfully,
unlawfully and feloniously have in his possession and control dried flowering
tops wrapped in foil with markings and place in a transparent plastic bag which
are considered prohibited drugs." (p. 2, Rollo.)
The same accused, together with Totoy and Fredo Echigoren who are both at
large, was charged with Murder in Criminal Case No. 10256-V-90 in an
information of the same date and signed by the same Assistant Provincial
Prosecutor, as follows:
"That on or about the 30th day of April, 1990, in the municipality of Valenzuela,
Metro Manila, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused together with two (2) others who are still at large and
against whom the preliminary investigation has not yet been terminated by the
Office of the Provincial Prosecutor of Bulacan, conspiring, confederating
together and mutually helping one another, armed with a piece of wood and
hallow (sic) block and with intent to kill one Clarito B. Blace, did then and there
wilfully, unlawfully and feloniously, with evident premeditation and treachery,
attack, assault and hit with the said piece of wood and hollow block the said
Clarito B. Blace, hitting the latter on the different parts of his body, thereby
inflicting serious physical injuries which directly caused the death of the said
victim." (p. 3, Rollo.)
Edna Edwina Reyes testified that at about 7:00 a.m. of April 30, 1990, appellant
Gabriel Gerente, together with Fredo Echigoren and Totoy Echigoren, started
drinking liquor and smoking marijuana in the house of the appellant which is

about six (6) meters away from the house of the prosecution witness who was in
her house on that day. She overheard the three men talking about their
intention to kill Clarito Blace. She testified that she heard Fredo Echigoren
saying, "Gabriel, papatayin natin si Clarito Blace," and Totoy Echigoren allegedly
seconded Fredo's suggestion saying: "Papatayin natin 'yan mamaya." Appellant
allegedly agreed: "Sigue, papatayin natin mamaya." (pp. 3-4, tsn, August 24,
1990.)
Fredo and Totoy Echigoren and Gerente carried out their plan to kill Clarito Blace
at about 2:00 p.m. of the same day. The prosecution witness, Edna Edwina
Reyes, testified that she witnessed the killing. Fredo Echigoren struck the first
blow against Clarito Blace, followed by Totoy Echigoren and Gabriel Gerente who
hit him twice with a piece of wood in the head and when he fell, Totoy Echigoren
dropped a hollow block on the victim's head. Thereafter, the three men dragged
Blace to a place behind the house of Gerente.
At about 4:00 p.m. of the same day, Patrolman Jaime Urrutia of the Valenzuela
Police Station received a report from the Palo Police Detachment about a
mauling incident. He went to the Valenzuela District Hospital where the victim
was brought. He was informed by the hospital officials that the victim died on
arrival. The cause of death was massive fracture of the skull caused by a hard
and heavy object. Right away, Patrolman Urrutia, together with Police Corporal
Romeo Lima and Patrolman Alex Umali, proceeded to Paseo de Blas where the
mauling incident took place. There they found a piece of wood with blood stains,
a hollow block and two roaches of marijuana. They were informed by the
prosecution witness, Edna Edwina Reyes, that she saw the killing and she
pointed to Gabriel Gerente as one of the three men who killed Clarito.
The policemen proceeded to the house of the appellant who was then sleeping.
They told him to come out of the house and they introduced themselves as
policemen. Patrolman Urrutia frisked appellant and found a coin purse in his
pocket which contained dried leaves wrapped in cigarette foil. The dried leaves
were sent to the National Bureau of Investigation for examination. The Forensic
Chemist found them to be marijuana.
Only the appellant, Gabriel Gerente, was apprehended by the police. The other
suspects, Fredo and Totoy Echigoren, are still at large.
On May 2, 1990, two separate informations were filed by Assistant Provincial
Prosecutor Benjamin Caraig against him for Violation of Section 8, Art. II, of R.A.
6425, and for Murder.

When arraigned on May 16, 1990, the appellant pleaded not guilty to both
charges. A joint trial of the two cases was held. On September 24, 1990, the trial
court rendered a decision convicting him of Violation of Section 8 of R.A. 6425
and of Murder.
In this appeal of the appellant, the following errors are ascribed to the trial
court:
1. the court a quo gravely erred in admitting the marijuana leaves adduced in
evidence by the prosecution; and

those circumstances, since the policemen had personal knowledge of the violent
death of Blace and of facts indicating that Gerente and two others had killed
him, they could lawfully arrest Gerente without a warrant. If they had postponed
his arrest until they could obtain a warrant, he would have fled the law as his
two companions did.
In Umil vs. Ramos, 187 SCRA 311, the arrest of the accused without a warrant
was effected one (1) day after he had shot to death two Capcom soldiers. The
arrest was held lawful by this Court upon the rationale stated by us in People vs.
Malasugui, 63 Phil. 221, 228, thus:

2. the court a quo gravely erred in convicting the accused-appellant of the

crimes charged despite the absence of evidence required to prove his guilt
beyond reasonable doubt.

"To hold that no criminal can, in any case, be arrested and searched for the
evidence and tokens of his crime without a warrant, would be to leave society,
to a large extent, at the mercy of the shrewdest, the most expert, and the most
depraved of criminals, facilitating their escape in many instances."

The appellant contends that the trial court erred in admitting the marijuana
leaves as evidence in violation of his constitutional right not to be subjected to
illegal search and seizure, for the dried marijuana leaves were seized from him in
the course of a warrantless arrest by the police officers. We do not agree.

The search conducted on Gerente's person was likewise lawful because it was
made as an incident to a valid arrest. This is in accordance with Section 12, Rule
126 of the Revised Rules of Court which provides:

The search of appellant's person and the seizure of the marijuana leaves in his
possession were valid because they were incident to a lawful warrantless arrest.

"SECTION 12. Search incident to lawful arrest. A person lawfully arrested may
be searched for dangerous weapons or anything which may be used as proof of
the commission of an offense, without a search warrant."

Paragraphs (a) and (b), Section 5, Rule 113 of the Revised Rules of Court provide:
'SECTION 5. Arrest without warrant; when lawful. A peace officer or a private
person may, without a warrant, arrest a person:
"(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;"
"(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; . .
.'
The policemen arrested Gerente only some three (3) hours after Gerente and his
companions had killed Blace. They saw Blace dead in the hospital and when they
inspected the scene of the crime, they found the instruments of death: a piece
of wood and a concrete hollow block which the killers had used to bludgeon him
to death. The eye-witness, Edna Edwina Reyes, reported the happening to the
policemen and pinpointed her neighbor, Gerente, as one of the killers. Under

The frisk and search of appellant's person upon his arrest was a permissible
precautionary measure of arresting officers to protect themselves, for the
person who is about to be arrested may be armed and might attack them unless
he is first disarmed. In Adams vs. Williams, 47 U.S. 143, cited in Justice Isagani A.
Cruz's Constitutional Law, 1991 Edition, p. 150, it was ruled that "the individual
being arrested may be frisked for concealed weapons that may be used against
the arresting officer and all unlawful articles found in his person, or within his
immediate control may be seized."
There is no merit in appellant's allegation that the trial court erred in convicting
him of having conspired and cooperated with Fredo and Totoy Echigoren to kill
Blace despite the testimony of Dr. Valentin Bernales that the fracture on the
back of the victim's skull could have been inflicted by one person only.
What Dr. Bernales stated was a mere possibility that only one person dropped
the concrete hollow block on the head of the victim, smashing it. That
circumstance, even if true, does not absolve the other two co-conspirators in the

murder of Blace for when there is a conspiracy to commit a crime, the act of one
conspirator is the act of all. The conspiracy was proven by the eyewitnesstestimony of Edna Edwina Reyes, that she overheard the appellant and his
companions conspire to kill Blace, that acting in concert, they attacked their
victim with a piece of wood and a hollow block and caused his death. "When
there is no evidence indicating that the principal witness for the prosecution was
moved by improper motive, the presumption is that he was not so moved and
his testimony is entitled to full faith and credit" (People vs. Belibet, 199 SCRA
587, 588). Hence, the trial court did not err in giving full credit to Edna Reyes'
testimony.
Appellant's failure to escape (because he was very drunk) is no indicium of his
innocence.
The Solicitor General correctly pointed out in the appellee's brief that the award
of P30,000.00 as civil indemnity for the death of Clarito Blace should be
increased to P50,000.00 in accordance with our ruling in People vs. Sison, 189
SCRA 643.
WHEREFORE, the appealed decision is hereby AFFIRMED, with modification of
the civil indemnity awarded to the heirs of the victim, Clarito Blace, which is
hereby increased to P50,000.00.
SO ORDERED.

G.R. No. 81567 July 9, 1990

G.R. No. 86332 July 9, 1990

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL,

ROLANDO DURAL and RENATO VILLANUEVA. MANOLITA O. UMIL, and NICANOR P.
DURAL, FELICITAS V. SESE, petitioners,
vs.
FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO,
BRIG. GEN. ALEXANDER AGUIRRE, respondents.

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B.

NAZARENO. ALFREDO NAZARENO, petitioner,
vs.
THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION,
Muntinglupa, Metro Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE,
P/SGT. LEVI SOLEDAD, and P/SGT. MAURO AROJADO, respondents.

G.R. Nos. 84581-82 July 9, 1990

PER CURIAM:

AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners,

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

The are eight (8) petitioners for habeas corpus filed before the Court, which have
been consolidated because of the similarity of issues raised, praying for the
issuance of the writ of habeas corpus, ordering the respective respondents to
produce the bodies of the persons named therein and to explain why they
should not be set at liberty without further delay.

G.R. Nos. 84583-84 July 9, 1990

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T.
ANONUEVO and RAMON CASIPLE. DOMINGO T. ANONUEVO and RAMON CASIPLE,
petitioners,
vs.
HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARINO, LT.
COL. REX D. PIAD, T/SGT. CONRADO DE TORRES, S/SGT. ARNOLD DURIAN, and
Commanding Officer, PC-INP Detention Center, Camp Crame, Quezon City,
respondents.

In their respective Returns, the respondents uniformly assert that the privilege
of the writ of habeas corpus is not available to the petitioners as they have been
legally arrested and are detained by virtue of valid informations filed in court
against them.

G.R. No. 83162 July 9, 1990

The Court has carefully reviewed the contentions of the parties in their
respective pleadings, and it finds that the persons detained have not been
illegally arrested nor arbitrarily deprived of their constitutional right to liberty,
and that the circumstances attending these cases do not warrant their release
on habeas corpus.

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

AND DANNY RIVERA. VIRGILIO A. OCAYA, petitioner,
vs.
BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL. NESTOR
MARIANO, respondents.
G.R. No. 85727 July 9, 1990
IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF: DEOGRACIAS
ESPIRITU, petitioner,
vs.
BRIG. GEN. ALFREDO S. LIM, COL. RICARDO REYES, respondents.

The petitioners counter that their detention is unlawful as their arrests were
made without warrant and, that no preliminary investigation was first
conducted, so that the informations filed against them are null and void.

The arrest of a person without a warrant of arrest or previous complaint is

recognized in law. The occasions or instances when such an arrest may be
effected are clearly spelled out in Section 5, Rule 113 of the Rules of Court, as
amended, which provides:
Sec. 5. Arrest without warrant; when lawful. A peace officer
or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has

committed, is actually committing, or is attempting to commit
an offense;

A brief narration of the facts and events surrounding each of the eight (8)
petitions is in order.
I

(b) When an offense has in fact just been committed, and he

has personal knowledge of facts indicating that the person to
be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is
serving final judgment or temporarily confined while his case is
pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forthwith delivered to the
nearest police station or jail, and he shall be proceeded against
in accordance with Rule 112, Section 7.
An arrest without a warrant of arrest, under Section 5 paragraphs (a) and (b) of
Rule 113 of the Rules of Court, as amended, is justified when the person arrested
is caught in flagranti delicto, viz., in the act of committing an offense; or when an
offense has just been committed and the person making the arrest has personal
knowledge of the facts indicating that the person arrested has committed it. The
rationale behind lawful arrests, without warrant, was stated by this Court in the
case of People vs. Kagui Malasugui 1 thus:
To hold that no criminal can, in any case, be arrested and
searched for the evidence and tokens of his crime without a
warrant, would be to leave society, to a large extent, at the
mercy of the shrewdest, the most expert, and the most
depraved of criminals, facilitating their escape in many
instances.
The record of the instant cases would show that the persons in whose behalf
these petitions for habeas corpus have been filed, had freshly committed or
were actually committing an offense, when apprehended, so that their arrests
without a warrant were clearly justified, and that they are, further, detained by
virtue of valid informations filed against them in court.

In G.R. No. 81567 (Umil vs. Ramos), the record shows that, on 1 February 1988,
the Regional Intelligence Operations Unit of the Capital Command (RIOUCAPCOM) received confidential information about a member of the NPA
Sparrow Unit (liquidation squad) being treated for a gunshot wound at the St.
Agnes Hospital in Roosevelt Avenue, Quezon City. Upon verification, it was found
that the wounded person, who was listed in the hospital records as Ronnie
Javelon, is actually Rolando Dural, a member of the NPA liquidation squad,
responsible for the killing of two (2) CAPCOM soldiers the day before, or on 31
January 1988, in Macanining Street, Bagong Barrio, Caloocan City. In view of this
verification, Rolando Dural was transferred to the Regional Medical Services of
the CAPCOM, for security reasons. While confined thereat, or on 4 February
1988, Rolando Dural was positively identified by eyewitnesses as the gunman
who went on top of the hood of the CAPCOM mobile patrol car, and fired at the
two (2) CAPCOM soldiers seated inside the car identified as T/Sgt. Carlos Pabon
and CIC Renato Manligot.
As a consequence of this positive identification, Rolando Dural was referred to
the Caloocan City Fiscal who conducted an inquest and thereafter filed with the
Regional Trial Court of Caloocan City an information charging Rolando Dural alias
Ronnie Javelon with the crime of "Double Murder with Assault Upon Agents of
Persons in Authority." The case was docketed therein as Criminal Case No. C30112 and no bail was recommended. On 15 February 1988, the information
was amended to include, as defendant, Bernardo Itucal, Jr. who, at the filing of
the original information, was still unidentified.
Meanwhile, on 6 February 1988, a petition for habeas corpus was filed with this
Court on behalf of Roberto Umil, Rolando Dural, and Renato Villanueva. The
Court issued the writ of habeas corpus on 9 February 1988 and the respondents
filed a Return of the Writ on 12 February 1988. Thereafter, the parties were
heard on 15 February 1988.
On 26 February 1988, however, Roberto Umil and Renato Villanueva posted bail
before the Regional Trial Court of Pasay City where charges for violation of the
Anti-Subversion Act had been filed against them, and they were accordingly
released. The petition for habeas corpus, insofar as Umil and Villanueva are
concerned, is now moot and academic and is accordingly dismissed, since the

writ of habeas corpus does not lie in favor of an accused in a criminal case who
has been released on bail. 2
As to Rolando Dural, it clearly appears that he was not arrested while in the act
of shooting the two (2) CAPCOM soldiers aforementioned. Nor was he arrested
just after the commission of the said offense for his arrest came a day after the
said shooting incident. Seemingly, his arrest without warrant is unjustified.
However, Rolando Dural was arrested for being a member of the New Peoples
Army (NPA), an outlawed subversive organization. Subversion being a continuing
offense, the arrest of Rolando Dural without warrant is justified as it can be said
that he was committing an offense when arrested. The crimes of rebellion,
subversion, conspiracy or proposal to commit such crimes, and crimes or
offenses committed in furtherance thereof or in connection therewith constitute
direct assaults against the State and are in the nature of continuing crimes. As
stated by the Court in an earlier case:
From the facts as above-narrated, the claim of the petitioners
that they were initially arrested illegally is, therefore, without
basis in law and in fact. The crimes of insurrection or rebellion,
subversion, conspiracy or proposal to commit such crimes, and
other crimes and offenses committed in the furtherance, on the
occasion thereof, or incident thereto, or in connection
therewith under Presidential Proclamation No. 2045, are all in
the nature of continuing offenses which set them apart from
the common offenses, aside from their essentially involving a
massive conspiracy of nationwide magnitude. Clearly then, the
arrest of the herein detainees was well within the bounds of
the law and existing jurisprudence in our jurisdiction.
2. The arrest of persons involved in the rebellion whether as its
fighting armed elements, or for committing non-violent acts but
in furtherance of the rebellion, is more an act of capturing them
in the course of an armed conflict, to quell the rebellion, than
for the purpose of immediately prosecuting them in court for a
statutory offense. The arrest, therefore, need not follow the
usual procedure in the prosecution of offenses which requires
the determination by a judge of the existence of probable cause
before the issuance of a judicial warrant of arrest and the
granting of bail if the offense is bailable. Obviously, the absence
of a judicial warrant is no legal impediment to arresting or

capturing persons committing overt acts of violence against

government forces, or any other milder acts but equally in
pursuance of the rebellious movement. The arrest or capture is
thus impelled by the exigencies of the situation that involves
the very survival of society and its government and duly
constituted authorities. If killing and other acts of violence
against the rebels find justification in the exigencies of armed
hostilities which is of the essence of waging a rebellion or
insurrection, most assuredly so in case of invasion, merely
seizing their persons and detaining them while any of these
contingencies continues cannot be less justified. . . . 3
The record, moreover, shows that the criminal case filed against Rolando Dural
and Bernardo Itucal, Jr. for "Double Murder, etc." was tried in the court below
and at the conclusion thereof, or on 17 August 1988, Rolando Dural and
Bernardo Itucal, Jr. were found guilty of the charge and sentenced accordingly.
Rolando Dural is now serving the sentence imposed upon him by the trial court.
Thus, the writ of habeas corpus is no longer available to him. For, as held in the
early case of U.S. vs. Wilson: 4
In this case, whatever may be said about the manner of his
arrest, the fact remains that the defendant was actually in court
in the custody of the law on March 29, when a complaint
sufficient in form and substance was read to him. To this he
pleaded not guilty. The trial followed, in which, and in the
judgment of guilty pronounced by the court, we find no error.
Whether, if there were irregularities in bringing him personally
before the court, he could have been released on a writ of
habeas corpus or now has a civil action for damages against the
person who arrested him we need not inquire. It is enough to
say that such irregularities are not sufficient to set aside a valid
judgment rendered upon a sufficient complaint and after a trial
free from error.
II
In G.R. Nos. 84581-82 (Roque vs. De Villa), the arrest of Amelia Roque and
Wilfredo Buenaobra, without warrant, is also justified. When apprehended at the
house of Renato Constantino in Marikina Heights, Marikina, Metro Manila,
Wilfredo Buenaobra admitted that he was an NPA courier and he had with him
letters to Renato Constantino and other members of the rebel group. Amelia

Roque, upon the other hand, was a member of the National United Front
Commission, in charge of finance, and admitted ownership of subversive
documents found in the house of her sister in Caloocan City. She was also in
possession of ammunition and a fragmentation grenade for which she had no
permit or authority to possess.
The record of these two (2) cases shows that on 27 June 1988, one Rogelio
Ramos y Ibanes, a member of the NPA, who had surrendered to the military
authorities, told military agents about the operations of the Communist Party of
the Philippines (CPP) and the New Peoples Army (NPA) in Metro Manila. He
identified some of his former comrades as "Ka Mong", a staff member of the
Communications and Transportation Bureau; "Ka Nelia", a staff member in
charge of finance; "Ka Miller", an NPA courier from Sorsogon and Lopez, Quezon;
"Ka Ted", and "Ka Totoy". He also pointed to a certain house occupied by Renato
Constantino located in the Villaluz Compound, Molave St., Marikina Heights,
Marikina, Metro Manila, which is used as a safehouse of the National United
Front Commission (NUFC) of the CPP-NPA.
In view of these revelations, the Constantino house was placed under military
surveillance and on 12 August 1988, pursuant to a search warrant issued by
Judge Eutropio Migrino of the Regional Trial Court of Pasig, a search of the house
was conducted at about 5:00 o'clock in the afternoon, by a combined team of
the Criminal Investigation Service, National Capital District (CIS-NCD) and the
Constabulary Security Group (CSG). In the course of the search, the following
articles were found and taken under proper receipt:
a) One (1) Colt M16A1 long rifle with defaced serial number;
b) One (1) Cal. .380 ACT/9mm Model PPK/8 SN: 260577 & 2605778;
c) Two (2) fragmentation hand grenades;
d) Fifty-six (56) live ammunition for Cal. 5.56 mm;
e) Five (5) live ammunition for Cal. .380;
f) One (1) ICOM VHF FM Radio Transciever SN: 14903
g) One (1) Regulated power supply 220V AC;
h) One (1) Antennae (adjustable);

i) One (1) Speaker with cord ALEXAR;

j) Voluminous Subversive documents.
When confronted, Renato Constatino could not produce any permit or authority
to possess the firearms, ammunition, radio and other communications
equipment. Hence, he was brought to the CIS Headquarters for investigation.
When questioned, he refused to give a written statement, although he admitted
that he was a staff member of the executive committee of the NUFC and a
ranking member of the International Department of the Communist Party of the
Philippines (CPP).
At about 8:00 o'clock in the evening of the same day (12 August 1988), Wilfredo
Buenaobra arrived at the house of Renato Constantino in the Villaluz Compound.
When accosted, he readily admitted to the military agents that he is a regular
member of the CPP/NPA and that he went to the place to deliver letters to "Ka
Mong", referring to Renato Constatino, and other members of the rebel group.
On further questioning, he also admitted that he is known as "Ka Miller" and that
he was from Barangay San Pedro, Lopez, Quezon. Among the items taken from
him were the following:
(1) Handwritten letter addressed to "Ka Bing & Co. from A &
Co." dated August 11, 1988;
(2) Handwritten letter addressed to "ROD from VIC (Schell
datre)" dated August 11, 1988;
(3) Handwritten letter addressed to "Suzie" from "Vic", dated
August 11, 1988.
Also found Buenaobra's possession was a piece of paper containing a written but
jumbled telephone number of Florida M. Roque, sister of Amelia Roque alias "Ka
Nelia", at 69 Geronimo St., Caloocan City. Acting on the lead provided as to the
whereabouts of Amelia Roque, the military agents went to the given address the
next day (13 August 1988). They arrived at the place at about 11:00 o'clock in
the morning. After identifying themselves as military agents and after seeking
permission to search the place, which was granted, the military agents
conducted a search in the presence of the occupants of the house and the
barangay captain of the place, one Jesus D. Olba.

The military agents found the place to be another safehouse of the NUFC/CPP.
They found ledgers, journals, vouchers, bank deposit books, folders, computer
diskettes, and subversive documents as well as live ammunition for a .38 SPL
Winchester, 11 rounds of live ammunition for a cal. .45, 19 rounds of live
ammunition for an M16 Rifle, and a fragmentation grenade. As a result, Amelia
Roque and the other occupants of the house were brought to the PC-CIS
Headquarters at Camp Crame, Quezon City, for investigation. Amelia Roque
admitted to the investigators that the voluminous documents belonged to her
and that the other occupants of the house had no knowledge of them. As a
result, the said other occupants of the house were released from custody.
On 15 August 1988, Amelia Roque was brought to the Caloocan City Fiscal for
inquest after which an information charging her with violation of PD 1866 was
filed with the Regional Trial Court of Caloocan City. The case is docketed therein
as Criminal Case No. C-1196. Another information for violation of the AntiSubversion Act was filed against Amelia Roque before the Metropolitan Trial
Court of Caloocan City, which is docketed therein as Criminal Case No. C-150458.

In G.R. Nos. 84583-84 (Anonuevo vs. Ramos), the arrest of Domingo Anonuevo
and Ramon Casiple, without warrant, is also justified under the rules. Both are
admittedly members of the standing committee of the NUFC and, when
apprehended in the house of Renato Constatino, they had a bag containing
subversive materials, and both carried firearms and ammunition for which they
had no license to possess or carry.
The record of these two (2) cases shows that at about 7:30 o'clock in the evening
of 13 August 1988, Domingo T. Anonuevo and Ramon Casiple arrived at the
house of Renato Constatino at Marikina Heights, Marikina, which was still under
surveillance by military agents. The military agents noticed bulging objects on
their waist lines. When frisked, the agents found them to be loaded guns.
Anonuevo and Casiple were asked to show their permit or license to possess or
carry firearms and ammunition, but they could not produce any. Hence, they
were brought to PC Headquarters for investigation. Found in their possession
were the following articles:
a) Voluminous subversive documents

An information for violation of the Anti-Subversion Act was filed against Wilfredo
Buenaobra before the Metropolitan Trial Court of Marikina, Metro Manila. The
case is docketed therein as Criminal Case No. 23715. Bail was set at P4,000.00.
On 24 August 1988, a petition for habeas corpus was filed before this Court on
behalf of Amelia Roque and Wilfredo Buenaobra. At the hearing of the case,
however, Wilfredo Buenaobra manifested his desire to stay in the PC-INP
Stockade at Camp Crame, Quezon City. According, the petition for habeas corpus
filed on his behalf is now moot and academic. Only the petition of Amelia Roque
remains for resolution.
The contention of respondents that petitioners Roque and Buenaobra are
officers and/or members of the National United Front Commission (NUFC) of the
CPP was not controverted or traversed by said petitioners. The contention must
be deemed admitted. 5 As officers and/or members of the NUFC-CPP, their
arrest, without warrant, was justified for the same reasons earlier stated vis-a-vis
Rolando Dural. The arrest without warrant of Roque was additionally justified as
she was, at the time of apprehension, in possession of ammunitions without
license to possess them.
III

b) One (1) Cal. 7.65 MOD 83 2C Pistol SN: 001412 with one (1)
magazine for Cal. 7.65 containing ten (10) live ammunition of
same caliber;
c) One (1) Cal. 7.65 Pietro Barreta SN; A18868 last digit
tampered with one (1) magazine containing five (5) live
ammunition of same caliber.
At the PC Stockade, Domingo Anonuevo was identified as "Ka Ted", and Ramon
Casiple as "Ka Totoy" of the CPP, by their comrades who had previously
surrendered to the military.
On 15 August 1988, the record of the investigation and other documentary
evidence were forwarded to the Provincial Fiscal at Pasig, Metro Manila, who
conducted an inquest, after which Domingo Anonuevo and Ramon Casiple were
charged with violation of Presidential Decree No. 1866 before the Regional Trial
Court of Pasig, Metro Manila. The cases are docketed therein as Criminal Cases
Nos. 74386 ad 74387, respectively. No bail was recommended.
On 24 August 1988, a petition for habeas corpus was filed with this Court on
behalf of Domingo Anonuevo and Ramon Casiple, alleging that the said
Anonuevo and Casiple were unlawfully arrested without a warrant and that the

informations filed against them are null and void for having been filed without
prior hearing and preliminary investigation. On 30 August 1988, the Court issued
the writ of habeas corpus, and after the respondents had filed a Return of the
Writ, the parties were heard.

The petitioners Domingo Anonuevo and Ramon Casiple, however, refused to

sign a waiver of the provisions of Article 125 of the Revised Penal Code, as
amended. In the informations filed against them, the prosecutor made identical
certifications, as follows:

The petitioners' (Anonuevo and Casiple) claim that they were unlawfully arrested
because there was no previous warrant of arrest, is without merit The record
shows that Domingo Anonuevo and Ramon Casiple were carrying unlicensed
firearms and ammunition in their person when they were apprehended.

This is to certify that the accused has been charged in

accordance with Sec. 7, Rule 112 of the 1985 Rules on Criminal
Procedure, that no preliminary investigation was conducted
because the accused has not made and signed a waiver of the
provisions of Art. 125 of the Revised Penal Code, as amended;
that based on the evidence presented, there is reasonable
ground to believe that the crime has been committed, and that
the accused is probably guilty thereof.

There is also no merit in the contention that the informations filed against them
are null and void for want of a preliminary investigation. The filing of an
information, without a preliminary investigation having been first conducted, is
sanctioned by the Rules. Sec. 7, Rule 112 of the Rules of Court, as amended,
reads:
Sec. 7. When accused lawfully arrested without a warrant.
When a person is lawfully arrested without a warrant for an
offense cognizable by the Regional Trial Court the complaint or
information may be filed by the offended party, peace officer or
fiscal without a preliminary investigation having been first
conducted, on the basis of the affidavit of the offended party or
arresting officer or person.
However, before the filing of such complaint or information,
the person arrested may ask for a preliminary investigation by a
proper officer in accordance with this Rule, but he must sign a
waiver of the provisions of Article 125 of the Revised Penal
Code, as amended, with the assistance of a lawyer and in case
of non-availability of a lawyer, a responsible person of his
choice. Notwithstanding such waiver, he may apply for bail as
provided in the corresponding rule and the investigation must
be terminated within fifteen (15) days from its inception.
If the case has been filed in court without a preliminary
investigation having been first conducted, the accused may
within five (5) days from the time he learns of the filing of the
information, ask for a preliminary investigation with the same
right to adduced evidence in his favor in the manner prescribed
in this Rule.

Nor did petitioners ask for a preliminary investigation after the informations had
been filed against them in court. Petitioners cannot now claim that they have
been deprived of their constitutional right to due process.
IV
In G.R. No. 83162 (Ocaya vs. Aguirre), the arrest without warrant, of Vicky Ocaya
is justified under the Rules, since she had with her unlicensed ammunition when
she was arrested. The record of this case shows that on 12 May 1988, agents of
the PC Intelligence and Investigation of the Rizal PC-INP Command, armed with a
search warrant issued by Judge Eutropio Migrino of the Regional Trial Court of
Pasig, Metro Manila, conducted a search of a house located at Block 19, Phase II,
Marikina Green Heights, Marikina, Metro Manila, believed to be occupied by
Benito Tiamson, head of the CPP-NPA. In the course of the search, Vicky Ocaya
arrived in a car driven by Danny Rivera. Subversive documents and several
rounds of ammunition for a .45 cal. pistol were found in the car of Vicky Ocaya.
As a result, Vicky Ocaya and Danny Rivera were brought to the PC Headquarters
for investigation. When Vicky Ocaya could not produce any permit or
authorization to possess the ammunition, an information charging her with
violation of PD 1866 was filed with the Regional Trial Court of Pasig, Metro
Manila. The case is docketed therein as Criminal Case No. 73447. Danny Rivera,
on the other hand, was released from custody.
On 17 May 1988, a petition for habeas corpus was filed, with this Court on behalf
of Vicky Ocaya and Danny Rivera. It was alleged therein that Vicky Ocaya was
illegally arrested and detained, and denied the right to a preliminary
investigation.

It would appear, however, that Vicky Ocaya was arrested in flagranti delicto so
that her arrest without a warrant is justified. No preliminary investigation was
conducted because she was arrested without a warrant and she refused to waive
the provisions of Article 125 of the Revised Penal Code, pursuant to Sec. 7, Rule
112 of the Rule of Court, as amended.
V
The petitioners Vicky Ocaya, Domingo Anonuevo, Ramon Casiple, and Amelia
Roque claim that the firearms, ammunition and subversive documents alleged to
have been found in their possession when they were arrested, did not belong to
them, but were "planted" by the military agents to justify their illegal arrest.
The petitioners, however, have not introduced any evidence to support their
aforesaid claim. On the other hand, no evil motive or ill-will on the part of the
arresting officers that would cause the said arresting officers in these cases to
accuse the petitioners falsely, has been shown. Besides, the arresting officers in
these cases do not appear to be seekers of glory and bounty hunters for, as
counsel for the petitioners Anonuevo and Casiple say, "there is absolutely
nothing in the evidence submitted during the inquest that petitioners are on the
'AFP Order of Battle with a reward of P150,000.00 each on their heads.'" 6 On
the other hand, as pointed out by the Solicitor General, the arrest of the
petitioners is not a product of a witch hunt or a fishing expedition, but the result
of an in-depth surveillance of NPA safehouses pointed to by no less than former
comrades of the petitioners in the rebel movement.
The Solicitor General, in his Consolidated Memorandum, aptly observes:
. . . . To reiterate, the focal point in the case of petitioners
Roque, Buenaobra, Anonuevo and Casiple, was the lawful
search and seizure conducted by the military at the residence
of Renato Constantino at Villaluz Compound, Molave St.,
Marikina Heights, Marikina, Metro Manila. The raid at
Constantino's residence, was not a witch hunting or fishing
expedition on the part of the military. It was a result of an indepth military surveillance coupled with the leads provided by
former members of the underground subversive organizations.
That raid produced positive results. to date, nobody has
disputed the fact that the residence of Constantino when
raided yielded communication equipment, firearms and
ammunitions, as well as subversive documents.

The military agents working on the information provided by

Constantino that other members of his group were coming to
his place, reasonably conducted a "stake-out" operation
whereby some members of the raiding team were left behind
the place. True enough, barely two hours after the raid and
Constantino's arrest, petitioner Buenaobra arrived at
Constantino's residence. He acted suspiciously and when
frisked and searched by the military authorities, found in his
person were letters. They are no ordinary letters, as even a
cursory reading would show. Not only that, Buenaobra
admitted that he is a NPA courier and was there to deliver the
letters to Constantino.
Subsequently, less than twenty four hours after the arrest of
Constantino and Buenaobra, petitioners Anonuevo and Casiple
arrived at Constantino's place. Would it be unreasonable for
the military agents to believe that petitioners Anonuevo and
Casiple are among those expected to visit Constantino's
residence considering that Constatino's information was true, in
that Buenaobra did come to that place? Was it unreasonable
under the circumstances, on the part of the military agents, not
to frisk and search anyone who should visit the residence of
Constantino, such as petitioners Anonuevo and Casiple? Must
this Honorable Court yield to Anonuevo and Casiple's flimsy and
bare assertion that they went to visit Constantino, who was to
leave for Saudi Arabia on the day they were arrested thereat?
As to petitioner Roque, was it unreasonable for the military
authorities to effect her arrest without warrant considering that
it was Buenaobra who provided the leads on her identity? It
cannot be denied that Buenaobra had connection with Roque.
Because the former has the phone number of the latter. Why
the necessity of jumbling Roque's telephone number as written
on a piece of paper taken from Buenaobra's possession?
Petitioners Roque and Buenaobra have not offered any
plausible reason so far.
In all the above incidents, respondents maintain that they acted
reasonably, under the time, place and circumstances of the
events in question, especially considering that at the time of
petitioner's arrest, incriminatory evidence, i.e, firearms,

ammunitions and/or subversive documents were found in their

possession.

Manila, docketed therein as Criminal Case No. 88-683-85, charging him with
violation of Art. 142 of the Revised Penal Code (Inciting to Sedition).

Petitioners, when arrested, were neither taking their snacks nor

innocently visiting a camp, but were arrested in such time,
place and circumstances, from which one can reasonably
conclude tat they were up to a sinister plot, involving utmost
secrecy and comprehensive conspiracy.

The respondents also claim that the petitioner was lawfully arrested without a
judicial warrant of arrest since petitioner when arrested had in fact just
committed an offense in that in the afternoon of 22 November 1988, during a
press conference at the National Press Club.

IV
In. G.R. No. 85727 (Espiritu vs. Lim), the release on habeas corpus of the
petitioner Deogracias Espiritu, who is detained by virtue of an Information for
Violation of Article 142 of the Revised Penal Code (Inciting to Sedition) filed with
the Regional Trial Court of Manila, is similarly not warranted.
The record of the case shows that the said petitioner is the General Secretary of
the Pinagkaisahang Samahan ng Tsuper at Operators Nationwide (PISTON), an
association of drivers and operators of public service vehicles in the Philippines,
organized for their mutual aid and protection.
Petitioner claims that at about 5:00 o'clock in the morning of 23 November
1988, while he was sleeping in his home located at 363 Valencia St., Sta. Mesa,
Manila, he was awakened by his sister Maria Paz Lalic who told him that a group
of persons wanted to hire his jeepney. When he went down to talk to them, he
was immediately put under arrest. When he asked for the warrant of arrest, the
men, headed by Col. Ricardo Reyes, bodily lifted him and placed him in their
owner-type jeepney. He demanded that his sister, Maria Paz Lalic, be allowed to
accompany him, but the men did not accede to his request and hurriedly sped
away.
He was brought to Police Station No. 8 of the Western Police District at
Blumentritt, Manila where he was interrogated and detained. Then, at about
9:00 o'clock of the same morning, he was brought before the respondent Lim
and, there and then, the said respondent ordered his arrest and detention. He
was thereafter brought to the General Assignment Section, Investigation Division
of the Western Police District under Police Capt. Cresenciano A. Cabasal where
he was detained, restrained and deprived of his liberty. 7
The respondents claim however, that the detention of the petitioner is justified
in view of the Information filed against him before the Regional Trial Court of

Deogracias Espiritu through tri-media was heard urging all

drivers and operators to go on nationwide strike on November
23, 1988, to force the government to give into their demands
to lower the prices of spare parts, commodities, water and the
immediate release from detention of the president of the
PISTON (Pinag-isang Samahan ng Tsuper Operators
Nationwide). Further, we heard Deogracias Espiritu taking the
place of PISTON president Medardo Roda and also announced
the formation of the Alliance Drivers Association to go on
nationwide strike on November 23, 1988. 8
Policemen waited for petitioner outside the National Pres Club in order to
investigate him, but he gave the lawmen the slip. 9 He was next seen at about
5:00 o'clock that afternoon at a gathering of drivers and symphatizers at the
corner of Magsaysay Blvd. and Valencia Street, Sta. Mesa, Manila where he was
heard to say:
Bukas tuloy ang welga natin, sumagot na ang Cebu at Bicol na
kasali sila, at hindi tayo titigil hanggang hindi binibigay ng
gobyerno ni Cory ang gusto nating pagbaba ng halaga ng spare
parts, bilihin at and pagpapalaya sa ating pinuno na si Ka Roda
hanggang sa magkagulo na. 10 (emphasis supplied)
The police finally caught up with the petitioner on 23 November 1988. He was
invited for questioning and brought to police headquarters after which an
Information for violation of Art. 142 of the Revised Penal Code was filed against
him before the Regional Trial Court of Manila. 11
Since the arrest of the petitioner without a warrant was in accordance with the
provisions of Rule 113, Sec. 5(b) of the Rules of Court and that the petitioner is
detained by virtue of a valid information filed with the competent court, he may
not be released on habeas corpus. He may, however be released upon posting

bail as recommended. However, we find the amount of the recommended bail

(P60,000.00) excessive and we reduce it to P10,000.00 only.
VII
In G.R. No. 86332 (Nazareno vs. Station Commander), we also find no merit in
the submission of Narciso Nazareno that he was illegally arrested and is
unlawfully detained. The record of this case shows that at about 8:30 o'clock in
the morning of 14 December 1988, one Romulo Bunye II was killed by a group of
men near the corner of T. Molina and Mendiola Streets in Alabang, Muntinglupa,
Metro Manila. One of the suspects in the killing was Ramil Regal who was
arrested by the police on 28 December 1988. Upon questioning, Regal pointed
to Narciso Nazareno as on of his companions in the killing of the said Romulo
Bunye II. In view thereof, the police officers, without warrant, picked up Narciso
Nazareno and brought him to the police headquarters for questioning.
Obviously, the evidence of petitioner's guilt is strong because on 3 January 1989,
an information charging Narciso Nazareno, Ramil Regala, and two (2) others,
with the killing of Romulo Bunye II was filed with the Regional Trial Court of
Makati, Metro Manila. The case is docketed therein as Criminal Case No. 731.
On 7 January 1989, Narciso Nazareno filed a motion to post bail, but the motion
was denied by the trial court in an order dated 10 January 1989, even as the
motion to post bail, earlier filed by his co-accused, Manuel Laureaga, was
granted by the same trial court.
On 13 January 1989, a petition for habeas corpus was filed with this Court on
behalf of Narciso Nazareno and on 13 January 1989, the Court issued the writ of
habeas corpus, returnable to the Presiding Judge of the Regional Trial Court of
Bian, Laguna, Branch 24, ordering said court to hear the case on 30 January
1989 and thereafter resolve the petition.
At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of
the Regional Trial Court of Bian, Laguna issued a resolution denying the petition
for habeas corpus, it appearing that the said Narciso Nazareno is in the custody
of the respondents by reason of an information filed against him with the
Regional Trial Court of Makati, Metro Manila which had taken cognizance of said
case and had, in fact, denied the motion for bail filed by said Narciso Nazareno
(presumably because of the strength of the evidence against him).
The findings of the Presiding Judge of the Regional Trial Court of Bian, Laguna
are based upon the facts and the law. Consequently, we will not disturb the

same. Evidently, the arrest of Nazareno was effected by the police without
warrant pursuant to Sec. 5(b), Rule 113, Rules of Court after he was positively
implicated by his co-accused Ramil Regala in the killing of Romulo Bunye
II; and after investigation by the police authorities. As held in People vs. Ancheta:
12

The obligation of an agent of authority to make an arrest by

reason of a crime, does not presuppose as a necessary requisite
for the fulfillment thereof, the indubitable existence of a crime.
For the detention to be perfectly legal, it is sufficient that the
agent or person in authority making the arrest has reasonably
sufficient grounds to believe the existence of an act having the
characteristics of a crime and that the same grounds exist to
believe that the person sought to be detained participated
therein.
VIII
It is to be noted that, in all the petitions here considered, criminal charges have
been filed in the proper courts against the petitioners. The rule is, that if a
person alleged to be restrained of his liberty is in the custody of an officer under
process issued by a court judge, and that the court or judge had jurisdiction to
issue the process or make the order, of if such person is charged before any
court, the writ of habeas corpus will not be allowed. Section 4, Rule 102, Rules of
Court, as amended is quite explicit in providing that:
Sec. 4. When writ is allowed or discharge authorized. If it
appears that the person alleged to be restrained of his liberty is
in the custody of an officer under process issued by a court or
judge or by virtue of a judgment or order of a court of record,
and that the court or judge had jurisdiction to issue the
process, render the judgment, or make the order, the writ shall
not be allowed; or if the jurisdiction appears after the writ is
allowed, the person shall not be discharged by reason of any
informality or defect in the process, judgment, or order. Nor
shall anything in this rule be held to authorize the discharge of a
person charged with a convicted of an offense in the Philippines
or of a person suffering imprisonment under lawful judgment.
(emphasis supplied)

At this point, we refer to petitioner's plea for the Court of re-examine and,
thereafter, abandon its pronouncement in Ilagan vs. Enrile, 13 that a writ of
habeas corpus is no longer available after an information is filed against the
person detained and a warrant of arrest or an order of commitment, is issued by
the court where said information has been filed. 14 The petitioners claim that the
said ruling, which was handed down during the past dictatorial regime to enforce
and strengthen said regime, has no place under the present democratic
dispensation and collides with the basic, fundamental, and constitutional rights
of the people. Petitioners point out that the said doctrine makes possible the
arrest and detention of innocent persons despite lack of evidence against them,
and, most often, it is only after a petition for habeas corpus is filed before the
court that the military authorities file the criminal information in the courts of
law to be able to hide behind the protective mantle of the said doctrine. This,
petitioners assert, stands as an obstacle to the freedom and liberty of the people
and permits lawless and arbitrary State action.
We find, however, no compelling reason to abandon the said doctrine. It is
based upon express provision of the Rules of Court and the exigencies served by
the law. The fears expressed by the petitioners are not really unremediable. As
the Court sees it, re-examination or reappraisal, with a view to its abandonment,
of the Ilagan case doctrine is not the answer. The answer and the better practice
would be, not to limit the function of the habeas corpus to a mere inquiry as to
whether or not the court which issued the process, judgment or order of
commitment or before whom the detained person is charged, had jurisdiction or
not to issue the process, judgment or order or to take cognizance of the case,
but rather, as the Court itself states in Morales, Jr. vs. Enrile, 15 "in all petitions
for habeas corpus the court must inquire into every phase and aspect of
petitioner's detention-from the moment petition was taken into custody up to
the moment the court passes upon the merits of the petition;" and "only after
such a scrutiny can the court satisfy itself that the due process clause of our
Constitution has in fact been satisfied." This is exactly what the Court has done in
the petitions at bar. This is what should henceforth be done in all future cases of
habeas corpus. In Short, all cases involving deprivation of individual liberty
should be promptly brought to the courts for their immediate scrutiny and
disposition.
WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No. 85727
(Espiritu vs. Lim), the bail bond for petitioner's provisional liberty is hereby
ordered reduced from P60,000.00 to P10,000.00. No costs.
SO ORDERED.

G.R. No. 93239

March 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EDISON SUCRO, accused-appellant.
GUTIERREZ, JR., J.:
Edison Sucro was charged with and convicted of violation of Section 4, Article II
of the Dangerous Drugs Act, under an Information which reads:
That on or about the 21st day of March, 1989, in the evening, in the
Poblacion, Municipality of Kalibo, Province of Aklan, Republic of the
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, acting as a pusher or broker in the business of
selling, administering, delivery, giving away to another and/or
distributing prohibited drugs, did then and there wilfully, unlawfully and
feloniously and without authority of law have in his possession and
control nineteen (19) pieces of marijuana cigarette sticks and four (4)
tea bags of dried marijuana leaves which were confiscated from him by
the police authorities of Kalibo, Aklan, shortly after having sold one tea
bag of dried marijuana leaves to a customer. (Rollo, p. 9)
Upon arraignment, the accused-appellant, assisted by counsel, entered a plea of
"not guilty" to the offense charged. Trial ensued and a judgment of conviction
was rendered, the pertinent portion of which reads:
WHEREFORE, judgment is rendered finding the accused Edison Sucro
guilty of the sale of prohibited drug under Section 4, Article II of the
Dangerous Drug Act, as amended, and sentencing him to suffer the
penalty of life imprisonment, and pay a fine of P20,000, and costs. He
shall be entitled to full credit in the service of his sentence with the
period for which he has undergone preventive imprisonment to the
date of promulgation of this judgment. All the items of marijuana
confiscated in this case are declared forfeited in favor of the State.
(Rollo, p. 41)
From the foregoing judgment of conviction, accused-appellant interposes this
appeal, assigning the following as errors allegedly committed by the court a quo,
to wit:

I
THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE FOR THE
PROSECUTION EXHIBITS "E"-"E-4", TEA BAGS OF ALLEGED MARIJUANA,
TO BE THE CORPUS DELICTI; FURTHERMORE, THAT THE SAME WERE
TAKEN WITHOUT THE REQUIRED WARRANT OF SEARCH AND ARREST
SINCE THE ACCUSED WAS NOT IN THE ACT OF COMMITTING ANY
OFFENSE AT THE TIME OF HIS ARREST.
II
THE LOWER COURT ERRED IN FINDING THE ACCUSED EDISON SUCRO
GUILTY OF THE SALE OF PROHIBITED DRUGS UNDER SECTION 4, ARTICLE
II, OF THE DANGEROUS DRUGS ACT AND SENTENCING HIM TO SUFFER A
PENALTY OF LIFE IMPRISONMENT AND TO PAY A FINE OF P 20,000.00.
(Appellant's Brief, p. 1)
The antecedent facts of the case as summarized by the Solicitor General are as
follows:
On March 21, 1989, Pat. Roy Fulgencio, a member of the INP, Kalibo,
Aklan, was instructed by P/Lt. Vicente Seraspi, Jr. (Station Commander
of the INP Kalibo, Aklan) to monitor the activities of appellant Edison
Sucro, because of information gathered by Seraspi that Sucro was
selling marijuana. (p. 6, TSN, May 2,1989).
As planned, at about 5:00 P.M. on said date, Pat. Fulgencio Positioned
himself under the house of a certain Arlie Regalado at C. Quimpo Street.
Adjacent to the house of Regalado, about 2 meters away, was a chapel.
Thereafter, Pat. Fulgencio saw appellant enter the chapel, taking
something which turned out later to be marijuana from the
compartment of a cart found inside the chapel, and then return to the
street where he handed the same to a buyer, Aldie Borromeo. After a
while appellant went back to the chapel and again came out with
marijuana which he gave to a group of persons. (pp. 6-8, 15-18, Ibid). It
was at this instance that Pat. Fulgencio radioed P/Lt. Seraspi and
reported the activity going on. P/Lt. Seraspi instructed Pat. Fulgencio to
continue monitoring developments. At about 6:30 P.M., Pat. Fulgencio
again called up Seraspi to report that a third buyer later Identified as
Ronnie Macabante, was transacting with appellant. (pp. 18-19, Ibid)

At that point, the team of P/Lt. Seraspi proceeded to the area and while
the police officers were at the Youth Hostel at Maagma St., Pat.
Fulgencio told P/Lt. Seraspi to intercept Macabante and appellant. P/Lt.
Seraspi and his team caught up with Macabante at the crossing of
Mabini and Maagma Sts. in front of the Aklan Medical Center. Upon
seeing the police, Macabante threw something to the ground which
turned out to be a tea bag of marijuana. (pp. 6-8, TSN, June 19, 1989)
When confronted, Macabante readily admitted that he bought the same
from appellant (Edison Sucro) in front of the chapel. (p. 6, TSN, May 24,
1989) The police team was able to overtake and arrest appellant at the
corner of C. Quimpo and Veterans Sts. The police recovered 19 sticks
and 4 teabags of marijuana from the cart inside the chapel and another
teabag from Macabante, The teabags of marijuana were sent to the PCINP Crime Laboratory Service, at Camp Delgado, Iloilo City for analysis.
The specimens (Exhibits "G" to "G-18", Exhibits "E" to "E-4") were all
found positive of marijuana. (pp. 47, TSN, Sept. 4, 1989)" (Appellee's
Brief, pp. 3-6)
As can be seen from the facts, the issue hinges mainly on whether or not the
arrest without warrant of the accused is lawful and consequently, whether or
not the evidence resulting from such arrest is admissible.
We rule in the affirmative.
The accused-appellant contends that his arrest was illegal, being a violation of
his rights granted under Section 2, Article III of the 1987 Constitution. He
stresses that there was sufficient time for the police officers to apply for a search
and arrest warrants considering that Fulgencio informed his Station Commander
of the activities of the accused two days before March 21, 1989, the date of his
arrest.
This contention is without merit.
Section 5, Rule 113 of the Rules on Criminal Procedure provides for the instances
where arrest without warrant is considered lawful. The rule states:
Arrest without warrant, when lawful. A peace officer or private
person may, without warrant, arrest a person:
(a) When in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested
has committed it; (Emphasis supplied)
An offense is committed in the presence or within the view of an officer, within
the meaning of the rule authorizing an arrest without a warrant, when the
officer sees the offense, although at a distance, or hears the disturbances
created thereby and proceeds at once to the scene thereof. (U.S. v. Fortaleza, 12
Phil. 472 [1909]; and U.S. v. Samonte, 16 Phil. 516 [1910])
The records show that Fulgencio went to Arlie Regalado's house at C. Quimpo
Street to monitor the activities of the accused who was earlier reported to be
selling marijuana at a chapel two (2) meters away from Regalado's house.
Fulgencio, within a distance of two meters saw Sucro conduct his nefarious
activity. He saw Sucro talk to some persons, go inside the chapel, and return to
them and exchange some things. These, Sucro did three times during the time
that he was being monitored. Fulgencio would then relay the on-going
transaction to P/Lt. Seraspi.
Anent the second requirement, the fact that Macabante, when intercepted by
the police, was caught throwing the marijuana stick and when confronted,
readily admitted that he bought the same from accused-appellant clearly
indicates that Sucro had just sold the marijuana stick to Macabante, and
therefore, had just committed an illegal act of which the police officers had
personal knowledge, being members of the team which monitored Sucro's
nefarious activity.
The court earlier indicated in the case of People v. Bati (G.R. No. 87429, August
27, 1990) that police officers have personal knowledge of the actual commission
of the crime when it had earlier conducted surveillance activities of the accused.
Thus, it stated:
When Luciano and Caraan reached the place where the alleged
transaction would take place and while positioned at a street comer,
they saw appellant Regalado Bati and Warner Marquez by the side of
the street about forty to fifty meters away from them (the public
officers). They saw Marquez giving something to Bati, who, thereafter
handed a wrapped object to Marquez who then inserted the object
inside the front of his pants in front of his abdomen while Bati, on his
part, placed the thing given to him inside his pocket. (p. 2)

xxx

xxx

xxx

. . . Both Patrolman Luciano and Caraan actually witnessed the same and
their testimonies were based on their actual and personal knowledge of
the events that took place leading to appellant's arrest. They may not
have been within hearing distance, specially since conversation would
expectedly be carried on in hushed tones, but they were certainly near
enough to observe the movements of the appellant and the buyer.
Moreover, these prosecution witnesses are all law enforcers and are,
therefore, presumed to have regularly performed their duties in the
absence of proof to the contrary (People v. Bati, supra citing People v.
Agapito, G.R. No. 73786, October 12, 1987)
The accused questions the failure of the police officers to secure a warrant
considering that Fulgencio himself knew of Sucro's activities even prior to the
former's joining the police force. Fulgencio reported Sucro's activities only three
days before the incident.
As the records reveal, Fulgencio and Sucro had known each other since their
childhood years and that after Fulgencio joined the police force, he told the
accused-appellant not to sell drugs in their locality. Hence, it is possible that
because of this friendship, Fulgencio hesitated to report his childhood friend and
merely advised him not to engage in such activity. However, because of reliable
information given by some informants that selling was going on everyday, he
was constrained to report the matter to the Station Commander.
On the other hand, the failure of the police officers to secure a warrant stems
from the fact that their knowledge acquired from the surveillance was
insufficient to fulfill the requirements for the issuance of a search warrant. What
is paramount is that probable cause existed. Thus, it has been held in the case of
People v. Lo Ho Wing, et al. (G.R. No. 88017, January 21, 1991):
In the instant case, it was firmly established from the factual findings of
the trial court that the authorities had reasonable ground to believe that
appellant would attempt to bring in contraband and transport it within
the country. The belief was based on intelligence reports gathered from
surveillance activities on the suspected syndicate, of which appellant
was touted to be a member. Aside from this, they were also certain as
to the expected date and time of arrival of the accused from China. But
such knowledge was clearly insufficient to enable them to fulfill the
requirements for the issuance of a search warrant. Still and all, the

important thing is that there was probable cause to conduct the

warrantless search, which must still be present in such a case.
As the Solicitor General has pointed out:
There are several instances when a warrantless search and seizure can
be effected without necessarily being preceded by an arrest provided
the same is effected on the basis of probable cause (e.g. stop and search
without warrant at checkpoints). Between warrantless searches and
seizures at checkpoints and in the case at bar the latter is more
reasonable considering that unlike in the former, it was effected on the
basis of probable cause. Under the circumstances (monitoring of
transactions) there existed probable cause for the arresting officers, to
arrest appellant who was in fact selling marijuana and to seize the
contraband.
That searches and seizures must be supported by a valid warrant is not an
absolute rule (Manipon, Jr. v. Sandiganbayan, 143 SCRA 267 [1986]). Among the
exceptions granted by law is a search incidental to a lawful arrest under Sec. 12,
Rule 126 of the Rules on Criminal Procedure, which provides that a person
lawfully arrested may be searched for dangerous weapons or anything which
may be used as proof of the commission of an offense, without a search warrant.
(People v. Castiller, G.R. No. 87783, August 6, 1990)
The accused-appellant claims that the arrest having been done without warrant,
it follows that the evidence obtained therefrom is inadmissible.
As earlier discussed, there is nothing unlawful about the arrest considering its
compliance with the requirements of a warrantless arrest. Ergo, the fruits
obtained from such lawful arrest are admissible in evidence.
Edison Sucro assails the trial court's reliance on the statement of Macabante
whose reason for testifying could be merely to escape prosecution.
We quote the trial court's finding as to the testimony of Macabante:
The non-filing of a complaint against him for possession of marijuana
may have been the reason of (sic) his willingness to testify in court
against the accused. But this does not necessarily taint the evidence
that proceeds from his lips. As explained by Lt. Seraspi, the best sources
of information against drug pushers are usually their customers,

especially if as in this case, there is no other direct evidence of the

selling except the testimony of the buyer. We accept this observation as
a realistic appraisal of a situation in which drug users are, and should be
employed by law enforcement authorities to bolster the drive against
pushers who are the real felons in our society. We have observed the
demeanor of the witness in court, and found him to be straightforward,
unhesitating, and spontaneous in his declarations, so that we are
satisfied as to his intention and disposition to tell the truth (Rollo, p. 40)

It is well-settled that mere denials cannot prevail against the positive

identification of the appellant as the seller of the prohibited substances. (People
v. Khan, 161 SCRA 406 [1988]; and People v. Paco, 170 SCRA 681 [1989])
Premises considered, this Court is convinced that appellant Edison Sucro had
indeed committed the offense charged. The trial court's decision must be
upheld.
WHEREFORE, the decision appealed from is hereby AFFIRMED.

Time and again it has been held that the findings of the trial court are entitled to
great weight and should not be disturbed on appeal unless it is shown that the
trial court had overlooked certain facts of weight and importance, it being
acknowledged. that the court below, having seen and heard the witnesses
during the trial, is in a better position to evaluate their testimonies (People v.
Umali, et al., G.R. No. 84450, February 4, 1991 citing People v. Alvarez, 163 SCRA
745 [1988]; People v. Dorado, 30 SCRA 53 [1969]; and People v. Espejo, 36 SCRA
400 [1970]).
Furthermore, the testimony of Macabante was corroborated on material points
by public officers Fulgencio and Seraspi.
There is nothing in the record to suggest that the police officers were compelled
by any motive than to accomplish their mission to capture a drug pusher in the
execution of the crime, the presumption being that police officers perform their
duties regularly in the absence of any evidence to the contrary (Rule 131, Sec.
3(m), Revised Rules on Evidence; People v. Castiller, supra citing People v.
Natipravat, 145 SCRA 483 [1986]).
The prosecution evidence was further bolstered by the findings of the Forensic
Chemist that the items seized were all positive for marijuana.
In contrast to the evidence presented by the prosecution, accused-appellant's
defense is alibi which is unavailing considering that he was positively identified
by Macabante to be the person from whom he bought marijuana.
Sucro alleges that he could not have committed the crime since he was with his
uncle and cousin distributing handbills for his Auntie's candidacy. The fact,
however, remains that it does not preclude the possibility that he was present in
the vicinity as established by his admission that he moved a lot and even had the
occasion to meet Macabante on the street.

SO ORDERED.
Fernan, C.J., Feliciano, Bidin and Davide, Jr., JJ., concur.

G.R. No. 95902 February 4, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DON RODRIGUEZA, accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.

REGALADO, J.:
On appeal before us is the decision of the Regional Trial Court of Legaspi City,
Branch 10, finding accused-appellant Don Rodrigueza guilty beyond reasonable
doubt of violating Section 4, Article II of the Dangerous Drugs Act of 1972
(Republic Act No. 6425, as amended) and sentencing him to suffer the penalty of
life imprisonment and to pay a fine of P20,000.00 and costs. 1
However, the Solicitor General, deviating from his conventional stance in the
prosecution of criminal cases, recommends the acquittal of appellant for the
reasons stated in his Manifestation for Acquittal (In Lieu of Appellee's Brief) filed
with the Court. We have reviewed and analyzed the testimonial and
documentary evidence in this case and we find said recommendation to be well
taken.
The information, dated July 10, 1987, charges Don Rodrigueza and his coaccused, Samuel Segovia and Antonio Lonceras, with allegedly having in their
custody and possession 100 grams of marijuana leaves and for selling, in a buybust operation, said 100 grams of dried marijuana leaves for a consideration of
P200.00. 2
During the arraignment, all the accused pleaded not guilty to the charge against
them. At the trial, the prosecution and the defense presented several witnesses
after which the court a quo rendered judgment acquitting Samuel Segovia and
Antonio Lonceras but convicting and penalizing herein appellant as hereinbefore
stated.
The following facts are culled from the decision of the trial court and the
evidence presented by the prosecution.

At around 5:00 o'clock in the afternoon of July 1, 1987, CIC Ciriaco Taduran was
in their headquarters at the Office of the Narcotics Regional Unit at Camp
Bagong Ibalon, Legaspi City, together with S/Sgt. Elpidio Molinawe, CIC Leonardo
B. Galutan and their commanding officer, Major Crisostomo M. Zeidem, when a
confidential informer arrived and told them that there was an ongoing illegal
traffic of prohibited drugs in Tagas, Daraga, Albay. Major Zeidem formed a team
to conduct a buy-bust operation, which team was given P200.00 in different
denominations to buy marijuana. These bills were treated with ultraviolet
powder at the Philippine Constabulary Crime Laboratory (PCCL). Sgt. Molinawe
gave the money to Taduran who acted as the poseur buyer. He was told to look
for a certain Don, the alleged seller of prohibited drugs. Taduran went to Tagas
alone and, while along the road, he met Samuel Segovia. He asked Segovia
where be could find Don and where he could buy marijuana. Segovia left for a
while and when be returned, he was accompanied by a man who was later on
introduced to him as Don, herein appellant. 3
After agreeing on the price of P200.00 for 100 grams of marijuana, Don halted a
passing tricycle driven by Antonio Lonceras. He boarded it and left Taduran and
Segovia. When he came back, Don gave Taduran "a certain object wrapped in a
plastic" which was later identified as marijuana, and received payment therefor.
Thereafter, Taduran returned to the headquarters and made a report regarding
his said purchase of marijuana. 4
Based on that information, Major Zeidem ordered a team to conduct an
operation to apprehend the suspects. In the evening of the same date, CIC
Galutan and S/Sgt. Molinawe proceeded to Regidor Street, Daraga, Albay and
arrested appellant, Antonio Lonceras and Samuel Segovia. The constables were
not, however, armed with a warrant of arrest when they apprehended the three
accused. The arrestees were brought to the headquarters for investigation. 5
Thereafter, agents of the Narcotics Command (NARCOM) conducted a raid in the
house of Jovencio Rodrigueza, father of appellant. Taduran did not go with them.
During the raid, they were able to confiscate dried marijuana leaves and a plastic
syringe, among others. The search, however, was not authorized by any search
warrant. 6
The next day, July 2, 1987, Jovencio Rodrigueza was released from detention but
appellant was detained. An affidavit, allegedly taken from and executed by him,
was sworn to by him before the assistant city prosecutor. Appellant had no
counsel when his sworn statement was taken during that custodial investigation.

The arrestees were also examined by personnel of the PCCL and were found
positive for ultraviolet powder. 7

marijuana to CIC Taduran late in the afternoon of July 1, 1987, despite the failure
of the prosecution to prove his guilt beyond reasonable doubt. 11

The three accused presented different versions of their alleged participations.

We rule for the appellant and approve the recommendation for his acquittal. In
disposing of this case, however, we feel that the issues raised by appellant
should properly be discussed seriatim.

Samuel Segovia testified that he was in their house in the evening of July 1, 1987
listening to the radio. Later, he ate his merienda and then went out to buy
cigarettes from the store. While he was at the store, a jeep stopped behind him.
Several armed men alighted therefrom and ordered him to get inside the jeep.
He refused but he was forced to board the vehicle. He was even hit by the butt
of a gun. 8
He was thereafter brought to Camp Bagong Ibalon where he was investigated
and was repeatedly asked regarding the whereabouts of Rodrigueza. He was
manhandled by the NARCOM agents and was detained while inside the camp. He
was then made to hold a P10.00 bill treated with ultraviolet powder. When he
was taken to the PCCL and examined he was found positive of the ultraviolet
powder. He was also made to sign some papers but he did not know what they
were all about. 9
Appellant, on the other hand, testified that on said date he was in the house of
his aunt in San Roque, Legaspi City. He stayed there overnight and did not leave
the place until the next day when his brother arrived and told him that their
father was taken by some military men the preceding night. Appellant went to
Camp Bagong Ibalon and arrived there at around 8:00 o'clock in the morning of
July 2, 1987. When he arrived, he was asked if he knew anything about the
marijuana incident, to which question he answered in the negative. Like Segovia,
he was made to hold a P10.00 bill and was brought to the crime laboratory for
examination. From that time on, he was not allowed to go home and was
detained inside the camp. He was also tortured in order to make him admit his
complicity in the alleged sale of marijuana. 10
In the assignment of errors in his brief, appellant contends that the trial court
erred in (1) admitting in evidence the sworn statement of appellant which was
obtained in violation of his constitutional rights; (2) convicting appellant of the
crime charged despite the fact that the 100 grams of dried marijuana leaves
allegedly bought from him were not properly identified; (3) convicting appellant
of the crime charged despite the fact that the evidence for the prosecution is
weak and not convincing; and (4) finding appellant guilty beyond reasonable
doubt of selling or at least acting as broker in the sale of the 100 grams of

1. A buy-bust operation is a form of entrapment employed by peace officers to

trap and catch a malefactor in flagrante delicto. 12 Applied to the case at bar, the
term in flagrante delicto requires that the suspected drug dealer must be caught
redhanded in the act of selling marijuana or any prohibited drug to a person
acting or posing as a buyer.
In the instant case, however, the procedure adopted by the NARCOM agents
failed to meet this qualification. Based on the very evidence of the prosecution,
after the alleged consummation of the sale of dried marijuana leaves, CIC
Taduran immediately released appellant Rodrigueza instead of arresting and
taking him into his custody. This act of CIC Taduran, assuming arguendo that the
supposed sale of marijuana did take place, is decidedly contrary to the natural
course of things and inconsistent with the aforestated purpose of a buy-bust
operation. It is rather absurd on his part to let appellant escape without having
been subjected to the sanctions imposed by law. It is, in fact, a dereliction of
duty by an agent of the law.
2. The admissibility of the sworn statement allegedly executed by appellant was
squarely placed in issue and, as correctly pointed out by the defense, said sworn
statement is inadmissible in evidence against appellant.
We have once again to reiterate and emphasize that Article III of the 1987
Constitution provides:
Sec. 12 (1). Any person under investigation for the commission
of an offense shall have the right to be informed of his right to
remain silent and to have a competent and independent
counsel preferably of his own choice. If the person cannot
afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the
presence of counsel.
xxx xxx xxx

(3) Any confession or admission obtained in violation of this or

section 17 hereof shall be inadmissible in evidence against him.
An examination of said sworn statement shows that appellant was informed of
his constitutional right to remain silent and to be assisted by counsel during
custodial examination. He was also asked if he was waiving his right to be
assisted by counsel and he answered in the affirmative. However, while the
rights of a person under custodial investigation may be waived, such waiver must
be made not only voluntarily, knowingly and intelligently but also in the presence
and with the assistance of counsel. 13 In the present case, the waiver made by
appellant being without the assistance of counsel, this omission alone is
sufficient to invalidate said sworn statement. 14
3. Corollary to this, we take cognizance of the error of the trial court in admitting
in evidence against appellant the articles allegedly confiscated during the raid
conducted in the house of Jovencio Rodrigueza.
As provided in the present Constitution, a search, to be valid, must generally be
authorized by a search warrant duly issued by the proper government authority.
15
True, in some instances, this Court has allowed government authorities to
conduct searches and seizures even without a search warrant. Thus, when the
owner of the premises waives his right against such incursion; 16 when the
search is incidental to a lawful arrest; 17 when it is made on vessels and aircraft
for violation of customs laws; 18 when it is made on automobiles for the purpose
of preventing violations of smuggling or immigration laws; 19 when it involves
prohibited articles in plain view; 20 or in cases of inspection of buildings and
other premises for the enforcement of fire, sanitary and building regulations, 21 a
search may be validly made even without a search warrant.
In the case at bar, however, the raid conducted by the NARCOM agents in the
house of Jovencio Rodrigueza was not authorized by any search warrant. It does
not appear, either, that the situation falls under any of the aforementioned
cases. Hence, appellant's right against unreasonable search and seizure was
clearly violated. The NARCOM agents could not have justified their act by
invoking the urgency and necessity of the situation because the testimonies of
the prosecution witnesses reveal that the place had already been put under
surveillance for quite some time. Had it been their intention to conduct the raid,
then they should, because they easily could, have first secured a search warrant
during that time.

4. The Court further notes the confusion and ambiguity in the identification of
the confiscated marijuana leaves and other prohibited drug paraphernalia
presented as evidence against appellant.
CIC Taduran, who acted as the poseur buyer, testified that appellant sold him
100 grams of dried marijuana leaves wrapped in a plastic bag. Surprisingly, and
no plausible explanation has been advanced therefor, what were submitted to
and examined by the PCCL and thereafter utilized as evidence against the
appellant were the following items:
One (1) red and white colored plastic bag containing the
following:
Exh. "A"Thirty (30) grams of suspected dried marijuana
fruiting tops contained inside a transparent plastic bag.
Exh. "B" Fifty (50) grams of suspected dried marijuana leaves
and seeds contained inside a white colored plastic labelled
"Robertson".
Exh. "C" Four (4) aluminum foils each containing suspected
dried marijuana fruiting tops having a total weight of seven
grams then further wrapped with a piece of aluminum foil.
Exh. "D" Five (5) small transparent plastic bags each
containing suspected dried marijuana fruiting tops having a
total weight of seventeen grams.
Exh. "E" One plastic syringe. 22
Evidently, these prohibited articles were among those confiscated during the socalled follow-up raid in the house of Jovencio Rodrigueza. The unanswered
question then arises as to the identity of the marijuana leaves that became the
basis of appellant's conviction. 23 In People vs. Rubio, 24 this Court had the
occasion to rule that the plastic bag and the dried marijuana leaves contained
therein constitute the corpus delicti of the crime. As such, the existence thereof
must be proved with certainty and conclusiveness. Failure to do so would be
fatal to the cause of the prosecution.
5. It is accepted that, as a rule, minor inconsistencies in the testimony of a
witness will not affect his credibility. It even enhances such credibility because it

only shows that he has not been rehearsed. 25 However, when the
inconsistencies pertain to material and crucial points, the same detract from his
overall credibility.
The exception, rather than the rule, applies in the case at bar. As correctly
pointed out by the Solicitor General, the testimonies of the prosecution
witnesses are tainted with serious flaws and material inconsistencies rendering
the same incredible. 26
CIC Taduran, in his testimony, said that they had already been conducting
surveillance of the place where the buy-bust operation was to take place. It
turned out, however, that he did not even know the exact place and the identity
of the person from whom he was to buy marijuana leaves. Thus:
FISCAL TOLOSA
Q What place in Tagas were you able to go
(to)?
WITNESS
A I am not actually familiar in (sic) that place,
in Tagas, although we occasionally passed
there.
Q Now, upon your arrival in Tagas, what did
you do that afternoon?
A I waited for the suspect because previously,
we have already been conducted (sic)
surveylance (sic) in the vicinity.
Q Upon arrival in Tagas, were you able to see
the suspect?
A By the road, sir.
Q Who was the first person did you see (sic)
when you arrived at Tagas?

A The first person whom I saw is Samuel

Segovia.
Q Were you able to talk with this Samuel
Segovia?
A According to him, we could get some. 27
The same findings go for the testimony of witness Galutan. In his direct
examination, he declared that they arrested the three accused all at the same
time on the fateful night of July 1, 1987. But, in his cross-examination and as
corroborated by the Joint Affidavit of Arrest 28 submitted by him and Molinawe,
it appeared that Lonceras and Segovia were arrested on different times and that
appellant Don Rodrigueza was not among those who were arrested. Instead, it
was Jovencio Rodrigueza, Don's father, who was picked up at a much later time.
With said inconsistencies in sharp focus, we are constrained to give more
credibility to the testimony of appellant Rodrigueza. While it is true that
appellant's defense amounts to an alibi, and as such is the weakest defense in a
criminal prosecution, there are, nonetheless, some evidentiary aspects pointing
to the truth in his testimony. Firstly, the Joint Affidavit of Arrest corroborates his
testimony that he was not among those who were arrested on the night of July
1, 1987. His co-accused Segovia also testified that appellant Rodrigueza was not
with them when they were apprehended by the NARCOM agents.
Secondly, the apparent motive of the NARCOM agents in prosecuting the
accused was also revealed during the trial of the case. Rebuttal witnesses Gracita
Bahillo, sister of appellant, and Hospicio Segovia, father of Samuel Segovia,
testified that Sgt. Molinawe, who has since been reportedly dismissed from the
service, asked for P10,000.00 from each of them in exchange for the liberty of
the accused. 29 This allegation was never refuted by the prosecution. Hence, the
rule laid down by this Court that the statements of prosecution witnesses are
entitled to full faith and credit 30 has no application in the case at bar.
Finally, the Court has repeatedly ruled that to sustain the conviction of the
accused, the prosecution must rely on the strength of its own evidence and not
on the weakness of the defense. 31 As clearly shown by the evidence, the
prosecution has failed to establish its cause. It has not overcome the
presumption of innocence accorded to appellant. This being the case, appellant
should not be allowed to suffer for unwarranted and imaginary imputations
against him.

WHEREFORE, the judgment of conviction of the court below is hereby REVERSED

and SET ASIDE and accused-appellant Don Rodrigueza is hereby ACQUITTED of
the crime charged. It is hereby ordered that he be immediately released from
custody unless he is otherwise detained for some other lawful cause.
SO ORDERED.

G.R. No. 101837 February 11, 1992

ROLITO GO y TAMBUNTING, petitioner,
vs.
THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch
168, Regional Trial Court, NCJR Pasig, M.M., and PEOPLE OF THE PHILIPPINES,
respondents.

FELICIANO, J.:
According to the findings of the San Juan Police in their Investigation Report, 1 on
2 July 1991, Eldon Maguan was driving his car along Wilson St., San Juan, Metro
Manila, heading towards P. Guevarra St. Petitioner entered Wilson St., where it
is a one-way street and started travelling in the opposite or "wrong" direction. At
the corner of Wilson and J. Abad Santos Sts., petitioner's and Maguan's cars
nearly bumped each other. Petitioner alighted from his car, walked over and
shot Maguan inside his car. Petitioner then boarded his car and left the scene. A
security guard at a nearby restaurant was able to take down petitioner's car
plate number. The police arrived shortly thereafter at the scene of the shooting
and there retrieved an empty shell and one round of live ammunition for a 9 mm
caliber pistol. Verification at the Land Transportation Office showed that the car
was registered to one Elsa Ang Go.
The following day, the police returned to the scene of the shooting to find out
where the suspect had come from; they were informed that petitioner had
dined at Cravings Bake Shop shortly before the shooting. The police obtained a
facsimile or impression of the credit card used by petitioner from the cashier of
the bake shop. The security guard of the bake shop was shown a picture of
petitioner and he positively identified him as the same person who had shot
Maguan. Having established that the assailant was probably the petitioner, the
police launched a manhunt for petitioner.
On 8 July 1991, petitioner presented himself before the San Juan Police Station
to verify news reports that he was being hunted by the police; he was
accompanied by two (2) lawyers. The police forthwith detained him. An
eyewitness to the shooting, who was at the police station at that time, positively
identified petitioner as the gunman. That same day, the police promptly filed a
complaint for frustrated homicide 2 against petitioner with the Office of the
Provincial Prosecutor of Rizal. First Assistant Provincial Prosecutor Dennis Villa

Ignacio ("Prosecutor") informed petitioner, in the presence of his lawyers, that

he could avail himself of his right to preliminary investigation but that he must
first sign a waiver of the provisions of Article 125 of the Revised Penal Code.
Petitioner refused to execute any such waiver.
On 9 July 1991, while the complaint was still with the Prosecutor, and before an
information could be filed in court, the victim, Eldon Maguan, died of his
gunshot wound(s).
Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for
frustrated homicide, filed an information for murder 3 before the Regional Trial
Court. No bail was recommended. At the bottom of the information, the
Prosecutor certified that no preliminary investigation had been conducted
because the accused did not execute and sign a waiver of the provisions of
Article 125 of the Revised Penal Code.
In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with
the Prosecutor an omnibus motion for immediate release and proper
preliminary investigation, 4 alleging that the warrantless arrest of petitioner was
unlawful and that no preliminary investigation had been conducted before the
information was filed. Petitioner also prayed that he be released on
recognizance or on bail. Provincial Prosecutor Mauro Castro, acting on the
omnibus motion, wrote on the last page of the motion itself that he interposed
no objection to petitioner being granted provisional liberty on a cash bond of
P100,000.00.
On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in
order to expedite action on the Prosecutor's bail recommendation. The case was
raffled to the sala of respondent Judge, who, on the same date, approved the
cash bond 6 posted by petitioner and ordered his release. 7 Petitioner was in fact
released that same day.
On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for
leave to conduct preliminary investigation 8 and prayed that in the meantime all
proceedings in the court be suspended. He stated that petitioner had filed
before the Office of the Provincial Prosecutor of Rizal an omnibus motion for
immediate release and preliminary investigation, which motion had been
granted by Provincial Prosecutor Mauro Castro, who also agreed to recommend
cash bail of P100,000.00. The Prosecutor attached to the motion for leave a copy
of petitioner's omnibus motion of 11 July 1991.

Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct
preliminary investigation and cancelling the arraignment set for 15 August 1991
until after the prosecution shall have concluded its preliminary investigation.

the petition for certiorari earlier filed by him, after the lapse of more than a
month, thus prolonging his detention, he was entitled to be released on habeas
corpus.

On 17 July 1991, however, respondent Judge motu proprio issued an Order, 10

embodying the following: (1) the 12 July 1991 Order which granted bail was
recalled; petitioner was given 48 hours from receipt of the Order to surrender
himself; (2) the 16 July 1991 Order which granted leave to the prosecutor to
conduct preliminary investigation was recalled and cancelled; (3) petitioner's
omnibus motion for immediate release and preliminary investigation dated 11
July 1991 was treated as a petition for bail and set for hearing on 23 July 1991.

On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. 13 The
petition for certiorari, prohibition and mandamus, on the one hand, and the
petition for habeas corpus, upon the other, were subsequently consolidated in
the Court of Appeals.

On 19 July 1991, petitioner filed a petition for certiorari, prohibition and

mandamus before the Supreme Court assailing the 17 July 1991 Order,
contending that the information was null and void because no preliminary
investigation had been previously conducted, in violation of his right to due
process. Petitioner also moved for suspension of all proceedings in the case
pending resolution by the Supreme Court of his petition; this motion was,
however, denied by respondent Judge.
On 23 July 1991, petitioner surrendered to the police.
By a Resolution dated 24 July 1991, this Court remanded the petition for
certiorari, prohibition and mandamus to the Court of Appeals.
On 16 August 1991, respondent Judge issued an order in open court setting the
arraignment of petitioner on 23 August 1991.
On 19 August 1991, petitioner filed with the Court of Appeals a motion to
restrain his arraignment.
On 23 August 1991, respondent judge issued a Commitment Order directing the
Provincial Warden of Rizal to admit petitioner into his custody at the Rizal
Provincial Jail. On the same date, petitioner was arraigned. In view, however, of
his refusal to enter a plea, the trial court entered for him a plea of not guilty. The
Trial court then set the criminal case for continuous hearings on 19, 24 and 26
September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November
1991. 11
On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court
of Appeals. He alleged that in view of public respondent's failure to join issues in

The Court of Appeals, on 2 September 1991, issued a resolution denying

petitioner's motion to restrain his arraignment on the ground that that motion
had become moot and academic.
On 19 September 1991, trial of the criminal case commenced and the
prosecution presented its first witness.
On 23 September 1991, the Court of Appeals rendered a consolidated decision 14
dismissing the two (2) petitions, on the following grounds:
a. Petitioner's warrantless arrest was valid because the offense
for which he was arrested and charged had been "freshly
committed." His identity had been established through
investigation. At the time he showed up at the police station,
there had been an existing manhunt for him. During the
confrontation at the San Juan Police Station, one witness
positively identified petitioner as the culprit.
b. Petitioner's act of posting bail constituted waiver of any
irregularity attending his arrest. He waived his right to
preliminary investigation by not invoking it properly and
seasonably under the Rules.
c. The trial court did not abuse its discretion when it issued the
17 July 1991 Order because the trial court had the inherent
power to amend and control its processes so as to make them
conformable to law and justice.
d. Since there was a valid information for murder against
petitioner and a valid commitment order (issued by the trial
judge after petitioner surrendered to the authorities whereby

petitioner was given to the custody of the Provincial Warden),

the petition for habeas corpus could not be granted.
On 3 October 1991, the prosecution presented three (3) more witnesses at the
trial. Counsel for petitioner also filed a "Withdrawal of Appearance" 15 with the
trial court, with petitioner's conformity.
On 4 October 1991, the present Petition for Review on Certiorari was filed. On
14 October 1991, the Court issued a Resolution directing respondent Judge to
hold in abeyance the hearing of the criminal case below until further orders from
this Court.
In this Petition for Review, two (2) principal issues need to be addressed: first,
whether or not a lawful warrantless arrest had been effected by the San Juan
Police in respect of petitioner Go; and second, whether petitioner had effectively
waived his right to preliminary investigation. We consider these issues seriatim.
In respect of the first issue, the Solicitor General argues that under the facts of
the case, petitioner had been validly arrested without warrant. Since petitioner's
identity as the gunman who had shot Eldon Maguan on 2 July 1991 had been
sufficiently established by police work, petitioner was validly arrested six (6) days
later at the San Juan Police Station. The Solicitor General invokes Nazareno v.
Station Commander, etc., et al., 16 one of the seven (7) cases consolidated with In
the Matter of the Petition for Habeas Corpus of Roberto Umil, etc., v. Ramos, et
al. 17 where a majority of the Court upheld a warrantees arrest as valid although
effected fourteen (14) days after the killing in connection with which Nazareno
had been arrested. Accordingly, in the view of the Solicitor General, the
provisions of Section 7, Rule 112 of the Rules of Court were applicable and
because petitioner had declined to waive the provisions of Article 125 of the
Revised Penal Code, the Prosecutor was legally justified in filing the information
for murder even without preliminary investigation.
On the other hand, petitioner argues that he was not lawfully arrested without
warrant because he went to the police station six (6) days after the shooting
which he had allegedly perpetrated. Thus, petitioner argues, the crime had not
been "just committed" at the time that he was arrested. Moreover, none of the
police officers who arrested him had been an eyewitness to the shooting of
Maguan and accordingly none had the "personal knowledge" required for the
lawfulness of a warrantees arrest. Since there had been no lawful warrantless
arrest. Section 7, Rule 112 of the Rules of Court which establishes the only

exception to the right to preliminary investigation, could not apply in respect of

petitioner.
The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is,
in the circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six
vote, the Court sustained the legality of the warrantless arrests of petitioners
made from one (1) to fourteen days after the actual commission of the offenses,
upon the ground that such offenses constituted "continuing crimes." Those
offenses were subversion, membership in an outlawed organization like the New
People's Army, etc. In the instant case, the offense for which petitioner was
arrested was murder, an offense which was obviously commenced and
completed at one definite location in time and space. No one had pretended
that the fatal shooting of Maguan was a "continuing crime."
Secondly, we do not believe that the warrantees "arrest" or detention of
petitioner in the instant case falls within the terms of Section 5 of Rule 113 of
the 1985 Rules on Criminal Procedure which provides as follows:
Sec. 5 Arrest without warrant; when lawful. A peace officer
or a private person may, without warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit
an offense;
(b) When an offense has in fact just been committed, and he
has personal knowledge of facts indicating that the person to
be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is
serving final judgment or temporarily confined while his case is
pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forthwith delivered to the
nearest police station or jail, and he shall be proceed against in
accordance with Rule 112, Section 7.

Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The
"arresting" officers obviously were not present, within the meaning of Section
5(a), at the time petitioner had allegedly shot Maguan. Neither could the
"arrest" effected six (6) days after the shooting be reasonably regarded as
effected "when [the shooting had] in fact just been committed" within the
meaning of Section 5(b). Moreover, none of the "arresting" officers had any
"personal knowledge" of facts indicating that petitioner was the gunman who
had shot Maguan. The information upon which the police acted had been
derived from statements made by alleged eyewitnesses to the shooting one
stated that petitioner was the gunman; another was able to take down the
alleged gunman's car's plate number which turned out to be registered in
petitioner's wife's name. That information did not, however, constitute
"personal knowledge." 18
It is thus clear to the Court that there was no lawful warrantless arrest of
petitioner within the meaning of Section 5 of Rule 113. It is clear too that Section
7 of Rule 112, which provides:
Sec. 7 When accused lawfully arrested without warrant.
When a person is lawfully arrested without a warrant for an
offense cognizable by the Regional Trial Court the complaint or
information may be filed by the offended party, peace officer or
fiscal without a preliminary investigation having been first
conducted, on the basis of the affidavit of the offended party or
arresting office or person
However, before the filing of such complaint or information, the
person arrested may ask for a preliminary investigation by a
proper officer in accordance with this Rule, but he must sign a
waiver of the provisions of Article 125 of the Revised Penal
Code, as amended, with the assistance of a lawyer and in case
of non-availability of a lawyer, a responsible person of his
choice. Notwithstanding such waiver, he may apply for bail as
provided in the corresponding rule and the investigation must
be terminated within fifteen (15) days from its inception.
If the case has been filed in court without a preliminary
investigation having been first conducted, the accused may
within five (5) days from the time he learns of the filing of the
information, ask for a preliminary investigation with the same

right to adduce evidence in his favor in the manner prescribed

in this Rule. (Emphasis supplied)
is also not applicable. Indeed, petitioner was not arrested at all. When he walked
into San Juan Police Station, accompanied by two (2) lawyers, he in fact placed
himself at the disposal of the police authorities. He did not state that he was
"surrendering" himself, in all probability to avoid the implication he was
admitting that he had slain Eldon Maguan or that he was otherwise guilty of a
crime. When the police filed a complaint for frustrated homicide with the
Prosecutor, the latter should have immediately scheduled a preliminary
investigation to determine whether there was probable cause for charging
petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the
Prosecutor proceed under the erroneous supposition that Section 7 of Rule 112
was applicable and required petitioner to waive the provisions of Article 125 of
the Revised Penal Code as a condition for carrying out a preliminary
investigation. This was substantive error, for petitioner was entitled to a
preliminary investigation and that right should have been accorded him without
any conditions. Moreover, since petitioner had not been arrested, with or
without a warrant, he was also entitled to be released forthwith subject only to
his appearing at the preliminary investigation.
Turning to the second issue of whether or not petitioner had waived his right to
preliminary investigation, we note that petitioner had from the very beginning
demanded that a preliminary investigation be conducted. As earlier pointed out,
on the same day that the information for murder was filed with the Regional
Trial Court, petitioner filed with the Prosecutor an omnibus motion for
immediate release and preliminary investigation. The Solicitor General contends
that that omnibus motion should have been filed with the trial court and not
with the Prosecutor, and that the petitioner should accordingly be held to have
waived his right to preliminary investigation. We do not believe that waiver of
petitioner's statutory right to preliminary investigation may be predicated on
such a slim basis. The preliminary investigation was to be conducted by the
Prosecutor, not by the Regional Trial Court. It is true that at the time of filing of
petitioner's omnibus motion, the information for murder had already been filed
with the Regional Trial Court: it is not clear from the record whether petitioner
was aware of this fact at the time his omnibus motion was actually filed with the
Prosecutor. In Crespo v. Mogul, 19 this Court held:
The preliminary investigation conducted by the fiscal for the
purpose of determining whether a prima facie case exists to
warranting the prosecution of the accused is terminated upon

the filing of the information in the proper court. In turn, as

above stated, the filing of said information sets in motion the
criminal action against the accused in Court. Should the fiscal
find it proper to conduct a reinvestigation of the case, at such
stage, the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal
should be submitted to the Court for appropriate action. While
it is true that the fiscal has the quasi-judicial discretion to
determine whether or not a criminal case should be filed in
court or not, once the case had already been brought to Court
whatever disposition the fiscal may feel should be proper in the
case thereafter should be addressed for the consideration of
the Court. The only qualification is that the action of the Court
must not impair the substantial rights of the accused., or the
right of the People to due process of law.

even on the (mistaken) supposition apparently made by the Prosecutor

that Section 7 of Rule 112 of the Revised Court was applicable, the 5-day
reglementary period in Section 7, Rule 112 must be held to have been
substantially complied with.

xxx xxx xxx

We believe and so hold that petitioner did not waive his right to a preliminary
investigation. While that right is statutory rather than constitutional in its
fundament, since it has in fact been established by statute, it is a component
part of due process in criminal justice. 21 The right to have a preliminary
investigation conducted before being bound over to trial for a criminal offense
and hence formally at risk of incarceration or some other penalty, is not a mere
formal or technical right; it is a substantive right. The accused in a criminal trial is
inevitably exposed to prolonged anxiety, aggravation, humiliation, not to speak
of expense; the right to an opportunity to avoid a process painful to any one
save, perhaps, to hardened criminals, is a valuable right. To deny petitioner's
claim to a preliminary investigation would be to deprive him the full measure of
his right to due process.

The rule therefore in this jurisdiction is that once a complaint or

information is filed in Court any disposition of the case [such] as
its dismissal or the conviction or acquittal of the accused rests in
the sound discretion of the Court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even
while the case is already in Court he cannot impose his opinion
on the trial court. The Court is the best and sole judge on what
to do with the case before it. . . . 20 (Citations omitted; emphasis
supplied)

The question may be raised whether petitioner still retains his right to a
preliminary investigation in the instant case considering that he was already
arraigned on 23 August 1991. The rule is that the right to preliminary
investigation is waived when the accused fails to invoke it before or at the time
of entering a plea at arraignment. 22 In the instant case, petitioner Go had
vigorously insisted on his right to preliminary investigation before his
arraignment. At the time of his arraignment, petitioner was already before the
Court of Appeals on certiorari, prohibition and mandamus precisely asking for a
preliminary investigation before being forced to stand trial.

Nonetheless, since petitioner in his omnibus motion was asking for

preliminary investigation and not for a re-investigation (Crespo v. Mogul
involved a re-investigation), and since the Prosecutor himself did file
with the trial court, on the 5th day after filing the information for
murder, a motion for leave to conduct preliminary investigation
(attaching to his motion a copy of petitioner's omnibus motion), we
conclude that petitioner's omnibus motion was in effect filed with the
trial court. What was crystal clear was that petitioner did ask for a
preliminary investigation on the very day that the information was filed
without such preliminary investigation, and that the trial court was five
(5) days later apprised of the desire of the petitioner for such
preliminary investigation. Finally, the trial court did in fact grant the
Prosecutor's prayer for leave to conduct preliminary investigation. Thus,

Again, in the circumstances of this case, we do not believe that by posting bail
petitioner had waived his right to preliminary investigation. In People v.
Selfaison, 23 we did hold that appellants there had waived their right to
preliminary investigation because immediately after their arrest, they filed bail
and proceeded to trial "without previously claiming that they did not have the
benefit of a preliminary investigation." 24 In the instant case, petitioner Go asked
for release on recognizance or on bail and for preliminary investigation in one
omnibus motion. He had thus claimed his right to preliminary investigation
before respondent Judge approved the cash bond posted by petitioner and
ordered his release on 12 July 1991. Accordingly, we cannot reasonably imply
waiver of preliminary investigation on the part of petitioner. In fact, when the
Prosecutor filed a motion in court asking for leave to conduct preliminary

investigation, he clearly if impliedly recognized that petitioner's claim to

preliminary investigation was a legitimate one.
We would clarify, however, that contrary to petitioner's contention the failure to
accord preliminary investigation, while constituting a denial of the appropriate
and full measure of the statutory process of criminal justice, did not impair the
validity of the information for murder nor affect the jurisdiction of the trial court.
25

It must also be recalled that the Prosecutor had actually agreed that petitioner
was entitled to bail. This was equivalent to an acknowledgment on the part of
the Prosecutor that the evidence of guilt then in his hands was not strong.
Accordingly, we consider that the 17 July 1991 order of respondent Judge
recalling his own order granting bail and requiring petitioner to surrender
himself within forty-eight (48) hours from notice, was plainly arbitrary
considering that no evidence at all and certainly no new or additional
evidence had been submitted to respondent Judge that could have justified
the recall of his order issued just five (5) days before. It follows that petitioner
was entitled to be released on bail as a matter of right.
The final question which the Court must face is this: how does the fact that, in
the instant case, trial on the merits has already commenced, the Prosecutor
having already presented four (4) witnesses, impact upon, firstly, petitioner's
right to a preliminary investigation and, secondly, petitioner's right to be
released on bail? Does he continue to be entitled to have a preliminary
investigation conducted in respect of the charge against him? Does petitioner
remain entitled to be released on bail?
Turning first to the matter of preliminary investigation, we consider that
petitioner remains entitled to a preliminary investigation although trial on the
merits has already began. Trial on the merits should be suspended or held in
abeyance and a preliminary investigation forthwith accorded to petitioner. 26 It is
true that the Prosecutor might, in view of the evidence that he may at this time
have on hand, conclude that probable cause exists; upon the other hand, the
Prosecutor conceivably could reach the conclusion that the evidence on hand
does not warrant a finding of probable cause. In any event, the constitutional
point is that petitioner was not accorded what he was entitled to by way of
procedural due process. 27 Petitioner was forced to undergo arraignment and
literally pushed to trial without preliminary investigation, with extraordinary
haste, to the applause from the audience that filled the courtroom. If he
submitted to arraignment at trial, petitioner did so "kicking and screaming," in a

manner of speaking . During the proceedings held before the trial court on 23
August 1991, the date set for arraignment of petitioner, and just before
arraignment, counsel made very clear petitioner's vigorous protest and objection
to the arraignment precisely because of the denial of preliminary investigation.
28
So energetic and determined were petitioner's counsel's protests and
objections that an obviously angered court and prosecutor dared him to
withdraw or walkout, promising to replace him with counsel de oficio. During the
trial, before the prosecution called its first witness, petitioner through counsel
once again reiterated his objection to going to trial without preliminary
investigation: petitioner's counsel made of record his "continuing objection." 29
Petitioner had promptly gone to the appellate court on certiorari and prohibition
to challenge the lawfulness of the procedure he was being forced to undergo
and the lawfulness of his detention. 30 If he did not walk out on the trial, and if he
cross-examined the prosecution's witnesses, it was because he was extremely
loath to be represented by counsel de oficio selected by the trial judge, and to
run the risk of being held to have waived also his right to use what is frequently
the only test of truth in the judicial process.
In respect of the matter of bail, we similarly believe and so hold that petitioner
remains entitled to be released on bail as a matter of right. Should the evidence
already of record concerning petitioner's guilt be, in the reasonable belief of the
Prosecutor, strong, the Prosecutor may move in the trial court for cancellation of
petitioner's bail. It would then be up to the trial court, after a careful and
objective assessment of the evidence on record, to grant or deny the motion for
cancellation of bail.
To reach any other conclusions here, that is, to hold that petitioner's rights to a
preliminary investigation and to bail were effectively obliterated by evidence
subsequently admitted into the record would be to legitimize the deprivation of
due process and to permit the Government to benefit from its own wrong or
culpable omission and effectively to dilute important rights of accused persons
well-nigh to the vanishing point. It may be that to require the State to accord
petitioner his rights to a preliminary investigation and to bail at this point, could
turn out ultimately to be largely a ceremonial exercise. But the Court is not
compelled to speculate. And, in any case, it would not be idle ceremony; rather,
it would be a celebration by the State of the rights and liberties of its own people
and a re-affirmation of its obligation and determination to respect those rights
and liberties.
ACCORDINGLY, the Court resolved to GRANT the Petition for Review on
Certiorari. The Order of the trial court dated 17 July 1991 is hereby SET ASIDE

and NULLIFIED, and the Decision of the Court of Appeals dated 23 September
1991 hereby REVERSED.
The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith
a preliminary investigation of the charge of murder against petitioner Go, and to
complete such preliminary investigation within a period of fifteen (15) days from
commencement thereof. The trial on the merits of the criminal case in the
Regional Trial Court shall be SUSPENDED to await the conclusion of the
preliminary investigation.
Meantime, petitioner is hereby ORDERED released forthwith upon posting of a
cash bail bond of One Hundred Thousand Pesos (P100,000.00). This release shall
be without prejudice to any lawful order that the trial court may issue, should
the Office of the Provincial Prosecutor move for cancellation of bail at the
conclusion of the preliminary investigation.
No pronouncement as to costs. This Decision is immediately executory.
SO ORDERED.

G.R. No. 89139 August 2, 1990

ROMEO POSADAS y ZAMORA, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES,
respondents.
Rudy G. Agravate for petitioner.

GANCAYCO, J.:
The validity of a warrantless search on the person of petitioner is put into issue
in this case.
On October 16, 1986 at about 10:00 o'clock in the morning Pat. Ursicio Ungab
and Pat. Umbra Umpar, both members of the Integrated National Police (INP) of
the Davao Metrodiscom assigned with the Intelligence Task Force, were
conducting a surveillance along Magallanes Street, Davao City. While they were
within the premises of the Rizal Memorial Colleges they spotted petitioner
carrying a "buri" bag and they noticed him to be acting suspiciously.
They approached the petitioner and identified themselves as members of the
INP. Petitioner attempted to flee but his attempt to get away was thwarted by
the two notwithstanding his resistance.
They then checked the "buri" bag of the petitioner where they found one (1)
caliber .38 Smith & Wesson revolver with Serial No. 770196 1 two (2) rounds of
live ammunition for a .38 caliber gun 2 a smoke (tear gas) grenade, 3 and two (2)
live ammunitions for a .22 caliber gun. 4 They brought the petitioner to the
police station for further investigation. In the course of the same, the petitioner
was asked to show the necessary license or authority to possess firearms and
ammunitions found in his possession but he failed to do so. He was then taken to
the Davao Metrodiscom office and the prohibited articles recovered from him
were indorsed to M/Sgt. Didoy the officer then on duty. He was prosecuted for
illegal possession of firearms and ammunitions in the Regional Trial Court of
Davao City wherein after a plea of not guilty and trial on the merits a decision
was rendered on October 8, 1987 finding petitioner guilty of the offense charged
as follows:

WHEREFORE, in view of all the foregoing, this Court , finds the

accused guilty beyond reasonable doubt of the offense
charged.
It appearing that the accuse d was below eighteen (18) years
old at the time of the commission of the offense (Art. 68, par.
2), he is hereby sentenced to an indeterminate penalty ranging
from TEN (10) YEARS and ONE (1) DAY of prision mayor to
TWELVE (12) Years, FIVE (5) months and Eleven (11) days of
Reclusion Temporal, and to pay the costs.
The firearm, ammunitions and smoke grenade are forfeited in
favor of the government and the Branch Clerk of Court is
hereby directed to turn over said items to the Chief, Davao
Metrodiscom, Davao City. 5
Not satisfied therewith the petitioner interposed an appeal to the Court of
Appeals wherein in due course a decision was rendered on February 23, 1989
affirming in toto the appealed decision with costs against the petitioner. 6
Hence, the herein petition for review, the main thrust of which is that there
being no lawful arrest or search and seizure, the items which were confiscated
from the possession of the petitioner are inadmissible in evidence against him.
The Solicitor General, in justifying the warrantless search of the buri bag then
carried by the petitioner, argues that under Section 12, Rule 136 of the Rules of
Court a person lawfully arrested may be searched for dangerous weapons or
anything used as proof of a commission of an offense without a search warrant.
It is further alleged that the arrest without a warrant of the petitioner was lawful
under the circumstances.
Section 5, Rule 113 of the 1985 Rules on Criminal Procedure provides 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 in fact just been committed, and he

has personal knowledge of facts indicating that the person to
be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is
serving final judgment or temporarily confined while his case is
pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forthwith delivered to the
nearest police station or jail, and he shall be proceeded against
in accordance with Rule 112, Section 7. (6a, 17a)
From the foregoing provision of law it is clear that an arrest without a warrant
may be effected by a peace officer or private person, among others, when in his
presence the person to be arrested has committed, is actually committing, or is
attempting to commit an offense; or when an offense has in fact just been
committed, and he has personal knowledge of the facts indicating that the
person arrested has committed it.
The Solicitor General argues that when the two policemen approached the
petitioner, he was actually committing or had just committed the offense of
illegal possession of firearms and ammunitions in the presence of the police
officers and consequently the search and seizure of the contraband was
incidental to the lawful arrest in accordance with Section 12, Rule 126 of the
1985 Rules on Criminal Procedure. We disagree.
At the time the peace officers in this case identified themselves and
apprehended the petitioner as he attempted to flee they did not know that he
had committed, or was actually committing the offense of illegal possession of
firearms and ammunitions. They just suspected that he was hiding something in
the buri bag. They did now know what its contents were. The said circumstances
did not justify an arrest without a warrant.
However, there are many instances where a warrant and seizure can be effected
without necessarily being preceded by an arrest, foremost of which is the "stop
and search" without a search warrant at military or police checkpoints, the
constitutionality or validity of which has been upheld by this Court in Valmonte
vs. de Villa, 7 as follows:

Petitioner Valmonte's general allegation to the effect that he

had been stopped and searched without a search warrant by
the military manning the checkpoints, without more, i.e.,
without stating the details of the incidents which amount to a
violation of his light against unlawful search and seizure, is not
sufficient to enable the Court to determine whether there was
a violation of Valmonte's right against unlawful search and
seizure. Not all searches and seizures are prohibited. Those
which are reasonable are not forbidden. A reasonable search is
not to be determined by any fixed formula but is to be resolved
according to the facts of each case.
Where, for example, the officer merely draws aside the curtain
of a vacant vehicle which is parked on the public fair grounds,
or simply looks into a vehicle or flashes a light therein, these do
not constitute unreasonable search.
The setting up of the questioned checkpoints in Valenzuela (and
probably in other areas) may be considered as a security
measure to enable the NCRDC to pursue its mission of
establishing effective territorial defense and maintaining peace
and order for the benefit of the public. Checkpoints may also be
regarded as measures to thwart plots to destabilize the
government in the interest of public security. In this
connection, the Court may take judicial notice of the shift to
urban centers and their suburbs of the insurgency movement,
so clearly reflected in the increased killings in cities of police
and military men by NPA "sparrow units," not to mention the
abundance of unlicensed firearms and the alarming rise in
lawlessness and violence in such urban centers, not all of which
are reported in media, most likely brought about by
deteriorating economic conditions which all sum up to what
one can rightly consider, at the very least, as abnormal times.
Between the inherent right of the state to protect its existence
and promote public welfare and an individual's right against a
warrantless search which is however reasonably conducted, the
former should prevail.
True, the manning of checkpoints by the military is susceptible
of abuse by the men in uniform in the same manner that all
governmental power is susceptible of abuse. But, at the cost of

occasional inconvenience, discomfort and even irritation to the

citizen, the checkpoints during these abnormal times, when
conducted within reasonable limits, are part of the price we pay
for an orderly society and a peaceful community. (Emphasis
supplied).

quo momentarily while the police officer seeks to obtain more

information. This is illustrated in the case of Terry vs. Ohio, 392
U.S. 1 (1968). In this case, two men repeatedly walked past a
store window and returned to a spot where they apparently
conferred with a third man. This aroused the suspicion of a
police officer. To the experienced officer, the behaviour of the
men indicated that they were sizing up the store for an armed
robbery. When the police officer approached the men and
asked them for their names, they mumbled a reply.
Whereupon, the officer grabbed one of them, spun him around
and frisked him. Finding a concealed weapon in one, he did the
same to the other two and found another weapon. In the
prosecution for the offense of carrying a concealed weapon,
the defense of illegal search and seizure was put up. The United
States Supreme Court held that "a police officer may in
appropriate circumstances and in an appropriate manner
approach a person for the purpose of investigating possible
criminal behaviour even though there is no probable cause to
make an arrest." In such a situation, it is reasonable for an
officer rather than simply to shrug his shoulder and allow a
crime to occur, to stop a suspicious individual briefly in order to
determine his identity or maintain the status quo while
obtaining more information. . . .

Thus, as between a warrantless search and seizure conducted at military or

police checkpoints and the search thereat in the case at bar, there is no question
that, indeed, the latter is more reasonable considering that unlike in the former,
it was effected on the basis of a probable cause. The probable cause is that when
the petitioner acted suspiciously and attempted to flee with the buri bag there
was a probable cause that he was concealing something illegal in the bag and it
was the right and duty of the police officers to inspect the same.
It is too much indeed to require the police officers to search the bag in the
possession of the petitioner only after they shall have obtained a search warrant
for the purpose. Such an exercise may prove to be useless, futile and much too
late.
In People vs. CFI of Rizal, 8 this Court held as follows:
. . . In the ordinary cases where warrant is indispensably
necessary, the mechanics prescribed by the Constitution and
reiterated in the Rules of Court must be followed and satisfied.
But We need not argue that there are exceptions. Thus in the
extraordinary events where warrant is not necessary to effect a
valid search or seizure, or when the latter cannot be performed
except without warrant, what constitutes a reasonable or
unreasonable search or seizure becomes purely a judicial
question, determinable from the uniqueness of the
circumstances involved, including the purpose of the search or
seizure, the presence or absence of probable cause, the
manner in which the search and seizure was made, the place or
thing searched and the character of the articles procured.
The Court reproduces with approval the following disquisition of the Solicitor
General:
The assailed search and seizure may still be justified as akin to a
"stop and frisk" situation whose object is either to determine
the identity of a suspicious individual or to maintain the status

Clearly, the search in the case at bar can be sustained under the exceptions
heretofore discussed, and hence, the constitutional guarantee against
unreasonable searches and seizures has not been violated. 9
WHEREFORE, the petition is DENIED with costs against petitioner.
SO ORDERED.

G.R. No. 87059 June 22, 1992

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROGELIO MENGOTE y TEJAS, accused-appellant.

That on or about August 8, 1987, in the City of Manila,

Philippines, the said accused did then and there wilfully,
unlawfully and knowingly have in his possession and under his
custody and control a firearm, to wit:
one (1) cal. 38 "S & W" bearing
Serial No. 8720-T
without first having secured the necessary license or permit
therefor from the proper authorities.

CRUZ, J.:
Accused-appellant Rogelio Mengote was convicted of illegal possession of
firearms on the strength mainly of the stolen pistol found on his person at the
moment of his warrantless arrest. In this appeal, he pleads that the weapon was
not admissible as evidence against him because it had been illegally seized and
was therefore the fruit of the poisonous tree. The Government disagrees. It
insists that the revolver was validly received in evidence by the trial judge
because its seizure was incidental to an arrest that was doubtless lawful even if
admittedly without warrant.
The incident occurred shortly before noon of August 8, 1987, after the Western
Police District received a telephone call from an informer that there were three
suspicious-looking persons at the corner of Juan Luna and North Bay Boulevard
in Tondo, Manila. A surveillance team of plainclothesmen was forthwith
dispatched to the place. As later narrated at the trial by Patrolmen Rolando
Mercado and Alberto Juan, 1 they there saw two men "looking from side to side,"
one of whom was holding his abdomen. They approached these persons and
identified themselves as policemen, whereupon the two tried to run away but
were unable to escape because the other lawmen had surrounded them. The
suspects were then searched. One of them, who turned out to be the accusedappellant, was found with a .38 caliber Smith and Wesson revolver with six live
bullets in the chamber. His companion, later identified as Nicanor Morellos, had
a fan knife secreted in his front right pants pocket. The weapons were taken
from them. Mengote and Morellos were then turned over to police
headquarters for investigation by the Intelligence Division.

Besides the police officers, one other witness presented by the prosecution was
Rigoberto Danganan, who identified the subject weapon as among the articles
stolen from him during the robbery in his house in Malabon on June 13, 1987.
He pointed to Mengote as one of the robbers. He had duly reported the robbery
to the police, indicating the articles stolen from him, including the revolver. 2 For
his part, Mengote made no effort to prove that he owned the firearm or that he
was licensed to possess it and claimed instead that the weapon had been
"Planted" on him at the time of his arrest. 3
The gun, together with the live bullets and its holster, were offered as Exhibits A,
B, and C and admitted over the objection of the defense. As previously stated,
the weapon was the principal evidence that led to Mengote's conviction for
violation of P.D. 1866. He was sentenced to reclusion
perpetua. 4
It is submitted in the Appellant's Brief that the revolver should not have been
admitted in evidence because of its illegal seizure. no warrant therefor having
been previously obtained. Neither could it have been seized as an incident of a
lawful arrest because the arrest of Mengote was itself unlawful, having been also
effected without a warrant. The defense also contends that the testimony
regarding the alleged robbery in Danganan's house was irrelevant and should
also have been disregarded by the trial court.
The following are the pertinent provision of the Bill of Rights:

On August 11, 1987, the following information was filed against the accusedappellant before the Regional Trial Court of Manila:
The undersigned accuses ROGELIO MENGOTE y TEJAS of a
violation of Presidential Decree No. 1866, committed as
follows:

Sec. 2. The right of the people to be secure in their persons,

houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally

by the judge after examination under oath or affirmation of the

complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons
or things to be seized.
Sec. 3 (1). The privacy of communication and correspondence
shall be inviolable except upon lawful order of the court, or
when public safety or order requires otherwise as prescribed by
law.
(2) Any evidence obtained in violation of this or the preceding
section shall be inadmissible for any purpose in any proceeding.
There is no question that evidence obtained as a result of an illegal search or
seizure is inadmissible in any proceeding for any purpose. That is the absolute
prohibition of Article III, Section 3(2), of the Constitution. This is the celebrated
exclusionary rule based on the justification given by Judge Learned Hand that
"only in case the prosecution, which itself controls the seizing officials, knows
that it cannot profit by their wrong will the wrong be repressed." The Solicitor
General, while conceding the rule, maintains that it is not applicable in the case
at bar. His reason is that the arrest and search of Mengote and the seizure of the
revolver from him were lawful under Rule 113, Section 5, of the Rules of Court
reading as follows:
Sec. 5. Arrest without warrant when lawful. A peace officer
or private person may, without a warrant, arrest a person;
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit
an offense;
(b) When an offense has in fact just been committed, and he
has personal knowledge of facts indicating that the person to
be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is
serving final judgment or temporarily confined while his case is
pending, or has escaped while being transferred from one
confinement to another.

In cases failing under paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forthwith delivered to the
nearest police station or jail, and he shall be proceeded against
in accordance with Rule 112, Section 7.
We have carefully examined the wording of this Rule and cannot see how we can
agree with the prosecution.
Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee
from a penal institution when he was arrested. We therefore confine ourselves
to determining the lawfulness of his arrest under either Par. (a) or Par. (b) of this
section.
Par. (a) requires that the person be arrested (1) after he has committed or while
he is actually committing or is at least attempting to commit an offense, (2) in
the presence of the arresting officer.
These requirements have not been established in the case at bar. At the time of
the arrest in question, the accused-appellant was merely "looking from side to
side" and "holding his abdomen," according to the arresting officers themselves.
There was apparently no offense that had just been committed or was being
actually committed or at least being attempted by Mengote in their presence.
The Solicitor General submits that the actual existence of an offense was not
necessary as long as Mengote's acts "created a reasonable suspicion on the part
of the arresting officers and induced in them the belief that an offense had been
committed and that the accused-appellant had committed it." The question is,
What offense? What offense could possibly have been suggested by a person
"looking from side to side" and "holding his abdomen" and in a place not exactly
forsaken?
These are certainly not sinister acts. And the setting of the arrest made them less
so, if at all. It might have been different if Mengote bad been apprehended at an
ungodly hour and in a place where he had no reason to be, like a darkened alley
at 3 o'clock in the morning. But he was arrested at 11:30 in the morning and in a
crowded street shortly after alighting from a passenger jeep with I his
companion. He was not skulking in the shadows but walking in the clear light of
day. There was nothing clandestine about his being on that street at that busy
hour in the blaze of the noonday sun.

On the other hand, there could have been a number of reasons, all of them
innocent, why his eyes were darting from side to side and be was holding his
abdomen. If they excited suspicion in the minds of the arresting officers, as the
prosecution suggests, it has nevertheless not been shown what their suspicion
was all about. In fact, the policemen themselves testified that they were
dispatched to that place only because of the telephone call from the informer
that there were "suspicious-looking" persons in that vicinity who were about to
commit a robbery at North Bay Boulevard. The caller did not explain why he
thought the men looked suspicious nor did he elaborate on the impending
crime.
In the recent case of People v. Malmstedt, 5 the Court sustained the warrantless
arrest of the accused because there was a bulge in his waist that excited the
suspicion of the arresting officer and, upon inspection, turned out to be a pouch
containing hashish. In People v. Claudio, 6 the accused boarded a bus and placed
the buri bag she was carrying behind the seat of the arresting officer while she
herself sat in the seat before him. His suspicion aroused, be surreptitiously
examined the bag, which he found to contain marijuana. He then and there
made the warrantless arrest and seizure that we subsequently upheld on the
ground that probable cause had been sufficiently established.
The case before us is different because there was nothing to support the
arresting officers' suspicion other than Mengote's darting eyes and his hand on
his abdomen. By no stretch of the imagination could it have been inferred from
these acts that an offense had just been committed, or was actually being
committed, or was at least being attempted in their presence.
This case is similar to People v. Aminnudin, 7 where the Court held that the
warrantless arrest of the accused was unconstitutional. This was effected while
be was coming down a vessel, to all appearances no less innocent than the other
disembarking passengers. He had not committed nor was be actually committing
or attempting to commit an offense in the presence of the arresting officers. He
was not even acting suspiciously. In short, there was no probable cause that, as
the prosecution incorrectly suggested, dispensed with the constitutional
requirement of a warrant.
Par. (b) is no less applicable because its no less stringent requirements have also
not been satisfied. The prosecution has not shown that at the time of Mengote's
arrest an offense had in fact just been committed and that the arresting officers
had personal knowledge of facts indicating that Mengote had committed it. All

they had was hearsay information from the telephone caller, and about a crime
that had yet to be committed.
The truth is that they did not know then what offense, if at all, had been
committed and neither were they aware of the participation therein of the
accused-appellant. It was only later, after Danganan had appeared at the Police
headquarters, that they learned of the robbery in his house and of Mengote's
supposed involvement therein. 8 As for the illegal possession of the firearm
found on Mengote's person, the policemen discovered this only after he had
been searched and the investigation conducted later revealed that he was not its
owners nor was he licensed to possess it.
Before these events, the Peace officers had no knowledge even of Mengote'
identity, let alone the fact (or suspicion) that he was unlawfully carrying a
firearm or that he was involved in the robbery of Danganan's house.
In the landmark case of People v. Burgos, 9 this Court declared:
Under Section 6(a) of Rule 113, the officer arresting a person
who has just committed, is committing, or is about to commit
an offense must have personal knowledge of the fact. The
offense must also be committed in his presence or within his
view. (Sayo v. Chief of Police, 80 Phil. 859). (Emphasis supplied)
xxx xxx xxx
In arrests without a warrant under Section 6(b), however, it is
not enough that there is reasonable ground to believe that the
person to be arrested has committed a crime. A crime must in
fact or actually have been committed first. That a crime has
actually been committed is an essential precondition. It is not
enough to suspect that a crime may have been committed. The
fact of the commission of the offense must be undisputed. The
test of reasonable ground applies only to the identity of the
perpetrator. (Emphasis supplied)
This doctrine was affirmed in Alih v. Castro, 10 thus:
If the arrest was made under Rule 113, Section 5, of the Rules
of Court in connection with a crime about to be committed,
being committed, or just committed, what was that crime?

There is no allegation in the record of such a falsification.

Parenthetically, it may be observed that under the Revised Rule
113, Section 5(b), the officer making the arrest must have
personal knowledge of the ground therefor as stressed in the
recent case of People v. Burgos. (Emphasis supplied)
It would be a sad day, indeed, if any person could be summarily arrested and
searched just because he is holding his abdomen, even if it be possibly because
of a stomach-ache, or if a peace officer could clamp handcuffs on any person
with a shifty look on suspicion that he may have committed a criminal act or is
actually committing or attempting it. This simply cannot be done in a free
society. This is not a police state where order is exalted over liberty or, worse,
personal malice on the part of the arresting officer may be justified in the name
of security.
There is no need to discuss the other issues raised by the accused-appellant as
the ruling we here make is sufficient to sustain his exoneration. Without the
evidence of the firearm taken from him at the time of his illegal arrest, the
prosecution has lost its most important exhibit and must therefore fail. The
testimonial evidence against Mengote (which is based on the said firearm) is not
sufficient to prove his guilt beyond reasonable doubt of the crime imputed to
him.
We commend Atty. Violeta Calvo-Drilon for her able and spirited defense of the
accused-appellant not only in the brief but also in the reply brief, which she did
not have to file but did so just the same to stress the constitutional rights of her
client. The fact that she was acting only as a counsel de oficio with no
expectation of material reward makes her representation even more
commendable.
The Court feels that if the peace officers had been more mindful of the
provisions of the Bill of Rights, the prosecution of the accused-appellant might
have succeeded. As it happened, they allowed their over-zealousness to get the
better of them, resulting in their disregard of the requirements of a valid search
and seizure that rendered inadmissible the vital evidence they had invalidly
seized.
This should be a lesson to other peace officers. Their impulsiveness may be the
very cause of the acquittal of persons who deserve to be convicted, escaping the
clutches of the law because, ironically enough, it has not been observed by those
who are supposed to enforce it.

WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The accusedappellant is ACQUITTED and ordered released immediately unless he is validly
detained for other offenses. No costs.
SO ORDERED.

G.R. No. 123595 December 12, 1997

SAMMY MALACAT y MANDAR, petitioner,
vs.
COURT OF APPEALS, and PEOPLE OF THE PHILIPPINES, respondents.

DAVIDE, JR., J.:

In an Information 1 filed on 30 August 1990, in Criminal Case No. 90-86748
before the Regional Trial Court (RTC) of Manila, Branch 5, petitioner Sammy
Malacat y Mandar was charged with violating Section 3 of Presidential Decree
No. 1866, 2 as follows:
That on or about August 27, 1990, in the City of Manila,
Philippines, the said accused did then and there willfully,
unlawfully and knowingly keep, possess and/or acquire a hand
grenade, without first securing the necessary license and/or
permit therefor from the proper authorities.
At arraignment 3 on 9 October 1990, petitioner, assisted by counsel de oficio,
entered a plea of not guilty.
At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits "A,"
"A-1," and "A-2," 4 while the prosecution admitted that the police authorities
were not armed with a search warrant nor warrant of arrest at the time they
arrested petitioner. 5
At trial on the merits, the prosecution presented the following police officers as
its witnesses: Rodolfo Yu, the arresting officer; Josefino G. Serapio, the
investigating officer; and Orlando Ramilo, who examined the grenade.
Rodolfo Yu of the Western Police District, Metropolitan Police Force of the
Integrated National Police, Police Station No. 3, Quiapo, Manila, testified that on
27 August 1990, at about 6:30 p.m., in response to bomb threats reported seven
days earlier, he was on foot patrol with three other police officers (all of them in
uniform) along Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store
at Plaza Miranda. They chanced upon two groups of Muslim-looking men, with
each group, comprised of three to four men, posted at opposite sides of the

corner of Quezon Boulevard near the Mercury Drug Store. These men were
acting suspiciously with "[t]heir eyes. . . moving very fast." 6
Yu and his companions positioned themselves at strategic points and observed
both groups for about thirty minutes. The police officers then approached one
group of men, who then fled in different directions. As the policemen gave
chase, Yu caught up with and apprehended petitioner. Upon searching
petitioner, Yu found a fragmentation grenade tucked inside petitioner's "front
waist line." 7 Yu's companion, police officer Rogelio Malibiran, apprehended
Abdul Casan from whom a .38 caliber revolver was recovered. Petitioner and
Casan were then brought to Police Station No. 3 where Yu placed an "X" mark at
the bottom of the grenade and thereafter gave it to his commander. 8
On cross-examination, Yu declared that they conducted the foot patrol due to a
report that a group of Muslims was going to explode a grenade somewhere in
the vicinity of Plaza Miranda. Yu recognized petitioner as the previous Saturday,
25 August 1990, likewise at Plaza Miranda, Yu saw petitioner and 2 others
attempt to detonate a grenade. The attempt was aborted when Yu and other
policemen chased petitioner and his companions; however, the former were
unable to catch any of the latter. Yu further admitted that petitioner and Casan
were merely standing on the corner of Quezon Boulevard when Yu saw them on
27 August 1990. Although they were not creating a commotion, since they were
supposedly acting suspiciously, Yu and his companions approached them. Yu did
not issue any receipt for the grenade he allegedly recovered from petitioner. 9
Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990,
petitioner and a certain Abdul Casan were brought in by Sgt. Saquilla 10 for
investigation. Forthwith, Serapio conducted the inquest of the two suspects,
informing them of their rights to remain silent and to be assisted by competent
and independent counsel. Despite Serapio's advice, petitioner and Casan
manifested their willingness to answer questions even without the assistance of
a lawyer. Serapio then took petitioner's uncounselled confession (Exh. "E"), there
being no PAO lawyer available, wherein petitioner admitted possession of the
grenade. Thereafter, Serapio prepared the affidavit of arrest and booking sheet
of petitioner and Casan. Later, Serapio turned over the grenade to the
Intelligence and Special Action Division (ISAD) of the Explosive Ordinance
Disposal Unit for examination. 11
On cross-examination, Serapio admitted that he took petitioner's confession
knowing it was inadmissible in evidence. 12

Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties
included, among other things, the examination of explosive devices, testified
that on 22 March 1991, he received a request dated 19 March 1991 from Lt.
Eduardo Cabrera and PO Diosdado Diotoy for examination of a grenade. Ramilo
then affixed an orange tag on the subject grenade detailing his name, the date
and time he received the specimen. During the preliminary examination of the
grenade, he "[f]ound that [the] major components consisting of [a] high filler and
fuse assembly [were] all present," and concluded that the grenade was "[l]ive
and capable of exploding." On even date, he issued a certification stating his
findings, a copy of which he forwarded to Diotoy on 11 August 1991. 13
Petitioner was the lone defense witness. He declared that he arrived in Manila
on 22 July 1990 and resided at the Muslim Center in Quiapo, Manila. At around
6:30 in the evening of 27 August 1990, he went to Plaza Miranda to catch a
breath of fresh air. Shortly after, several policemen arrived and ordered all males
to stand aside. The policemen searched petitioner and two other men, but found
nothing in their possession. However, he was arrested with two others, brought
to and detained at Precinct No. 3, where he was accused of having shot a police
officer. The officer showed the gunshot wounds he allegedly sustained and
shouted at petitioner "[i]to ang tama mo sa akin." This officer then inserted the
muzzle of his gun into petitioner's mouth and said, "[y]ou are the one who shot
me." Petitioner denied the charges and explained that he only recently arrived in
Manila. However, several other police officers mauled him, hitting him with
benches and guns. Petitioner was once again searched, but nothing was found
on him. He saw the grenade only in court when it was presented. 14
The trial court ruled that the warrantless search and seizure of petitioner was
akin to it a "stop and frisk," where a "warrant and seizure can be effected
without necessarily being preceded by an arrest" and "whose object is either to
maintain the status quo momentarily while the police officer seeks to obtain
more information." 15 Probable cause was not required as it was not certain that
a crime had been committed, however, the situation called for an investigation,
hence to require probable cause would have been "premature." 16 The RTC
emphasized that Yu and his companions were "[c]onfronted with an emergency,
in which the delay necessary to obtain a warrant, threatens the destruction of
evidence" 17 and the officers "[h]ad to act in haste," as petitioner and his
companions were acting suspiciously, considering the time, place and "reported
cases of bombing." Further, petitioner's group suddenly ran away in different
directions as they saw the arresting officers approach, thus "[i]t is reasonable for
an officer to conduct a limited search, the purpose of which is not necessarily to

discover evidence of a crime, but to allow the officer to pursue his investigation
without fear of violence." 18
The trial court then ruled that the seizure of the grenade from petitioner was
incidental to a lawful arrest, and since petitioner "[l]ater voluntarily admitted
such fact to the police investigator for the purpose of bombing the Mercury Drug
Store," concluded that sufficient evidence existed to establish petitioner's guilt
beyond reasonable doubt.
In its decision 19 dated 10 February 1994 but promulgated on 15 February 1994,
the trial court thus found petitioner guilty of the crime of illegal possession of
explosives under Section 3 of P.D. No. 186, and sentenced him to suffer:
[T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4)
MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL, as
minimum, and not more than THIRTY (30) YEARS OF RECLUSION
PERPETUA, as maximum.
On 18 February 1994, petitioner filed a notice of appeal 20 indicating that he was
appealing to this Court. However, the record of the case was forwarded to the
Court of Appeals which docketed it as CA-G.R. CR No. 15988 and issued a notice
to file briefs. 21
In his Appellant's Brief 22 filed with the Court of Appeals, petitioner asserted that:
1. THE LOWER COURT ERRED IN HOLDING
THAT THE SEARCH UPON THE PERSON OF
ACCUSED-APPELLANT AND THE SEIZURE OF
THE ALLEGED HANDGRENADE FROM HIM
"WAS AN APPROPRIATE INCIDENT TO HIS
ARREST."
2. THE LOWER COURT ERRED IN ADMITTING
AS EVIDENCE AGAINST ACCUSED-APPELLANT
THE HANDGRENADE ALLEGEDLY SEIZED FROM
HIM AS IT WAS A PRODUCT OF AN
UNREASONABLE AND ILLEGAL SEARCH.
In sum, petitioner argued that the warrantless arrest was invalid due to absence
of any of the conditions provided for in Section 5 of Rule 113 of the Rules of

Court, citing People vs. Mengote. 23 As such, the search was illegal, and the hand
grenade seized, inadmissible in evidence.
In its Brief for the Appellee, the Office of the Solicitor General agreed with the
trial court and prayed that its decision be affirmed in toto. 24
In its decision of 24 January 1996, 25 the Court of Appeals affirmed the trial
court, noting, first, that petitioner abandoned his original theory before the
court a quo that the grenade was "planted" by the police officers; and second,
the factual finding of the trial court that the grenade was seized from
petitioner's possession was not raised as an issue. Further, respondent court
focused on the admissibility in evidence of Exhibit "D," the hand grenade seized
from petitioner. Meeting the issue squarely, the Court of Appeals ruled that the
arrest was lawful on the ground that there was probable cause for the arrest as
petitioner was "attempting to commit an offense," thus:
We are at a loss to understand how a man, who was in
possession of a live grenade and in the company of other
suspicious character[s] with unlicensed firearm[s] lurking in
Plaza Miranda at a time when political tension ha[d] been
enkindling a series of terroristic activities, [can] claim that he
was not attempting to commit an offense. We need not
mention that Plaza Miranda is historically notorious for being a
favorite bomb site especially during times of political upheaval.
As the mere possession of an unlicensed grenade is by itself an
offense, Malacat's posture is simply too preposterous to inspire
belief.
In so doing, the Court of Appeals took into account petitioner's failure to rebut
the testimony of the prosecution witnesses that they received intelligence
reports of a bomb threat at Plaza Miranda; the fact that PO Yu chased petitioner
two days prior to the latter's arrest, or on 27 August 1990; and that petitioner
and his companions acted suspiciously, the "accumulation" of which was more
than sufficient to convince a reasonable man that an offense was about to be
committed. Moreover, the Court of Appeals observed:
The police officers in such a volatile situation would be guilty of
gross negligence and dereliction of duty, not to mention of
gross incompetence, if they [would] first wait for Malacat to
hurl the grenade, and kill several innocent persons while
maiming numerous others, before arriving at what would then

be an assured but moot conclusion that there was indeed

probable cause for an arrest. We are in agreement with the
lower court in saying that the probable cause in such a situation
should not be the kind of proof necessary to convict, but rather
the practical considerations of everyday life on which a
reasonable and prudent mind, and not legal technicians, will
ordinarily act.
Finally, the Court of Appeals held that the rule laid down in People v. Mengote, 26
which petitioner relied upon, was inapplicable in light of "[c]rucial differences,"
to wit:
[In Mengote] the police officers never received any intelligence
report that someone [at] the corner of a busy street [would] be
in possession of a prohibited article. Here the police officers
were responding to a [sic] public clamor to put a check on the
series of terroristic bombings in the Metropolis, and, after
receiving intelligence reports about a bomb threat aimed at the
vicinity of the historically notorious Plaza Miranda, they
conducted foot patrols for about seven days to observe
suspicious movements in the area. Furthermore, in Mengote,
the police officers [had] no personal knowledge that the person
arrested has committed, is actually committing, or is
attempting to commit an offense. Here, PO3 Yu [had] personal
knowledge of the fact that he chased Malacat in Plaza Miranda
two days before he finally succeeded in apprehending him.
Unable to accept his conviction, petitioner forthwith filed the instant petition
and assigns the following errors:
1. THE RESPONDENT COURT ERRED IN
AFFIRMING THE FINDING OF THE TRIAL COURT
THAT THE WARRANTIES ARREST OF
PETITIONER WAS VALID AND LEGAL.
2. THE RESPONDENT COURT ERRED IN
HOLDING THAT THE RULING IN PEOPLE VS.
MENGOTE DOES NOT FIND APPLICATION IN
THE INSTANT CASE.

In support thereof, petitioner merely restates his arguments below

regarding the validity of the warrantless arrest and search, then
disagrees with the finding of the Court of Appeals that he was
"attempting to commit a crime," as the evidence for the prosecution
merely disclosed that he was "standing at the corner of Plaza Miranda
and Quezon Boulevard" with his eyes "moving very fast" and "looking at
every person that come (sic) nearer (sic) to them." Finally, petitioner
points out the factual similarities between his case and that of People v.
Mengote to demonstrate that the Court of Appeals miscomprehended
the latter.
In its Comment, the Office of the Solicitor General prays that we affirm the
challenged decision..
For being impressed with merit, we resolved to give due course to the petition.
The challenged decision must immediately fall on jurisdictional grounds. To
repeat, the penalty imposed by the trial court was:
[N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND
ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not
more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as
maximum.
The penalty provided by Section 3 of P.D. No. 1866 upon any person
who shall unlawfully possess grenades is reclusion temporal in its
maximum period to reclusion perpetua.
For purposes of determining appellate jurisdiction in criminal cases, the
maximum of the penalty, and not the minimum, is taken into account. Since the
maximum of the penalty is reclusion perpetua, the appeal therefrom should have
been to us, and not the Court of Appeals, pursuant to Section 9(3) of the
Judiciary Reorganization Act of 1980 (B.P. Blg. 129), 27 in relation to Section 17 of
the Judiciary Act of 1948, 28 Section 5(2) of Article VIII of the Constitution 29 and
Section 3(c) of Rule 122 of the Rules of Court. 30 The term "life imprisonment" as
used in Section 9 of B.P. Blg. 129, the Judiciary Act of 1948, and Section 3 of Rule
122 must be deemed to include reclusion perpetua in view of Section 5(2) of
Article VIII of the Constitution.

Petitioner's Notice of Appeal indicated that he was appealing from the trial
court's decision to this Court, yet the trial court transmitted the record to the
Court of Appeals and the latter proceeded to resolve the appeal.
We then set aside the decision of the Court of Appeals for having been rendered
without jurisdiction, and consider the appeal as having been directly brought to
us, with the petition for review as petitioner's Brief for the Appellant, the
comment thereon by the Office of the Solicitor General as the Brief for the
Appellee and the memoranda of the parties as their Supplemental Briefs.
Deliberating on the foregoing pleadings, we find ourselves convinced that the
prosecution failed to establish petitioner's guilt with moral certainty.
First, serious doubt surrounds the story of police officer Yu that a grenade was
found in and seized from petitioner's possession. Notably, Yu did not identify, in
court, the grenade he allegedly seized. According to him, he turned it over to his
commander after putting an "X" mark at its bottom; however, the commander
was not presented to corroborate this claim. On the other hand, the grenade
presented in court and identified by police officer Ramilo referred to what the
latter received from Lt. Eduardo Cabrera and police officer Diotoy not
immediately after petitioner's arrest, but nearly seven (7) months later, or on 19
March 1991; further, there was no evidence whatsoever that what Ramilo
received was the very same grenade seized from petitioner. In his testimony, Yu
never declared that the grenade passed on to Ramilo was the grenade the
former confiscated from petitioner. Yu did not, and was not made to, identify
the grenade examined by Ramilo, and the latter did not claim that the grenade
he examined was that seized from petitioner. Plainly, the law enforcement
authorities failed to safeguard and preserve the chain of evidence so crucial in
cases such as these.
Second, if indeed petitioner had a grenade with him, and that two days earlier
he was with a group about to detonate an explosive at Plaza Miranda, and Yu
and his fellow officers chased, but failed to arrest them, then considering that Yu
and his three fellow officers were in uniform and therefore easily cognizable as
police officers, it was then unnatural and against common experience that
petitioner simply stood there in proximity to the police officers. Note that Yu
observed petitioner for thirty minutes and must have been close enough to
petitioner in order to discern petitioner's eyes "moving very fast."
Finally, even assuming that petitioner admitted possession of the grenade during
his custodial investigation by police officer Serapio, such admission was

inadmissible in evidence for it was taken in palpable violation of Section 12(1)

and (3) of Article III of the Constitution, which provide as follows:
Sec. 12 (1). Any person under investigation for the commission
of an offense shall have the right to be informed of his right to
remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of
counsel.
xxx xxx xxx
(3) Any confession or admission obtained in violation of this or
Section 17 hereof shall be inadmissible in evidence against him.
Serapio conducted the custodial investigation on petitioner the day
following his arrest. No lawyer was present and Serapio could not have
requested a lawyer to assist petitioner as no PAO lawyer was then
available. Thus, even if petitioner consented to the investigation and
waived his rights to remain silent and to counsel, the waiver was invalid
as it was not in writing, neither was it executed in the presence of
counsel.
Even granting ex gratia that petitioner was in possession of a grenade, the arrest
and search of petitioner were invalid, as will be discussed below.
The general rule as regards arrests, searches and seizures is that a warrant is
needed in order to validly effect the same. 31 The Constitutional prohibition
against unreasonable arrests, searches and seizures refers to those effected
without a validly issued warrant, 32 subject to certain exceptions. As regards valid
warrantless arrests, these are found in Section 5, Rule 113 of the Rules of Court,
which reads, in part:
Sec. 5. Arrest, without warrant; when lawful A peace
officer or a private person may, without a warrant, arrest a
person:
(a) When, in his presence, the person to be
arrested has committed, is actually

committing, or is attempting to commit an

offense;
(b) When an offense has in fact just been
committed, and he has personal knowledge of
facts indicating that the person to be arrested
has committed it; and
(c) When the person to be arrested is a
prisoner who has escaped . . .
A warrantless arrest under the circumstances contemplated under
Section 5(a) has been denominated as one "in flagrante delicto," while
that under Section 5(b) has been described as a "hot pursuit" arrest.
Turning to valid warrantless searches, they are limited to the following: (1)
customs searches; (2) search of moving vehicles; (3) seizure of evidence in plain
view; (4) consent searches; 33 (5) a search incidental to a lawful arrest; 34 and (6)
a "stop and frisk." 35
In the instant petition, the trial court validated the warrantless search as a "stop
and frisk" with "the seizure of the grenade from the accused [as an appropriate
incident to his arrest," hence necessitating a brief discussion on the nature of
these exceptions to the warrant requirement.
At the outset, we note that the trial court confused the concepts of a "stop-andfrisk" and of a search incidental to a lawful arrest. These two types of warrantless
searches differ in terms of the requisite quantum of proof before they may be
validly effected and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest determines the
validity of the incidental search, the legality of the arrest is questioned in a large
majority of these cases, e.g., whether an arrest was merely used as a pretext for
conducting a search. 36 In this instance, the law requires that there first be a
lawful arrest before a search can be made the process cannot be reversed. 37
At bottom, assuming a valid arrest, the arresting officer may search the person
of the arrestee and the area within which the latter may reach for a weapon or
for evidence to destroy, and seize any money or property found which was used
in the commission of the crime, or the fruit of the crime, or that which may be
used as evidence, or which might furnish the arrestee with the means of
escaping or committing violence. 38

Here, there could have been no valid in flagrante delicto or hot pursuit arrest
preceding the search in light of the lack of personal knowledge on the part of Yu,
the arresting officer, or an overt physical act, on the part of petitioner, indicating
that a crime had just been committed, was being committed or was going to be
committed.
Having thus shown the invalidity of the warrantless arrest in this case, plainly,
the search conducted on petitioner could not have been one incidental to a
lawful arrest.
We now proceed to the justification for and allowable scope of a "stop-and-frisk"
as a "limited protective search of outer clothing for weapons," as laid down in
Terry, thus:
We merely hold today that where a police officer observes
unusual conduct which leads him reasonably to conclude in
light of his experience that criminal activity may be afoot and
that the persons with whom he is dealing may be armed and
presently dangerous, where in the course of investigating this
behavior he identifies himself as a policeman and makes
reasonable inquiries, and where nothing in the initial stages of
the encounter serves to dispel his reasonable fear for his own
or others' safety, he is entitled for the protection of himself and
others in the area to conduct a carefully limited search of the
outer clothing of such persons in an attempt to discover
weapons which might be used to assault him. Such a search is a
reasonable search under the Fourth Amendment . . . 39
Other notable points of Terry are that while probable cause is not
required to conduct a "stop and frisk," 40 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. 41 Finally, a "stop-and-frisk" serves a
two-fold interest: (1) the general interest of effective crime prevention
and detection, which underlies the recognition that a police officer may,
under appropriate circumstances and in an appropriate manner,
approach a person for purposes of investigating possible criminal
behavior even without probable cause; and (2) the more pressing
interest of safety and self-preservation which permit the police officer
to take steps to assure himself that the person with whom he deals is

not armed with a deadly weapon that could unexpectedly and fatally be
used against the police officer.
Here, there are at least three (3) reasons why the "stop-and-frisk" was invalid:
First, we harbor grave doubts as to Yu's claim that petitioner was a member of
the group which attempted to bomb Plaza Miranda two days earlier. This claim is
neither supported by any police report or record nor corroborated by any other
police officer who allegedly chased that group. Aside from impairing Yu's
credibility as a witness, this likewise diminishes the probability that a genuine
reason existed so as to arrest and search petitioner. If only to further tarnish the
credibility of Yu's testimony, contrary to his claim that petitioner and his
companions had to be chased before being apprehended, the affidavit of arrest
(Exh. "A") expressly declares otherwise, i.e., upon arrival of five (5) other police
officers, petitioner and his companions were "immediately collared."
Second, there was nothing in petitioner's behavior or conduct which could have
reasonably elicited even mere suspicion other than that his eyes were "moving
very fast" an observation which leaves us incredulous since Yu and his
teammates were nowhere near petitioner and it was already 6:30 p.m., thus
presumably dusk. Petitioner and his companions were merely standing at the
corner and were not creating any commotion or trouble, as Yu explicitly declared
on cross-examination:
Q And what were they doing?
A They were merely standing.
Q You are sure of that?
A Yes, sir.
Q And when you saw them standing, there were nothing or
they did not create any commotion.
A None, sir.
Q Neither did you see them create commotion?
A None, sir. 42

Third, there was at all no ground, probable or otherwise, to believe that

petitioner was armed with a deadly weapon. None was visible to Yu, for as he
admitted, the alleged grenade was "discovered" "inside the front waistline" of
petitioner, and from all indications as to the distance between Yu and petitioner,
any telltale bulge, assuming that petitioner was indeed hiding a grenade, could
not have been visible to Yu. In fact, as noted by the trial court:
When the policemen approached the accused and his
companions, they were not yet aware that a handgrenade was
tucked inside his waistline. They did not see any bulging object
in [sic] his person. 43
What is unequivocal then in this case are blatant violations of petitioner's rights
solemnly guaranteed in Sections 2 and 12(1) of Article III of the Constitution.
WHEREFORE, the challenged decision of the Seventeenth Division of the Court of
Appeals in CA-G.R. CR No. 15988 is SET ASIDE for lack of jurisdiction on the part
of said Court and, on ground of reasonable doubt, the decision of 10 February
1994 of Branch 5 of the Regional Trial Court of Manila is REVERSED and
petitioner SAMMY MALACAT y MANDAR is hereby ACQUITTED and ORDERED
immediately released from detention, unless his further detention is justified for
any other lawful cause.
Costs de oficio.
SO ORDERED.

G.R.No. 74869 July 6, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
IDEL AMINNUDIN y AHNI, defendant-appellant.
CRUZ, J.:
The accused-appellant claimed his business was selling watches but he was
nonetheless arrested, tried and found guilty of illegally transporting marijuana.
The trial court, disbelieving him, held it was high time to put him away and
sentenced him to life imprisonment plus a fine of P20,000.00. 1
Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from
the M/V Wilcon 9 at about 8:30 in the evening, in Iloilo City. The PC officers who
were in fact waiting for him simply accosted him, inspected his bag and finding
what looked liked marijuana leaves took him to their headquarters for
investigation. The two bundles of suspect articles were confiscated from him and
later taken to the NBI laboratory for examination. When they were verified as
marijuana leaves, an information for violation of the Dangerous Drugs Act was
filed against him. 2 Later, the information was amended to include Farida Ali y
Hassen, who had also been arrested with him that same evening and likewise
investigated. 3 Both were arraigned and pleaded not guilty. 4 Subsequently, the
fiscal filed a motion to dismiss the charge against Ali on the basis of a sworn
statement of the arresting officers absolving her after a 'thorough investigation."
5
The motion was granted, and trial proceeded only against the accusedappellant, who was eventually convicted . 6
According to the prosecution, the PC officers had earlier received a tip from one
of their informers that the accused-appellant was on board a vessel bound for
Iloilo City and was carrying marijuana. 7 He was Identified by name. 8 Acting on
this tip, they waited for him in the evening of June 25, 1984, and approached
him as he descended from the gangplank after the informer had pointed to him.
9
They detained him and inspected the bag he was carrying. It was found to
contain three kilos of what were later analyzed as marijuana leaves by an NBI
forensic examiner, 10 who testified that she conducted microscopic, chemical
and chromatographic tests on them. On the basis of this finding, the
corresponding charge was then filed against Aminnudin.
In his defense, Aminnudin disclaimed the marijuana, averring that all he had in
his bag was his clothing consisting of a jacket, two shirts and two pairs of pants.

11

He alleged that he was arbitrarily arrested and immediately handcuffed. His

bag was confiscated without a search warrant. At the PC headquarters, he was
manhandled to force him to admit he was carrying the marijuana, the
investigator hitting him with a piece of wood in the chest and arms even as he
parried the blows while he was still handcuffed. 12 He insisted he did not even
know what marijuana looked like and that his business was selling watches and
sometimes cigarettes. 13 He also argued that the marijuana he was alleged to
have been carrying was not properly Identified and could have been any of
several bundles kept in the stock room of the PC headquarters. 14
The trial court was unconvinced, noting from its own examination of the accused
that he claimed to have come to Iloilo City to sell watches but carried only two
watches at the time, traveling from Jolo for that purpose and spending P107.00
for fare, not to mention his other expenses. 15 Aminnudin testified that he kept
the two watches in a secret pocket below his belt but, strangely, they were not
discovered when he was bodily searched by the arresting officers nor were they
damaged as a result of his manhandling. 16 He also said he sold one of the
watches for P400.00 and gave away the other, although the watches belonged
not to him but to his cousin, 17 to a friend whose full name he said did not even
know. 18 The trial court also rejected his allegations of maltreatment, observing
that he had not sufficiently proved the injuries sustained by him. 19
There is no justification to reverse these factual findings, considering that it was
the trial judge who had immediate access to the testimony of the witnesses and
had the opportunity to weigh their credibility on the stand. Nuances of tone or
voice, meaningful pauses and hesitation, flush of face and dart of eyes, which
may reveal the truth or expose the lie, are not described in the impersonal
record. But the trial judge sees all of this, discovering for himself the truant fact
amidst the falsities.
The only exception we may make in this case is the trial court's conclusion that
the accused-appellant was not really beaten up because he did not complain
about it later nor did he submit to a medical examination. That is hardly fair or
realistic. It is possible Aminnudin never had that opportunity as he was at that
time under detention by the PC authorities and in fact has never been set free
since he was arrested in 1984 and up to the present. No bail has been allowed
for his release.
There is one point that deserves closer examination, however, and it is
Aminnudin's claim that he was arrested and searched without warrant, making
the marijuana allegedly found in his possession inadmissible in evidence against

him under the Bill of Rights. The decision did not even discuss this point. For his
part, the Solicitor General dismissed this after an all-too-short argument that the
arrest of Aminnudin was valid because it came under Rule 113, Section 6(b) of
the Rules of Court on warrantless arrests. This made the search also valid as
incidental to a lawful arrest.

A Well, I have received also other reports but not pertaining to the
coming of Wilcon 9. For instance, report of illegal gambling
operation.

It is not disputed, and in fact it is admitted by the PC officers who testified for
the prosecution, that they had no warrant when they arrested Aminnudin and
seized the bag he was carrying. Their only justification was the tip they had
earlier received from a reliable and regular informer who reported to them that
Aminnudin was arriving in Iloilo by boat with marijuana. Their testimony varies as
to the time they received the tip, one saying it was two days before the arrest, 20
another two weeks 21 and a third "weeks before June 25." 22 On this matter, we
may prefer the declaration of the chief of the arresting team, Lt. Cipriano Querol,
Jr., who testified as follows:

Q Previous to that particular information which you said two days

before June 25, 1984, did you also receive daily report regarding the
activities of Idel Aminnudin

Q You mentioned an intelligence report, you mean with respect to

the coming of Idel Aminnudin on June 25, 1984?
A Yes, sir.
Q When did you receive this intelligence report?
A Two days before June 25, 1984 and it was supported by reliable
sources.
Q Were you informed of the coming of the Wilcon 9 and the
possible trafficking of marijuana leaves on that date?
A Yes, sir, two days before June 25, 1984 when we received this
information from that particular informer, prior to June 25, 1984 we
have already reports of the particular operation which was being
participated by Idel Aminnudin.
Q You said you received an intelligence report two days before June
25, 1984 with respect to the coming of Wilcon 9?
A Yes, sir.
Q Did you receive any other report aside from this intelligence
report?

COURT:

A Previous to June 25, 1984 we received reports on the activities of

Idel Aminnudin.
Q What were those activities?
A Purely marijuana trafficking.
Q From whom did you get that information?
A It came to my hand which was written in a required sheet of
information, maybe for security reason and we cannot Identify the
person.
Q But you received it from your regular informer?
A Yes, sir.
ATTY. LLARIZA:
Q Previous to June 25, 1984, you were more or less sure that Idel
Aminnudin is coming with drugs?
A Marijuana, sir.
Q And this information respecting Idel Aminnudin's coming to Iloilo
with marijuana was received by you many days before you received
the intelligence report in writing?
A Not a report of the particular coming of Aminnudin but his
activities.

Q You only knew that he was coming on June 25,1984 two days
before?

Q Why not?

A Yes, sir.

A Because we were very very sure that our operation will yield
positive result.

Q You mean that before June 23, 1984 you did not know that
minnudin was coming?

Q Is that your procedure that whenever it will yield positive result

you do not need a search warrant anymore?

A Before June 23,1984, I, in my capacity, did not know that he was

coming but on June 23, 1984 that was the time when I received the
information that he was coming. Regarding the reports on his
activities, we have reports that he was already consummated the
act of selling and shipping marijuana stuff.

A Search warrant is not necessary. 23

That last answer is a cavalier pronouncement, especially as it comes from a mere
lieutenant of the PC. The Supreme Court cannot countenance such a statement.
This is still a government of laws and not of men.

COURT:

The mandate of the Bill of Rights is clear:

Q And as a result of that report, you put him under surveillance?

A Yes, sir.
Q In the intelligence report, only the name of Idel Aminnudin was
mentioned?
A Yes, sir.

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.

Q Are you sure of that?

A On the 23rd he will be coming with the woman.
Q So that even before you received the official report on June 23,
1984, you had already gathered information to the effect that Idel
Aminnudin was coming to Iloilo on June 25, 1984?
A Only on the 23rd of June.
Q You did not try to secure a search warrant for the seizure or
search of the subject mentioned in your intelligence report?
A No, more.

In the case at bar, there was no warrant of arrest or search warrant issued by a
judge after personal determination by him of the existence of probable cause.
Contrary to the averments of the government, the accused-appellant was not
caught in flagrante nor was a crime about to be committed or had just been
committed to justify the warrantless arrest allowed under Rule 113 of the Rules
of Court. Even expediency could not be invoked to dispense with the obtention
of the warrant as in the case of Roldan v. Arca, 24 for example. Here it was held
that vessels and aircraft are subject to warrantless searches and seizures for
violation of the customs law because these vehicles may be quickly moved out of
the locality or jurisdiction before the warrant can be secured.
The present case presented no such urgency. From the conflicting declarations
of the PC witnesses, it is clear that they had at least two days within which they
could have obtained a warrant to arrest and search Aminnudin who was coming
to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was Identified.

The date of its arrival was certain. And from the information they had received,
they could have persuaded a judge that there was probable cause, indeed, to
justify the issuance of a warrant. Yet they did nothing. No effort was made to
comply with the law. The Bill of Rights was ignored altogether because the PC
lieutenant who was the head of the arresting team, had determined on his own
authority that a "search warrant was not necessary."
In the many cases where this Court has sustained the warrantless arrest of
violators of the Dangerous Drugs Act, it has always been shown that they were
caught red-handed, as a result of what are popularly called "buy-bust"
operations of the narcotics agents. 25 Rule 113 was clearly applicable because at
the precise time of arrest the accused was in the act of selling the prohibited
drug.
In the case at bar, the accused-appellant was not, at the moment of his arrest,
committing a crime nor was it shown that he was about to do so or that he had
just done so. What he was doing was descending the gangplank of the M/V
Wilcon 9 and there was no outward indication that called for his arrest. To all
appearances, he was like any of the other passengers innocently disembarking
from the vessel. It was only when the informer pointed to him as the carrier of
the marijuana that he suddenly became suspect and so subject to apprehension.
It was the furtive finger that triggered his arrest. The Identification by the
informer was the probable cause as determined by the officers (and not a judge)
that authorized them to pounce upon Aminnudin and immediately arrest him.
Now that we have succeeded in restoring democracy in our country after
fourteen years of the despised dictatorship, when any one could be picked up at
will, detained without charges and punished without trial, we will have only
ourselves to blame if that kind of arbitrariness is allowed to return, to once more
flaunt its disdain of the Constitution and the individual liberties its Bill of Rights
guarantees.

marijuana was seized illegally. It is the fruit of the poisonous tree, to use Justice
Holmes' felicitous phrase. The search was not an incident of a lawful arrest
because there was no warrant of arrest and the warrantless arrest did not come
under the exceptions allowed by the Rules of Court. Hence, the warrantless
search was also illegal and the evidence obtained thereby was inadmissible.
The Court strongly supports the campaign of the government against drug
addiction and commends the efforts of our law-enforcement officers against
those who would inflict this malediction upon our people, especially the
susceptible youth. But as demanding as this campaign may be, it cannot be more
so than the compulsions of the Bill of Rights for the protection of the liberty of
every individual in the realm, including the basest of criminals. The Constitution
covers with the mantle of its protection the innocent and the guilty alike against
any manner of high- handedness from the authorities, however praiseworthy
their intentions.
Those who are supposed to enforce the law are not justified in disregarding the
rights of the individual in the name of order. Order is too high a price for the loss
of liberty. As Justice Holmes, again, said, "I think it a less evil that some criminals
should escape than that the government should play an ignoble part." It is simply
not allowed in the free society to violate a law to enforce another, especially if
the law violated is the Constitution itself.
We find that with the exclusion of the illegally seized marijuana as evidence
against the accused-appellant, his guilt has not been proved beyond reasonable
doubt and he must therefore be discharged on the presumption that he is
innocent.
ACCORDINGLY, the decision of the trial court is REVERSED and the accusedappellant is ACQUITTED. It is so ordered.
Narvasa, Gancayco and Medialdea, JJ., concur.

While this is not to say that the accused-appellant is innocent, for indeed his very
own words suggest that he is lying, that fact alone does not justify a finding that
he is guilty. The constitutional presumption is that he is innocent, and he will be
so declared even if his defense is weak as long as the prosecution is not strong
enough to convict him.
Without the evidence of the marijuana allegedly seized from Aminnudin, the
case of the prosecution must fall. That evidence cannot be admitted, and should
never have been considered by the trial court for the simple fact is that the

G.R. No. 91107

June 19, 1991

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MIKAEL MALMSTEDT, *defendant-appellant.

in the said area was prompted by persistent reports that vehicles coming from
Sagada were transporting marijuana and other prohibited drugs. Moreover,
information was received by the Commanding Officer of NARCOM, that same
morning, that a Caucasian coming from Sagada had in his possession prohibited
drugs.2

The Solicitor General for plaintiff-appellee.

Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for defendantappellant.

The group composed of seven (7) NARCOM officers, in coordination with Tublay
Police Station, set up a checkpoint at the designated area at about 10:00 o'clock
in the morning and inspected all vehicles coming from the Cordillera Region.

PADILLA, J.:

At about 1:30 o'clock in the afternoon, the bus where accused was riding was
stopped. Sgt. Fider and CIC Galutan boarded the bus and announced that they
were members of the NARCOM and that they would conduct an inspection. The
two (2) NARCOM officers started their inspection from the front going towards
the rear of the bus. Accused who was the sole foreigner riding the bus was
seated at the rear thereof.

In an information dated 15 June 1989, accused-appellant Mikael Malmstedt

(hereinafter referred to as the accused) was charged before the Regional Trial
Court (RTC) of La Trinidad, Benguet, Branch 10, in Criminal Case No. 89-CR-0663,
for violation of Section 4, Art. II of Republic Act 6425, as amended, otherwise
known as the Dangerous Drugs Act of 1972, as amended. The factual
background of the case is as follows:
Accused Mikael Malmstedt, a Swedish national, entered the Philippines for the
third time in December 1988 as a tourist. He had visited the country sometime in
1982 and 1985.
In the evening of 7 May 1989, accused left for Baguio City. Upon his arrival
thereat in the morning of the following day, he took a bus to Sagada and stayed
in that place for two (2) days.
At around 7:00 o'clock in the morning of 11 May 1989, accused went to the
Nangonogan bus stop in Sagada to catch the first available trip to Baguio City.
From Baguio City, accused planned to take a late afternoon trip to Angeles City,
then proceed to Manila to catch his flight out of the country, scheduled on 13
May 1989. From Sagada, accused took a Skyline bus with body number 8005 and
Plate number AVC 902.1
At about 8: 00 o'clock in the morning of that same day (11 May 1989), Captain
Alen Vasco, the Commanding Officer of the First Regional Command (NARCOM)
stationed at Camp Dangwa, ordered his men to set up a temporary checkpoint at
Kilometer 14, Acop, Tublay, Mountain Province, for the purpose of checking all
vehicles coming from the Cordillera Region. The order to establish a checkpoint

During the inspection, CIC Galutan noticed a bulge on accused's waist.

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

personal effects of accused and the same were brought to the PC Crime
Laboratory for chemical analysis.
In the chemistry report, it was established that the objects examined were
hashish. a prohibited drug which is a derivative of marijuana. Thus, an
information was filed against accused for violation of the Dangerous Drugs Act.
During the arraignment, accused entered a plea of "not guilty." For his defense,
he raised the issue of illegal search of his personal effects. He also claimed that
the hashish was planted by the NARCOM officers in his pouch bag and that the
two (2) travelling bags were not owned by him, but were merely entrusted to
him by an Australian couple whom he met in Sagada. He further claimed that the
Australian couple intended to take the same bus with him but because there
were no more seats available in said bus, they decided to take the next ride and
asked accused to take charge of the bags, and that they would meet each other
at the Dangwa Station.
Likewise, accused alleged that when the NARCOM officers demanded for his
passport and other Identification papers, he handed to one of the officers his
pouch bag which was hanging on his neck containing, among others, his
passport, return ticket to Sweden and other papers. The officer in turn handed it
to his companion who brought the bag outside the bus. When said officer came
back, he charged the accused that there was hashish in the bag. He was told to
get off the bus and his picture was taken with the pouch bag placed around his
neck. The trial court did not give credence to accused's defense.
The claim of the accused that the hashish was planted by the NARCOM officers,
was belied by his failure to raise such defense at the earliest opportunity. When
accused was investigated at the Provincial Fiscal's Office, he did not inform the
Fiscal or his lawyer that the hashish was planted by the NARCOM officers in his
bag. It was only two (2) months after said investigation when he told his lawyer
about said claim, denying ownership of the two (2) travelling bags as well as
having hashish in his pouch bag.
In a decision dated 12 October 1989, the trial court found accused guilty beyond
reasonable doubt for violation of the Dangerous Drugs Act, specifically Section 4,
Art. II of RA 6425, as amended.3 The dispositive portion of the decision reads as
follows:
WHEREFORE, finding the guilt of the accused Mikael Malmstedt
established beyond reasonable doubt, this Court finds him GUILTY of

violation of Section 4, Article 11 of Republic Act 6425, as amended, and

hereby sentences him to suffer the penalty of life imprisonment and to
pay a fine of Twenty Thousand Pesos (P20,000.00), with subsidiary
imprisonment in case of insolvency and to pay the costs.
Let the hashish subject of this case be turned over to the First Narcotics
Regional Unit at Camp Bado; Dangwa, La Trinidad Benguet for proper
disposition under Section 20, Article IV of Republic Act 6425, as
amended.
SO ORDERED.4
Seeking the reversal of the decision of the trial court finding him guilty of the
crime charged, accused argues that the search of his personal effects was illegal
because it was made without a search warrant and, therefore, the prohibited
drugs which were discovered during the illegal search are not admissible as
evidence against him.
The Constitution guarantees the right of the people to be secure in their
persons, houses, papers and effects against unreasonable searches and
seizures.5 However, where the search is made pursuant to a lawful arrest, there
is no need to obtain a search warrant. A lawful arrest without a warrant may be
made by a peace officer or a private person under the following circumstances.6
Sec. 5 Arrest without warrant; when lawful. A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested
has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from
a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police

station or jail, and he shall be proceeded against in accordance with

Rule 112, Section 7. (6a 17a).
Accused was searched and arrested while transporting prohibited drugs
(hashish). A crime was actually being committed by the accused and he was
caught in flagrante delicto. Thus, the search made upon his personal effects falls
squarely under paragraph (1) of the foregoing provisions of law, which allow a
warrantless search incident to a lawful arrest.7
While it is true that the NARCOM officers were not armed with a search warrant
when the search was made over the personal effects of accused, however, under
the circumstances of the case, there was sufficient probable cause for said
officers to believe that accused was then and there committing a crime.
Probable cause has been defined as such facts and circumstances which could
lead a reasonable, discreet and prudent man to believe that an offense has been
committed, and that the objects sought in connection with the offense are in the
place sought to be searched.8 The required probable cause that will justify a
warrantless search and seizure is not determined by any fixed formula but is
resolved according to the facts of each case.9
Warrantless search of the personal effects of an accused has been declared by
this Court as valid, because of existence of probable cause, where the smell of
marijuana emanated from a plastic bag owned by the accused,10 or where the
accused was acting suspiciously,11 and attempted to flee.12
Aside from the persistent reports received by the NARCOM that vehicles coming
from Sagada were transporting marijuana and other prohibited drugs, their
Commanding Officer also received information that a Caucasian coming from
Sagada on that particular day had prohibited drugs in his possession. Said
information was received by the Commanding Officer of NARCOM the very same
morning that accused came down by bus from Sagada on his way to Baguio City.
When NARCOM received the information, a few hours before the apprehension
of herein accused, that a Caucasian travelling from Sagada to Baguio City was
carrying with him prohibited drugs, there was no time to obtain a search
warrant. In the Tangliben case,13 the police authorities conducted a surveillance
at the Victory Liner Terminal located at Bgy. San Nicolas, San Fernando
Pampanga, against persons engaged in the traffic of dangerous drugs, based on
information supplied by some informers. Accused Tangliben who was acting
suspiciously and pointed out by an informer was apprehended and searched by

the police authorities. It was held that when faced with on-the-spot information,
the police officers had to act quickly and there was no time to secure a search
warrant.
It must be observed that, at first, the NARCOM officers merely conducted a
routine check of the bus (where accused was riding) and the passengers therein,
and no extensive search was initially made. It was only when one of the officers
noticed a bulge on the waist of accused, during the course of the inspection, that
accused was required to present his passport. The failure of accused to present
his identification papers, when ordered to do so, only managed to arouse the
suspicion of the officer that accused was trying to hide his identity. For is it not a
regular norm for an innocent man, who has nothing to hide from the authorities,
to readily present his identification papers when required to do so?
The receipt of information by NARCOM that a Caucasian coming from Sagada
had prohibited drugs in his possession, plus the suspicious failure of the accused
to produce his passport, taken together as a whole, led the NARCOM officers to
reasonably believe that the accused was trying to hide something illegal from the
authorities. From these circumstances arose a probable cause which justified the
warrantless search that was made on the personal effects of the accused. In
other words, the acts of the NARCOM officers in requiring the accused to open
his pouch bag and in opening one of the wrapped objects found inside said bag
(which was discovered to contain hashish) as well as the two (2) travelling bags
containing two (2) teddy bears with hashish stuffed inside them, were prompted
by accused's own attempt to hide his identity by refusing to present his passport,
and by the information received by the NARCOM that a Caucasian coming from
Sagada had prohibited drugs in his possession. To deprive the NARCOM agents
of the ability and facility to act accordingly, including, to search even without
warrant, in the light of such circumstances, would be to sanction impotence and
ineffectiveness in law enforcement, to the detriment of society.
WHEREFORE, premises considered, the appealed judgment of conviction by the
trial court is hereby AFFIRMED. Costs against the accused-appellant.
SO ORDERED.
Melencio-Herrera, Paras, Feliciano, Bidin, Grio-Aquino, Medialdea, Regalado
and Davide, Jr., JJ., concur.
Sarmiento, J., is on leave.

G.R. No. 197788

February 29, 2012

RODEL LUZ y ONG, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES,1 Respondent.
DECISION
SERENO, J.:
This is a Petition for Review on Certiorari under Rule 45 seeking to set aside the
Court of Appeals (CA) Decision in CA-G.R. CR No. 32516 dated 18 February 20112
and Resolution dated 8 July 2011.
Statement of the Facts and of the Case
The facts, as found by the Regional Trial Court (RTC), which sustained the version
of the prosecution, are as follows:
PO2 Emmanuel L. Alteza, who was then assigned at the Sub-Station 1 of the
Naga City Police Station as a traffic enforcer, substantially testified that on March
10, 2003 at around 3:00 oclock in the morning, he saw the accused, who was
coming from the direction of Panganiban Drive and going to Diversion Road,
Naga City, driving a motorcycle without a helmet; that this prompted him to flag
down the accused for violating a municipal ordinance which requires all
motorcycle drivers to wear helmet (sic) while driving said motor vehicle; that he
invited the accused to come inside their sub-station since the place where he
flagged down the accused is almost in front of the said sub-station; that while he
and SPO1 Rayford Brillante were issuing a citation ticket for violation of
municipal ordinance, he noticed that the accused was uneasy and kept on
getting something from his jacket; that he was alerted and so, he told the
accused to take out the contents of the pocket of his jacket as the latter may
have a weapon inside it; that the accused obliged and slowly put out the
contents of the pocket of his jacket which was a nickel-like tin or metal container
about two (2) to three (3) inches in size, including two (2) cellphones, one (1)
pair of scissors and one (1) Swiss knife; that upon seeing the said container, he
asked the accused to open it; that after the accused opened the container, he
noticed a cartoon cover and something beneath it; and that upon his instruction,
the accused spilled out the contents of the container on the table which turned
out to be four (4) plastic sachets, the two (2) of which were empty while the
other two (2) contained suspected shabu.3

Arraigned on 2 July 2003, petitioner, assisted by counsel, entered a plea of "Not

guilty" to the charge of illegal possession of dangerous drugs. Pretrial was
terminated on 24 September 2003, after which, trial ensued.
During trial, Police Officer 3 (PO3) Emmanuel Alteza and a forensic chemist
testified for the prosecution. On the other hand, petitioner testified for himself
and raised the defense of planting of evidence and extortion.
In its 19 February 2009 Decision,4 the RTC convicted petitioner of illegal
possession of dangerous drugs5 committed on 10 March 2003. It found the
prosecution evidence sufficient to show that he had been lawfully arrested for a
traffic violation and then subjected to a valid search, which led to the discovery
on his person of two plastic sachets later found to contain shabu. The RTC also
found his defense of frame-up and extortion to be weak, self-serving and
unsubstantiated. The dispositive portion of its Decision held:
WHEREFORE, judgment is hereby rendered, finding accused RODEL LUZ y ONG
GUILTY beyond reasonable doubt for the crime of violation of Section 11, Article
II of Republic Act No. 9165 and sentencing him to suffer the indeterminate
penalty of imprisonment ranging from twelve (12) years and (1) day, as
minimum, to thirteen (13) years, as maximum, and to pay a fine of Three
Hundred Thousand Pesos (P 300,000.00).
The subject shabu is hereby confiscated for turn over to the Philippine Drug
Enforcement Agency for its proper disposition and destruction in accordance
with law.
SO ORDERED.6
Upon review, the CA affirmed the RTCs Decision.
On 12 September 2011, petitioner filed under Rule 45 the instant Petition for
Review on Certiorari dated 1 September 2011. In a Resolution dated 12 October
2011, this Court required respondent to file a comment on the Petition. On 4
January 2012, the latter filed its Comment dated 3 January 2012.
Petitioner raised the following grounds in support of his Petition:
(i) THE SEARCH AND SEIZURE OF THE ALLEGED SUBJECT SHABU IS
INVALID.

(ii) THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF DUTY

OF THE POLICE OFFICER CANNOT BE RELIED UPON IN THIS CASE.
(iii) THE INTEGRITY AND EVIDENTIARY VALUE OF THE ALLEGED SUBJECT
SPECIMEN HAS BEEN COMPROMISED.
(iv) THE GUILT OF THE ACCUSED-PETITIONER WAS NOT PROVEN
BEYOND THE REASONABLE DOUBT (sic).7
Petitioner claims that there was no lawful search and seizure, because there was
no lawful arrest. He claims that the finding that there was a lawful arrest was
erroneous, since he was not even issued a citation ticket or charged with
violation of the city ordinance. Even assuming there was a valid arrest, he claims
that he had never consented to the search conducted upon him.
On the other hand, finding that petitioner had been lawfully arrested, the RTC
held thus:
It is beyond dispute that the accused was flagged down and apprehended in this
case by Police Officers Alteza and Brillante for violation of City Ordinance No. 98012, an ordinance requiring the use of crash helmet by motorcycle drivers and
riders thereon in the City of Naga and prescribing penalties for violation thereof.
The accused himself admitted that he was not wearing a helmet at the time
when he was flagged down by the said police officers, albeit he had a helmet in
his possession. Obviously, there is legal basis on the part of the apprehending
officers to flag down and arrest the accused because the latter was actually
committing a crime in their presence, that is, a violation of City Ordinance No.
98-012. In other words, the accused, being caught in flagrante delicto violating
the said Ordinance, he could therefore be lawfully stopped or arrested by the
apprehending officers. x x x.8
We find the Petition to be impressed with merit, but not for the particular
reasons alleged. In criminal cases, an appeal throws the entire case wide open
for review and the reviewing tribunal can correct errors, though unassigned in
the appealed judgment, or even reverse the trial courts decision based on
grounds other than those that the parties raised as errors.9
First, there was no valid arrest of petitioner. When he was flagged down for
committing a traffic violation, he was not, ipso facto and solely for this reason,
arrested.

Arrest is the taking of a person into custody in order that he or she may be
bound to answer for the commission of an offense.10 It is effected by an actual
restraint of the person to be arrested or by that persons voluntary submission
to the custody of the one making the arrest. Neither the application of actual
force, manual touching of the body, or physical restraint, nor a formal
declaration of arrest, is required. It is enough that there be an intention on the
part of one of the parties to arrest the other, and that there be an intent on the
part of the other to submit, under the belief and impression that submission is
necessary.11
Under R.A. 4136, or the Land Transportation and Traffic Code, the general
procedure for dealing with a traffic violation is not the arrest of the offender, but
the confiscation of the drivers license of the latter:
SECTION 29. Confiscation of Driver's License. Law enforcement and peace
officers of other agencies duly deputized by the Director shall, in apprehending a
driver for any violation of this Act or any regulations issued pursuant thereto, or
of local traffic rules and regulations not contrary to any provisions of this Act,
confiscate the license of the driver concerned and issue a receipt prescribed and
issued by the Bureau therefor which shall authorize the driver to operate a
motor vehicle for a period not exceeding seventy-two hours from the time and
date of issue of said receipt. The period so fixed in the receipt shall not be
extended, and shall become invalid thereafter. Failure of the driver to settle his
case within fifteen days from the date of apprehension will be a ground for the
suspension and/or revocation of his license.
Similarly, the Philippine National Police (PNP) Operations Manual 12 provides the
following procedure for flagging down vehicles during the conduct of
checkpoints:
SECTION 7. Procedure in Flagging Down or Accosting Vehicles While in Mobile
Car. This rule is a general concept and will not apply in hot pursuit operations.
The mobile car crew shall undertake the following, when applicable: x x x
m. If it concerns traffic violations, immediately issue a Traffic Citation Ticket
(TCT) or Traffic Violation Report (TVR). Never indulge in prolonged, unnecessary
conversation or argument with the driver or any of the vehicles occupants;
At the time that he was waiting for PO3 Alteza to write his citation ticket,
petitioner could not be said to have been "under arrest." There was no intention
on the part of PO3 Alteza to arrest him, deprive him of his liberty, or take him

into custody. Prior to the issuance of the ticket, the period during which
petitioner was at the police station may be characterized merely as waiting time.
In fact, as found by the trial court, PO3 Alteza himself testified that the only
reason they went to the police sub-station was that petitioner had been flagged
down "almost in front" of that place. Hence, it was only for the sake of
convenience that they were waiting there. There was no intention to take
petitioner into custody.
In Berkemer v. McCarty,13 the United States (U.S.) Supreme Court discussed at
length whether the roadside questioning of a motorist detained pursuant to a
routine traffic stop should be considered custodial interrogation. The Court held
that, such questioning does not fall under custodial interrogation, nor can it be
considered a formal arrest, by virtue of the nature of the questioning, the
expectations of the motorist and the officer, and the length of time the
procedure is conducted. It ruled as follows:
It must be acknowledged at the outset that a traffic stop significantly curtails the
"freedom of action" of the driver and the passengers, if any, of the detained
vehicle. Under the law of most States, it is a crime either to ignore a policemans
signal to stop ones car or, once having stopped, to drive away without
permission. x x x
However, we decline to accord talismanic power to the phrase in the Miranda
opinion emphasized by respondent. Fidelity to the doctrine announced in
Miranda requires that it be enforced strictly, but only in those types of situations
in which the concerns that powered the decision are implicated. Thus, we must
decide whether a traffic stop exerts upon a detained person pressures that
sufficiently impair his free exercise of his privilege against self-incrimination to
require that he be warned of his constitutional rights.
Two features of an ordinary traffic stop mitigate the danger that a person
questioned will be induced "to speak where he would not otherwise do so
freely," Miranda v. Arizona, 384 U. S., at 467. First, detention of a motorist
pursuant to a traffic stop is presumptively temporary and brief. The vast majority
of roadside detentions last only a few minutes. A motorists expectations, when
he sees a policemans light flashing behind him, are that he will be obliged to
spend a short period of time answering questions and waiting while the officer
checks his license and registration, that he may then be given a citation, but that
in the end he most likely will be allowed to continue on his way. In this respect,
questioning incident to an ordinary traffic stop is quite different from
stationhouse interrogation, which frequently is prolonged, and in which the

detainee often is aware that questioning will continue until he provides his
interrogators the answers they seek. See id., at 451.
Second, circumstances associated with the typical traffic stop are not such that
the motorist feels completely at the mercy of the police. To be sure, the aura of
authority surrounding an armed, uniformed officer and the knowledge that the
officer has some discretion in deciding whether to issue a citation, in
combination, exert some pressure on the detainee to respond to questions. But
other aspects of the situation substantially offset these forces. Perhaps most
importantly, the typical traffic stop is public, at least to some degree. x x x
In both of these respects, the usual traffic stop is more analogous to a so-called
"Terry stop," see Terry v. Ohio, 392 U. S. 1 (1968), than to a formal arrest. x x x
The comparatively nonthreatening character of detentions of this sort explains
the absence of any suggestion in our opinions that Terry stops are subject to the
dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops
prompts us to hold that persons temporarily detained pursuant to such stops are
not "in custody" for the purposes of Miranda.
xxx

xxx

xxx

We are confident that the state of affairs projected by respondent will not come
to pass. It is settled that the safeguards prescribed by Miranda become
applicable as soon as a suspects freedom of action is curtailed to a "degree
associated with formal arrest." California v. Beheler, 463 U. S. 1121, 1125 (1983)
(per curiam). If a motorist who has been detained pursuant to a traffic stop
thereafter is subjected to treatment that renders him "in custody" for practical
purposes, he will be entitled to the full panoply of protections prescribed by
Miranda. See Oregon v. Mathiason, 429 U. S. 492, 495 (1977) (per curiam).
(Emphasis supplied.)
The U.S. Court in Berkemer thus ruled that, since the motorist therein was only
subjected to modest questions while still at the scene of the traffic stop, he was
not at that moment placed under custody (such that he should have been
apprised of his Miranda rights), and neither can treatment of this sort be fairly
characterized as the functional equivalent of a formal arrest. Similarly, neither
can petitioner here be considered "under arrest" at the time that his traffic
citation was being made.
It also appears that, according to City Ordinance No. 98-012, which was violated
by petitioner, the failure to wear a crash helmet while riding a motorcycle is

penalized by a fine only. Under the Rules of Court, a warrant of arrest need not
be issued if the information or charge was filed for an offense penalized by a fine
only. It may be stated as a corollary that neither can a warrantless arrest be
made for such an offense.
This ruling does not imply that there can be no arrest for a traffic violation.
Certainly, when there is an intent on the part of the police officer to deprive the
motorist of liberty, or to take the latter into custody, the former may be deemed
to have arrested the motorist. In this case, however, the officers issuance (or
intent to issue) a traffic citation ticket negates the possibility of an arrest for the
same violation.
Even if one were to work under the assumption that petitioner was deemed
"arrested" upon being flagged down for a traffic violation and while awaiting the
issuance of his ticket, then the requirements for a valid arrest were not complied
with.
This Court has held that at the time a person is arrested, it shall be the duty of
the arresting officer to inform the latter of the reason for the arrest and must
show that person the warrant of arrest, if any. Persons shall be informed of their
constitutional rights to remain silent and to counsel, and that any statement
they might make could be used against them.14 It may also be noted that in this
case, these constitutional requirements were complied with by the police
officers only after petitioner had been arrested for illegal possession of
dangerous drugs.
In Berkemer, the U.S. Court also noted that the Miranda warnings must also be
given to a person apprehended due to a traffic violation:
The purposes of the safeguards prescribed by Miranda are to ensure that the
police do not coerce or trick captive suspects into confessing, to relieve the
"inherently compelling pressures" "generated by the custodial setting itself,"
"which work to undermine the individuals will to resist," and as much as
possible to free courts from the task of scrutinizing individual cases to try to
determine, after the fact, whether particular confessions were voluntary. Those
purposes are implicated as much by in-custody questioning of persons suspected
of misdemeanors as they are by questioning of persons suspected of felonies.
If it were true that petitioner was already deemed "arrested" when he was
flagged down for a traffic violation and while he waiting for his ticket, then there
would have been no need for him to be arrested for a second timeafter the

police officers allegedly discovered the drugsas he was already in their

custody.
Second, there being no valid arrest, the warrantless search that resulted from it
was likewise illegal.
The following are the instances when a warrantless search is allowed: (i) a
warrantless search incidental to a lawful arrest; (ii) search of evidence in "plain
view;" (iii) search of a moving vehicle; (iv) consented warrantless search; (v)
customs search; (vi) a "stop and frisk" search; and (vii) exigent and emergency
circumstances.15 None of the above-mentioned instances, especially a search
incident to a lawful arrest, are applicable to this case.
It must be noted that the evidence seized, although alleged to be inadvertently
discovered, was not in "plain view." It was actually concealed inside a metal
container inside petitioners pocket. Clearly, the evidence was not immediately
apparent.16
Neither was there a consented warrantless search. Consent to a search is not to
be lightly inferred, but shown by clear and convincing evidence.17 It must be
voluntary in order to validate an otherwise illegal search; that is, the consent
must be unequivocal, specific, intelligently given and uncontaminated by any
duress or coercion. While the prosecution claims that petitioner acceded to the
instruction of PO3 Alteza, this alleged accession does not suffice to prove valid
and intelligent consent. In fact, the RTC found that petitioner was merely "told"
to take out the contents of his pocket.18
Whether consent to the search was in fact voluntary is a question of fact to be
determined from the totality of all the circumstances. Relevant to this
determination are the following characteristics of the person giving consent and
the environment in which consent is given: (1) the age of the defendant; (2)
whether the defendant was in a public or a secluded location; (3) whether the
defendant objected to the search or passively looked on; (4) the education and
intelligence of the defendant; (5) the presence of coercive police procedures; (6)
the defendants belief that no incriminating evidence would be found; (7) the
nature of the police questioning; (8) the environment in which the questioning
took place; and (9) the possibly vulnerable subjective state of the person
consenting. It is the State that has the burden of proving, by clear and positive
testimony, that the necessary consent was obtained, and was freely and
voluntarily given.19 In this case, all that was alleged was that petitioner was alone
at the police station at three in the morning, accompanied by several police

officers. These circumstances weigh heavily against a finding of valid consent to

a warrantless search.
Neither does the search qualify under the "stop and frisk" rule. While the rule
normally applies when a police officer observes suspicious or unusual conduct,
which may lead him to believe that a criminal act may be afoot, the stop and
frisk is merely a limited protective search of outer clothing for weapons.20
In Knowles v. Iowa,21 the U.S. Supreme Court held that when a police officer
stops a person for speeding and correspondingly issues a citation instead of
arresting the latter, this procedure does not authorize the officer to conduct a
full search of the car. The Court therein held that there was no justification for a
full-blown search when the officer does not arrest the motorist. Instead, police
officers may only conduct minimal intrusions, such as ordering the motorist to
alight from the car or doing a patdown:
In Robinson, supra, we noted the two historical rationales for the "search
incident to arrest" exception: (1) the need to disarm the suspect in order to take
him into custody, and (2) the need to preserve evidence for later use at trial. x x
x But neither of these underlying rationales for the search incident to arrest
exception is sufficient to justify the search in the present case.
We have recognized that the first rationaleofficer safetyis "both legitimate
and weighty," x x x The threat to officer safety from issuing a traffic citation,
however, is a good deal less than in the case of a custodial arrest. In Robinson,
we stated that a custodial arrest involves "danger to an officer" because of "the
extended exposure which follows the taking of a suspect into custody and
transporting him to the police station." 414 U. S., at 234-235. We recognized
that "[t]he danger to the police officer flows from the fact of the arrest, and its
attendant proximity, stress, and uncertainty, and not from the grounds for
arrest." Id., at 234, n. 5. A routine traffic stop, on the other hand, is a relatively
brief encounter and "is more analogous to a so-called Terry stop . . . than to a
formal arrest." Berkemer v. McCarty, 468 U. S. 420, 439 (1984). See also Cupp v.
Murphy, 412 U. S. 291, 296 (1973) ("Where there is no formal arrest . . . a person
might well be less hostile to the police and less likely to take conspicuous,
immediate steps to destroy incriminating evidence").
This is not to say that the concern for officer safety is absent in the case of a
routine traffic stop.1wphi1 It plainly is not. See Mimms, supra, at 110; Wilson,
supra, at 413-414. But while the concern for officer safety in this context may
justify the "minimal" additional intrusion of ordering a driver and passengers out

of the car, it does not by itself justify the often considerably greater intrusion
attending a full fieldtype search. Even without the search authority Iowa urges,
officers have other, independent bases to search for weapons and protect
themselves from danger. For example, they may order out of a vehicle both the
driver, Mimms, supra, at 111, and any passengers, Wilson, supra, at 414;
perform a "patdown" of a driver and any passengers upon reasonable suspicion
that they may be armed and dangerous, Terry v. Ohio, 392 U. S. 1 (1968);
conduct a "Terry patdown" of the passenger compartment of a vehicle upon
reasonable suspicion that an occupant is dangerous and may gain immediate
control of a weapon, Michigan v. Long, 463 U. S. 1032, 1049 (1983); and even
conduct a full search of the passenger compartment, including any containers
therein, pursuant to a custodial arrest, New York v. Belton, 453 U. S. 454, 460
(1981).
Nor has Iowa shown the second justification for the authority to search incident
to arrestthe need to discover and preserve evidence. Once Knowles was
stopped for speeding and issued a citation, all the evidence necessary to
prosecute that offense had been obtained. No further evidence of excessive
speed was going to be found either on the person of the offender or in the
passenger compartment of the car. (Emphasis supplied.)
The foregoing considered, petitioner must be acquitted. While he may have
failed to object to the illegality of his arrest at the earliest opportunity, a waiver
of an illegal warrantless arrest does not, however, mean a waiver of the
inadmissibility of evidence seized during the illegal warrantless arrest. 22
The Constitution guarantees the right of the people to be secure in their
persons, houses, papers and effects against unreasonable searches and
seizures.23 Any evidence obtained in violation of said right shall be inadmissible
for any purpose in any proceeding. While the power to search and seize may at
times be necessary to the public welfare, still it must be exercised and the law
implemented without contravening the constitutional rights of citizens, for the
enforcement of no statute is of sufficient importance to justify indifference to
the basic principles of government.24
The subject items seized during the illegal arrest are inadmissible.25 The drugs
are the very corpus delicti of the crime of illegal possession of dangerous drugs.
Thus, their inadmissibility precludes conviction and calls for the acquittal of the
accused.26

WHEREFORE, the Petition is GRANTED. The 18 February 2011 Decision of the

Court of Appeals in CA-G.R. CR No. 32516 affirming the judgment of conviction
dated 19 February 2009 of the Regional Trial Court, 5th Judicial Region, Naga
City, Branch 21, in Criminal Case No. RTC 2003-0087, is hereby REVERSED and
SET ASIDE. Petitioner Rodel Luz y Ong is hereby ACQUITTED and ordered
immediately released from detention, unless his continued confinement is
warranted by some other cause or ground.
SO ORDERED.

G.R. No. 120431 April 1, 1998

RODOLFO ESPANO, accused-petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

ROMERO, J.:
This is a petition for review of the decision of the Court of Appeals in CA-G.R. CR
No. 13976 dated January 16, 1995, 1 which affirmed in toto the judgment of the
Regional Trial Court of Manila, Branch 1, convincing petitioner Rodolfo Espano
for violation of Article II, Section 8 of Republic Act No. 6425, as amended,
otherwise known as the Dangerous Drugs Act.
Petitioner was charged under the following information:
That on or about July 14, 1991, in the City of Manila, Philippines, the
said accused not being authorized by law to possess or use any
prohibited drug, did then and there willfully, unlawfully and knowingly
have in his possession and under his custody and control twelve (12)
plastic cellophane (bags) containing crushed flowering tops, marijuana
weighing 5.5 grams which is a prohibited drug.
Contrary to law. 2
The evidence for the prosecution, based on the testimony of Pat. Romeo
Pagilagan, shows that on July 14, 1991, at about 12:30 a.m., he and other police
officers, namely, Pat. Wilfredo Aquino, Simplicio Rivera, and Erlindo Lumboy of
the Western Police District (WPD), Narcotics Division went to Zamora and
Pandacan Streets, Manila to confirm reports of drug pushing in the area. They
saw petitioner selling "something" to another person. After the alleged buyer
left, they approached petitioner, identified themselves as policemen, and frisked
him. The search yielded two plastic cellophane tea bags of marijuana. When
asked if he had more marijuana, he replied that there was more in his house.
The policemen went to his residence where they found ten more cellophane tea
bags of marijuana. Petitioner was brought to the police headquarters where he
was charged with possession of prohibited drugs. On July 24, 1991, petitioner
posted bail 3 and the trial court issued his order of release on July 29, 1991. 4

Annabelle Alip, forensic chemist of the WPD Criminal Investigation Laboratory

Section, testified that the articles sent to her by Pat. Wilfredo Aquino regarding
the apprehension of a certain Rodolfo Espano for examination tested positive for
marijuana, with a total weight of 5.5 grams.
By way of defense, petitioner testified that on said evening, he was sleeping in
his house and was awakened only when the policemen handcuffed him. He
alleged that the policemen were looking for his brother-in-law Lauro, and when
they could not find the latter, he was instead brought to the police station for
investigation and later indicted for possession of prohibited drugs. His wife
Myrna corroborated his story.
The trial court rejected petitioner's, defense as a "mere afterthought" and found
the version of the prosecution "more credible and trustworthy."
Thus, on August 14, 1992, the trial court rendered a decision, convicting
petitioner of the crime charged, the dispositive portion of which reads:
WHEREFORE there being proof beyond reasonable doubt, the court
finds the accused Rodolfo Espano y Valeria guilty of the crime of
violation of Section 8, Article II, in relation to Section 2 (e-L) (I) of
Republic Act No. 6425 as amended by Batas Pambansa Blg. 179, and
pursuant to law hereby sentences him to suffer imprisonment of six (6)
years and one (1) day to twelve (12) years and to pay a fine of P6,000.00
with subsidiary imprisonment in case of default plus costs.
The marijuana is declared forfeited in favor of government and shall be
turned over to the Dangerous Drugs Board without delay.
SO ORDERED. 5
Petitioner appealed the decision to the Court of Appeals. The appellate court,
however, affirmed the decision of the trial court in toto.
Hence, this petition.
Petitioner contends that the trial and appellate courts erred in convicting him on
the basis of the following: (a) the pieces of evidence seized were inadmissible;
(b) the superiority of his constitutional right to be presumed innocent over the
doctrine of presumption of regularity, (c) he was denied the constitutional right

of confrontation and to compulsory process; and (d) his conviction was based on
evidence which was irrelevant and not properly identified.
After a careful examination of the records of the case, this Court finds no
compelling reason sufficient to reverse the decisions of the trial and appellate
courts.
First, it is a well settled doctrine that findings of trial courts on the credibility of
witnesses deserve a high degree of respect. Having observed the deportment of
witnesses during the trial, the trial judge is in a better position to determine the
issue of credibility and, thus, his findings will not be disturbed during appeal in
the absence of any clear showing that he had overlooked, misunderstood or
misapplied some facts or circumstances of weight and substance which could
have altered the conviction of the appellants. 6
In this case, the findings of the trial court that the prosecution witnesses were
more credible than those of the defense must stand. Petitioner failed to show
that Pat. Pagilagan, in testifying against him, was motivated by reasons other
than his duty to curb drug abuse and had any intent to falsely impute to him
such a serious crime as possession of prohibited drugs. In the absence of such ill
motive, the presumption of regularity in the performance of his official duty
must prevail.
In People v. Velasco, 7 this Court reiterated the doctrine of presumption of
regularity in the performance of official duty which provides:
. . . Appellant failed to establish that Pat. Godoy and the other members
of the buy-bust team are policemen engaged in mulcting or other
unscrupulous activities who were motivated either by the desire to
extort money or exact personal vengeance, or by sheer whim and
caprice, when they entrapped her. And in the absence of proof of any
intent on the part of the police authorities to falsely impute such a
serious crime against appellant, as in this case, the presumption of
regularity in the performance of official duty, . . . , must prevail over the
self-serving and uncorroborated claim of appellant that she had been
framed. 8
Furthermore, the defense set up by petitioner does not deserve any
consideration. He simply contended that he was in his house sleeping at the time
of the incident. This Court has consistently held that alibi is the weakest of all
defenses; and for it to prosper, the accused has the burden of proving that he

was not at the scene of the crime at the time of its commission and that it was
physically impossible for him to be there. Moreover, the "claim of a 'frame-up',
like alibi, is a defense that has been invariably viewed by the Court with disfavor
for it can just as easily be concocted but difficult to prove, and is a common and
standard line of defense in most prosecutions arising from violations of the
Dangerous Drugs Act." 9 No clear and convincing evidence was presented by
petitioner to prove his defense of alibi.
Second, petitioner contends that the prosecution's failure to present the alleged
informant in court cast a reasonable doubt which warrants his acquittal. This is
again without merit, since failure of the prosecution to produce the informant in
court is of no moment especially when he is not even the best witness to
establish the fact that a buy-bust operation had indeed been conducted. In this
case, Pat. Pagilagan, one of the policemen who apprehended petitioner, testified
on the actual incident of July 14, 1991, and identified him as the one they caught
in possession of prohibited drugs. Thus,
We find that the prosecution had satisfactorily proved its case against
appellants. There is no compelling reason for us to overturn the finding
of the trial court that the testimony of Sgt. Gamboa, the lone witness for
the prosecution, was straightforward spontaneous and convincing. The
testimony of a sole witness, if credible and positive and satisfies the
court beyond reasonable doubt, is sufficient to convict. 10
Thus on the basis of Pat. Pagilagan's testimony, the prosecution was able to
prove that petitioner indeed committed the crime charged; consequently, the
finding of conviction was proper.
Lastly, the issue on the admissibility of the marijuana seized should likewise be
ruled upon. Rule 113 Section 5(a) of the Rules of Court provides:
A peace officer or a private person may, without a warrant, arrest a
person:
a. when, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
xxx xxx xxx
Petitioner's arrest falls squarely under the aforecited rule. He was caught in
flagranti as a result of a buy-bust operation conducted by police officers on the

basis of information received regarding the illegal trade of drugs within the area
of Zamora and Pandacan Streets, Manila. The police officer saw petitioner
handing over something to an alleged buyer. After the buyer left, they searched
him and discovered two cellophanes of marijuana. His arrest was, therefore,
lawful and the two cellophane bags of marijuana seized were admissible in
evidence, being the fruits of the crime.
As for the ten cellophane bags of marijuana found at petitioner's residence,
however, the same are inadmissible in evidence.
The 1987 Constitution guarantees freedom against unreasonable searches and
seizures under Article III, Section 2 which provides:
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.
An exception to the said rule is a warrantless search incidental to a lawful arrest
for dangerous weapons or anything which may be used as proof of the
commission of an offense. 11 It may extend beyond the person of the one
arrested to include the premises or surroundings under his immediate control. In
this case, the ten cellophane bags of marijuana seized at petitioner's house after
his arrest at Pandacan and Zamora Streets do not fall under the said exceptions.
In the case of People v. Lua, 12 this Court held:
As regards the brick of marijuana found inside the appellant's house, the
trial court correctly ignored it apparently in view of its inadmissibility.
While initially the arrest as well as the body search was lawful, the
warrantless search made inside the appellant's house became unlawful
since the police operatives were not armed with a search warrant. Such
search cannot fall under "search made incidental to a lawful arrest," the
same being limited to body search and to that point within reach or
control of the person arrested, or that which may furnish him with the
means of committing violence or of escaping. In the case at bar,
appellant was admittedly outside his house when he was arrested.

Hence, it can hardly be said that the inner portion of his house was
within his reach or control.
The articles seized from petitioner during his arrest were valid under the
doctrine of search made incidental to a lawful arrest. The warrantless search
made in his house, however, which yielded ten cellophane bags of marijuana
became unlawful since the police officers were not armed with a search warrant
at the time. Moreover, it was beyond the reach and control of petitioner.
In sum, this Court finds petitioner Rodolfo Espano guilty beyond reasonable
doubt of violating Article II, Section 8, in relation to Section 2 (e-L) (I) of Republic
Act No. 6425, as amended. Under the said provision, the penalty imposed is six
years and one day to twelve years and a fine ranging from six thousand to twelve
thousand pesos. With the passage of Republic Act No. 7659, which took effect
on December 31, 1993, the imposable penalty shall now depend on the quantity
of drugs recovered. Under the provisions of Republic Act No. 7629, Section 20,
and as interpreted in People v. Simon 13 and People v. Lara, 14 if the quantity of
marijuana involved is less than 750 grams, the imposable penalty ranges from
prision correccional to reclusion temporal. Taking into consideration that
petitioner is not a habitual delinquent, the amendatory provision is favorable to
him and the quantity of marijuana involved is less than 750 grams, the penalty
imposed under Republic Act No. 7659 should be applied. There being no
mitigating nor aggravating circumstances, the imposable penalty shall be prision
correccional in its medium period. Applying the Indeterminate Sentence Law, the
maximum penalty shall be taken from the medium period of prision correccional,
which is two (2) years, four (4) months and one (1) day to four (4) years and two
(2) months, while the minimum shall be taken from the penalty next lower in
degree, which is one (1) month and one (1) day to six (6) months of arresto
mayor.
WHEREFORE, the instant petition is hereby DENIED. The decision of the Court of
Appeals in C.A.-G.R. CR No. 13976 dated January 16, 1995 is AFFIRMED with the
MODIFICATION that petitioner Rodolfo Espano is sentenced to suffer an
indeterminate penalty of TWO (2) months and ONE (1) day of arresto mayor, as
minimum to TWO (2) years, FOUR (4) months and ONE (1) day of prision
correccional, as maximum.
SO ORDERED.
Narvasa, C.J., Kapunan and Purisima, JJ., concur.

G.R. No. 163858

June 28, 2005

UNITED LABORATORIES, INC., petitioner,

vs.
ERNESTO ISIP and/or SHALIMAR PHILIPPINES and/or OCCUPANTS, Shalimar
Building, No. 1571, Aragon Street, Sta. Cruz, Manila, respondents.
DECISION
CALLEJO, SR., J.:
Rolando H. Besarra, Special Investigator III of the National Bureau of
Investigation (NBI), filed an application, in the Regional Trial Court (RTC) of
Manila, for the issuance of a search warrant concerning the first and second
floors of the Shalimar Building, located at No. 1571, Aragon Street (formerly No.
1524, Lacson Avenue, Sta. Cruz, Manila) occupied and/or used by Shalimar
Philippines, owned/operated by Ernesto Isip; and for the seizure of the following
for violation of Section 4(a), in relation to Section 8, of Republic Act (R.A.) No.
8203:
a. Finished or unfinished products of UNITED LABORATORIES (UNILAB),
particularly REVICON multivitamins;
b. Sundry items such as tags, labels, boxes, packages, wrappers,
receptacles, advertisements and other paraphernalia used in the
offering for sale, sale and/or distribution of counterfeit REVICON
multivitamins;
c. Sales invoices, delivery receipts, official receipts, ledgers, journals,
purchase orders and all other books of accounts and documents used in
recording the manufacture and/or importation, distribution and/or sales
of counterfeit REVICON multivitamins.1
The application was docketed as People v. Ernesto Isip, et al., Respondents,
Search Warrant Case No. 04-4916 and raffled to Branch 24 of the court.
Appended thereto were the following: (1) a sketch2 showing the location of the
building to be searched; (2) the affidavit3 of Charlie Rabe of the Armadillo
Protection and Security Agency hired by United Laboratories, Inc. (UNILAB), who
allegedly saw the manufacture, production and/or distribution of fake drug
products such as Revicon by Shalimar Philippines; (3) the letter-request of
UNILAB, the duly licensed and exclusive manufacturer and/or distributor of

Revicon and Disudrin, for the monitoring of the unauthorized

production/manufacture of the said drugs and, if warranted, for their seizure; (4)
the letter-complaint4 of UNILAB issued through its Director of the Security and
Safety Group; and (5) the joint affidavit5 of NBI Agents Roberto Divinagracia and
Rolando Besarra containing the following allegations:
2. When learned that an Asset was already placed by ARMADILLO
PROTECTIVE AND SECURITY AGENCY named CHARLIE RABE, who was
renting a room since November 2003, at the said premises located at
No. 1571 Aragon St., Sta. Cruz, Manila. MR. RABE averred that the
owner of the premises is a certain MR. ERNESTO ISIP and that the said
premises which is known as SHALIMAR PHILIPPINES, Shalimar Building,
are being used to manufacture counterfeit UNILAB products,
particularly REVICON multivitamins, which was already patented by
UNILAB since 1985;
3. Upon verification of the report, we found out that the said premises is
a six-story structure, with an additional floor as a penthouse, and
colored red-brown. It has a tight security arrangement wherein nonresidents are not allowed to enter or reconnoiter in the premises;
4. We also learned that its old address is No. 1524 Lacson Avenue, Sta.
Cruz, Manila, and has a new address as 1571 Aragon St., Sta. Cruz,
Manila; and that the area of counterfeiting operations are the first and
second floors of Shalimar Building;
5. Since we cannot enter the premises, we instructed the Asset to take
pictures of the area especially the places wherein the clandestine
manufacturing operations were being held. At a peril to his well-being
and security, the Asset was able to take photographs herein
incorporated into this Search Warrant Application.6
A representative from UNILAB, Michael Tome, testified during the hearing on the
application for the search warrant. After conducting the requisite searching
questions, the court granted the application and issued Search Warrant No. 044916 dated January 27, 2004, directing any police officer of the law to conduct a
search of the first and second floors of the Shalimar Building located at No. 1571,
Aragon Street, Sta. Cruz, Manila. The court also directed the police to seize the
following items:

a. Finished or unfinished products of UNITED LABORATORIES (UNILAB),

particularly REVICON multivitamins;
b. Sundry items such as tags, labels, boxes, packages, wrappers,
receptacles, advertisements and other paraphernalia used in the
offering for sale, sale and/or distribution of counterfeit REVICON
multivitamins;
c. Sales invoices, delivery receipts, official receipts, ledgers, journals,
purchase orders and all other books of accounts and documents used in
recording the manufacture and/or importation, distribution and/or sales
of counterfeit REVICON multivitamins.7
The court also ordered the delivery of the seized items before it, together with a
true inventory thereof executed under oath.
The search warrant was implemented at 4:30 p.m. on January 27, 2004 by NBI
agents Besarra and Divinagracia, in coordination with UNILAB employees. No
fake Revicon multivitamins were found; instead, there were sealed boxes at the
first and second floors of the Shalimar Building which, when opened by the NBI
agents in the presence of respondent Isip, contained the following:
QUANTITY/UNIT DESCRIPTION
792 Bottles

Disudrin 60 ml.

30 Boxes

(100 pieces each) Inoflox 200 mg.8

NBI Special Investigator Divinagracia submitted an inventory of the things seized

in which he declared that the search of the first and second floors of the
Shalimar Building at No. 1571, Aragon Street, Sta. Cruz, Manila, the premises
described in the warrant, was done in an orderly and peaceful manner. He also
filed a Return of Search Warrant,9 alleging that no other articles/items other
than those mentioned in the warrant and inventory sheet were seized. The
agent prayed that of the items seized, ten boxes of Disudrin 60 ml., and at least
one box of Inoflox be turned over to the custody of the Bureau of Food and
Drugs (BFAD) for examination.10 The court issued an order granting the motion,
on the condition that the turn over be made before the court, in the presence of
a representative from the respondents and the court.11

The respondents filed an "Urgent Motion to Quash the Search Warrant or to

Suppress Evidence."12 They contended that the implementing officers of the NBI
conducted their search at the first, second, third and fourth floors of the building
at No. 1524-A, Lacson Avenue, Sta. Cruz, Manila, where items in "open display"
were allegedly found. They pointed out, however, that such premises was
different from the address described in the search warrant, the first and second
floors of the Shalimar Building located at No. 1571, Aragon Street, Sta. Cruz,
Manila. The respondents, likewise, asserted that the NBI officers seized Disudrin
and Inoflox products which were not included in the list of properties to be
seized in the search warrant.
UNILAB, in collaboration with the NBI, opposed the motion, insisting that the
search was limited to the first and second floors of the Shalimar building located
at the corner of Aragon Street and Lacson Avenue, Sta. Cruz, Manila. They
averred that, based on the sketch appended to the search warrant application,
Rabes affidavit, as well as the joint affidavit of Besarra and Divinagracia, the
building where the search was conducted was located at No. 1571, Aragon
Street corner Lacson Avenue, Sta. Cruz, Manila. They pointed out that No. 1524
Lacson Avenue, Sta. Cruz, Manila was the old address, and the new address was
No. 1571, Aragon Street, Sta. Cruz, Manila. They maintained that the warrant
was not implemented in any other place.13
In reply, the respondents insisted that the items seized were different from
those listed in the search warrant. They also claimed that the seizure took place
in the building located at No. 1524-A which was not depicted in the sketch of the
premises which the applicant submitted to the trial court.14 In accordance with
the ruling of this Court in People v. Court of Appeals,15 the respondents served a
copy of their pleading on UNILAB.16
On March 11, 2004, the trial court issued an Order17 granting the motion of the
respondents, on the ground that the things seized, namely, Disudrin and Inoflox,
were not those described in the search warrant. On March 16, 2004, the trial
court issued an advisory18 that the seized articles could no longer be admitted in
evidence against the respondents in any proceedings, as the search warrant had
already been quashed.
UNILAB, through the Ureta Law Office, filed a motion, in collaboration with the
NBI agents, for the reconsideration of the order, contending that the ground
used by the court in quashing the warrant was not that invoked by the
respondents, and that the seizure of the items was justified by the plain view
doctrine. The respondents objected to the appearance of the counsel of UNILAB,

contending that the latter could not appear for the People of the Philippines. The
respondents moved that the motion for reconsideration of UNILAB be stricken
off the record. Disputing the claims of UNILAB, they insisted that the items
seized were contained in boxes at the time of the seizure at No. 1524-A, Lacson
Avenue corner Aragon Street, Sta. Cruz, Manila, and were not apparently
incriminating on plain view. Moreover, the seized items were not those
described and itemized in the search warrant application, as well as the warrant
issued by the court itself. The respondents emphasized that the Shalimar
Laboratories is authorized to manufacture galenical preparations of the following
products:

UNILAB prayed that an ocular inspection be conducted of the place searched by

the NBI officers.20 In their rejoinder, the respondents manifested that an ocular
inspection was the option to look forward to.21 However, no such ocular
inspection of the said premises was conducted.
In the meantime, the BFAD submitted to the court the result of its examination
of the Disudrin and Inoflox samples which the NBI officers seized from the
Shalimar Building. On its examination of the actual component of Inoflox, the
BFAD declared that the substance failed the test.22 The BFAD, likewise, declared
that the examined Disudrin syrup failed the test.23 The BFAD had earlier issued
the following report:

Products:
Manufacture
L.N.
r

E.D
FINDINGS
.

- Povidone Iodine

PRODUCT NAME

- Chamomile Oil

1.Phenylpropanolamin Unilab
e (Disudrin)
12.5 mg./5mL Syrup

2102155
2

306

-Registered,
however,
label/physical
appearance
does not
conform with
the BFAD
approved
label/
registered
specifications.

2.Ofloxacin (Inoflox)
200 mg. tablet.

9901740
7

305

-Registered,
however,
label/physical
appearance
does not
conform with
the BFAD
approved
label/
registered
specifications.2

- Salicylic Acid 10 g.
- Hydrogen Peroxide 3% Topical Solution
- Aceite de Alcamforado
- Aceite de Manzanilla19
In a manifestation and opposition, the respondents assailed the appearance of
the counsel of UNILAB, and insisted that it was not authorized to appear before
the court under the Rules of Court, and to file pleadings. They averred that the
BFAD was the authorized government agency to file an application for a search
warrant.
In its counter-manifestation, UNILAB averred that it had the personality to file
the motion for reconsideration because it was the one which sought the filing of
the application for a search warrant; besides, it was not proscribed by Rule 126
of the Revised Rules of Criminal Procedure from participating in the proceedings
and filing pleadings. The only parties to the case were the NBI and UNILAB and
not the State or public prosecutor. UNILAB also argued that the offended party,
or the holder of a license to operate, may intervene through counsel under
Section 16 of Rule 110, in relation to Section 7(e), of the Rules of Criminal
Procedure.

Unilab

On May 28, 2004, the trial court issued an Order25 denying the motion for
reconsideration filed by UNILAB. The court declared that:
The Search Warrant is crystal clear: The seizing officers were only authorized to
take possession of "finished or unfinished products of United Laboratories
(UNILAB), particularly REVICON Multivitamins, and documents evidencing the
counterfeit nature of said products. The Receipt/Inventory of Property Seized
pursuant to the warrant does not, however, include REVICON but other
products. And whether or not these seized products are imitations of UNILAB
items is beside the point. No evidence was shown nor any was given during the
proceedings on the application for search warrant relative to the seized
products.
On this score alone, the search suffered from a fatal infirmity and, hence, cannot
be sustained.26
UNILAB, thus, filed the present petition for review on certiorari under Rule 45 of
the Rules of Court, where the following issues are raised:
Whether or not the seized 792 bottles of Disudrin 60 ml. and 30 boxes of Inoflox
200 mg. are INADMISSIBLE as evidence against the respondents because they
constitute the "fruit of the poisonous tree" or, CONVERSELY, whether or not the
seizure of the same counterfeit drugs is justified and lawful under the "plain
view" doctrine and, hence, the same are legally admissible as evidence against
the respondents in any and all actions?27
The petitioner avers that it was deprived of its right to a day in court when the
trial court quashed the search warrant for a ground which was not raised by the
respondents herein in their motion to quash the warrant. As such, it argues that
the trial court ignored the issue raised by the respondents. The petitioner insists
that by so doing, the RTC deprived it of its right to due process. The petitioner
asserts that the description in the search warrant of the products to be seized
"finished or unfinished products of UNILAB" is sufficient to include counterfeit
drugs within the premises of the respondents not covered by any license to
operate from the BFAD, and/or not authorized or licensed to manufacture, or
repackage drugs produced or manufactured by UNILAB. Citing the ruling of this
Court in Padilla v. Court of Appeals,28 the petitioner asserts that the products
seized were in plain view of the officers; hence, may be seized by them. The
petitioner posits that the respondents themselves admitted that the seized
articles were in open display; hence, the said articles were in plain view of the
implementing officers.

In their comment on the petition, the respondents aver that the petition should
have been filed before the Court of Appeals (CA) because factual questions are
raised. They also assert that the petitioner has no locus standi to file the petition
involving the validity and the implementation of the search warrant. They argue
that the petitioner merely assisted the NBI, the BFAD and the Department of
Justice; hence, it should have impleaded the said government agencies as
parties-petitioners. The petition should have been filed by the Office of the
Solicitor General (OSG) in behalf of the NBI and/or the BFAD, because under the
1987 Revised Administrative Code, the OSG is mandated to represent the
government and its officers charged in their official capacity in cases before the
Supreme Court. The respondents further assert that the trial court may consider
issues not raised by the parties if such consideration would aid the court in the
just determination of the case.
The respondents, likewise, maintain that the raiding team slashed the sealed
boxes so fast even before respondent Isip could object. They argue that the
seizure took place at No. 1524-A, Lacson Avenue, Sta. Cruz, Manila covered by
Transfer Certificate of Title (TCT) No. 220778, and not at No. 1571, Aragon
Street, Sta. Cruz, Manila covered by TCT No. 174412 as stated in the search
warrant. They assert that the ruling of the Court in People v. Court of Appeals29 is
applicable in this case. They conclude that the petitioner failed to prove the
factual basis for the application of the plain view doctrine.30
In reply, the petitioner asserts that it has standing and is, in fact, the real partyin-interest to defend the validity of the search warrant issued by the RTC; after
all, it was upon its instance that the application for a search warrant was filed by
the NBI, which the RTC granted. It asserts that it is not proscribed under R.A. No.
8203 from filing a criminal complaint against the respondents and requesting the
NBI to file an application for a search warrant. The petitioner points out that the
Rules of Criminal Procedure does not specifically prohibit a private complainant
from defending the validity of a search warrant. Neither is the participation of a
state prosecutor provided in Rule 126 of the said Rules. After all, the petitioner
insists, the proceedings for the application and issuance of a search warrant is
not a criminal action. The petitioner asserts that the place sought to be searched
was sufficiently described in the warrant for, after all, there is only one building
on the two parcels of land described in two titles where Shalimar Philippines is
located, the place searched by the NBI officers.31 It also asserts that the building
is located at the corner of Aragon Street and Lacson Avenue, Sta. Cruz, Manila.32
The petitioner avers that the plain view doctrine is applicable in this case
because the boxes were found outside the door of the respondents laboratory

on the garage floor. The boxes aroused the suspicion of the members of the
raiding team precisely because these were marked with the distinctive UNILAB
logos. The boxes in which the items were contained were themselves so
designated to replicate true and original UNILAB boxes for the same medicine.
Thus, on the left hand corner of one side of some of the boxes 33 the letters
"ABR" under the words "60 ml," appeared to describe the condition/quality of
the bottles inside (as it is with genuine UNILAB box of the true medicine of the
same brand). The petitioner pointed out that "ABR" is the acronym for "amber
bottle round" describing the bottles in which the true and original Disudrin (for
children) is contained.
The petitioner points out that the same boxes also had their own "license plates"
which were instituted as among its internal control/countermeasures. The
license plates indicate that the items within are, supposedly, "Disudrin." The NBI
officers had reasonable ground to believe that all the boxes have one and the
same data appearing on their supposedly distinctive license plates. The
petitioner insists that although some of the boxes marked with the distinctive
UNILAB logo were, indeed, sealed, the tape or seal was also a copy of the original
because these, too, were marked with the distinctive UNILAB logo. The
petitioner appended to its pleading pictures of the Shalimar building and the
rooms searched showing respondent Isip;34 the boxes seized by the police
officers containing Disudrin syrup;35 and the boxes containing Inoflox and its
contents.36
The issues for resolution are the following: (1) whether the petitioner is the
proper party to file the petition at bench; (2) whether it was proper for the
petitioner to file the present petition in this Court under Rule 45 of the Rules of
Court; and (3) whether the search conducted by the NBI officers of the first and
second floors of the Shalimar building and the seizure of the sealed boxes which,
when opened, contained Disudrin syrup and Inoflox, were valid.
On the first issue, we agree with the petitioners contention that a search
warrant proceeding is, in no sense, a criminal action 37 or the commencement of
a prosecution.38 The proceeding is not one against any person, but is solely for
the discovery and to get possession of personal property. It is a special and
peculiar remedy, drastic in nature, and made necessary because of public
necessity. It resembles in some respect with what is commonly known as John
Doe proceedings.39 While an application for a search warrant is entitled like a
criminal action, it does not make it such an action.

A search warrant is a legal process which has been likened to a writ of discovery
employed by the State to procure relevant evidence of crime.40 It is in the nature
of a criminal process, restricted to cases of public prosecutions.41 A search
warrant is a police weapon, issued under the police power. A search warrant
must issue in the name of the State, namely, the People of the Philippines.42
A search warrant has no relation to a civil process. It is not a process for
adjudicating civil rights or maintaining mere private rights.43 It concerns the
public at large as distinguished from the ordinary civil action involving the rights
of private persons.44 It may only be applied for in the furtherance of public
prosecution.45
However, a private individual or a private corporation complaining to the NBI or
to a government agency charged with the enforcement of special penal laws,
such as the BFAD, may appear, participate and file pleadings in the search
warrant proceedings to maintain, inter alia, the validity of the search warrant
issued by the court and the admissibility of the properties seized in anticipation
of a criminal case to be filed; such private party may do so in collaboration with
the NBI or such government agency. The party may file an opposition to a
motion to quash the search warrant issued by the court, or a motion for the
reconsideration of the court order granting such motion to quash.46
In this case, UNILAB, in collaboration with the NBI, opposed the respondents
motion to quash the search warrant. The respondents served copies of their
reply and opposition/comment to UNILAB, through Modesto Alejandro, Jr.47 The
court a quo allowed the appearance of UNILAB and accepted the pleadings filed
by it and its counsel.
The general rule is that the proper party to file a petition in the CA or Supreme
Court to assail any adverse order of the RTC in the search warrant proceedings is
the People of the Philippines, through the OSG. However, in Columbia Pictures
Entertainment, Inc. v. Court of Appeals,48 the Court allowed a private corporation
(the complainant in the RTC) to file a petition for certiorari, and considered the
petition as one filed by the OSG. The Court in the said case even held that the
petitioners therein could argue its case in lieu of the OSG:
From the records, it is clear that, as complainants, petitioners were involved in
the proceedings which led to the issuance of Search Warrant No. 23. In People v.
Nano, the Court declared that while the general rule is that it is only the Solicitor
General who is authorized to bring or defend actions on behalf of the People or
the Republic of the Philippines once the case is brought before this Court or the

Court of Appeals, if there appears to be grave error committed by the judge or a

lack of due process, the petition will be deemed filed by the private
complainants therein as if it were filed by the Solicitor General. In line with this
ruling, the Court gives this petition due course and will allow petitioners to argue
their case against the questioned order in lieu of the Solicitor General. 49
The general rule is that a party is mandated to follow the hierarchy of courts.
However, in exceptional cases, the Court, for compelling reasons or if warranted
by the nature of the issues raised, may take cognizance of petitions filed directly
before it.50 In this case, the Court has opted to take cognizance of the petition,
considering the nature of the issues raised by the parties.
The Court does not agree with the petitioners contention that the issue of
whether the Disudrin and Inoflox products were lawfully seized was never raised
in the pleadings of the respondents in the court a quo. Truly, the respondents
failed to raise the issue in their motion to quash the search warrant; in their
reply, however, they averred that the seized items were not included in the
subject warrant and, therefore, were not lawfully seized by the raiding team.
They also averred that the said articles were not illegal per se, like explosives and
shabu, as to justify their seizure in the course of unlawful search.51 In their
Opposition/Comment filed on March 15, 2004, the respondents even alleged the
following:
The jurisdiction of this Honorable Court is limited to the determination of
whether there is a legal basis to quash the search warrant and/or to suppress
the seized articles in evidence. Since the articles allegedly seized during the
implementation of the search warrant Disudrin and Inoflux products were
not included in the search warrant, they were, therefore, not lawfully seized by
the raiding team; they are not illegal per se, as it were, like an arms cache,
subversive materials or shabu as to justify their seizure in the course of a lawful
search, or being in plain view or some such. No need whatever for some public
assay.
The NBI manifestation is a glaring admission that it cannot tell without proper
examination or assay that the Disudrin and Inoflox samples allegedly seized from
respondents place were counterfeit. All the relevant presumptions are in favor
of legality.52
The Court, therefore, finds no factual basis for the contention of the petitioner
that the respondents never raised in the court a quo the issue of whether the
seizure of the Disudrin and Inoflox products was valid.

In any event, the petitioner filed a motion for the reconsideration of the March
11, 2004 Order of the court a quo on the following claims:
2.01 The Honorable Court ERRED in ruling on a non-issue or the issue as
to the alleged failure to particularly describe in the search warrant the
items to be seized but upon which NO challenge was then existing
and/or NO controversy is raised;
2.02 The Honorable Court ERRED in its ruling that "finished or unfinished
products of UNILAB" cannot stand the test of a particular description for
which it then reasons that the search is, supposedly unreasonable; and,
2.03 The Honorable Court ERRED in finding that the evidence seized is
lawfully inadmissible against respondents.53
The court a quo considered the motion of the petitioner and the issue raised by
it before finally resolving to deny the same. It cannot thus be gainsaid that the
petitioner was denied its right to due process.
On the validity of the seizure of the sealed boxes and its contents of Disudrin and
Inoflox, the Court, likewise, rejects the contention of the petitioner.
A search warrant, to be valid, must particularly describe the place to be searched
and the things to be seized. The officers of the law are to seize only those things
particularly described in the search warrant. A search warrant is not a sweeping
authority empowering a raiding party to undertake a fishing expedition to seize
and confiscate any and all kinds of evidence or articles relating to a crime. The
search is limited in scope so as not to be general or explanatory. Nothing is left
to the discretion of the officer executing the warrant.54
Objects, articles or papers not described in the warrant but on plain view of the
executing officer may be seized by him. However, the seizure by the officer of
objects/articles/papers not described in the warrant cannot be presumed as
plain view. The State must adduce evidence, testimonial or documentary, to
prove the confluence of the essential requirements for the doctrine to apply,
namely: (a) the executing law enforcement officer has a prior justification for an
initial intrusion or otherwise properly in a position from which he can view a
particular order; (b) the officer must discover incriminating evidence
inadvertently; and (c) it must be immediately apparent to the police that the
items they observe may be evidence of a crime, contraband, or otherwise subject
to seizure.55

The doctrine is not an exception to the warrant. It merely serves to supplement

the prior justification whether it be a warrant for another object, hot pursuit,
search as an incident to a lawful arrest or some other legitimate reason for being
present, unconnected with a search directed against the accused. The doctrine
may not be used to extend a general exploratory search from one object to
another until something incriminating at last emerges. It is a recognition of the
fact that when executing police officers comes across immediately incriminating
evidence not covered by the warrant, they should not be required to close their
eyes to it, regardless of whether it is evidence of the crime they are investigating
or evidence of some other crime. It would be needless to require the police to
obtain another warrant.56 Under the doctrine, there is no invasion of a legitimate
expectation of privacy and there is no search within the meaning of the
Constitution.
The immediate requirement means that the executing officer can, at the time of
discovery of the object or the facts therein available to him, determine probable
cause of the objects incriminating evidence.57 In other words, to be immediate,
probable cause must be the direct result of the officers instantaneous sensory
perception of the object.58 The object is apparent if the executing officer had
probable cause to connect the object to criminal activity. The incriminating
nature of the evidence becomes apparent in the course of the search, without
the benefit of any unlawful search or seizure. It must be apparent at the
moment of seizure.59
The requirement of inadvertence, on the other hand, means that the officer
must not have known in advance of the location of the evidence and intend to
seize it.60 Discovery is not anticipated.61
The immediately apparent test does not require an unduly high degree of
certainty as to the incriminating character of evidence. It requires merely that
the seizure be presumptively reasonable assuming that there is probable cause
to associate the property with criminal activity; that a nexus exists between a
viewed object and criminal activity.62
Incriminating means the furnishing of evidence as proof of circumstances
tending to prove the guilt of a person.63
Indeed, probable cause is a flexible, common sense standard. It merely requires
that the facts available to the officer would warrant a man of reasonable caution
and belief that certain items may be contrabanded or stolen property or useful
as evidence of a crime. It does not require proof that such belief be correct or

more likely than true. A practical, non-traditional probability that incriminating

evidence is involved is all that is required. The evidence thus collected must be
seen and verified as understood by those experienced in the field of law
enforcement.64
In this case, Disudrin and/or Inoflox were not listed in the search warrant issued
by the court a quo as among the properties to be seized by the NBI agents. The
warrant specifically authorized the officers only to seize "counterfeit Revicon
multivitamins, finished or unfinished, and the documents used in recording,
manufacture and/or importation, distribution and/or sale, or the offering for
sale, sale and/or distribution of the said vitamins." The implementing officers
failed to find any counterfeit Revicon multivitamins, and instead seized sealed
boxes which, when opened at the place where they were found, turned out to
contain Inoflox and Disudrin.
It was thus incumbent on the NBI agents and the petitioner to prove their claim
that the items were seized based on the plain view doctrine. It is not enough to
prove that the sealed boxes were in the plain view of the NBI agents; evidence
should have been adduced to prove the existence of all the essential
requirements for the application of the doctrine during the hearing of the
respondents motion to quash, or at the very least, during the hearing of the NBI
and the petitioners motion for reconsideration on April 16, 2004. The
immediately apparent aspect, after all, is central to the plain view exception
relied upon by the petitioner and the NBI. There is no showing that the NBI and
the petitioner even attempted to adduce such evidence. In fact, the petitioner
and the NBI failed to present any of the NBI agents who executed the warrant, or
any of the petitioners representative who was present at the time of the
enforcement of the warrant to prove that the enforcing officers discovered the
sealed boxes inadvertently, and that such boxes and their contents were
incriminating and immediately apparent. It must be stressed that only the NBI
agent/agents who enforced the warrant had personal knowledge whether the
sealed boxes and their contents thereof were incriminating and that they were
immediately apparent.65 There is even no showing that the NBI agents knew the
contents of the sealed boxes before they were opened.
In sum then, the Court finds and so hold that the petitioner and the NBI failed to
prove the essential requirements for the application of the plain view doctrine.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The
assailed orders of the Regional Trial Court are AFFIRMED.

G.R. No. L-27360

February 28, 1968

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

trucks and intercepted them at the Agrifina Circle, Ermita, Manila. The load of
the two trucks consisting of nine bales of goods, and the two trucks, were seized
on instructions of the Chief of Police. Upon investigation, a person claimed
ownership of the goods and showed to the policemen a "Statement and Receipts
of Duties Collected in Informal Entry No. 147-5501", issued by the Bureau of
Customs in the name of a certain Bienvenido Naguit.
Claiming to have been prejudiced by the seizure and detention of the two
trucks and their cargo, Remedios Mago and Valentin B. Lanopa filed with the
Court of First Instance of Manila a petition "for mandamus with restraining order
or preliminary injunction, docketed as Civil Case No. 67496, alleging, among
others, that Remedios Mago was the owner of the goods seized, having
purchased them from the Sta. Monica Grocery in San Fernando, Pampanga; that
she hired the trucks owned by Valentin Lanopa to transport, the goods from said
place to her residence at 1657 Laon Laan St., Sampaloc, Manila; that the goods
were seized by members of the Manila Police Department without search
warrant issued by a competent court; that anila Chief of Police Ricardo Papa
denied the request of counsel for Remedios Mago that the bales be not opened
and the goods contained therein be not examined; that then Customs
Commissioner Jacinto Gavino had illegally assigned appraisers to examine the
goods because the goods were no longer under the control and supervision of
the Commissioner of Customs; that the goods, even assuming them to have
been misdeclared and, undervalued, were not subject to seizure under Section
2531 of the Tariff and Customs Code because Remedios Mago had bought them
from another person without knowledge that they were imported illegally; that
the bales had not yet been opened, although Chief of Police Papa had arranged
with the Commissioner of Customs regarding the disposition of the goods, and
that unless restrained their constitutional rights would be violated and they
would truly suffer irreparable injury. Hence, Remedios Mago and Valentin
Lanopa prayed for the issuance of a restraining order, ex parte, enjoining the
above-named police and customs authorities, or their agents, from opening the
bales and examining the goods, and a writ of mandamus for the return of the
goods and the trucks, as well as a judgment for actual, moral and exemplary
damages in their favor.
On November 10, 1966, respondent Judge Hilarion Jarencio issued an
order ex parte restraining the respondents in Civil Case No. 67496 now
petitioners in the instant case before this Court from opening the nine bales
in question, and at the same time set the hearing of the petition for preliminary
injunction on November 16, 1966. However, when the restraining order was
received by herein petitioners, some bales had already been opened by the

examiners of the Bureau of Customs in the presence of officials of the Manila

Police Department, an assistant city fiscal and a representative of herein
respondent Remedios Mago.
Under date of November 15, 1966, Remedios Mago filed an amended
petition in Civil Case No. 67496, including as party defendants Collector of
Customs Pedro Pacis of the Port of Manila and Lt. Martin Alagao of the Manila
Police Department. Herein petitioners (defendants below) filed, on November
24, 1966, their "Answer with Opposition to the Issuance of a Writ of Preliminary
Injunction", denying the alleged illegality of the seizure and detention of the
goods and the trucks and of their other actuations, and alleging special and
affirmative defenses, to wit: that the Court of First Instance of Manila had no
jurisdiction to try the case; that the case fell within the exclusive jurisdiction of
the Court of Tax Appeals; that, assuming that the court had jurisdiction over the
case, the petition stated no cause of action in view of the failure of Remedios
Mago to exhaust the administrative remedies provided for in the Tariff and
Customs Code; that the Bureau of Customs had not lost jurisdiction over the
goods because the full duties and charges thereon had not been paid; that the
members of the Manila Police Department had the power to make the seizure;
that the seizure was not unreasonable; and the persons deputized under Section
2203 (c) of the Tariff and Customs Code could effect search, seizures and arrests
in inland places in connection with the enforcement of the said Code. In
opposing the issuance of the writ of preliminary injunction, herein petitioners
averred in the court below that the writ could not be granted for the reason that
Remedios Mago was not entitled to the main reliefs she prayed for; that the
release of the goods, which were subject to seizure proceedings under the Tariff
and Customs Code, would deprive the Bureau of Customs of the authority to
forfeit them; and that Remedios Mago and Valentin Lanopa would not suffer
irreparable injury. Herein petitioners prayed the court below for the lifting of the
restraining order, for the denial of the issuance of the writ of preliminary
injunction, and for the dismissal of the case.
At the hearing on December 9, 1966, the lower Court, with the conformity
of the parties, ordered that an inventory of the goods be made by its clerk of
court in the presence of the representatives of the claimant of the goods, the
Bureau of Customs, and the Anti-Smuggling Center of the Manila Police
Department. On December 13, 1966, the above-named persons filed a
"Compliance" itemizing the contents of the nine bales.
Herein respondent Remedios Mago, on December 23, 1966, filed an ex
parte motion to release the goods, alleging that since the inventory of the goods

seized did not show any article of prohibited importation, the same should be
released as per agreement of the patties upon her posting of the appropriate
bond that may be determined by the court. Herein petitioners filed their
opposition to the motion, alleging that the court had no jurisdiction to order the
release of the goods in view of the fact that the court had no jurisdiction over
the case, and that most of the goods, as shown in the inventory, were not
declared and were, therefore, subject to forfeiture. A supplemental opposition
was filed by herein petitioners on January 19, 1967, alleging that on January 12,
1967 seizure proceedings against the goods had been instituted by the Collector
of Customs of the Port of Manila, and the determination of all questions
affecting the disposal of property proceeded against in seizure and forfeiture
proceedings should thereby be left to the Collector of Customs. On January 30,
1967, herein petitioners filed a manifestation that the estimated duties, taxes
and other charges due on the goods amounted to P95,772.00. On February 2,
1967, herein respondent Remedios Mago filed an urgent manifestation and
reiteration of the motion for the release under bond of the goods.
On March 7, 1967, the respondent Judge issued an order releasing the
goods to herein respondent Remedios Mago upon her filing of a bond in the
amount of P40,000.00, and on March 13, 1967, said respondent filed the
corresponding bond.
On March 13, 1967, herein petitioner Ricardo Papa, on his own behalf, filed
a motion for reconsideration of the order of the court releasing the goods under
bond, upon the ground that the Manila Police Department had been directed by
the Collector of Customs of the Port of Manila to hold the goods pending
termination of the seizure proceedings.
Without waiting for the court's action on the motion for reconsideration,
and alleging that they had no plain, speedy and adequate remedy in the ordinary
course of law, herein petitioners filed the present action for prohibition and
certiorari with preliminary injunction before this Court. In their petition
petitioners alleged, among others, that the respondent Judge acted without
jurisdiction in ordering the release to respondent Remedios Mago of the
disputed goods, for the following reasons: (1) the Court of First Instance of
Manila, presided by respondent Judge, had no jurisdiction over the case; (2)
respondent Remedios Mago had no cause of action in Civil Case No. 67496 of
the Court of First Instance of Manila due to her failure to exhaust all
administrative remedies before invoking judicial intervention; (3) the
Government was not estopped by the negligent and/or illegal acts of its agent in

not collecting the correct taxes; and (4) the bond fixed by respondent Judge for
the release of the goods was grossly insufficient.
In due time, the respondents filed their answer to the petition for
prohibition and certiorari in this case. In their answer, respondents alleged,
among others: (1) that it was within the jurisdiction of the lower court presided
by respondent Judge to hear and decide Civil Case No. 67496 and to issue the
questioned order of March 7, 1967, because said Civil Case No. 67496 was
instituted long before seizure, and identification proceedings against the nine
bales of goods in question were instituted by the Collector of Customs; (2) that
petitioners could no longer go after the goods in question after the
corresponding duties and taxes had been paid and said goods had left the
customs premises and were no longer within the control of the Bureau of
Customs; (3) that respondent Remedios Mago was purchaser in good faith of the
goods in question so that those goods can not be the subject of seizure and
forfeiture proceedings; (4) that the seizure of the goods was affected by
members of the Manila Police Department at a place outside control of
jurisdiction of the Bureau of Customs and affected without any search warrant
or a warrant of seizure and detention; (5) that the warrant of seizure and
detention subsequently issued by the Collector of Customs is illegal and
unconstitutional, it not being issued by a judge; (6) that the seizing officers have
no authority to seize the goods in question because they are not articles of
prohibited importation; (7) that petitioners are estopped to institute the present
action because they had agreed before the respondent Judge that they would
not interpose any objection to the release of the goods under bond to answer
for whatever duties and taxes the said goods may still be liable; and (8) that the
bond for the release of the goods was sufficient.

duties, taxes and other charges upon the articles, or secured to be paid, at the
port of entry and the legal permit for withdrawal shall have been granted. 3 The
payment of the duties, taxes, fees and other charges must be in full. 4

The principal issue in the instant case is whether or not, the respondent
Judge had acted with jurisdiction in issuing the order of March 7, 1967 releasing
the goods in question.

The record shows, by comparing the articles and duties stated in the
aforesaid "Statement and Receipts of Duties Collected on Informal Entry" with
the manifestation of the Office of the Solicitor General 5 wherein it is stated that
the estimated duties, taxes and other charges on the goods subject of this case
amounted to P95,772.00 as evidenced by the report of the appraiser of the
Bureau of Customs, that the duties, taxes and other charges had not been paid
in full. Furthermore, a comparison of the goods on which duties had been
assessed, as shown in the "Statement and Receipts of Duties Collected on
Informal Entry" and the "compliance" itemizing the articles found in the bales
upon examination and inventory, 6 shows that the quantity of the goods was
underdeclared, presumably to avoid the payment of duties thereon. For
example, Annex B (the statement and receipts of duties collected) states that
there were 40 pieces of ladies' sweaters, whereas Annex H (the inventory
contained in the "compliance") states that in bale No. 1 alone there were 42
dozens and 1 piece of ladies' sweaters of assorted colors; in Annex B, only 100
pieces of watch bands were assessed, but in Annex H, there were in bale No. 2,
209 dozens and 5 pieces of men's metal watch bands (white) and 120 dozens of
men's metal watch band (gold color), and in bale No. 7, 320 dozens of men's
metal watch bands (gold color); in Annex B, 20 dozens only of men's
handkerchief were declared, but in Annex H it appears that there were 224
dozens of said goods in bale No. 2, 120 dozens in bale No. 6, 380 dozens in bale
No. 7, 220 dozens in bale No. 8, and another 200 dozens in bale No. 9. The
articles contained in the nine bales in question, were, therefore, subject to
forfeiture under Section 2530, pars. e and m, (1), (3), (4), and (5) of the Tariff
and Customs Code. And this Court has held that merchandise, the importation of
which is effected contrary to law, is subject to forfeiture, 7 and that goods
released contrary to law are subject to seizure and forfeiture. 8

The Bureau of Customs has the duties, powers and jurisdiction, among
others, (1) to assess and collect all lawful revenues from imported articles, and
all other dues, fees, charges, fines and penalties, accruing under the tariff and
customs laws; (2) to prevent and suppress smuggling and other frauds upon the
customs; and (3) to enforce tariff and customs laws. 1 The goods in question
were imported from Hongkong, as shown in the "Statement and Receipts of
Duties Collected on Informal Entry". 2 As long as the importation has not been
terminated the imported goods remain under the jurisdiction of the Bureau of
customs. Importation is deemed terminated only upon the payment of the

Even if it be granted, arguendo, that after the goods in question had been
brought out of the customs area the Bureau of Customs had lost jurisdiction
over the same, nevertheless, when said goods were intercepted at the Agrifina
Circle on November 4, 1966 by members of the Manila Police Department,
acting under directions and orders of their Chief, Ricardo C. Papa, who had been
formally deputized by the Commissioner of Customs, 9 the Bureau of Customs
had regained jurisdiction and custody of the goods. Section 1206 of the Tariff
and Customs Code imposes upon the Collector of Customs the duty to hold
possession of all imported articles upon which duties, taxes, and other charges

have not been paid or secured to be paid, and to dispose of the same according
to law. The goods in question, therefore, were under the custody and at the
disposal of the Bureau of Customs at the time the petition for mandamus,
docketed as Civil Case No. 67496, was filed in the Court of First Instance of
Manila on November 9, 1966. The Court of First Instance of Manila, therefore,
could not exercise jurisdiction over said goods even if the warrant of seizure and
detention of the goods for the purposes of the seizure and forfeiture
proceedings had not yet been issued by the Collector of Customs.
The ruling in the case of "Alberto de Joya, et al. v. Hon. Gregorio Lantin, et
al.," G.R. No. L-24037, decided by this Court on April 27, 1967, is squarely
applicable to the instant case. In the De Joya case, it appears that Francindy
Commercial of Manila bought from Ernerose Commercial of Cebu City 90 bales
of assorted textiles and rags, valued at P117,731.00, which had been imported
and entered thru the port of Cebu. Ernerose Commercial shipped the goods to
Manila on board an inter-island vessel. When the goods where about to leave
the customs premises in Manila, on October 6, 1964, the customs authorities
held them for further verification, and upon examination the goods were found
to be different from the declaration in the cargo manifest of the carrying vessel.
Francindy Commercial subsequently demanded from the customs authorities
the release of the goods, asserting that it is a purchaser in good faith of those
goods; that a local purchaser was involved so the Bureau of Customs had no
right to examine the goods; and that the goods came from a coastwise port. On
October 26, 1964, Francindy Commercial filed in the Court of First Instance of
Manila a petition for mandamus against the Commissioner of Customs and the
Collector of Customs of the port of Manila to compel said customs authorities to
release the goods.
Francindy Commercial alleged in its petition for mandamus that the Bureau
of Customs had no jurisdiction over the goods because the same were not
imported to the port of Manila; that it was not liable for duties and taxes
because the transaction was not an original importation; that the goods were
not in the hands of the importer nor subject to importer's control, nor were the
goods imported contrary to law with its (Francindy Commercial's) knowledge;
and that the importation had been terminated. On November 12, 1964, the
Collector of Customs of Manila issued a warrant of seizure and identification
against the goods. On December 3, 1964, the Commissioner of Customs and the
Collector of Customs, as respondents in the mandamus case, filed a motion to
dismiss the petition on the grounds of lack of jurisdiction, lack of cause of action,
and in view of the pending seizure and forfeiture proceedings. The Court of First
Instance held resolution on the motion to dismiss in abeyance pending decision

on the merits. On December 14, 1964, the Court of First Instance of Manila
issued a preventive and mandatory injunction, on prayer by Francindy
Commercial, upon a bond of P20,000.00. The Commissioner of Customs and the
Collector of Customs sought the lifting of the preliminary and mandatory
injunction, and the resolution of their motion to dismiss. The Court of First
Instance of Manila, however, on January 12, 1965, ordered them to comply with
the preliminary and mandatory injunction, upon the filing by Francindy
Commercial of an additional bond of P50,000.00. Said customs authorities
thereupon filed with this Court, on January 14, 1965, a petition for certiorari and
prohibition with preliminary injunction. In resolving the question raised in that
case, this Court held:
This petition raises two related issues: first, has the Customs
bureau jurisdiction to seize the goods and institute forfeiture
proceedings against them? and (2) has the Court of First Instance
jurisdiction to entertain the petition for mandamus to compel the
Customs authorities to release the goods?
Francindy Commercial contends that since the petition in the
Court of first Instance was filed (on October 26, 1964) ahead of the
issuance of the Customs warrant of seizure and forfeiture (on November
12, 1964),the Customs bureau should yield the jurisdiction of the said
court.
The record shows, however, that the goods in question were
actually seized on October 6, 1964, i.e., before Francindy Commercial
sued in court. The purpose of the seizure by the Customs bureau was to
verify whether or not Custom duties and taxes were paid for their
importation. Hence, on December 23, 1964, Customs released 22 bales
thereof, for the same were found to have been released regularly from
the Cebu Port (Petition Annex "L"). As to goods imported illegally or
released irregularly from Customs custody, these are subject to seizure
under Section 2530 m. of the Tariff and Customs Code (RA 1957).
The Bureau of Customs has jurisdiction and power, among others
to collect revenues from imported articles, fines and penalties and
suppress smuggling and other frauds on customs; and to enforce tariff
and customs laws (Sec. 602, Republic Act 1957).
The goods in question are imported articles entered at the Port of
Cebu. Should they be found to have been released irregularly from

Customs custody in Cebu City, they are subject to seizure and forfeiture,
the proceedings for which comes within the jurisdiction of the Bureau of
Customs pursuant to Republic Act 1937.
Said proceeding should be followed; the owner of the goods may
set up defenses therein (Pacis v. Averia, L-22526, Nov. 20, 1966.) From
the decision of the Commissioner of Customs appeal lies to the Court of
Tax Appeals, as provided in Sec. 2402 of Republic Act 1937 and Sec. 11
of Republic Act, 1125. To permit recourse to the Court of First Instance
in cases of seizure of imported goods would in effect render ineffective
the power of the Customs authorities under the Tariff and Customs
Code and deprive the Court of Tax Appeals of one of its exclusive
appellate jurisdictions. As this Court has ruled in Pacis v. Averia, supra,
Republic Acts 1937 and 1125 vest jurisdiction over seizure and forfeiture
proceedings exclusively upon the Bureau of Customs and the Court of
Tax Appeals. Such law being special in nature, while the Judiciary Act
defining the jurisdiction of Courts of First Instance is a general
legislation, not to mention that the former are later enactments, the
Court of First Instance should yield to the jurisdiction of the Customs
authorities.
It is the settled rule, therefore, that the Bureau of Customs acquires
exclusive jurisdiction over imported goods, for the purposes of enforcement of
the customs laws, from the moment the goods are actually in its possession or
control, even if no warrant of seizure or detention had previously been issued by
the Collector of Customs in connection with seizure and forfeiture proceedings.
In the present case, the Bureau of Customs actually seized the goods in question
on November 4, 1966, and so from that date the Bureau of Customs acquired
jurisdiction over the goods for the purposes of the enforcement of the tariff and
customs laws, to the exclusion of the regular courts. Much less then would the
Court of First Instance of Manila have jurisdiction over the goods in question
after the Collector of Customs had issued the warrant of seizure and detention
on January 12, 1967. 10 And so, it cannot be said, as respondents contend, that
the issuance of said warrant was only an attempt to divest the respondent Judge
of jurisdiction over the subject matter of the case. The court presided by
respondent Judge did not acquire jurisdiction over the goods in question when
the petition for mandamus was filed before it, and so there was no need of
divesting it of jurisdiction. Not having acquired jurisdiction over the goods, it
follows that the Court of First Instance of Manila had no jurisdiction to issue the
questioned order of March 7, 1967 releasing said goods.

Respondents also aver that petitioner Martin Alagao, an officer of the

Manila Police Department, could not seize the goods in question without a
search warrant. This contention cannot be sustained. The Chief of the Manila
Police Department, Ricardo G. Papa, having been deputized in writing by the
Commissioner of Customs, could, for the purposes of the enforcement of the
customs and tariff laws, effect searches, seizures, and arrests, 11 and it was his
duty to make seizure, among others, of any cargo, articles or other movable
property when the same may be subject to forfeiture or liable for any fine
imposed under customs and tariff laws. 12 He could lawfully open and examine
any box, trunk, envelope or other container wherever found when he had
reasonable cause to suspect the presence therein of dutiable articles introduced
into the Philippines contrary to law; and likewise to stop, search and examine
any vehicle, beast or person reasonably suspected of holding or conveying such
article as aforesaid. 13 It cannot be doubted, therefore, that petitioner Ricardo G.
Papa, Chief of Police of Manila, could lawfully effect the search and seizure of
the goods in question. The Tariff and Customs Code authorizes him to demand
assistance of any police officer to effect said search and seizure, and the latter
has the legal duty to render said assistance. 14 This was what happened precisely
in the case of Lt. Martin Alagao who, with his unit, made the search and seizure
of the two trucks loaded with the nine bales of goods in question at the Agrifina
Circle. He was given authority by the Chief of Police to make the interception of
the cargo. 15
Petitioner Martin Alagao and his companion policemen had authority to
effect the seizure without any search warrant issued by a competent court. The
Tariff and Customs Code does not require said warrant in the instant case. The
Code authorizes persons having police authority under Section 2203 of the Tariff
and Customs Code to enter, pass through or search any land, inclosure,
warehouse, store or building, not being a dwelling house; and also to inspect,
search and examine any vessel or aircraft and any trunk, package, or envelope or
any person on board, or to stop and search and examine any vehicle, beast or
person suspected of holding or conveying any dutiable or prohibited article
introduced into the Philippines contrary to law, without mentioning the need of
a search warrant in said cases. 16 But in the search of a dwelling house, the Code
provides that said "dwelling house may be entered and searched only upon
warrant issued by a judge or justice of the peace. . . ." 17 It is our considered
view, therefor, that except in the case of the search of a dwelling house, persons
exercising police authority under the customs law may effect search and seizure
without a search warrant in the enforcement of customs laws.

Our conclusion finds support in the case of Carroll v. United States, 39

A.L.R., 790, 799, wherein the court, considering a legal provision similar to
Section 2211 of the Philippine Tariff and Customs Code, said as follows:
Thus contemporaneously with the adoption of the 4th
Amendment, we find in the first Congress, and in the following second
and fourth Congresses, a difference made as to the necessity for a
search warrant between goods subject to forfeiture, when concealed in
a dwelling house of similar place, and like goods in course of
transportation and concealed in a movable vessel, where readily they
could be put out of reach of a search warrant. . . .
Again, by the 2d section of the Act of March 3, 1815 (3 Stat. at
L.231, 232, chap. 94), it was made lawful for customs officers not only to
board and search vessels within their own and adjoining districts, but
also to stop, search and examine any vehicle, beast or person on which
or whom they should suspect there was merchandise which was subject
to duty, or had been introduced into the United States in any manner
contrary to law, whether by the person in charge of the vehicle or beast
or otherwise, and if they should find any goods, wares, or merchandise
thereon, which they had probably cause to believe had been so
unlawfully brought into the country, to seize and secure the same, and
the vehicle or beast as well, for trial and forfeiture. This Act was
renewed April 27, 1816 (3 Sta. at L. 315, chap. 100), for a year and
expired. The Act of February 28, 1865, revived 2 of the Act of 1815,
above described, chap. 67, 13 Stat. at L. 441. The substance of this
section was re-enacted in the 3d section of the Act of July 18, 1866,
chap. 201, 14 Stat. at L. 178, and was thereafter embodied in the
Revised Statutes as 3061, Comp. Stat. 5763, 2 Fed. Stat. Anno. 2d ed.
p. 1161. Neither 3061 nor any of its earlier counterparts has ever been
attacked as unconstitutional. Indeed, that section was referred to and
treated as operative by this court in Von Cotzhausen v. Nazro, 107 U.S.
215, 219, 27 L. ed. 540, 541, 2 Sup. Ct. Rep. 503. . . .
In the instant case, we note that petitioner Martin Alagao and his
companion policemen did not have to make any search before they seized the
two trucks and their cargo. In their original petition, and amended petition, in
the court below Remedios Mago and Valentin Lanopa did not even allege that
there was a search. 18 All that they complained of was,

That while the trucks were on their way, they were intercepted
without any search warrant near the Agrifina Circle and taken to the
Manila Police Department, where they were detained.
But even if there was a search, there is still authority to the effect that no
search warrant would be needed under the circumstances obtaining in the
instant case. Thus, it has been held that:
The guaranty of freedom from unreasonable searches and seizures
is construed as recognizing a necessary difference between a search of a
dwelling house or other structure in respect of which a search warrant
may readily be obtained and a search of a ship, motorboat, wagon, or
automobile for contraband goods, where it is not practicable to secure a
warrant because the vehicle can be quickly moved out of the locality or
jurisdiction in which the warrant must be sought. (47 Am. Jur., pp. 513514, citing Carroll v. United States, 267 U.S. 132, 69 L. ed., 543, 45 S. Ct.,
280, 39 A.L.R., 790; People v. Case, 320 Mich., 379, 190 N.W., 389, 27
A.L.R., 686.)
In the case of People v. Case (320 Mich., 379, 190 N.W., 389, 27 A.L.R.,
686), the question raised by defendant's counsel was whether an automobile
truck or an automobile could be searched without search warrant or other
process and the goods therein seized used afterwards as evidence in a trial for
violation of the prohibition laws of the State. Same counsel contended the
negative, urging the constitutional provision forbidding unreasonable searches
and seizures. The Court said:
. . . Neither our state nor the Federal Constitution directly
prohibits search and seizure without a warrant, as is sometimes
asserted. Only "unreasonable" search and seizure is forbidden. . . .
. . . The question whether a seizure or a search is unreasonable in
the language of the Constitution is a judicial and not a legislative
question; but in determining whether a seizure is or is not
unreasonable, all of the circumstances under which it is made must be
looked to.
The automobile is a swift and powerful vehicle of recent
development, which has multiplied by quantity production and taken
possession of our highways in battalions until the slower, animal-drawn
vehicles, with their easily noted individuality, are rare. Constructed as

covered vehicles to standard form in immense quantities, and with a

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

implementing his order of March 7, 1967 in Civil Case No. 67496 of the Court of
First Instance of Manila, and from proceeding in any manner in said case;
(d) Ordering the dismissal of Civil Case No. 67496 of the Court of First
Instance of Manila; and1wph1.t
(e) Ordering the private respondent, Remedios Mago, to pay the costs.
It is so ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Sanchez, Castro,
Angeles and Fernando, JJ., concur.1wph1.t

G.R. No. 96177 January 27, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARI MUSA y HANTATALU, accused-appellant.
The Solicitor General for plaintiff-appellee.
Pablo L. Murillo for accused-appellant.

ROMERO, J.:
The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision,
dated August 31, 1990, 1 of the Regional Trial Court (RTC) of Zamboanga City,
Branch XII, finding him guilty of selling marijuana in violation of Article II, Section
4 of Republic Act No. 6425, as amended, otherwise known as the Dangerous
Drugs Act of 1972.
The information filed on December 15, 1989 against the appellant reads:

of PC-INP Crime Laboratory of Regional Command (RECOM) 9. The evidence of

the prosecution was summarized by the trial court as follows:
Prosecution evidence shows that in the morning of December
13, 1989, T/Sgt. Jesus Belarga, leader of a NARCOTICS
COMMAND (NARCOM) team based at Calarian, Zamboanga
City, instructed Sgt. Amado Ani to conduct surveillance and test
buy on a certain Mari Musa of Suterville, Zamboanga City.
Information received from civilian informer was that this Mari
Musa was engaged in selling marijuana in said place. So Sgt.
Amado Ani, another NARCOM agent, proceeded to Suterville, in
company with a NARCOM civilian informer, to the house of
Mari Musa to which house the civilian informer had guided him.
The same civilian informer had also described to him the
appearance of Mari Musa. Amado Ani was able to buy one
newspaper-wrapped dried marijuana (Exh. "E") for P10.00. Sgt.
Ani returned to the NARCOM office and turned over the
newspaper-wrapped marijuana to T/Sgt. Jesus Belarga. Sgt.
Belarga inspected the stuff turned over to him and found it to
be marijuana.

Upon his arraignment on January 11, 1990, the appellant pleaded not guilty. 3

The next day, December 14, 1989, about 1:30 P.M., a buy-bust
was planned. Sgt. Amado Ani was assigned as the poseur buyer
for which purpose he was given P20.00 (with SN GA955883) by
Belarga. The
buy-bust money had been taken by T/Sgt. Jesus Belarga from
M/Sgt. Noh Sali Mihasun, Chief of Investigation Section, and for
which Belarga signed a receipt (Exh. "L" & "L-l" ) The team
under Sgt. Foncargas was assigned as back-up security. A prearranged signal was arranged consisting of Sgt. Ani's raising his
right hand, after he had succeeded to buy the marijuana. The
two NARCOM teams proceeded to the target site in two civilian
vehicles. Belarga's team was composed of Sgt. Belarga, team
leader, Sgt. Amado Ani, poseur buyer, Sgt. Lego and Sgt. Biong.

At the trial, the prosecution presented three (3) witnesses, namely: (1) Sgt.
Amado Ani, Jr. of the 9th Narcotics Command (NARCOM) of Zamboanga City,
who acted as poseur-buyer in the buy-bust operation made against the
appellant; (2) T/Sgt. Jesus Belarga, also of the 9th Narcotics Command of
Zamboanga City, who was the NARCOM team leader of the buy-bust operation;
and (3) Athena Elisa P. Anderson, the Document Examiner and Forensic Chemist

Arriving at the target site, Sgt. Ani proceeded to the house of

Mari Musa, while the rest of the NARCOM group positioned
themselves at strategic places about 90 to 100 meters from
Mari Musa's house. T/Sgt. Belarga could see what went on
between Ani and suspect Mari Musa from where he was. Ani
approached Mari Musa, who came out of his house, and asked

That on or about December 14, 1989, in the City of Zamboanga,

Philippines, and within the jurisdiction of this Honorable Court,
the
above-named accused, not being authorized by law, did then
and there, wilfully, unlawfully and feloniously sell to one SGT.
AMADO ANI, two (2) wrappers containing dried marijuana
leaves, knowing the same to be a prohibited drug.
CONTRARY TO LAW. 2

Ani what he wanted. Ani said he wanted some more stuff. Ani
gave Mari Musa the P20.00 marked money. After receiving the
money, Mari Musa went back to his house and came back and
gave Amado Ani two newspaper wrappers containing dried
marijuana. Ani opened the two wrappers and inspected the
contents. Convinced that the contents were marijuana, Ani
walked back towards his companions and raised his right hand.
The two NARCOM teams, riding the two civilian vehicles, sped
towards Sgt. Ani. Ani joined Belarga's team and returned to the
house.
At the time Sgt. Ani first approached Mari Musa, there were
four persons inside his house: Mari Musa, another boy, and two
women, one of whom Ani and Belarga later came to know to be
Mari Musa's wife. The second time, Ani with the NARCOM team
returned to Mari Musa's house, the woman, who was later
known as Mari Musa's wife, slipped away from the house. Sgt.
Belarga frisked Mari Musa but could not find the P20.00
marked money with him. Mari Musa was then asked where the
P20.00 was and he told the NARCOM team he has given the
money to his wife (who had slipped away). Sgt. Belarga also
found a plastic bag containing dried marijuana inside it
somewhere in the kitchen. Mari Musa was then placed under
arrest and brought to the NARCOM office. At Suterville, Sgt. Ani
turned over to Sgt. Belarga the two newspaper-wrapped
marijuana he had earlier bought from Mari Musa (Exhs. "C" &
"D").
In the NARCOM office, Mari Musa first gave his name as Hussin
Musa. Later on, Mari Musa gave his true name Mari Musa.
T/Sgt. Jesus Belarga turned over the two newspaper-wrapped
marijuana (bought at the buy-bust), the one newspaperwrapped marijuana (bought at the test-buy) and the plastic bag
containing more marijuana (which had been taken by Sgt. Lego
inside the kitchen of Mari Musa) to the PC Crime Laboratory,
Zamboanga City, for laboratory examination. The turnover of
the marijuana specimen to the PC Crime Laboratory was by way
of a letter-request, dated December 14, 1989 (Exh. "B"), which
was stamped "RECEIVED" by the PC Crime Laboratory (Exh. "B1") on the same day.

Mrs. Athena Elisa P. Anderson, the Forensic Chemist of the PC

Crime Laboratory, examined the marijuana specimens
subjecting the same to her three tests. All submitted specimens
she examined gave positive results for the presence of
marijuana. Mrs. Anderson reported the results of her
examination in her Chemistry Report D-100-89, dated
December 14, 1989, (Exh. "J", "J-1", "J-2", "J-3", "J-4" and "J-5").
Mrs. Anderson identified in court the two newspaper wrapped
marijuana bought at the
buy-bust on December 14, 1989, through her initial and the
weight of each specimen written with red ink on each wrapper
(Exhs. "C-1" and "D-1"). She also identified the one newspaperwrapped marijuana bought at the test-buy on December 13,
1989, through her markings (Exh. "E-1"). Mrs. Anderson also
identified her Chemistry Report (Exh. "J" & sub-markings.)
T. Sgt. Belarga identified the two buy-bust newspaper wrapped
marijuana through his initial, the words "buy-bust" and the
words "December 14, 1989, 2:45 P.M." (written on Exhs. "C"
and "D"). Belarga also identified the receipt of the P20 marked
money (with SN GA955883) (Exh. "L"), dated December 14,
1989, and his signature thereon (Exh.
"L-1"). He also identified the letter-request, dated December
14, 1989, addressed to the PC Crime Laboratory (Exh. "B") and
his signature thereon (Exh. "B-2") and the stamp of the PC
Crime Laboratory marked "RECEIVED" (Exh. "B-1"). 4
For the defense, the following testified as witnesses: (1) the accused-appellant
Mari H. Musa; and (2) Ahara R. Musa, his wife. The trial court summarized the
version of the defense, thus:
[O]n December 14, 1989, at about 1:30 in the afternoon, Mari
Musa was in his house at Suterville, Zamboanga City. With him
were his wife, Ahara Musa, known as Ara, his one-year old
child, a woman manicurist, and a male cousin named Abdul
Musa. About 1:30 that afternoon, while he was being
manicured at one hand, his wife was inside the one room of
their house, putting their child to sleep. Three NARCOM agents,
who introduced themselves as NARCOM agents, dressed in
civilian clothes, got inside Mari Musa's house whose door was
open. The NARCOM agents did not ask permission to enter the

house but simply announced that they were NARCOM agents.

The NARCOM agents searched Mari Musa's house and Mari
Musa asked them if they had a search warrant. The NARCOM
agents were just silent. The NARCOM agents found a red plastic
bag whose contents, Mari Musa said, he did not know. He also
did not know if the plastic bag belonged to his brother, Faisal,
who was living with him, or his father, who was living in another
house about ten arms-length away. Mari Musa, then, was
handcuffed and when Mari Musa asked why, the NARCOM
agents told him for clarification.
Mari Musa was brought in a pick-up, his wife joining him to the
NARCOM Office at Calarian, Zamboanga City. Inside the
NARCOM Office, Mari Musa was investigated by one NARCOM
agent which investigation was reduced into writing. The writing
or document was interpreted to Mari Musa in Tagalog. The
document stated that the marijuana belonged to Mari Musa
and Mari Musa was asked to sign it. But Mari Musa refused to
sign because the marijuana did not belong to him. Mari Musa
said he was not told that he was entitled to the assistance of
counsel, although he himself told the NARCOM agents he
wanted to be assisted by counsel.

and that the person selling marijuana was caught by the

authorities; and he had a wife and a very small child to support.
Mari Musa said he had not been arrested for selling marijuana
before. 5
After trial, the trial court rendered the assailed decision with the following
disposition:
WHEREFORE, finding accused Mari Musa y Hantatalu guilty
beyond reasonable doubt of selling marijuana and pursuant to
Sec. 4, Art II of Rep. Act No. 6425, he is sentenced to life
imprisonment and to pay the fine of P20,000.00, the latter
imposed without subsidiary imprisonment. 6
In this appeal, the appellant contends that his guilt was not proved beyond
reasonable doubt and impugns the credibility of the prosecution witnesses.
The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not
credible because: (1) prior to the buy-bust operation, neither Sgt. Ani nor the
other NARCOM agents were personally known by the appellant or vice-versa;
and (2) there was no witness to the alleged giving of the two wrappers of
marijuana by the appellant to Sgt. Ani.

Mari Musa said four bullets were then placed between the
fingers of his right hand and his fingers were pressed which felt
very painful. The NARCOM agents boxed him and Mari Musa
lost consciousness. While Mari Musa was maltreated, he said
his wife was outside the NARCOM building. The very day he was
arrested (on cross-examination Mari Musa said it was on the
next day), Mari Musa was brought to the Fiscal's Office by three
NARCOM agents. The fiscal asked him if the marijuana was
owned by him and he said "not." After that single question,
Mari Musa was brought to the City Jail. Mari Musa said he did
not tell the fiscal that he had been maltreated by the NARCOM
agents because he was afraid he might be maltreated in the
fiscal's office.

Sgt. Ani testified that on December 13, 1989, upon instruction by T/Sgt. Jesus
Belarga, he conducted a test-buy operation on the appellant whereby he bought
one wrapper of marijuana for P15.00 from the latter. 7 He reported the
successful operation to T/Sgt. Belarga on the same day. 8 Whereupon, T/Sgt.
Belarga conducted a conference to organize a buy-bust operation for the
following day. 9

Mari Musa denied the NARCOM agents' charge that he had sold
two wrappers of marijuana to them; that he had received from
them a P20.00 bill which he had given to his wife. He did not
sell marijuana because he was afraid that was against the law

Upon reaching the place, the NARCOM agents positioned themselves at strategic
places. 11 Sgt. Ani approached the house. Outside the house, the appellant asked
Sgt. Ani what he wanted. Sgt. Ani asked him for some more marijuana. 12 Sgt. Ani
gave him the marked P20.00 bill and the appellant went inside the house and

On December 14, 1989, at 1:30 p.m., two NARCOM teams in separate vehicles
headed by T/Sgt. Belarga and a certain Sgt. Foncardas went to the place of
operation, which was the appellant's house located in Laquian Compound,
Suterville, Zamboanga City. Sgt. Ani was with the team of T/Sgt. Belarga, whose
other members were Sgts. Lego and Biong. 10 Sgt. Ani was given a marked P20.00
bill by T/Sgt. Belarga, which was to be used in the operation.

brought back two paper wrappers containing marijuana which he handed to Sgt.
Ani. 13 From his position, Sgt. Ani could see that there were other people in the
house. 14
After the exchange, Sgt. Ani approached the other NARCOM agents and made
the pre-arranged signal of raising his right hand. 15 The NARCOM agents,
accompanied by Sgt. Ani, went inside the house and made the arrest. The agents
searched the appellant and unable to find the marked money, they asked him
where it was. The appellant said that he gave it to his wife. 16
The Court, after a careful reading of the record, finds the testimony of Sgt. Ani
regarding the buy-bust operation, which resulted in the apprehension,
prosecution and subsequent conviction of the appellant, to be direct, lucid and
forthright. Being totally untainted by contradictions in any of the material points,
it deserves credence.
The contention that the appellant could not have transacted with Sgt. Ani
because they do not know each other is without merit. The day before the
buy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought a
wrapper of marijuana from the appellant. Through this previous transaction, Sgt.
Ani was able to gain the appellant's confidence for the latter to sell more
marijuana to Sgt. Ani the following day, during the buy-bust operation.
Moreover, the Court has held that what matters is not an existing familiarity
between the buyer and the seller, for quite often, the parties to the transaction
may be strangers, but their agreement and the acts constituting the sale and
delivery of the marijuana. 17
The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was
impossible for the appellant to sell marijuana while his wife, cousin and
manicurist were present. But the place of the commission of the crime of selling
prohibited drugs has been held to be not crucial 18 and the presence of other
people apart from the buyer and seller will not necessarily prevent the
consummation of the illegal sale. As the Court observed in People v. Paco, 19
these factors may sometimes camouflage the commission of the crime. In the
instant case, the fact that the other people inside the appellant's house are
known to the appellant may have given him some assurance that these people
will not report him to the authorities.
The appellant, besides assailing Sgt. Ani's credibility, also questions the credibility
of T/Sgt. Belarga. The appellant submits that since T/Sgt. Belarga admitted that
he was about 90 meters away from Sgt. Ani and the appellant, he could not have

possibly witnessed the sale. The appellant invokes People v.

Ale 20 where the Court observed that from a distance of 10-15 meters, a
policeman cannot distinguish between marijuana cigarette from ordinary ones
by the type of rolling done on the cigarette sticks. And since T/Sgt. Belarga
allegedly did not see the sale, the appellant contends that the uncorroborated
testimony of Sgt. Ani can not stand as basis for his conviction.
People v. Ale does not apply here because the policeman in that case testified
that he and his companion were certain that the appellant therein handed
marijuana cigarettes to the poseur-buyer based on the appearance of the
cigarette sticks. The Court rejected this claim, stating that:
This Court cannot give full credit to the testimonies of the
prosecution witnesses marked as they are with contradictions
and tainted with inaccuracies.
Bian testified that they were able to tell that the four
cigarettes were marijuana cigarettes because according to him,
the rolling of ordinary cigarettes are different from those of
marijuana cigarettes. (tsn, November 13, 1984, p. 10).
It is however, incredible to believe that they could discern the
type of rolling done on those cigarettes from the distance
where they were observing the alleged sale of more or less 10
to 15 meters. 21
In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw
the appellant hand over marijuana to Sgt. Ani. What he said was that there was
an exchange of certain articles between the two. The relevant portion of T/Sgt.
Belarga's testimony reads: 22
Q Now, do you remember whether Sgt. Ani
was able to reach the house of Mari Musa?
A Yes, ma'am.
Q After reaching Mari Musa, did you see what
happened (sic)?
A Yes, ma'am.

Q Could you please tell us?

A From our vehicle the stainless owner type
jeep where Sgt. Lego, Sgt. Biong were
boarded, I saw that Sgt. Ani proceeded to the
house near the road and he was met by one
person and later known as Mari Musa who
was at the time wearing short pants and later
on I saw that Sgt. Ani handed something to
him, thereafter received by Mari Musa and
went inside the house and came back later
and handed something to Sgt. Ani.
Contrary to the contention of the appellant, it was not impossible for T/Sgt.
Belarga to have seen, from a distance of 90-100 meters, Sgt. Ani hand to the
appellant "something" and for the latter to give to the former "something."
Notwithstanding the fact that T/Sgt. Belarga could not have been certain that
what Sgt. Ani received from the appellant was marijuana because of the
distance, his testimony, nevertheless, corroborated the direct evidence, which
the Court earlier ruled to be convincing, presented by Sgt. Ani on the following
material points: (1) T/Sgt. Belarga instructed Sgt. Ani to conduct a surveillance
and test-buy operation on the appellant at Suterville, Zamboanga City on
December 13, 1989; 23 (2) later that same day, Sgt. Ani went back to their office
and reported a successful operation and turned over to T/Sgt. Belarga one
wrapper of marijuana; 24 (3) T/Sgt. Belarga then organized a team to conduct a
buy-bust operation the following day; 25 (4) on December 14, 1989, T/Sgt.
Belarga led a team of NARCOM agents who went to Suterville, Zamboanga City;
26
(5) T/Sgt. Belarga gave a P20.00 marked bill to Sgt. Ani which was to be used in
the buy-bust operation; 27 (6) upon the arrival of the NARCOM agents in
Suterville, Zamboanga City, Sgt. Ani proceeded to the house of the appellant
while some agents stayed in the vehicles and others positioned themselves in
strategic places; 28 the appellant met Sgt. Ani and an exchange of articles took
place. 29
The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence
given by Sgt. Ani. Additionally, the Court has ruled that the fact that the police
officers who accompanied the poseur-buyer were unable to see exactly what the
appellant gave the poseur-buyer because of their distance or position will not be
fatal to the prosecution's case 30 provided there exists other evidence, direct or

circumstantial, e.g., the testimony of the poseur-buyer, which is sufficient to

prove the consummation of the sale of the prohibited drug
The appellant next assails the seizure and admission as evidence of a plastic bag
containing marijuana which the NARCOM agents found in the appellant's
kitchen. It appears that after Sgt. Ani gave the pre-arranged signal to the other
NARCOM agents, the latter moved in and arrested the appellant inside the
house. They searched him to retrieve the marked money but didn't find it. Upon
being questioned, the appellant said that he gave the marked money to his wife.
31
Thereafter, T/Sgt. Belarga and Sgt. Lego went to the kitchen and noticed what
T/Sgt. Belarga described as a "cellophane colored white and stripe hanging at the
corner of the kitchen." 32 They asked the appellant about its contents but failing
to get a response, they opened it and found dried marijuana leaves. At the trial,
the appellant questioned the admissibility of the plastic bag and the marijuana it
contains but the trial court issued an Order ruling that these are admissible in
evidence. 33
Built into the Constitution are guarantees on the freedom of every individual
against unreasonable searches and seizures by providing in Article III, Section 2,
the following:
The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures
of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and
the witness he may produce, and particularly describing the
place to be searched and the persons or things to be seized.
Furthermore, the Constitution, in conformity with the doctrine laid down in
Stonehill v. Diokno, 34 declares inadmissible, any evidence obtained in violation of
the freedom from unreasonable searches and seizures. 35
While a valid search warrant is generally necessary before a search and seizure
may be effected, exceptions to this rule are recognized. Thus, in Alvero v. Dizon,
36
the Court stated that. "[t]he most important exception to the necessity for a
search warrant is the right of search and seizure as an incident to a lawful
arrest." 37

Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless

search and seizure incident to a lawful arrest, thus:
Sec. 12. Search incident to lawful arrest. A person lawfully
arrested may be searched for dangerous weapons or anything
which may be used as proof of the commission of an offense,
without a search warrant.
There is no doubt that the warrantless search incidental to a lawful arrest
authorizes the arresting officer to make a search upon the person of the person
arrested. As early as 1909, the Court has ruled that "[a]n officer making an arrest
may take from the person arrested any money or property found upon his
person which was used in the commission of the crime or was the fruit of the
crime or which might furnish the prisoner with the means of committing
violence or of escaping, or which may be used as evidence in the trial of the
cause . . . " 38 Hence, in a buy-bust operation conducted to entrap a drug-pusher,
the law enforcement agents may seize the marked money found on the person
of the pusher immediately after the arrest even without arrest and search
warrants. 39
In the case at bar, the NARCOM agents searched the person of the appellant
after arresting him in his house but found nothing. They then searched the
entire house and, in the kitchen, found and seized a plastic bag hanging in a
corner.
The warrantless search and seizure, as an incident to a suspect's lawful arrest,
may extend beyond the person of the one arrested to include the premises or
surroundings under his immediate control. 40 Objects in the "plain view" of an
officer who has the right to be in the position to have that view are subject to
seizure and may be presented as evidence. 41
In Ker v. California 42 police officers, without securing a search warrant but
having information that the defendant husband was selling marijuana from his
apartment, obtained from the building manager a passkey to defendants'
apartment, and entered it. There they found the defendant husband in the living
room. The defendant wife emerged from the kitchen, and one of the officers,
after identifying himself, observed through the open doorway of the kitchen, a
small scale atop the kitchen sink, upon which lay a brick-shaped package
containing green leafy substance which he recognized as marijuana. The package
of marijuana was used as evidence in prosecuting defendants for violation of the
Narcotic Law. The admissibility of the package was challenged before the U.S.

Supreme Court, which held, after observing that it was not unreasonable for the
officer to walk to the doorway of the adjacent kitchen on seeing the defendant
wife emerge therefrom, that "the discovery of the brick of marijuana did not
constitute a search, since the officer merely saw what was placed before him in
full view. 43 The U.S. Supreme Court ruled that the warrantless seizure of the
marijuana was legal on the basis of the "plain view" doctrine and upheld the
admissibility of the seized drugs as part of the prosecution's evidence. 44
The "plain view" doctrine may not, however, be used to launch unbridled
searches and indiscriminate seizures nor to extend a general exploratory search
made solely to find evidence of defendant's guilt. The "plain view" doctrine is
usually applied where a police officer is not searching for evidence against the
accused, but nonetheless inadvertently comes across an incriminating object. 45
Furthermore, the U.S. Supreme Court stated the following limitations on the
application of the doctrine:
What the "plain view" cases have in common is that the police officer in each of
them had a prior justification for an intrusion in the course of which he came
inadvertently across a piece of evidence incriminating the accused. The doctrine
serves to supplement the prior justification whether it be a warrant for
another object, hot pursuit, search incident to lawful arrest, or some other
legitimate reason for being present unconnected with a search directed against
the accused and permits the warrantless seizure. Of course, the extension of
the original justification is legitimate only where it is immediately apparent to
the police that they have evidence before them; the "plain view" doctrine may
not be used to extend a general exploratory search from one object to another
until something incriminating at last emerges. 46
It has also been suggested that even if an object is observed in "plain view," the
"plain view" doctrine will not justify the seizure of the object where the
incriminating nature of the object is not apparent from the "plain view" of the
object. 47 Stated differently, it must be immediately apparent to the police that
the items that they observe may be evidence of a crime, contraband, or
otherwise subject to seizure.
In the instant case, the appellant was arrested and his person searched in the
living room. Failing to retrieve the marked money which they hoped to find, the
NARCOM agents searched the whole house and found the plastic bag in the
kitchen. The plastic bag was, therefore, not within their "plain view" when they
arrested the appellant as to justify its seizure. The NARCOM agents had to move
from one portion of the house to another before they sighted the plastic bag.

Unlike Ker vs. California, where the police officer had reason to walk to the
doorway of the adjacent kitchen and from which position he saw the marijuana,
the NARCOM agents in this case went from room to room with the obvious
intention of fishing for more evidence.
Moreover, when the NARCOM agents saw the plastic bag hanging in one corner
of the kitchen, they had no clue as to its contents. They had to ask the appellant
what the bag contained. When the appellant refused to respond, they opened it
and found the marijuana. Unlike Ker v. California, where the marijuana was
visible to the police officer's eyes, the NARCOM agents in this case could not
have discovered the inculpatory nature of the contents of the bag had they not
forcibly opened it. Even assuming then, that the NARCOM agents inadvertently
came across the plastic bag because it was within their "plain view," what may
be said to be the object in their "plain view" was just the plastic bag and not the
marijuana. The incriminating nature of the contents of the plastic bag was not
immediately apparent from the "plain view" of said object. It cannot be claimed
that the plastic bag clearly betrayed its contents, whether by its distinctive
configuration, its transprarency, or otherwise, that its contents are obvious to an
observer. 48
We, therefore, hold that under the circumstances of the case, the "plain view"
doctrine does not apply and the marijuana contained in the plastic bag was
seized illegally and cannot be presented in evidence pursuant to Article III,
Section 3(2) of the Constitution.
The exclusion of this particular evidence does not, however, diminish, in any
way, the damaging effect of the other pieces of evidence presented by the
prosecution to prove that the appellant sold marijuana, in violation of Article II,
Section 4 of the Dangerous Drugs Act of 1972. We hold that by virtue of the
testimonies of Sgt. Ani and T/Sgt. Belarga and the two wrappings of marijuana
sold by the appellant to Sgt. Ani, among other pieces of evidence, the guilt of the
appellant of the crime charged has been proved beyond reasonable doubt.
WHEREFORE, the appeal is DISMISSED and the judgment of the Regional Trial
Court AFFIRMED.
SO ORDERED.

G.R. No. 145176

March 30, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
SANTIAGO PERALTA y POLIDARIO (at large), ARMANDO DATUIN JR. y GRANADOS
(at large), ULYSSES GARCIA y TUPAS, MIGUELITO DE LEON y LUCIANO, LIBRANDO
FLORES y CRUZ and ANTONIO LOYOLA y SALISI, accused,
ULYSSES GARCIA y TUPAS, MIGUELITO DE LEON y LUCIANO, LIBRANDO FLORES y
CRUZ and ANTONIO LOYOLA y SALISI, appellants.
DECISION
PANGANIBAN, J.:
The right of the accused to counsel demands effective, vigilant and independent
representation. The lawyers role cannot be reduced to being that of a mere
witness to the signing of an extra-judicial confession.
The Case
Before the Court is an appeal from the August 21, 2000 Decision 1 of the Regional
Trial Court (RTC) of Manila (Branch 18) in Criminal Case No. 92-112322.
Appellants Ulysses Garcia y Tupas, Miguelito de Leon y Luciano, Librando Flores y
Cruz and Antonio Loyola y Salisi, as well as their co-accused -- Santiago Peralta y
Polidario and Armando Datuin Jr. y Granados -- were convicted therein of
qualified theft. The dispositive portion of the Decision reads:
"WHEREFORE, the accused, Santiago Peralta y Polidario, Armando Datuin, Jr. y
Granados, Ulysses Garcia y Tupas, Miguelito De Leon y Luciano, Librando Flores y
Cruz and Antonio Loyola y Salisi, are hereby convicted of the crime of qualified
theft of P194,190.00 and sentenced to suffer the penalty of reclusion perpetua
with all the accessory penalties provided by law, and to pay the costs. Moreover,
all the accused are ordered to pay the Central Bank of the Philippines, now
Bangko Sentral ng Pilipinas, actual damages in the sum of P194,190.00 with
interest thereon at the legal rate from the date of the filing of this action,
November 9, 1992, until fully paid."2
In an Information dated November 9, 1992,3 appellants and their co-accused
were charged as follows:

"That sometime in the year 1990 and including November 4, 1992, in the City of
Manila, Philippines, the said accused, conspiring and confederating with others
whose true names, identities and present whereabouts are still unknown and
helping one another, did then and there wilfully, unlawfully and feloniously, with
intent to gain and without the knowledge and consent of the owner thereof,
take, steal and carry away punctured currency notes due for shredding in the
total amount of P194,190.00, belonging to the Central Bank of the Philippines as
represented by Pedro Labita y Cabriga, to the damage and prejudice of the latter
in the aforesaid sum of P194,190.00 Philippine currency;
"That said accused Santiago Peralta y Polidario, Armando Datuin, Jr. y Granados,
Ulysses Garcia y Tupas, Miguelito de Leon y Luciano and Antonio Loyola y Salisi
committed said offense with grave abuse of confidence they being at the time
employed as Currency Reviewers, Driver, Currency Assistant I and Money
Counter of the offended party and as such they had free access to the property
stolen."4
Garcia was arrested on November 4, 1992; and his co-accused, on November 9,
1992. Appellants, however, obtained two Release Orders from RTC Vice
Executive Judge Corona Ibay-Somera on November 9 and 10, 1992, upon their
filing of a cash bond to secure their appearance whenever required by the trial
court.5
During their arraignment on May 4, 1993, appellants, assisted by their respective
counsels, pleaded not guilty.6 On September 30, 1998, the trial court declared
that Datuin Jr. and Peralta were at large, because they had failed to appear in
court despite notice.7
After trial in due course, they were all found guilty and convicted of qualified
theft in the appealed Decision.
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) presents the prosecutions version of
the facts as follows:
"About 10:00 oclock in the morning of November 4, 1992, Pedro Labita
of Central Bank of the Philippines (CBP) [now Bangko Sentral ng Pilipinas
(BSP)] went to the Theft and Robbery Section of Western Police District
Command (WPDC), and filed a complaint for Qualified Theft against

Santiago Peralta, Armando Datuin, Jr., Ulysses Garcia, Miguelito de

Leon, Librando Flores and Antonio S. Loyola.
"Pedro Labita submitted to SPO4 Cielito Coronel, the investigating
officer at WPDC, punctured currency notes in P100.00 and P500.00 bills
with a face value of Php194,190.00. Said notes were allegedly recovered
by the BSP Cash Department during its cash counting of punctured
currency bills submitted by different banks to the latter. The punctured
bills were rejected by the BSP money counter machine and were later
submitted to the investigation staff of the BSP Cash Department. As a
result of the investigation, it was determined that said rejected currency
bills were actually punctured notes already due for shredding. These
currency bills were punctured because they were no longer intended for
circulation. Before these notes could be shredded, they were stolen
from the BSP by the above-named accused.
"On the basis of the complaint filed by Pedro Labita, Ulysses Garcia was
apprehended in front of Golden Gate Subdivision, Las Pias City, while
he was waiting for a passenger bus on his way to the BSP. Garcia was
brought to the police station for investigation.
"On November 4, 5 and 6, 1992, while in the custody of the police
officers, Garcia gave three separate statements admitting his guilt and
participation in the crime charged. He also identified the other named
accused as his cohorts and accomplices and narrated the participation
of each and everyone of them.
"On the basis of Garcias sworn statements, the other named accused
were invited for questioning at the police station and were subsequently
charged with qualified theft together with Garcia."8 (Citations omitted)
Version of the Defense

Subdivision, Las Pias City. He was arrested without any warrant for his
arrest. The police officer who had arrested accused-appellant Garcia
dragged the latter across the street and forced him to ride x x x a car.
"While inside the car, he was blindfolded, his hands were handcuffed
behind his back, and he was made to bend with his chest touching his
knees. Somebody from behind hit him and he heard some of the
occupants of the car say that he would be salvaged if he would not tell
the truth. When the occupants of the car mentioned perforated notes,
he told them that he does not know anything about those notes.
"After the car had stopped, he was dragged out of the car and x x x up
and down x x x the stairs. While being dragged out of the car, he felt
somebody frisk his pocket.
"At a safe house, somebody mentioned to him the names of his coaccused and he told them that he does not know his co-accused x x x.
Whenever he would deny knowing his co-accused, somebody would box
him on his chest. Somebody poured water on accused-appellant
Garcias nose while lying on the bench. He was able to spit out the water
that had been poured on his nose [at first], but somebody covered his
mouth. As a result, he could not breath[e].
"When accused-appellant Garcia realized that he could not bear the
torture anymore, he decided to cooperate with the police, and they
stopped the water pouring and allowed him to sit down.
"Accused-appellant Garcia heard people talking and he heard somebody
utter, may nakikinig. Suddenly his two ears were hit with open palm*s+
x x x. As he was being brought down, he felt somebody return his
personal belongings to his pocket. Accused-appellant Garcias personal
belongings consisted of *his+ drivers license, important papers and coin
purse.

The defense states its version of the facts in the following manner:
"Accused-appellant Garcia served as a driver of the armored car of the
Central Bank from 1978 to 1994.

"He was forced to ride x x x the car still with blindfold. His blindfold and
handcuffs were removed when he was at the office of police officer
Dante Dimagmaliw at the Western Police District, U.N. Avenue, Manila.

"On November 4, 1992, between 7:00 a.m. and 8:00 a.m., a man who
had identified himself as a police officer arrested accused-appellant
Garcia while waiting for a passenger bus in front of the Golden Gate

"SPO4 Cielito Coronel asked accused-appellant Garcia about the latters

name, age and address. The arrival of Mr. Pedro Labita of the Cash
Department, Central Bank of the Philippines, interrupted the interview,

and Mr. Labita instructed SPO4 Coronel to get accused-appellant

Garcias wallet and examine the contents thereof. SPO4 Coronel
supposedly found three pieces of P100 perforated bill in accusedappellant Garcias wallet and the former insisted that they recovered
the said perforated notes from accused-appellants wallet. SPO4
Coronel took down the statement of Mr. Labita.
"It was actually Mr. Labita, and not accused-appellant Garcia, who gave
the answers appearing in accused-appellant Garcias alleged three
sworn statements dated November 4, 1992, November 5, 1992 and x x x
November 6, 1992.
"At or about 6:00 p.m. on November 5, 1992, accused-appellant Garcia
was brought to the cell of the Theft and Robbery Section of the WPD. At
or about 8:00 p.m., he was brought to the office of Col. Alladin
Dimagmaliw where his co-accused were also inside. He did not identify
his co-accused, but he merely placed his hands on the shoulders of each
of his co-accused, upon being requested, and Mr. Labita took x x x
pictures while he was doing the said act.
"Accused-appellant Garcia came to know Atty. Francisco Sanchez of the
Public Attorneys Office on November 4, 1992, at the office of police
officer Dante Dimagmaliw, when SPO4 Coronel introduced Atty. Sanchez
to accused-appellant Garcia and told him that Atty. Sanchez would be
his lawyer. However, accused-appellant Garcia did not agree to have
Atty. Sanchez to be his lawyer. Atty. Sanchez left after talking to SPO4
Coronel, and accused-appellant Garcia had not met Atty. Sanchez
anymore since then. He was not present when Atty. Sanchez allegedly
signed x x x the alleged three (3) sworn statements.
"During the hearing of the case on April 6, 2000, Atty. Sanchez
manifested in open court that he did not assist accused-appellant Garcia
when the police investigated accused-appellant Garcia, and that he
signed x x x the three (3) sworn statements only as a witness thereto.
"Accused-appellant Garcia signed the alleged three sworn statements
due to SPO4 Coronels warning that if he would not do so, he would
again be tortured by water cure.
"SPO[4] Coronel caused the arrest without any warrant of accused
appellants De Leon, Loyola, [Flores] on the basis of the complaint of Mr.

Pedro Labita, and which arrest was effected on November 5, 1992, by

SPO1 Alfredo Silva and SPO1 Redelico.
"SPO4 Coronel, in his letter dated November 6, 1992, forwarded the
case to the Duty Inquest Prosecutor assigned at the WPDC
Headquarters."9 (Citations omitted)
Ruling of the Trial Court
The trial court found that all the accused used to work for the BSP. Garcia was a
driver assigned to the Security and Transport Department; while Peralta, Datuin
Jr., De Leon, Flores and Loyola were laborers assigned to the Currency
Retirement Division. Their main task was to haul perforated currency notes from
the currency retirement vault to the basement of the BSP building for shredding.
On several occasions, during the period 1990-1992, they handed to Garcia
perforated currency notes placed in a coin sack that he, in turn, loaded in an
armored escort van and delivered to someone waiting outside the premises of
the building. The trial court held that the coordinated acts of all the accused
unerringly led to the conclusion that they had conspired to pilfer the perforated
currency notes belonging to the BSP.
The RTC rejected the disclaimer by Garcia of his own confessions, as such
disclaimer was "an eleventh hour concoction to exculpate himself and his coaccused." The trial court found his allegations of torture and coerced confessions
unsupported by evidence. Moreover, it held that the recovery of three pieces of
perforated P100 bills from Garcias wallet and the flight of Peralta and Datuin Jr.
were indicative of the guilt of the accused.
Hence, this appeal.10
Issues
In his Brief, Garcia raises the following issues:
"1
The trial court erred in admitting in evidence the alleged three Sworn
Statements of Accused-appellant Garcia and the alleged three pieces of P100
perforated notes

"2

The appeal has merit.

The trial court erred in finding the accused-appellant guilty of qualified theft."11
In their joint Brief, De Leon, Loyola and Flores interpose this additional
assignment of errors:
"1
The trial court erred in admitting in evidence the alleged three sworn statements
of Accused Ulysses Garcia (Exhibits I, J and K) and the alleged three pieces of
P100 perforated notes (Exhibits N to N-2) over the objections of the accusedappellants.
"2
The trial court erred in denying the demurrer to evidence of Accused-appellants
De Leon, Loyola and Flores;
"3
The trial court erred in denying the Motion for Reconsideration of the Order
denying the demurrer to evidence;

First Issue:
Sufficiency of Evidence
The trial court convicted appellants mainly on the strength of the three
confessions given by Garcia and the three perforated P100 currency notes
confiscated from him upon his arrest. Appellants, however, contend that these
pieces of evidence are inadmissible.
Extrajudicial Confessions
Appellants aver that the alleged three Sworn Statements of Garcia were
obtained without the assistance of counsel in violation of his rights under Article
III, Section 12 (1) and (2) of the 1987 Constitution, which provides thus:
"Sec. 12. (1) Any person under investigation for the commission of an offense
shall have the right to be informed of his right to remain silent and to have
competent and independent counsel, preferably of his own choice. If the person
cannot afford the services of counsel, he must be provided with one. These
rights cannot be waived except in writing and in the presence of counsel.

"4

"(2) No torture, force, violence, threat, intimidation, or any other means which
vitiate the free will shall be used against him. Secret detention places, solitary,
incomunicado, or other similar forms of detention are prohibited."

The trial court erred when it failed to consider the evidence adduced by the
accused-appellants, consisting of exhibits 1, 2 to 2-B, 3 and 4 and the
testimony of their witness, State Auditor Esmeralda Elli;

On the other hand, the OSG contends that counsel, Atty. Francisco Sanchez III of
the Public Attorneys Office, duly assisted Garcia during the custodial
investigation.

"5
The trial court erred in finding the accused-appellants guilty of qualified theft."12
Simplified, the issues are as follows: (1) the sufficiency of the evidence against
appellants, including the admissibility of Garcias confessions and of the three
perforated P100 currency notes; and (2) the propriety of the denial of their
demurrer to evidence.
The Courts Ruling

It is clear from a plain reading of the three extrajudicial confessions 13 that Garcia
was not assisted by Atty. Sanchez. The signature of the latter on those
documents was affixed after the word "SAKSI." Moreover, he appeared in court
and categorically testified that he had not assisted Garcia when the latter was
investigated by the police, and that the former had signed the Sworn Statement
only as a witness.14
The written confessions, however, were still admitted in evidence by the RTC on
the ground that Garcia had expressed in writing his willingness and readiness to
give the Sworn Statements without the assistance of counsel. The lower courts
action is manifest error.

The right to counsel has been written into our Constitution in order to prevent
the use of duress and other undue influence in extracting confessions from a
suspect in a crime. The basic law specifically requires that any waiver of this right
must be made in writing and executed in the presence of a counsel. In such case,
counsel must not only ascertain that the confession is voluntarily made and that
the accused understands its nature and consequences, but also advise and assist
the accused continuously from the time the first question is asked by the
investigating officer until the signing of the confession.
Hence, the lawyers role cannot be reduced to being that of a mere witness to
the signing of a pre-prepared confession, even if it indicated compliance with the
constitutional rights of the accused.15 The accused is entitled to effective, vigilant
and independent counsel.16
A waiver in writing, like that which the trial court relied upon in the present case,
is not enough. Without the assistance of a counsel, the waiver has no evidentiary
relevance.17 The Constitution states that "[a]ny confession or admission obtained
in violation of [the aforecited Section 12] shall be inadmissible in evidence x x x."
Hence, the trial court was in error when it admitted in evidence the uncounseled
confessions of Garcia and convicted appellants on the basis thereof. The
question of whether he was tortured becomes moot.
Perforated Currency Notes
Appellants contend that the three P100 perforated currency notes (Exhibits "N"
to "N-2") allegedly confiscated from Garcia after his arrest were "fruits of the
poisonous tree" and, hence, inadmissible in evidence.
The solicitor general evades the issue and argues, instead, that appellants
waived the illegality of their arrest when they entered a plea. He further
contends that the exclusion from the evidence of the three punctured currency
bills would not alter the findings of the trial court.
The police arrested Garcia without a warrant, while he had merely been waiting
for a passenger bus after being pointed out by the Cash Department personnel
of the BSP. At the time of his arrest, he had not committed, was not committing,
and was not about to commit any crime. Neither was he acting in a manner that
would engender a reasonable ground to suspect that he was committing a
crime. None of the circumstances justifying an arrest without a warrant under
Section 5 of Rule 113 of the Rules of Court was present.

Hence, Garcia was not lawfully arrested. Nonetheless, not having raised the
matter before entering his plea, he is deemed to have waived the illegality of his
arrest. Note, however, that this waiver is limited to the arrest. It does not extend
to the search made as an incident thereto or to the subsequent seizure of
evidence allegedly found during the search.
The Constitution proscribes unreasonable searches and seizures18 of whatever
nature. Without a judicial warrant, these are allowed only under the following
exceptional circumstances: (1) a search incident to a lawful arrest, (2) seizure of
evidence in plain view, (3) search of a moving motor vehicle, (4) customs search,
(5) stop and frisk situations, and (6) consented search. 19
Where the arrest was incipiently illegal, it follows that the subsequent search
was similarly illegal.20 Any evidence obtained in violation of the constitutional
provision is legally inadmissible in evidence under the exclusionary rule. 21 In the
present case, the perforated P100 currency notes were obtained as a result of a
search made without a warrant subsequent to an unlawful arrest; hence, they
are inadmissible in evidence.
Moreover, untenable is the solicitor generals argument that Appellants De Leon,
Flores and Loyola waived the illegality of the arrest and seizure when, without
raising objections thereto, they entered a plea of guilty. It was Garcia who was
unlawfully arrested and searched, not the aforementioned three appellants. The
legality of an arrest can be contested only by the party whose rights have been
impaired thereby. Objection to an unlawful search and seizure is purely personal,
and third parties cannot avail themselves of it.22
Indeed, the prosecution sufficiently proved the theft of the perforated currency
notes for retirement. It failed, however, to present sufficient admissible evidence
pointing to appellants as the authors of the crime.
The evidence presented by the prosecution shows that there were other people
who had similar access to the shredding machine area and the currency
retirement vault.23 Appellants were pinpointed by Labita because of an
anonymous phone call informing his superior of the people allegedly behind the
theft; and of the unexplained increase in their spending, which was incompatible
with their income. Labita, however, did not submit sufficient evidence to support
his allegation.

Without the extrajudicial confession and the perforated currency notes, the
remaining evidence would be utterly inadequate to overturn the constitutional
presumption of innocence.
Second Issue:
Demurrer to Evidence
Appellants contend that the trial court seriously erred when it denied the
demurrer to evidence filed by Appellants Loyola, De Leon and Flores. Not one of
the documents offered by the prosecution and admitted in evidence by the RTC
established the alleged qualified theft of perforated notes, and not one of the
pieces of evidence showed appellants participation in the commission of the
crime.
On the exercise of sound judicial discretion rests the trial judges determination
of the sufficiency or the insufficiency of the evidence presented by the
prosecution to establish a prima facie case against the accused. Unless there is a
grave abuse of discretion amounting to lack of jurisdiction, the trial courts denial
of a motion to dismiss may not be disturbed.24
As discussed earlier, the inadmissibility of the confessions of Garcia did not
become apparent until after Atty. Francisco had testified in court. Even if the
confiscated perforated notes from the person of the former were held to be
inadmissible, the confessions would still have constituted prima facie evidence of
the guilt of appellants. On that basis, the trial court did not abuse its discretion in
denying their demurrer to evidence.
WHEREFORE, the assailed Decision is REVERSED and SET ASIDE. Appellants are
hereby ACQUITTED and ordered immediately RELEASED, unless they are being
detained for any other lawful cause. The director of the Bureau of Corrections is
hereby directed to submit his report on the release of the appellant or the
reason for his continued detention within five (5) days from notice of this
Decision. No costs.
SO ORDERED.
Davide Jr., CJ.,(Chairman) Panganiban, Ynares-Santiago, Carpio, and Azcuna, JJ
concur.

G.R. No. 83988 September 29, 1989

RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLE'S
RIGHTS (ULAP), petitioners,
vs.
GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT COMMAND,
respondents.
Ricardo C. Valmonte for himself and his co-petitioners.

PADILLA, J.:
This is a petition for prohibition with preliminary injunction and/or temporary
restraining order, seeking the declaration of checkpoints in Valenzuela, Metro
Manila or elsewhere, as unconstitutional and the dismantling and banning of the
same or, in the alternative, to direct the respondents to formulate guidelines in
the implementation of checkpoints, for the protection of the people.
Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the Republic,
taxpayer, member of the Integrated Bar of the Philippines (IBP), and resident of
Valenzuela, Metro Manila; while petitioner Union of Lawyers and Advocates for
People's Rights (ULAP) sues in its capacity as an association whose members are
all members of the IBP.
The factual background of the case is as follows:
On 20 January 1987, the National Capital Region District Command (NCRDC) was
activated pursuant to Letter of Instruction 02/87 of the Philippine General
Headquarters, AFP, with the mission of conducting security operations within its
area of responsibility and peripheral areas, for the purpose of establishing an
effective territorial defense, maintaining peace and order, and providing an
atmosphere conducive to the social, economic and political development of the
National Capital Region. 1 As part of its duty to maintain peace and order, the
NCRDC installed checkpoints in various parts of Valenzuela, Metro Manila.
Petitioners aver that, because of the installation of said checkpoints, the
residents of Valenzuela are worried of being harassed and of their safety being
placed at the arbitrary, capricious and whimsical disposition of the military
manning the checkpoints, considering that their cars and vehicles are being

subjected to regular searches and check-ups, especially at night or at dawn,

without the benefit of a search warrant and/or court order. Their alleged fear for
their safety increased when, at dawn of 9 July 1988, Benjamin Parpon, a supply
officer of the Municipality of Valenzuela, Bulacan, was gunned down allegedly in
cold blood by the members of the NCRDC manning the checkpoint along
McArthur Highway at Malinta, Valenzuela, for ignoring and/or refusing to submit
himself to the checkpoint and for continuing to speed off inspire of warning
shots fired in the air. Petitioner Valmonte also claims that, on several occasions,
he had gone thru these checkpoints where he was stopped and his car subjected
to search/check-up without a court order or search warrant.
Petitioners further contend that the said checkpoints give the respondents a
blanket authority to make searches and/or seizures without search warrant or
court order in violation of the Constitution; 2 and, instances have occurred where
a citizen, while not killed, had been harassed.
Petitioners' concern for their safety and apprehension at being harassed by the
military manning the checkpoints are not sufficient grounds to declare the
checkpoints as per se illegal. No proof has been presented before the Court to
show that, in the course of their routine checks, the military indeed committed
specific violations of petitioners' right against unlawful search and seizure or
other rights.
In a case filed by the same petitioner organization, Union of Lawyers and
Advocates for People's Right (ULAP) vs. Integrated National Police, 3 it was held
that individual petitioners who do not allege that any of their rights were
violated are not qualified to bring the action, as real parties in interest.
The constitutional right against unreasonable searches and seizures is a personal
right invocable only by those whose rights have been infringed, 4 or threatened
to be infringed. What constitutes a reasonable or unreasonable search and
seizure in any particular case is purely a judicial question, determinable from a
consideration of the circumstances involved. 5
Petitioner Valmonte's general allegation to the effect that he had been stopped
and searched without a search warrant by the military manning the checkpoints,
without more, i.e., without stating the details of the incidents which amount to a
violation of his right against unlawful search and seizure, is not sufficient to
enable the Court to determine whether there was a violation of Valmonte's right
against unlawful search and seizure. Not all searches and seizures are prohibited.
Those which are reasonable are not forbidden. A reasonable search is not to be

determined by any fixed formula but is to be resolved according to the facts of

each case. 6
Where, for example, the officer merely draws aside the curtain of a vacant
vehicle which is parked on the public fair grounds, 7 or simply looks into a
vehicle, 8 or flashes a light therein, 9 these do not constitute unreasonable
search.
The setting up of the questioned checkpoints in Valenzuela (and probably in
other areas) may be considered as a security measure to enable the NCRDC to
pursue its mission of establishing effective territorial defense and maintaining
peace and order for the benefit of the public. Checkpoints may also be regarded
as measures to thwart plots to destabilize the government, in the interest of
public security. In this connection, the Court may take judicial notice of the shift
to urban centers and their suburbs of the insurgency movement, so clearly
reflected in the increased killings in cities of police and military men by NPA
"sparrow units," not to mention the abundance of unlicensed firearms and the
alarming rise in lawlessness and violence in such urban centers, not all of which
are reported in media, most likely brought about by deteriorating economic
conditions which all sum up to what one can rightly consider, at the very least,
as abnormal times. Between the inherent right of the state to protect its
existence and promote public welfare and an individual's right against a
warrantless search which is however reasonably conducted, the former should
prevail.
True, the manning of checkpoints by the military is susceptible of abuse by the
men in uniform, in the same manner that all governmental power is susceptible
of abuse. But, at the cost of occasional inconvenience, discomfort and even
irritation to the citizen, the checkpoints during these abnormal times, when
conducted within reasonable limits, are part of the price we pay for an orderly
society and a peaceful community.
Finally, on 17 July 1988, military and police checkpoints in Metro Manila were
temporarily lifted and a review and refinement of the rules in the conduct of the
police and military manning the checkpoints was ordered by the National Capital
Regional Command Chief and the Metropolitan Police Director. 10
WHEREFORE, the petition is DISMISSED.
SO ORDERED.

G.R. No. 203335

February 11, 2014

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE
TORAL and ERNESTO SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE
INTERIOR AND LOCAL GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE
INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE
PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203299
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE,
Respondents.

PHILIPPINE NATIONAL POLICE, and DIRECTOR OF THE NATIONAL BUREAU OF

INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203378
ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H.
HARRY L. ROQUE, JR., ROMEL R. BAGARES, and GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT,
THE DEPARTMENT OF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE NATIONAL BUREAU OF INVESTIGATION, THE PHILIPPINE
NATIONAL POLICE, AND THE INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND TECHNOLOGY,
Respondents.
x-----------------------x
G.R. No. 203391

x-----------------------x
G.R. No. 203306
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT,
INC., JERRY S. YAP, BERTENI "TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID,
TRACY CABRERA, RONALDO E. RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO, ET
AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III,
SENATE OF THE PHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents.

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO

OF ANAKBAYAN, MA. KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE
THERESE BAGUISI OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES,
ET AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of
President Benigno Simeon Aquino III, LEILA DE LIMA in her capacity as Secretary of
Justice, Respondents.
x-----------------------x

x-----------------------x

G.R. No. 203407

G.R. No. 203359

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR.,

National Artist BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the
Philippines, ELMER C. LABOG, Chairperson of Kilusang Mayo Uno, CRISTINA E.
PALABAY, Secretary General of Karapatan, FERDINAND R. GAITE, Chairperson of
COURAGE, JOEL B. MAGLUNSOD, Vice President of Anakpawis Party-List, LANA R.
LINABAN, Secretary General Gabriela Women's Party, ADOLFO ARES P.
GUTIERREZ, and JULIUS GARCIA MATIBAG, Petitioners,

SENATOR TEOFISTO DL GUINGONA III, Petitioner,

vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE

vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines,
PAQUITO N. OCHOA, JR., Executive Secretary, SENATE OF THE PHILIPPINES,
represented by SENATE PRESIDENT JUAN PONCE ENRILE, HOUSE OF
REPRESENTATIVES, represented by SPEAKER FELICIANO BELMONTE, JR., LEILA DE
LIMA, Secretary of the Department of Justice, LOUIS NAPOLEON C. CASAMBRE,
Executive Director of the Information and Communications Technology Office,
NONNATUS CAESAR R. ROJAS, Director of the National Bureau of Investigation,
D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National Police, MANUEL
A. ROXAS II, Secretary of the Department of the Interior and Local Government,
Respondents.

INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES AND

INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR
INSTRUCTIONS, ORDERS, DIRECTION IN RELATION TO THE IMPLEMENTATION OF
REPUBLIC ACT NO. 10175, Respondents.
x-----------------------x
G.R. No. 203454

x-----------------------x

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,

vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, Respondents.

G.R. No. 203440

x-----------------------x

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY

PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of
the Ateneo Human Rights Center), Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE
LEILA DE LIMA in her capacity as Secretary of Justice, HONORABLE MANUEL
ROXAS in his capacity as Secretary of the Department of Interior and Local
Government, The CHIEF of the Philippine National Police, The DIRECTOR of the
National Bureau of Investigation (all of the Executive Department of Government),
Respondents.

G.R. No. 203469

x-----------------------x
G.R. No. 203453
NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS
INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA
CARRANZA PARAAN, MELINDA QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO,
ARIEL SEBELLINO AND THE PETITIONERS IN THE e-PETITION
http://www.nujp.org/no-to-ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND
MANAGEMENT, THE DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL POLICE,
THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA;

MARCK RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO;
AARON ERICK A. LOZADA; GERARD ADRIAN P. MAGNAYE; JOSE REGINALD A.
RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ; MAUREEN A.
HERMITANIO; KRISTINE JOY S. REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F.
CABIGON; BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B.
LICERA, JR; and PINOY EXPAT/OFW BLOG AWARDS, INC. COORDINATOR PEDRO E.
RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the
Republic of the Philippines; SENATE OF THE PHILIPPINES, represented by HON.
JUAN PONCE ENRILE, in his capacity as Senate President; HOUSE OF
REPRESENTATIVES, represented by FELICIANO R. BELMONTE, JR., in his capacity as
Speaker of the House of Representatives; HON. PAQUITO N. OCHOA, JR., in his
capacity as Executive Secretary; HON. LEILA M. DE LIMA, in her capacity as
Secretary of Justice; HON. LOUIS NAPOLEON C. CASAMBRE, in his capacity as
Executive Director, Information and Communications Technology Office; HON.
NONNATUS CAESAR R. ROJAS, in his capacity as Director, National Bureau of
Investigation; and P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief,
Philippine National Police, Respondents.
x-----------------------x

G.R. No. 203501

PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the
Republic of the Philippines; HON. PAQUITO N. OCHOA, JR., in his official capacity
as Executive Secretary; HON. LEILA M. DE LIMA, in her official capacity as
Secretary of Justice; LOUIS NAPOLEON C. CASAMBRE, in his official capacity as
Executive Director, Information and Communications Technology Office;
NONNATUS CAESAR R. ROJAS, in his official capacity as Director of the National
Bureau of Investigation; and DIRECTOR GENERAL NICANOR A. BARTOLOME, in his
official capacity as Chief of the Philippine National Police, Respondents.
x-----------------------x

LAKAS NG MASA, represented by Cesar S. Melencio, FRANCIS EUSTON R. ACERO,

MARLON ANTHONY ROMASANTA TONSON, TEODORO A. CASIO, NOEMI
LARDIZABAL-DADO, IMELDA ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M.
RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN
DADO, MARCO VITTORIA TOBIAS SUMAYAO, IRENE CHIA, ERASTUS NOEL T.
DELIZO, CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI L. TUPAS,
KENNETH KENG, ANA ALEXANDRA C. CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF
INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF SCIENCE AND
TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE INFORMATION TECHNOLOGY
OFFICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE CHIEF,
PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF CYBERCRIME,
and THE OTHER MEMBERS OF THE CYBERCRIME INVESTIGATION AND
COORDINATING CENTER, Respondents.

G.R. No. 203509

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,
vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.
x-----------------------x
G.R. No. 203515
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D.
ANTIPORDA in his capacity as President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF
JUSTICE, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE
NATIONAL POLICE, NATIONAL BUREAU OF INVESTIGATION, DEPARTMENT OF
BUDGET AND MANAGEMENT AND ALL OTHER GOVERNMENT
INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE AND/OR
IMPLEMENTATION OF REPUBLIC ACT 10175, Respondents.
x-----------------------x
G.R. No. 203518
PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE
COLLECTIVE FOR MODERN HEROISM, represented by Leni Velasco, PARTIDO

DECISION
ABAD, J.:
These consolidated petitions seek to declare several provisions of Republic Act
(R.A.) 10175, the Cybercrime Prevention Act of 2012, unconstitutional and void.
The Facts and the Case
The cybercrime law aims to regulate access to and use of the cyberspace. Using
his laptop or computer, a person can connect to the internet, a system that links
him to other computers and enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all kinds of information
that he needs for research, study, amusement, upliftment, or pure
curiosity;
2. Post billboard-like notices or messages, including pictures and videos,
for the general public or for special audiences like associates,
classmates, or friends and read postings from them;
3. Advertise and promote goods or services and make purchases and
payments;

4. Inquire and do business with institutional entities like government

agencies, banks, stock exchanges, trade houses, credit card companies,
public utilities, hospitals, and schools; and
5. Communicate in writing or by voice with any person through his email address or telephone.
This is cyberspace, a system that accommodates millions and billions of
simultaneous and ongoing individual accesses to and uses of the internet. The
cyberspace is a boon to the need of the current generation for greater
information and facility of communication. But all is not well with the system
since it could not filter out a number of persons of ill will who would want to use
cyberspace technology for mischiefs and crimes. One of them can, for instance,
avail himself of the system to unjustly ruin the reputation of another or bully the
latter by posting defamatory statements against him that people can read.
And because linking with the internet opens up a user to communications from
others, the ill-motivated can use the cyberspace for committing theft by hacking
into or surreptitiously accessing his bank account or credit card or defrauding
him through false representations. The wicked can use the cyberspace, too, for
illicit trafficking in sex or for exposing to pornography guileless children who
have access to the internet. For this reason, the government has a legitimate
right to regulate the use of cyberspace and contain and punish wrongdoings.
Notably, there are also those who would want, like vandals, to wreak or cause
havoc to the computer systems and networks of indispensable or highly useful
institutions as well as to the laptop or computer programs and memories of
innocent individuals. They accomplish this by sending electronic viruses or virtual
dynamites that destroy those computer systems, networks, programs, and
memories. The government certainly has the duty and the right to prevent these
tomfooleries from happening and punish their perpetrators, hence the
Cybercrime Prevention Act.
But petitioners claim that the means adopted by the cybercrime law for
regulating undesirable cyberspace activities violate certain of their constitutional
rights. The government of course asserts that the law merely seeks to reasonably
put order into cyberspace activities, punish wrongdoings, and prevent hurtful
attacks on the system.

order (TRO) that it earlier issued on October 9, 2012, enjoining respondent

government agencies from implementing the cybercrime law until further
orders.
The Issues Presented
Petitioners challenge the constitutionality of the following provisions of the
cybercrime law that regard certain acts as crimes and impose penalties for their
commission as well as provisions that would enable the government to track
down and penalize violators. These provisions are:
a. Section 4(a)(1) on Illegal Access;
b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial Communications;
h. Section 4(c)(4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in the Commission of
Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised Penal Code
(RPC) and R.A. 10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;

Pending hearing and adjudication of the issues presented in these cases, on

February 5, 2013 the Court extended the original 120-day temporary restraining

n. Section 13 on Preservation of Computer Data;

o. Section 14 on Disclosure of Computer Data;

p. Section 15 on Search, Seizure and Examination of Computer Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating Center
(CICC); and
u. Section 26(a) on CICCs Powers and Functions.
Some petitioners also raise the constitutionality of related Articles 353, 354, 361,
and 362 of the RPC on the crime of libel.
The Rulings of the Court
Section 4(a)(1)
Section 4(a)(1) provides:
Section 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer
data and systems:
(1) Illegal Access. The access to the whole or any part of a computer system
without right.
Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard
required of laws that interfere with the fundamental rights of the people and
should thus be struck down.
The Court has in a way found the strict scrutiny standard, an American
constitutional construct,1 useful in determining the constitutionality of laws that
tend to target a class of things or persons. According to this standard, a

legislative classification that impermissibly interferes with the exercise of

fundamental right or operates to the peculiar class disadvantage of a suspect
class is presumed unconstitutional. The burden is on the government to prove
that the classification is necessary to achieve a compelling state interest and that
it is the least restrictive means to protect such interest.2 Later, the strict scrutiny
standard was used to assess the validity of laws dealing with the regulation of
speech, gender, or race as well as other fundamental rights, as expansion from
its earlier applications to equal protection.3
In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the
application of the strict scrutiny standard since no fundamental freedom, like
speech, is involved in punishing what is essentially a condemnable act
accessing the computer system of another without right. It is a universally
condemned conduct.4
Petitioners of course fear that this section will jeopardize the work of ethical
hackers, professionals who employ tools and techniques used by criminal
hackers but would neither damage the target systems nor steal information.
Ethical hackers evaluate the target systems security and report back to the
owners the vulnerabilities they found in it and give instructions for how these
can be remedied. Ethical hackers are the equivalent of independent auditors
who come into an organization to verify its bookkeeping records.5
Besides, a clients engagement of an ethical hacker requires an agreement
between them as to the extent of the search, the methods to be used, and the
systems to be tested. This is referred to as the "get out of jail free card."6 Since
the ethical hacker does his job with prior permission from the client, such
permission would insulate him from the coverage of Section 4(a)(1).
Section 4(a)(3) of the Cybercrime Law
Section 4(a)(3) provides:
Section 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer
data and systems:
xxxx

(3) Data Interference. The intentional or reckless alteration, damaging, deletion

or deterioration of computer data, electronic document, or electronic data
message, without right, including the introduction or transmission of viruses.

(a) Offenses against the confidentiality, integrity and availability of computer

data and systems:
xxxx

Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it
seeks to discourage data interference, it intrudes into the area of protected
speech and expression, creating a chilling and deterrent effect on these
guaranteed freedoms.
Under the overbreadth doctrine, a proper governmental purpose,
constitutionally subject to state regulation, may not be achieved by means that
unnecessarily sweep its subject broadly, thereby invading the area of protected
freedoms.7 But Section 4(a)(3) does not encroach on these freedoms at all. It
simply punishes what essentially is a form of vandalism,8 the act of willfully
destroying without right the things that belong to others, in this case their
computer data, electronic document, or electronic data message. Such act has
no connection to guaranteed freedoms. There is no freedom to destroy other
peoples computer systems and private documents.
All penal laws, like the cybercrime law, have of course an inherent chilling effect,
an in terrorem effect9 or the fear of possible prosecution that hangs on the
heads of citizens who are minded to step beyond the boundaries of what is
proper. But to prevent the State from legislating criminal laws because they
instill such kind of fear is to render the state powerless in addressing and
penalizing socially harmful conduct.10 Here, the chilling effect that results in
paralysis is an illusion since Section 4(a)(3) clearly describes the evil that it seeks
to punish and creates no tendency to intimidate the free exercise of ones
constitutional rights.
Besides, the overbreadth challenge places on petitioners the heavy burden of
proving that under no set of circumstances will Section 4(a)(3) be valid.11
Petitioner has failed to discharge this burden.
Section 4(a)(6) of the Cybercrime Law

(6) Cyber-squatting. The acquisition of domain name over the internet in bad
faith to profit, mislead, destroy the reputation, and deprive others from
registering the same, if such a domain name is:
(i) Similar, identical, or confusingly similar to an existing trademark
registered with the appropriate government agency at the time of the
domain name registration;
(ii) Identical or in any way similar with the name of a person other than
the registrant, in case of a personal name; and
(iii) Acquired without right or with intellectual property interests in it.
Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal
protection clause12 in that, not being narrowly tailored, it will cause a user using
his real name to suffer the same fate as those who use aliases or take the name
of another in satire, parody, or any other literary device. For example, supposing
there exists a well known billionaire-philanthropist named "Julio Gandolfo," the
law would punish for cyber-squatting both the person who registers such name
because he claims it to be his pseudo-name and another who registers the name
because it happens to be his real name. Petitioners claim that, considering the
substantial distinction between the two, the law should recognize the difference.
But there is no real difference whether he uses "Julio Gandolfo" which happens
to be his real name or use it as a pseudo-name for it is the evil purpose for which
he uses the name that the law condemns. The law is reasonable in penalizing
him for acquiring the domain name in bad faith to profit, mislead, destroy
reputation, or deprive others who are not ill-motivated of the rightful
opportunity of registering the same. The challenge to the constitutionality of
Section 4(a)(6) on ground of denial of equal protection is baseless.

Section 4(a)(6) provides:

Section 4(b)(3) of the Cybercrime Law
Section 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:

Section 4(b)(3) provides:

Section 4. Cybercrime Offenses. The following acts constitute the offense of

cybercrime punishable under this Act:
xxxx
b) Computer-related Offenses:
xxxx
(3) Computer-related Identity Theft. The intentional acquisition, use, misuse,
transfer, possession, alteration, or deletion of identifying information belonging
to another, whether natural or juridical, without right: Provided: that if no
damage has yet been caused, the penalty imposable shall be one (1) degree
lower.
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due
process and to privacy and correspondence, and transgresses the freedom of the
press.
The right to privacy, or the right to be let alone, was institutionalized in the 1987
Constitution as a facet of the right protected by the guarantee against
unreasonable searches and seizures.13 But the Court acknowledged its existence
as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to privacy exists
independently of its identification with liberty; it is in itself fully deserving of
constitutional protection.
Relevant to any discussion of the right to privacy is the concept known as the
"Zones of Privacy." The Court explained in "In the Matter of the Petition for
Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon"15 the relevance
of these zones to the right to privacy:
Zones of privacy are recognized and protected in our laws. Within these zones,
any form of intrusion is impermissible unless excused by law and in accordance
with customary legal process. The meticulous regard we accord to these zones
arises not only from our conviction that the right to privacy is a "constitutional
right" and "the right most valued by civilized men," but also from our adherence
to the Universal Declaration of Human Rights which mandates that, "no one shall
be subjected to arbitrary interference with his privacy" and "everyone has the
right to the protection of the law against such interference or attacks."

Two constitutional guarantees create these zones of privacy: (a) the right against
unreasonable searches16 and seizures, which is the basis of the right to be let
alone, and (b) the right to privacy of communication and correspondence.17 In
assessing the challenge that the State has impermissibly intruded into these
zones of privacy, a court must determine whether a person has exhibited a
reasonable expectation of privacy and, if so, whether that expectation has been
violated by unreasonable government intrusion.18
The usual identifying information regarding a person includes his name, his
citizenship, his residence address, his contact number, his place and date of
birth, the name of his spouse if any, his occupation, and similar data.19 The law
punishes those who acquire or use such identifying information without right,
implicitly to cause damage. Petitioners simply fail to show how government
effort to curb computer-related identity theft violates the right to privacy and
correspondence as well as the right to due process of law.
Also, the charge of invalidity of this section based on the overbreadth doctrine
will not hold water since the specific conducts proscribed do not intrude into
guaranteed freedoms like speech. Clearly, what this section regulates are
specific actions: the acquisition, use, misuse or deletion of personal identifying
data of another. There is no fundamental right to acquire anothers personal
data.
Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in
that journalists would be hindered from accessing the unrestricted user account
of a person in the news to secure information about him that could be
published. But this is not the essence of identity theft that the law seeks to
prohibit and punish. Evidently, the theft of identity information must be
intended for an illegitimate purpose. Moreover, acquiring and disseminating
information made public by the user himself cannot be regarded as a form of
theft.
The Court has defined intent to gain as an internal act which can be established
through the overt acts of the offender, and it may be presumed from the furtive
taking of useful property pertaining to another, unless special circumstances
reveal a different intent on the part of the perpetrator.20 As such, the press,
whether in quest of news reporting or social investigation, has nothing to fear
since a special circumstance is present to negate intent to gain which is required
by this Section.
Section 4(c)(1) of the Cybercrime Law

Section 4(c)(1) provides:

Sec. 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
(1) Cybersex. The willful engagement, maintenance, control, or operation,
directly or indirectly, of any lascivious exhibition of sexual organs or sexual
activity, with the aid of a computer system, for favor or consideration.
Petitioners claim that the above violates the freedom of expression clause of the
Constitution.21 They express fear that private communications of sexual
character between husband and wife or consenting adults, which are not
regarded as crimes under the penal code, would now be regarded as crimes
when done "for favor" in cyberspace. In common usage, the term "favor"
includes "gracious kindness," "a special privilege or right granted or conceded,"
or "a token of love (as a ribbon) usually worn conspicuously."22 This meaning
given to the term "favor" embraces socially tolerated trysts. The law as written
would invite law enforcement agencies into the bedrooms of married couples or
consenting individuals.

The case of Nogales v. People28 shows the extent to which the State can
regulate materials that serve no other purpose than satisfy the market for
violence, lust, or pornography.29 The Court weighed the property rights of
individuals against the public welfare. Private property, if containing
pornographic materials, may be forfeited and destroyed. Likewise, engaging in
sexual acts privately through internet connection, perceived by some as a right,
has to be balanced with the mandate of the State to eradicate white slavery and
the exploitation of women.
In any event, consenting adults are protected by the wealth of jurisprudence
delineating the bounds of obscenity.30 The Court will not declare Section 4(c)(1)
unconstitutional where it stands a construction that makes it apply only to
persons engaged in the business of maintaining, controlling, or operating,
directly or indirectly, the lascivious exhibition of sexual organs or sexual activity
with the aid of a computer system as Congress has intended.
Section 4(c)(2) of the Cybercrime Law
Section 4(c)(2) provides:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx

But the deliberations of the Bicameral Committee of Congress on this section of

the Cybercrime Prevention Act give a proper perspective on the issue. These
deliberations show a lack of intent to penalize a "private showing x x x between
and among two private persons x x x although that may be a form of obscenity
to some."23 The understanding of those who drew up the cybercrime law is that
the element of "engaging in a business" is necessary to constitute the illegal
cybersex.24 The Act actually seeks to punish cyber prostitution, white slave
trade, and pornography for favor and consideration. This includes interactive
prostitution and pornography, i.e., by webcam.25
The subject of Section 4(c)(1)lascivious exhibition of sexual organs or sexual
activityis not novel. Article 201 of the RPC punishes "obscene publications and
exhibitions and indecent shows." The Anti-Trafficking in Persons Act of 2003
penalizes those who "maintain or hire a person to engage in prostitution or
pornography."26 The law defines prostitution as any act, transaction, scheme, or
design involving the use of a person by another, for sexual intercourse or
lascivious conduct in exchange for money, profit, or any other consideration.27

(c) Content-related Offenses:

xxxx
(2) Child Pornography. The unlawful or prohibited acts defined and punishable
by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed
through a computer system: Provided, That the penalty to be imposed shall be
(1) one degree higher than that provided for in Republic Act No. 9775.
It seems that the above merely expands the scope of the Anti-Child Pornography
Act of 200931 (ACPA) to cover identical activities in cyberspace. In theory,
nothing prevents the government from invoking the ACPA when prosecuting
persons who commit child pornography using a computer system. Actually,
ACPAs definition of child pornography already embraces the use of "electronic,
mechanical, digital, optical, magnetic or any other means." Notably, no one has
questioned this ACPA provision.

Of course, the law makes the penalty higher by one degree when the crime is
committed in cyberspace. But no one can complain since the intensity or
duration of penalty is a legislative prerogative and there is rational basis for such
higher penalty.32 The potential for uncontrolled proliferation of a particular
piece of child pornography when uploaded in the cyberspace is incalculable.
Petitioners point out that the provision of ACPA that makes it unlawful for any
person to "produce, direct, manufacture or create any form of child
pornography"33 clearly relates to the prosecution of persons who aid and abet
the core offenses that ACPA seeks to punish.34 Petitioners are wary that a
person who merely doodles on paper and imagines a sexual abuse of a 16-yearold is not criminally liable for producing child pornography but one who
formulates the idea on his laptop would be. Further, if the author bounces off his
ideas on Twitter, anyone who replies to the tweet could be considered aiding
and abetting a cybercrime.
The question of aiding and abetting the offense by simply commenting on it will
be discussed elsewhere below. For now the Court must hold that the
constitutionality of Section 4(c)(2) is not successfully challenged.
Section 4(c)(3) of the Cybercrime Law
Section 4(c)(3) provides:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(3) Unsolicited Commercial Communications. The transmission of commercial
electronic communication with the use of computer system which seeks to
advertise, sell, or offer for sale products and services are prohibited unless:
(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or

administrative announcements from the sender to its existing users,
subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a
simple, valid, and reliable way for the recipient to reject receipt
of further commercial electronic messages (opt-out) from the
same source;
(bb) The commercial electronic communication does not
purposely disguise the source of the electronic message; and
(cc) The commercial electronic communication does not
purposely include misleading information in any part of the
message in order to induce the recipients to read the message.
The above penalizes the transmission of unsolicited commercial
communications, also known as "spam." The term "spam" surfaced in early
internet chat rooms and interactive fantasy games. One who repeats the same
sentence or comment was said to be making a "spam." The term referred to a
Monty Pythons Flying Circus scene in which actors would keep saying "Spam,
Spam, Spam, and Spam" when reading options from a menu.35
The Government, represented by the Solicitor General, points out that
unsolicited commercial communications or spams are a nuisance that wastes the
storage and network capacities of internet service providers, reduces the
efficiency of commerce and technology, and interferes with the owners
peaceful enjoyment of his property. Transmitting spams amounts to trespass to
ones privacy since the person sending out spams enters the recipients domain
without prior permission. The OSG contends that commercial speech enjoys less
protection in law.
But, firstly, the government presents no basis for holding that unsolicited
electronic ads reduce the "efficiency of computers." Secondly, people, before
the arrival of the age of computers, have already been receiving such unsolicited
ads by mail. These have never been outlawed as nuisance since people might
have interest in such ads. What matters is that the recipient has the option of
not opening or reading these mail ads. That is true with spams. Their recipients
always have the option to delete or not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to
read his emails, even unsolicited commercial ads addressed to him. Commercial
speech is a separate category of speech which is not accorded the same level of
protection as that given to other constitutionally guaranteed forms of expression
but is nonetheless entitled to protection.36 The State cannot rob him of this
right without violating the constitutionally guaranteed freedom of expression.
Unsolicited advertisements are legitimate forms of expression.

The libel provision of the cybercrime law, on the other hand, merely
incorporates to form part of it the provisions of the RPC on libel. Thus Section
4(c)(4) reads:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx

Articles 353, 354, and 355 of the Penal Code

(c) Content-related Offenses:
Section 4(c)(4) of the Cyber Crime Law
xxxx
Petitioners dispute the constitutionality of both the penal code provisions on
libel as well as Section 4(c)(4) of the Cybercrime Prevention Act on cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. A libel is public and malicious imputation of a
crime, or of a vice or defect, real or imaginary, or any act, omission, condition,
status, or circumstance tending to cause the dishonor, discredit, or contempt of
a natural or juridical person, or to blacken the memory of one who is dead.
Art. 354. Requirement for publicity. Every defamatory imputation is presumed
to be malicious, even if it be true, if no good intention and justifiable motive for
making it is shown, except in the following cases:

(4) Libel. The unlawful or prohibited acts of libel as defined in Article 355 of
the Revised Penal Code, as amended, committed through a computer system or
any other similar means which may be devised in the future.
Petitioners lament that libel provisions of the penal code37 and, in effect, the
libel provisions of the cybercrime law carry with them the requirement of
"presumed malice" even when the latest jurisprudence already replaces it with
the higher standard of "actual malice" as a basis for conviction.38 Petitioners
argue that inferring "presumed malice" from the accuseds defamatory
statement by virtue of Article 354 of the penal code infringes on his
constitutionally guaranteed freedom of expression.

1. A private communication made by any person to another in the

performance of any legal, moral or social duty; and

Petitioners would go further. They contend that the laws on libel should be
stricken down as unconstitutional for otherwise good jurisprudence requiring
"actual malice" could easily be overturned as the Court has done in Fermin v.
People39 even where the offended parties happened to be public figures.

2. A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative or other official proceedings which
are not of confidential nature, or of any statement, report or speech
delivered in said proceedings, or of any other act performed by public
officers in the exercise of their functions.

The elements of libel are: (a) the allegation of a discreditable act or condition
concerning another; (b) publication of the charge; (c) identity of the person
defamed; and (d) existence of malice.40

Art. 355. Libel means by writings or similar means. A libel committed by

means of writing, printing, lithography, engraving, radio, phonograph, painting,
theatrical exhibition, cinematographic exhibition, or any similar means, shall be
punished by prision correccional in its minimum and medium periods or a fine
ranging from 200 to 6,000 pesos, or both, in addition to the civil action which
may be brought by the offended party.

There is "actual malice" or malice in fact41 when the offender makes the
defamatory statement with the knowledge that it is false or with reckless
disregard of whether it was false or not.42 The reckless disregard standard used
here requires a high degree of awareness of probable falsity. There must be
sufficient evidence to permit the conclusion that the accused in fact entertained
serious doubts as to the truth of the statement he published. Gross or even
extreme negligence is not sufficient to establish actual malice.43

The prosecution bears the burden of proving the presence of actual malice in
instances where such element is required to establish guilt. The defense of
absence of actual malice, even when the statement turns out to be false, is
available where the offended party is a public official or a public figure, as in the
cases of Vasquez (a barangay official) and Borjal (the Executive Director, First
National Conference on Land Transportation). Since the penal code and
implicitly, the cybercrime law, mainly target libel against private persons, the
Court recognizes that these laws imply a stricter standard of "malice" to convict
the author of a defamatory statement where the offended party is a public
figure. Societys interest and the maintenance of good government demand a
full discussion of public affairs.44
Parenthetically, the Court cannot accept the proposition that its ruling in Fermin
disregarded the higher standard of actual malice or malice in fact when it found
Cristinelli Fermin guilty of committing libel against complainants who were public
figures. Actually, the Court found the presence of malice in fact in that case.
Thus:
It can be gleaned from her testimony that petitioner had the motive to make
defamatory imputations against complainants. Thus, petitioner cannot, by simply
making a general denial, convince us that there was no malice on her part.
Verily, not only was there malice in law, the article being malicious in itself, but
there was also malice in fact, as there was motive to talk ill against complainants
during the electoral campaign. (Emphasis ours)
Indeed, the Court took into account the relatively wide leeway given to
utterances against public figures in the above case, cinema and television
personalities, when it modified the penalty of imprisonment to just a fine of
P6,000.00.
But, where the offended party is a private individual, the prosecution need not
prove the presence of malice. The law explicitly presumes its existence (malice in
law) from the defamatory character of the assailed statement.45 For his
defense, the accused must show that he has a justifiable reason for the
defamatory statement even if it was in fact true.46
Petitioners peddle the view that both the penal code and the Cybercrime
Prevention Act violate the countrys obligations under the International
Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis v.
Republic of the Philippines,47 the United Nations Human Rights Committee

(UNHRC) cited its General Comment 34 to the effect that penal defamation laws
should include the defense of truth.
But General Comment 34 does not say that the truth of the defamatory
statement should constitute an all-encompassing defense. As it happens, Article
361 recognizes truth as a defense but under the condition that the accused has
been prompted in making the statement by good motives and for justifiable
ends. Thus:
Art. 361. Proof of the truth. In every criminal prosecution for libel, the truth
may be given in evidence to the court and if it appears that the matter charged
as libelous is true, and, moreover, that it was published with good motives and
for justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not constituting a crime
shall not be admitted, unless the imputation shall have been made against
Government employees with respect to facts related to the discharge of their
official duties.
In such cases if the defendant proves the truth of the imputation made by him,
he shall be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge,
to decriminalize libel. It simply suggested that defamation laws be crafted with
care to ensure that they do not stifle freedom of expression.48 Indeed, the
ICCPR states that although everyone should enjoy freedom of expression, its
exercise carries with it special duties and responsibilities. Free speech is not
absolute. It is subject to certain restrictions, as may be necessary and as may be
provided by law.49
The Court agrees with the Solicitor General that libel is not a constitutionally
protected speech and that the government has an obligation to protect private
individuals from defamation. Indeed, cyberlibel is actually not a new crime since
Article 353, in relation to Article 355 of the penal code, already punishes it. In
effect, Section 4(c)(4) above merely affirms that online defamation constitutes
"similar means" for committing libel.
But the Courts acquiescence goes only insofar as the cybercrime law penalizes
the author of the libelous statement or article. Cyberlibel brings with it certain
intricacies, unheard of when the penal code provisions on libel were enacted.
The culture associated with internet media is distinct from that of print.

The internet is characterized as encouraging a freewheeling, anything-goes

writing style.50 In a sense, they are a world apart in terms of quickness of the
readers reaction to defamatory statements posted in cyberspace, facilitated by
one-click reply options offered by the networking site as well as by the speed
with which such reactions are disseminated down the line to other internet
users. Whether these reactions to defamatory statement posted on the internet
constitute aiding and abetting libel, acts that Section 5 of the cybercrime law
punishes, is another matter that the Court will deal with next in relation to
Section 5 of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5. Other Offenses. The following acts shall also constitute an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. Any person
who willfully abets or aids in the commission of any of the offenses
enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. Any person who
willfully attempts to commit any of the offenses enumerated in this Act
shall be held liable.
Petitioners assail the constitutionality of Section 5 that renders criminally liable
any person who willfully abets or aids in the commission or attempts to commit
any of the offenses enumerated as cybercrimes. It suffers from overbreadth,
creating a chilling and deterrent effect on protected expression.
The Solicitor General contends, however, that the current body of jurisprudence
and laws on aiding and abetting sufficiently protects the freedom of expression
of "netizens," the multitude that avail themselves of the services of the internet.
He points out that existing laws and jurisprudence sufficiently delineate the
meaning of "aiding or abetting" a crime as to protect the innocent. The Solicitor
General argues that plain, ordinary, and common usage is at times sufficient to
guide law enforcement agencies in enforcing the law.51 The legislature is not
required to define every single word contained in the laws they craft.
Aiding or abetting has of course well-defined meaning and application in existing
laws. When a person aids or abets another in destroying a forest,52 smuggling
merchandise into the country,53 or interfering in the peaceful picketing of

laborers,54 his action is essentially physical and so is susceptible to easy

assessment as criminal in character. These forms of aiding or abetting lend
themselves to the tests of common sense and human experience.
But, when it comes to certain cybercrimes, the waters are muddier and the line
of sight is somewhat blurred. The idea of "aiding or abetting" wrongdoings
online threatens the heretofore popular and unchallenged dogmas of
cyberspace use.
According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos
have accessed the internet within a year, translating to about 31 million users.55
Based on a recent survey, the Philippines ranks 6th in the top 10 most engaged
countries for social networking.56 Social networking sites build social relations
among people who, for example, share interests, activities, backgrounds, or reallife connections.57
Two of the most popular of these sites are Facebook and Twitter. As of late
2012, 1.2 billion people with shared interests use Facebook to get in touch.58
Users register at this site, create a personal profile or an open book of who they
are, add other users as friends, and exchange messages, including automatic
notifications when they update their profile.59 A user can post a statement, a
photo, or a video on Facebook, which can be made visible to anyone, depending
on the users privacy settings.
If the post is made available to the public, meaning to everyone and not only to
his friends, anyone on Facebook can react to the posting, clicking any of several
buttons of preferences on the programs screen such as "Like," "Comment," or
"Share." "Like" signifies that the reader likes the posting while "Comment"
enables him to post online his feelings or views about the same, such as "This is
great!" When a Facebook user "Shares" a posting, the original "posting" will
appear on his own Facebook profile, consequently making it visible to his downline Facebook Friends.
Twitter, on the other hand, is an internet social networking and microblogging
service that enables its users to send and read short text-based messages of up
to 140 characters. These are known as "Tweets." Microblogging is the practice of
posting small pieces of digital contentwhich could be in the form of text,
pictures, links, short videos, or other mediaon the internet. Instead of friends,
a Twitter user has "Followers," those who subscribe to this particular users
posts, enabling them to read the same, and "Following," those whom this
particular user is subscribed to, enabling him to read their posts. Like Facebook,

a Twitter user can make his tweets available only to his Followers, or to the
general public. If a post is available to the public, any Twitter user can "Retweet"
a given posting. Retweeting is just reposting or republishing another persons
tweet without the need of copying and pasting it.
In the cyberworld, there are many actors: a) the blogger who originates the
assailed statement; b) the blog service provider like Yahoo; c) the internet
service provider like PLDT, Smart, Globe, or Sun; d) the internet caf that may
have provided the computer used for posting the blog; e) the person who makes
a favorable comment on the blog; and f) the person who posts a link to the blog
site.60 Now, suppose Maria (a blogger) maintains a blog on WordPress.com
(blog service provider). She needs the internet to access her blog so she
subscribes to Sun Broadband (Internet Service Provider).
One day, Maria posts on her internet account the statement that a certain
married public official has an illicit affair with a movie star. Linda, one of Marias
friends who sees this post, comments online, "Yes, this is so true! They are so
immoral." Marias original post is then multiplied by her friends and the latters
friends, and down the line to friends of friends almost ad infinitum. Nena, who is
a stranger to both Maria and Linda, comes across this blog, finds it interesting
and so shares the link to this apparently defamatory blog on her Twitter account.
Nenas "Followers" then "Retweet" the link to that blog site.
Pamela, a Twitter user, stumbles upon a random persons "Retweet" of Nenas
original tweet and posts this on her Facebook account. Immediately, Pamelas
Facebook Friends start Liking and making Comments on the assailed posting. A
lot of them even press the Share button, resulting in the further spread of the
original posting into tens, hundreds, thousands, and greater postings.
The question is: are online postings such as "Liking" an openly defamatory
statement, "Commenting" on it, or "Sharing" it with others, to be regarded as
"aiding or abetting?" In libel in the physical world, if Nestor places on the office
bulletin board a small poster that says, "Armand is a thief!," he could certainly be
charged with libel. If Roger, seeing the poster, writes on it, "I like this!," that
could not be libel since he did not author the poster. If Arthur, passing by and
noticing the poster, writes on it, "Correct!," would that be libel? No, for he
merely expresses agreement with the statement on the poster. He still is not its
author. Besides, it is not clear if aiding or abetting libel in the physical world is a
crime.

But suppose Nestor posts the blog, "Armand is a thief!" on a social networking
site. Would a reader and his Friends or Followers, availing themselves of any of
the "Like," "Comment," and "Share" reactions, be guilty of aiding or abetting
libel? And, in the complex world of cyberspace expressions of thoughts, when
will one be liable for aiding or abetting cybercrimes? Where is the venue of the
crime?
Except for the original author of the assailed statement, the rest (those who
pressed Like, Comment and Share) are essentially knee-jerk sentiments of
readers who may think little or haphazardly of their response to the original
posting. Will they be liable for aiding or abetting? And, considering the inherent
impossibility of joining hundreds or thousands of responding "Friends" or
"Followers" in the criminal charge to be filed in court, who will make a choice as
to who should go to jail for the outbreak of the challenged posting?
The old parameters for enforcing the traditional form of libel would be a square
peg in a round hole when applied to cyberspace libel. Unless the legislature
crafts a cyber libel law that takes into account its unique circumstances and
culture, such law will tend to create a chilling effect on the millions that use this
new medium of communication in violation of their constitutionally-guaranteed
right to freedom of expression.
The United States Supreme Court faced the same issue in Reno v. American Civil
Liberties Union,61 a case involving the constitutionality of the Communications
Decency Act of 1996. The law prohibited (1) the knowing transmission, by means
of a telecommunications device, of
"obscene or indecent" communications to any recipient under 18 years of age;
and (2) the knowing use of an interactive computer service to send to a specific
person or persons under 18 years of age or to display in a manner available to a
person under 18 years of age communications that, in context, depict or
describe, in terms "patently offensive" as measured by contemporary
community standards, sexual or excretory activities or organs.
Those who challenged the Act claim that the law violated the First Amendments
guarantee of freedom of speech for being overbroad. The U.S. Supreme Court
agreed and ruled:
The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S.
223, is a matter of special concern for two reasons. First, the CDA is a contentbased regulation of speech. The vagueness of such a regulation raises special

U.S. Const. amend. I concerns because of its obvious chilling effect on free
speech. Second, the CDA is a criminal statute. In addition to the opprobrium and
stigma of a criminal conviction, the CDA threatens violators with penalties
including up to two years in prison for each act of violation. The severity of
criminal sanctions may well cause speakers to remain silent rather than
communicate even arguably unlawful words, ideas, and images. As a practical
matter, this increased deterrent effect, coupled with the risk of discriminatory
enforcement of vague regulations, poses greater U.S. Const. amend. I concerns
than those implicated by certain civil regulations.
xxxx
The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223, presents a
great threat of censoring speech that, in fact, falls outside the statute's scope.
Given the vague contours of the coverage of the statute, it unquestionably
silences some speakers whose messages would be entitled to constitutional
protection. That danger provides further reason for insisting that the statute not
be overly broad. The CDAs burden on protected speech cannot be justified if it
could be avoided by a more carefully drafted statute. (Emphasis ours)
Libel in the cyberspace can of course stain a persons image with just one click of
the mouse. Scurrilous statements can spread and travel fast across the globe like
bad news. Moreover, cyberlibel often goes hand in hand with cyberbullying that
oppresses the victim, his relatives, and friends, evoking from mild to disastrous
reactions. Still, a governmental purpose, which seeks to regulate the use of this
cyberspace communication technology to protect a persons reputation and
peace of mind, cannot adopt means that will unnecessarily and broadly sweep,
invading the area of protected freedoms.62
If such means are adopted, self-inhibition borne of fear of what sinister
predicaments await internet users will suppress otherwise robust discussion of
public issues. Democracy will be threatened and with it, all liberties. Penal laws
should provide reasonably clear guidelines for law enforcement officials and
triers of facts to prevent arbitrary and discriminatory enforcement.63 The terms
"aiding or abetting" constitute broad sweep that generates chilling effect on
those who express themselves through cyberspace posts, comments, and other
messages.64 Hence, Section 5 of the cybercrime law that punishes "aiding or
abetting" libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial challenge
grounded on the void-for-vagueness doctrine is acceptable. The inapplicability of

the doctrine must be carefully delineated. As Justice Antonio T. Carpio explained

in his dissent in Romualdez v. Commission on Elections,65 "we must view these
statements of the Court on the inapplicability of the overbreadth and vagueness
doctrines to penal statutes as appropriate only insofar as these doctrines are
used to mount facial challenges to penal statutes not involving free speech."
In an "as applied" challenge, the petitioner who claims a violation of his
constitutional right can raise any constitutional ground absence of due
process, lack of fair notice, lack of ascertainable standards, overbreadth, or
vagueness. Here, one can challenge the constitutionality of a statute only if he
asserts a violation of his own rights. It prohibits one from assailing the
constitutionality of the statute based solely on the violation of the rights of third
persons not before the court. This rule is also known as the prohibition against
third-party standing.66
But this rule admits of exceptions. A petitioner may for instance mount a "facial"
challenge to the constitutionality of a statute even if he claims no violation of his
own rights under the assailed statute where it involves free speech on grounds
of overbreadth or vagueness of the statute.
The rationale for this exception is to counter the "chilling effect" on protected
speech that comes from statutes violating free speech. A person who does not
know whether his speech constitutes a crime under an overbroad or vague law
may simply restrain himself from speaking in order to avoid being charged of a
crime. The overbroad or vague law thus chills him into silence.67
As already stated, the cyberspace is an incomparable, pervasive medium of
communication. It is inevitable that any government threat of punishment
regarding certain uses of the medium creates a chilling effect on the
constitutionally-protected freedom of expression of the great masses that use it.
In this case, the particularly complex web of interaction on social media websites
would give law enforcers such latitude that they could arbitrarily or selectively
enforce the law.
Who is to decide when to prosecute persons who boost the visibility of a posting
on the internet by liking it? Netizens are not given "fair notice" or warning as to
what is criminal conduct and what is lawful conduct. When a case is filed, how
will the court ascertain whether or not one netizens comment aided and
abetted a cybercrime while another comment did not?

Of course, if the "Comment" does not merely react to the original posting but
creates an altogether new defamatory story against Armand like "He beats his
wife and children," then that should be considered an original posting published
on the internet. Both the penal code and the cybercrime law clearly punish
authors of defamatory publications. Make no mistake, libel destroys reputations
that society values. Allowed to cascade in the internet, it will destroy
relationships and, under certain circumstances, will generate enmity and tension
between social or economic groups, races, or religions, exacerbating existing
tension in their relationships.
In regard to the crime that targets child pornography, when "Google procures,
stores, and indexes child pornography and facilitates the completion of
transactions involving the dissemination of child pornography," does this make
Google and its users aiders and abettors in the commission of child pornography
crimes?68 Byars highlights a feature in the American law on child pornography
that the Cybercrimes law lacksthe exemption of a provider or notably a plain
user of interactive computer service from civil liability for child pornography as
follows:

consummated.71 In the absence of legislation tracing the interaction of netizens

and their level of responsibility such as in other countries, Section 5, in relation
to Section 4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial
Communications, and Section 4(c)(2) on Child Pornography, cannot stand
scrutiny.
But the crime of aiding or abetting the commission of cybercrimes under Section
5 should be permitted to apply to Section 4(a)(1) on Illegal Access, Section
4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section
4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section
4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section
4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity
Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the
exercise of the freedom of expression.

No provider or user of an interactive computer service shall be treated as the

publisher or speaker of any information provided by another information
content provider and cannot be held civilly liable for any action voluntarily taken
in good faith to restrict access to or availability of material that the provider or
user considers to be obscene...whether or not such material is constitutionally
protected.69

The crime of willfully attempting to commit any of these offenses is for the same
reason not objectionable. A hacker may for instance have done all that is
necessary to illegally access another partys computer system but the security
employed by the systems lawful owner could frustrate his effort. Another
hacker may have gained access to usernames and passwords of others but fail to
use these because the system supervisor is alerted.72 If Section 5 that punishes
any person who willfully attempts to commit this specific offense is not upheld,
the owner of the username and password could not file a complaint against him
for attempted hacking. But this is not right. The hacker should not be freed from
liability simply because of the vigilance of a lawful owner or his supervisor.

When a person replies to a Tweet containing child pornography, he effectively

republishes it whether wittingly or unwittingly. Does this make him a willing
accomplice to the distribution of child pornography? When a user downloads
the Facebook mobile application, the user may give consent to Facebook to
access his contact details. In this way, certain information is forwarded to third
parties and unsolicited commercial communication could be disseminated on
the basis of this information.70 As the source of this information, is the user
aiding the distribution of this communication? The legislature needs to address
this clearly to relieve users of annoying fear of possible criminal prosecution.

Petitioners of course claim that Section 5 lacks positive limits and could cover
the innocent.73 While this may be true with respect to cybercrimes that tend to
sneak past the area of free expression, any attempt to commit the other acts
specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4),
Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3),
and Section 4(c)(1) as well as the actors aiding and abetting the commission of
such acts can be identified with some reasonable certainty through adroit
tracking of their works. Absent concrete proof of the same, the innocent will of
course be spared.

Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises

apprehension on the part of internet users because of its obvious chilling effect
on the freedom of expression, especially since the crime of aiding or abetting
ensnares all the actors in the cyberspace front in a fuzzy way. What is more, as
the petitioners point out, formal crimes such as libel are not punishable unless

Section 6 of the Cybercrime Law

Section 6 provides:

Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended,
and special laws, if committed by, through and with the use of information and
communications technologies shall be covered by the relevant provisions of this
Act: Provided, That the penalty to be imposed shall be one (1) degree higher
than that provided for by the Revised Penal Code, as amended, and special laws,
as the case may be.
Section 6 merely makes commission of existing crimes through the internet a
qualifying circumstance. As the Solicitor General points out, there exists a
substantial distinction between crimes committed through the use of
information and communications technology and similar crimes committed using
other means. In using the technology in question, the offender often evades
identification and is able to reach far more victims or cause greater harm. The
distinction, therefore, creates a basis for higher penalties for cybercrimes.
Section 7 of the Cybercrime Law
Section 7 provides:
Sec. 7. Liability under Other Laws. A prosecution under this Act shall be
without prejudice to any liability for violation of any provision of the Revised
Penal Code, as amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the settled
doctrine that a single set of acts may be prosecuted and penalized
simultaneously under two laws, a special law and the Revised Penal Code. When
two different laws define two crimes, prior jeopardy as to one does not bar
prosecution of the other although both offenses arise from the same fact, if each
crime involves some important act which is not an essential element of the
other.74 With the exception of the crimes of online libel and online child
pornography, the Court would rather leave the determination of the correct
application of Section 7 to actual cases.
Online libel is different. There should be no question that if the published
material on print, said to be libelous, is again posted online or vice versa, that
identical material cannot be the subject of two separate libels. The two offenses,
one a violation of Article 353 of the Revised Penal Code and the other a violation
of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in
fact one and the same offense. Indeed, the OSG itself claims that online libel
under Section 4(c)(4) is not a new crime but is one already punished under
Article 353. Section 4(c)(4) merely establishes the computer system as another

means of publication.75 Charging the offender under both laws would be a

blatant violation of the proscription against double jeopardy.76
The same is true with child pornography committed online. Section 4(c)(2)
merely expands the ACPAs scope so as to include identical activities in
cyberspace. As previously discussed, ACPAs definition of child pornography in
fact already covers the use of "electronic, mechanical, digital, optical, magnetic
or any other means." Thus, charging the offender under both Section 4(c)(2) and
ACPA would likewise be tantamount to a violation of the constitutional
prohibition against double jeopardy.
Section 8 of the Cybercrime Law
Section 8 provides:
Sec. 8. Penalties. Any person found guilty of any of the punishable acts
enumerated in Sections 4(a) and 4(b) of this Act shall be punished with
imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(PhP200,000.00) up to a maximum amount commensurate to the damage
incurred or both.
Any person found guilty of the punishable act under Section 4(a)(5) shall be
punished with imprisonment of prision mayor or a fine of not more than Five
hundred thousand pesos (PhP500,000.00) or both.
If punishable acts in Section 4(a) are committed against critical infrastructure,
the penalty of reclusion temporal or a fine of at least Five hundred thousand
pesos (PhP500,000.00) up to maximum amount commensurate to the damage
incurred or both, shall be imposed.
Any person found guilty of any of the punishable acts enumerated in Section
4(c)(1) of this Act shall be punished with imprisonment of prision mayor or a fine
of at least Two hundred thousand pesos (PhP200,000.00) but not exceeding One
million pesos (PhP1,000,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section
4(c)(2) of this Act shall be punished with the penalties as enumerated in Republic
Act No. 9775 or the "Anti-Child Pornography Act of 2009:" Provided, That the
penalty to be imposed shall be one (1) degree higher than that provided for in
Republic Act No. 9775, if committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section
4(c)(3) shall be punished with imprisonment of arresto mayor or a fine of at least
Fifty thousand pesos (PhP50,000.00) but not exceeding Two hundred fifty
thousand pesos (PhP250,000.00) or both.

Traffic data refer only to the communications origin, destination, route, time,
date, size, duration, or type of underlying service, but not content, nor identities.

Any person found guilty of any of the punishable acts enumerated in Section 5
shall be punished with imprisonment one (1) degree lower than that of the
prescribed penalty for the offense or a fine of at least One hundred thousand
pesos (PhP100,000.00) but not exceeding Five hundred thousand pesos
(PhP500,000.00) or both.

Service providers are required to cooperate and assist law enforcement

authorities in the collection or recording of the above-stated information.

Section 8 provides for the penalties for the following crimes: Sections 4(a) on
Offenses Against the Confidentiality, Integrity and Availability of Computer Data
and Systems; 4(b) on Computer-related Offenses; 4(a)(5) on Misuse of Devices;
when the crime punishable under 4(a) is committed against critical
infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on
Unsolicited Commercial Communications; and Section 5 on Aiding or Abetting,
and Attempt in the Commission of Cybercrime.
The matter of fixing penalties for the commission of crimes is as a rule a
legislative prerogative. Here the legislature prescribed a measure of severe
penalties for what it regards as deleterious cybercrimes. They appear
proportionate to the evil sought to be punished. The power to determine
penalties for offenses is not diluted or improperly wielded simply because at
some prior time the act or omission was but an element of another offense or
might just have been connected with another crime.77 Judges and magistrates
can only interpret and apply them and have no authority to modify or revise
their range as determined by the legislative department.
The courts should not encroach on this prerogative of the lawmaking body.78
Section 12 of the Cybercrime Law
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. Law enforcement authorities,
with due cause, shall be authorized to collect or record by technical or electronic
means traffic data in real-time associated with specified communications
transmitted by means of a computer system.

All other data to be collected or seized or disclosed will require a court warrant.

The court warrant required under this section shall only be issued or granted
upon written application and the examination under oath or affirmation of the
applicant and the witnesses he may produce and the showing: (1) that there are
reasonable grounds to believe that any of the crimes enumerated hereinabove
has been committed, or is being committed, or is about to be committed; (2)
that there are reasonable grounds to believe that evidence that will be obtained
is essential to the conviction of any person for, or to the solution of, or to the
prevention of, any such crimes; and (3) that there are no other means readily
available for obtaining such evidence.
Petitioners assail the grant to law enforcement agencies of the power to collect
or record traffic data in real time as tending to curtail civil liberties or provide
opportunities for official abuse. They claim that data showing where digital
messages come from, what kind they are, and where they are destined need not
be incriminating to their senders or recipients before they are to be protected.
Petitioners invoke the right of every individual to privacy and to be protected
from government snooping into the messages or information that they send to
one another.
The first question is whether or not Section 12 has a proper governmental
purpose since a law may require the disclosure of matters normally considered
private but then only upon showing that such requirement has a rational relation
to the purpose of the law,79 that there is a compelling State interest behind the
law, and that the provision itself is narrowly drawn.80 In assessing regulations
affecting privacy rights, courts should balance the legitimate concerns of the
State against constitutional guarantees.81
Undoubtedly, the State has a compelling interest in enacting the cybercrime law
for there is a need to put order to the tremendous activities in cyberspace for
public good.82 To do this, it is within the realm of reason that the government
should be able to monitor traffic data to enhance its ability to combat all sorts of
cybercrimes.

Chapter IV of the cybercrime law, of which the collection or recording of traffic

data is a part, aims to provide law enforcement authorities with the power they
need for spotting, preventing, and investigating crimes committed in cyberspace.
Crime-fighting is a state business. Indeed, as Chief Justice Sereno points out, the
Budapest Convention on Cybercrimes requires signatory countries to adopt
legislative measures to empower state authorities to collect or record "traffic
data, in real time, associated with specified communications."83 And this is
precisely what Section 12 does. It empowers law enforcement agencies in this
country to collect or record such data.
But is not evidence of yesterdays traffic data, like the scene of the crime after it
has been committed, adequate for fighting cybercrimes and, therefore, real-time
data is superfluous for that purpose? Evidently, it is not. Those who commit the
crimes of accessing a computer system without right,84 transmitting viruses,85
lasciviously exhibiting sexual organs or sexual activity for favor or
consideration;86 and producing child pornography87 could easily evade
detection and prosecution by simply moving the physical location of their
computers or laptops from day to day. In this digital age, the wicked can commit
cybercrimes from virtually anywhere: from internet cafs, from kindred places
that provide free internet services, and from unregistered mobile internet
connectors. Criminals using cellphones under pre-paid arrangements and with
unregistered SIM cards do not have listed addresses and can neither be located
nor identified. There are many ways the cyber criminals can quickly erase their
tracks. Those who peddle child pornography could use relays of computers to
mislead law enforcement authorities regarding their places of operations.
Evidently, it is only real-time traffic data collection or recording and a
subsequent recourse to court-issued search and seizure warrant that can
succeed in ferreting them out.
Petitioners of course point out that the provisions of Section 12 are too broad
and do not provide ample safeguards against crossing legal boundaries and
invading the peoples right to privacy. The concern is understandable. Indeed,
the Court recognizes in Morfe v. Mutuc88 that certain constitutional guarantees
work together to create zones of privacy wherein governmental powers may not
intrude, and that there exists an independent constitutional right of privacy.
Such right to be left alone has been regarded as the beginning of all freedoms.89
But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme
Court classified privacy into two categories: decisional privacy and informational
privacy. Decisional privacy involves the right to independence in making certain
important decisions, while informational privacy refers to the interest in avoiding

disclosure of personal matters. It is the latter rightthe right to informational

privacythat those who oppose government collection or recording of traffic
data in real-time seek to protect.
Informational privacy has two aspects: the right not to have private information
disclosed, and the right to live freely without surveillance and intrusion.91 In
determining whether or not a matter is entitled to the right to privacy, this Court
has laid down a two-fold test. The first is a subjective test, where one claiming
the right must have an actual or legitimate expectation of privacy over a certain
matter. The second is an objective test, where his or her expectation of privacy
must be one society is prepared to accept as objectively reasonable.92
Since the validity of the cybercrime law is being challenged, not in relation to its
application to a particular person or group, petitioners challenge to Section 12
applies to all information and communications technology (ICT) users, meaning
the large segment of the population who use all sorts of electronic devices to
communicate with one another. Consequently, the expectation of privacy is to
be measured from the general publics point of view. Without reasonable
expectation of privacy, the right to it would have no basis in fact.
As the Solicitor General points out, an ordinary ICT user who courses his
communication through a service provider, must of necessity disclose to the
latter, a third person, the traffic data needed for connecting him to the recipient
ICT user. For example, an ICT user who writes a text message intended for
another ICT user must furnish his service provider with his cellphone number
and the cellphone number of his recipient, accompanying the message sent. It is
this information that creates the traffic data. Transmitting communications is
akin to putting a letter in an envelope properly addressed, sealing it closed, and
sending it through the postal service. Those who post letters have no
expectations that no one will read the information appearing outside the
envelope.
Computer datamessages of all kindstravel across the internet in packets and
in a way that may be likened to parcels of letters or things that are sent through
the posts. When data is sent from any one source, the content is broken up into
packets and around each of these packets is a wrapper or header. This header
contains the traffic data: information that tells computers where the packet
originated, what kind of data is in the packet (SMS, voice call, video, internet
chat messages, email, online browsing data, etc.), where the packet is going, and
how the packet fits together with other packets.93 The difference is that traffic
data sent through the internet at times across the ocean do not disclose the

actual names and addresses (residential or office) of the sender and the
recipient, only their coded internet protocol (IP) addresses. The packets travel
from one computer system to another where their contents are pieced back
together.
Section 12 does not permit law enforcement authorities to look into the
contents of the messages and uncover the identities of the sender and the
recipient.
For example, when one calls to speak to another through his cellphone, the
service providers communications system will put his voice message into
packets and send them to the other persons cellphone where they are refitted
together and heard. The latters spoken reply is sent to the caller in the same
way. To be connected by the service provider, the sender reveals his cellphone
number to the service provider when he puts his call through. He also reveals
the cellphone number to the person he calls. The other ways of communicating
electronically follow the same basic pattern.
In Smith v. Maryland,94 cited by the Solicitor General, the United States
Supreme Court reasoned that telephone users in the 70s must realize that they
necessarily convey phone numbers to the telephone company in order to
complete a call. That Court ruled that even if there is an expectation that phone
numbers one dials should remain private, such expectation is not one that
society is prepared to recognize as reasonable.
In much the same way, ICT users must know that they cannot communicate or
exchange data with one another over cyberspace except through some service
providers to whom they must submit certain traffic data that are needed for a
successful cyberspace communication. The conveyance of this data takes them
out of the private sphere, making the expectation to privacy in regard to them
an expectation that society is not prepared to recognize as reasonable.
The Court, however, agrees with Justices Carpio and Brion that when seemingly
random bits of traffic data are gathered in bulk, pooled together, and analyzed,
they reveal patterns of activities which can then be used to create profiles of the
persons under surveillance. With enough traffic data, analysts may be able to
determine a persons close associations, religious views, political affiliations,
even sexual preferences. Such information is likely beyond what the public may
expect to be disclosed, and clearly falls within matters protected by the right to
privacy. But has the procedure that Section 12 of the law provides been drawn
narrowly enough to protect individual rights?

Section 12 empowers law enforcement authorities, "with due cause," to collect

or record by technical or electronic means traffic data in real-time. Petitioners
point out that the phrase "due cause" has no precedent in law or jurisprudence
and that whether there is due cause or not is left to the discretion of the police.
Replying to this, the Solicitor General asserts that Congress is not required to
define the meaning of every word it uses in drafting the law.
Indeed, courts are able to save vague provisions of law through statutory
construction. But the cybercrime law, dealing with a novel situation, fails to hint
at the meaning it intends for the phrase "due cause." The Solicitor General
suggests that "due cause" should mean "just reason or motive" and "adherence
to a lawful procedure." But the Court cannot draw this meaning since Section 12
does not even bother to relate the collection of data to the probable commission
of a particular crime. It just says, "with due cause," thus justifying a general
gathering of data. It is akin to the use of a general search warrant that the
Constitution prohibits.
Due cause is also not descriptive of the purpose for which data collection will be
used. Will the law enforcement agencies use the traffic data to identify the
perpetrator of a cyber attack? Or will it be used to build up a case against an
identified suspect? Can the data be used to prevent cybercrimes from
happening?
The authority that Section 12 gives law enforcement agencies is too sweeping
and lacks restraint. While it says that traffic data collection should not disclose
identities or content data, such restraint is but an illusion. Admittedly, nothing
can prevent law enforcement agencies holding these data in their hands from
looking into the identity of their sender or receiver and what the data contains.
This will unnecessarily expose the citizenry to leaked information or, worse, to
extortion from certain bad elements in these agencies.
Section 12, of course, limits the collection of traffic data to those "associated
with specified communications." But this supposed limitation is no limitation at
all since, evidently, it is the law enforcement agencies that would specify the
target communications. The power is virtually limitless, enabling law
enforcement authorities to engage in "fishing expedition," choosing whatever
specified communication they want. This evidently threatens the right of
individuals to privacy.
The Solicitor General points out that Section 12 needs to authorize collection of
traffic data "in real time" because it is not possible to get a court warrant that

would authorize the search of what is akin to a "moving vehicle." But warrantless
search is associated with a police officers determination of probable cause that
a crime has been committed, that there is no opportunity for getting a warrant,
and that unless the search is immediately carried out, the thing to be searched
stands to be removed. These preconditions are not provided in Section 12.
The Solicitor General is honest enough to admit that Section 12 provides minimal
protection to internet users and that the procedure envisioned by the law could
be better served by providing for more robust safeguards. His bare assurance
that law enforcement authorities will not abuse the provisions of Section 12 is of
course not enough. The grant of the power to track cyberspace communications
in real time and determine their sources and destinations must be narrowly
drawn to preclude abuses.95
Petitioners also ask that the Court strike down Section 12 for being violative of
the void-for-vagueness doctrine and the overbreadth doctrine. These doctrines
however, have been consistently held by this Court to apply only to free speech
cases. But Section 12 on its own neither regulates nor punishes any type of
speech. Therefore, such analysis is unnecessary.
This Court is mindful that advances in technology allow the government and
kindred institutions to monitor individuals and place them under surveillance in
ways that have previously been impractical or even impossible. "All the forces of
a technological age x x x operate to narrow the area of privacy and facilitate
intrusions into it. In modern terms, the capacity to maintain and support this
enclave of private life marks the difference between a democratic and a
totalitarian society."96 The Court must ensure that laws seeking to take
advantage of these technologies be written with specificity and definiteness as
to ensure respect for the rights that the Constitution guarantees.
Section 13 of the Cybercrime Law
Section 13 provides:
Sec. 13. Preservation of Computer Data. The integrity of traffic data and
subscriber information relating to communication services provided by a service
provider shall be preserved for a minimum period of six (6) months from the
date of the transaction. Content data shall be similarly preserved for six (6)
months from the date of receipt of the order from law enforcement authorities
requiring its preservation.

Law enforcement authorities may order a one-time extension for another six (6)
months: Provided, That once computer data preserved, transmitted or stored by
a service provider is used as evidence in a case, the mere furnishing to such
service provider of the transmittal document to the Office of the Prosecutor
shall be deemed a notification to preserve the computer data until the
termination of the case.
The service provider ordered to preserve computer data shall keep confidential
the order and its compliance.
Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue
deprivation of the right to property. They liken the data preservation order that
law enforcement authorities are to issue as a form of garnishment of personal
property in civil forfeiture proceedings. Such order prevents internet users from
accessing and disposing of traffic data that essentially belong to them.
No doubt, the contents of materials sent or received through the internet belong
to their authors or recipients and are to be considered private communications.
But it is not clear that a service provider has an obligation to indefinitely keep a
copy of the same as they pass its system for the benefit of users. By virtue of
Section 13, however, the law now requires service providers to keep traffic data
and subscriber information relating to communication services for at least six
months from the date of the transaction and those relating to content data for
at least six months from receipt of the order for their preservation.
Actually, the user ought to have kept a copy of that data when it crossed his
computer if he was so minded. The service provider has never assumed
responsibility for their loss or deletion while in its keep.
At any rate, as the Solicitor General correctly points out, the data that service
providers preserve on orders of law enforcement authorities are not made
inaccessible to users by reason of the issuance of such orders. The process of
preserving data will not unduly hamper the normal transmission or use of the
same.
Section 14 of the Cybercrime Law
Section 14 provides:
Sec. 14. Disclosure of Computer Data. Law enforcement authorities, upon
securing a court warrant, shall issue an order requiring any person or service

provider to disclose or submit subscribers information, traffic data or relevant

data in his/its possession or control within seventy-two (72) hours from receipt
of the order in relation to a valid complaint officially docketed and assigned for
investigation and the disclosure is necessary and relevant for the purpose of
investigation.

Pursuant thereof, the law enforcement authorities may order any person who
has knowledge about the functioning of the computer system and the measures
to protect and preserve the computer data therein to provide, as is reasonable,
the necessary information, to enable the undertaking of the search, seizure and
examination.

The process envisioned in Section 14 is being likened to the issuance of a

subpoena. Petitioners objection is that the issuance of subpoenas is a judicial
function. But it is well-settled that the power to issue subpoenas is not
exclusively a judicial function. Executive agencies have the power to issue
subpoena as an adjunct of their investigatory powers.98

Law enforcement authorities may request for an extension of time to complete

the examination of the computer data storage medium and to make a return
thereon but in no case for a period longer than thirty (30) days from date of
approval by the court.

Besides, what Section 14 envisions is merely the enforcement of a duly issued

court warrant, a function usually lodged in the hands of law enforcers to enable
them to carry out their executive functions. The prescribed procedure for
disclosure would not constitute an unlawful search or seizure nor would it
violate the privacy of communications and correspondence. Disclosure can be
made only after judicial intervention.

Petitioners challenge Section 15 on the assumption that it will supplant

established search and seizure procedures. On its face, however, Section 15
merely enumerates the duties of law enforcement authorities that would ensure
the proper collection, preservation, and use of computer system or data that
have been seized by virtue of a court warrant. The exercise of these duties do
not pose any threat on the rights of the person from whom they were taken.
Section 15 does not appear to supersede existing search and seizure rules but
merely supplements them.

Section 15 of the Cybercrime Law

Section 17 of the Cybercrime Law
Section 15 provides:
Section 17 provides:
Sec. 15. Search, Seizure and Examination of Computer Data. Where a search
and seizure warrant is properly issued, the law enforcement authorities shall
likewise have the following powers and duties.
Within the time period specified in the warrant, to conduct interception, as
defined in this Act, and:
(a) To secure a computer system or a computer data storage medium;
(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer data;
(d) To conduct forensic analysis or examination of the computer data
storage medium; and
(e) To render inaccessible or remove those computer data in the
accessed computer or computer and communications network.

Sec. 17. Destruction of Computer Data. Upon expiration of the periods as

provided in Sections 13 and 15, service providers and law enforcement
authorities, as the case may be, shall immediately and completely destroy the
computer data subject of a preservation and examination.
Section 17 would have the computer data, previous subject of preservation or
examination, destroyed or deleted upon the lapse of the prescribed period. The
Solicitor General justifies this as necessary to clear up the service providers
storage systems and prevent overload. It would also ensure that investigations
are quickly concluded.
Petitioners claim that such destruction of computer data subject of previous
preservation or examination violates the users right against deprivation of
property without due process of law. But, as already stated, it is unclear that the
user has a demandable right to require the service provider to have that copy of
the data saved indefinitely for him in its storage system. If he wanted them
preserved, he should have saved them in his computer when he generated the

data or received it. He could also request the service provider for a copy before
it is deleted.

violates some law, for to do so would make him judge, jury, and executioner all
rolled into one.100

Section 19 of the Cybercrime Law

Not only does Section 19 preclude any judicial intervention, but it also disregards
jurisprudential guidelines established to determine the validity of restrictions on
speech. Restraints on free speech are generally evaluated on one of or a
combination of three tests: the dangerous tendency doctrine, the balancing of
interest test, and the clear and present danger rule.101 Section 19, however,
merely requires that the data to be blocked be found prima facie in violation of
any provision of the cybercrime law. Taking Section 6 into consideration, this can
actually be made to apply in relation to any penal provision. It does not take into
consideration any of the three tests mentioned above.

Section 19 empowers the Department of Justice to restrict or block access to

computer data:
Sec. 19. Restricting or Blocking Access to Computer Data. When a computer
data is prima facie found to be in violation of the provisions of this Act, the DOJ
shall issue an order to restrict or block access to such computer data.
Petitioners contest Section 19 in that it stifles freedom of expression and violates
the right against unreasonable searches and seizures. The Solicitor General
concedes that this provision may be unconstitutional. But since laws enjoy a
presumption of constitutionality, the Court must satisfy itself that Section 19
indeed violates the freedom and right mentioned.

The Court is therefore compelled to strike down Section 19 for being violative of
the constitutional guarantees to freedom of expression and against
unreasonable searches and seizures.
Section 20 of the Cybercrime Law

Computer data99 may refer to entire programs or lines of code, including

malware, as well as files that contain texts, images, audio, or video recordings.
Without having to go into a lengthy discussion of property rights in the digital
space, it is indisputable that computer data, produced or created by their writers
or authors may constitute personal property. Consequently, they are protected
from unreasonable searches and seizures, whether while stored in their personal
computers or in the service providers systems.
Section 2, Article III of the 1987 Constitution provides that the right to be secure
in ones papers and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable. Further, it states that
no search warrant shall issue except upon probable cause to be determined
personally by the judge. Here, the Government, in effect, seizes and places the
computer data under its control and disposition without a warrant. The
Department of Justice order cannot substitute for judicial search warrant.
The content of the computer data can also constitute speech. In such a case,
Section 19 operates as a restriction on the freedom of expression over
cyberspace. Certainly not all forms of speech are protected. Legislature may,
within constitutional bounds, declare certain kinds of expression as illegal. But
for an executive officer to seize content alleged to be unprotected without any
judicial warrant, it is not enough for him to be of the opinion that such content

Section 20 provides:
Sec. 20. Noncompliance. Failure to comply with the provisions of Chapter IV
hereof specifically the orders from law enforcement authorities shall be
punished as a violation of Presidential Decree No. 1829 with imprisonment of
prision correctional in its maximum period or a fine of One hundred thousand
pesos (Php100,000.00) or both, for each and every noncompliance with an order
issued by law enforcement authorities.
Petitioners challenge Section 20, alleging that it is a bill of attainder. The
argument is that the mere failure to comply constitutes a legislative finding of
guilt, without regard to situations where non-compliance would be reasonable
or valid.
But since the non-compliance would be punished as a violation of Presidential
Decree (P.D.) 1829,102 Section 20 necessarily incorporates elements of the
offense which are defined therein. If Congress had intended for Section 20 to
constitute an offense in and of itself, it would not have had to make reference to
any other statue or provision.
P.D. 1829 states:

Section 1. The penalty of prision correccional in its maximum period, or a fine

ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any person
who knowingly or willfully obstructs, impedes, frustrates or delays the
apprehension of suspects and the investigation and prosecution of criminal cases
by committing any of the following acts:
x x x.
Thus, the act of non-compliance, for it to be punishable, must still be done
"knowingly or willfully." There must still be a judicial determination of guilt,
during which, as the Solicitor General assumes, defense and justifications for
non-compliance may be raised. Thus, Section 20 is valid insofar as it applies to
the provisions of Chapter IV which are not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:
Sec. 24. Cybercrime Investigation and Coordinating Center. There is hereby
created, within thirty (30) days from the effectivity of this Act, an inter-agency
body to be known as the Cybercrime Investigation and Coordinating Center
(CICC), under the administrative supervision of the Office of the President, for
policy coordination among concerned agencies and for the formulation and
enforcement of the national cybersecurity plan.

the only thing he will have to do is to enforce it.1avvphi1 The second test
mandates adequate guidelines or limitations in the law to determine the
boundaries of the delegates authority and prevent the delegation from running
riot.103
Here, the cybercrime law is complete in itself when it directed the CICC to
formulate and implement a national cybersecurity plan. Also, contrary to the
position of the petitioners, the law gave sufficient standards for the CICC to
follow when it provided a definition of cybersecurity.
Cybersecurity refers to the collection of tools, policies, risk management
approaches, actions, training, best practices, assurance and technologies that
can be used to protect cyber environment and organization and users
assets.104 This definition serves as the parameters within which CICC should
work in formulating the cybersecurity plan.
Further, the formulation of the cybersecurity plan is consistent with the policy of
the law to "prevent and combat such [cyber] offenses by facilitating their
detection, investigation, and prosecution at both the domestic and international
levels, and by providing arrangements for fast and reliable international
cooperation."105 This policy is clearly adopted in the interest of law and order,
which has been considered as sufficient standard.106 Hence, Sections 24 and
26(a) are likewise valid.
WHEREFORE, the Court DECLARES:

Sec. 26. Powers and Functions. The CICC shall have the following powers and
functions:
(a) To formulate a national cybersecurity plan and extend immediate assistance
of real time commission of cybercrime offenses through a computer emergency
response team (CERT); x x x.
Petitioners mainly contend that Congress invalidly delegated its power when it
gave the Cybercrime Investigation and Coordinating Center (CICC) the power to
formulate a national cybersecurity plan without any sufficient standards or
parameters for it to follow.
In order to determine whether there is undue delegation of legislative power,
the Court has adopted two tests: the completeness test and the sufficient
standard test. Under the first test, the law must be complete in all its terms and
conditions when it leaves the legislature such that when it reaches the delegate,

1. VOID for being UNCONSTITUTIONAL:

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting
of unsolicited commercial communications;
b. Section 12 that authorizes the collection or recording of
traffic data in real-time; and
c. Section 19 of the same Act that authorizes the Department of
Justice to restrict or block access to suspected Computer Data.
2. VALID and CONSTITUTIONAL:
a. Section 4(a)(1) that penalizes accessing a computer system
without right;

b. Section 4(a)(3) that penalizes data interference, including

transmission of viruses;

n. Section 24 that establishes a Cybercrime Investigation and

Coordinating Center (CICC);

c. Section 4(a)(6) that penalizes cyber-squatting or acquiring

domain name over the internet in bad faith to the prejudice of
others;

o. Section 26(a) that defines the CICCs Powers and Functions;

and

d. Section 4(b)(3) that penalizes identity theft or the use or

misuse of identifying information belonging to another;

p. Articles 353, 354, 361, and 362 of the Revised Penal Code
that penalizes libel.
Further, the Court DECLARES:

e. Section 4(c)(1) that penalizes cybersex or the lascivious

exhibition of sexual organs or sexual activity for favor or
consideration;
f. Section 4(c)(2) that penalizes the production of child
pornography;
g. Section 6 that imposes penalties one degree higher when
crimes defined under the Revised Penal Code are committed
with the use of information and communications technologies;

1. Section 4(c)(4) that penalizes online libel as VALID and

CONSTITUTIONAL with respect to the original author of the post; but
VOID and UNCONSTITUTIONAL with respect to others who simply
receive the post and react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the
commission of cybercrimes as VA L I D and CONSTITUTIONAL only in
relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal
Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on
System

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to
require service providers to preserve traffic data and subscriber
information as well as specified content data for six months;
j. Section 14 that authorizes the disclosure of computer data
under a court-issued warrant;
k. Section 15 that authorizes the search, seizure, and
examination of computer data under a court-issued warrant;
l. Section 17 that authorizes the destruction of previously
preserved computer data after the expiration of the prescribed
holding periods;
m. Section 20 that penalizes obstruction of justice in relation to
cybercrime investigations;

Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cybersquatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on
Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and
Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with respect to
Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited Commercial
Communications, and 4(c)(4) on online Libel.1wphi1
Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct
application of Section 7 that authorizes prosecution of the offender under both
the Revised Penal Code and Republic Act 10175 to actual cases, WITH THE
EXCEPTION of the crimes of:
1. Online libel as to which, charging the offender under both Section
4(c)(4) of Republic Act 10175 and Article 353 of the Revised Penal Code
constitutes a violation of the proscription against double jeopardy; as
well as
2. Child pornography committed online as to which, charging the
offender under both Section 4(c)(2) of Republic Act 10175 and Republic

Act 9775 or the Anti-Child Pornography Act of 2009 also constitutes a

violation of the same proscription, and, in respect to these, is VOID and
UNCONSTITUTIONAL.
SO ORDERED.