That on or about the 1st day of July, 1998 in the City of
January 20, 2003]
Baguio, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then
and there willfully, unlawfully, feloniously and
knowingly have in his possession the following, to wit:
1. Ninety-two (92) bricks of dried flowering tops
separately contained in four (4) boxes; and
2. One hundred fifty-eight (158) bricks, twenty-one
(21) blocks, and twenty-three (23) bags of dried
flowering tops separately contained in thirteen (13)
sacks, with a total weight of 336.93 kilograms; and
3 Six hundred two (602) bricks of dried flowering tops
separately contained in twenty-six (boxes) and a
yellow sack, weighing 591.81 kilograms,
all having a grand total weight of 928.74 kilograms, a
prohibited drug, without the authority of law to
possess, in violation of the above-cited provision of
law.
CONTRARY TO LAW.[4]
On August 7, 1998, the prosecution moved to amend
the foregoing charge sheet considering that subject
marijuana were seized in two (2) different places.[5]
As a result, the information in Criminal Case No.
15800-R was amended to read as follows:
That on or about the 1st day of July, 1998, in the City of
Baguio, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then
and there willfully, unlawfully, feloniously and
knowingly have in his possession the following, to wit:
- Six hundred two (602) bricks of dried flowering tops
separately contained in twenty-six (26) boxes and a
yellow sack, weighing 591.81 kilograms
a prohibited drug, without the authority of law to
possess, in violation of the above-cited provision of
law.
CONTRARY TO LAW.[6]
A separate amended information docketed as Criminal
Case No. 15822-R was likewise filed, the accusatory
portion of which reads:
That on or about the 1st day of July, 1998 in the City of
Baguio, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then
and there willfully, unlawfully, feloniously and
knowingly have in his possession the following, to wit:
1. Ninety-two (92) bricks of dried flowering tops
separately contained in four (4) boxes; and
2. hundred fifty-eight (158) bricks, twenty-one (21)
blocks, and twenty-three (23) bags of dried flowering
tops separately contained in thirteen (13) sacks, with a
total weight of 336.93 kilograms;
a prohibited drug, without the authority of law to
possess, in violation of the above-cited provision of
law.
CONTRARY TO LAW.[7]
On September 4, 1998, the trial court denied the
motion to quash the search warrant and ordered
appellants arraignment.
When arraigned in Criminal Cases Nos. 15800-R and
15822-R, appellant refused to enter a plea. The trial
court entered a plea of not guilty for him. [8] Trial on the
merits then ensued.
The facts of this case, as gleaned from the records, are
as follows:
Prosecution witness Danilo Abratique, a Baguio-based
taxi driver, and the appellant Modesto Tee are well
acquainted with each other, since Abratiques wife is
the sister of Tees sister-in-law. [9]
Sometime in late June 1998, appellant asked Abratique
to find him a place for the storage of smuggled
[G.R. Nos. 140546-47.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. MODESTO TEE a.k.a. ESTOY TEE, accused-
appellant.
DECISION
QUISUMBING, J.:
For automatic review is the consolidated judgment[1] of
the Regional Trial Court (RTC) of Baguio City, Branch 6,
dated September 17, 1999, in Criminal Cases Nos.
15800-R and 15822-R, involving violations of Section
8, Article II, of the Dangerous Drugs Law. [2] Since
appellant was acquitted in the second case, we focus
on the first case, where appellant has been found
guilty and sentenced to death and fined one million
pesos.
The decretal portion of the trial courts decision reads:
WHEREFORE, judgment is hereby rendered, as follows:
1. In Crim. Case No. 15800-R, the Court finds the
accused Modesto Tee guilty beyond reasonable doubt
of the offense of illegal possession of marijuana of
about 591.81 kilos in violation of Section 8, Article II of
RA 6425 as amended by Section 13 of RA 7659 as
charged in the Information, seized by virtue of a
search warrant and sentences him to the supreme
penalty of death and to pay a fine of 1 million pesos
without subsidiary imprisonment in case of insolvency.
The 591.81 kilos of marijuana contained in 26 boxes
and one yellow sack (Exhibits U-1 to U-27) are ordered
forfeited in favor of the State to be destroyed
immediately in accordance with law.
2. In Crim. Case No. 15822-R, the Court finds that the
prosecution failed to prove the guilt of accused
Modesto Tee beyond reasonable doubt and hereby
acquits him of the charge of illegal possession of
marijuana in violation of Section 8, Art. 2 of RA 6425
as amended by Section 13 of RA 7659 as charged in
the Information since the marijuana confiscated have
to be excluded in evidence as a product of
unreasonable search and seizure.
The 336.93 kilos of marijuana contained in 13 sacks
and four boxes (Exh. B to S and their component parts)
although excluded in evidence as the product(s) of
unreasonable search and seizure, are nevertheless
ordered forfeited in favor of the State to be destroyed
immediately in accordance with law considering that
they are prohibited articles.
The City Jail Warden is, therefore, directed to release
the accused Modesto Tee in connection with Crim.
Case No. 15822-R unless held on other charges.
COST(S) DE OFFICIO.
SO ORDERED.[3]
Appellant is a Chinese national in his forties, a
businessman, and a resident of Baguio City. A raid
conducted by operatives of the National Bureau of
Investigation (NBI) and Philippine National Police
Narcotics Command (PNP NARCOM) at premises
allegedly leased by appellant and at his residence
yielded huge quantities of marijuana.
On July 20, 1998, appellant moved to quash the search
warrant on the ground that it was too general and that
the NBI had not complied with the requirements for
the issuance of a valid search warrant. The pendency
of said motion, however, did not stop the filing of the
appropriate charges against appellant. In an
information dated July 24, 1998, docketed as Criminal
Case No. 15800-R, the City Prosecutor of Baguio City
charged Modesto Tee, alias Estoy Tee, with illegal
possession of marijuana, allegedly committed as
follows:
The NBI operatives, with some PNP NARCOM personnel
in tow, proceeded to appellants residence where they
served the warrant upon appellant himself. [21] The
search was witnessed by appellant, members of his
family, barangay officials, and members of the media.
[22]
Photographs were taken during the actual search. [23]
The law enforcers found 26 boxes and a sack of dried
marijuana[24] in the water tank, garage, and storeroom
of appellants residence.[25] The total weight of the haul
was 591.81 kilograms.[26]Appellant was arrested for
illegal possession of marijuana.
The seized items were then submitted to the NBI
laboratory for testing. NBI Forensic Chemist Maria
Carina Madrigal conducted the tests. Detailed
microscopic and chromatographic examinations of the
items taken from appellants rented room at No. 27, Dr.
Cario St., as well as those from his residence at Green
Valley, showed these to be marijuana.[27]
In his defense, appellant contended that the physical
evidence of the prosecution was illegally obtained,
being the products of an unlawful search, hence
inadmissible. Appellant insisted that the search
warrant was too general and the process by which said
warrant was acquired did not satisfy the constitutional
requirements for the issuance of a valid search
warrant. Moreover, Abratiques testimony, which was
heavily relied upon by the judge who issued the
warrant, was hearsay.
In Criminal Case No. 15822-R, the trial court agreed
with appellant that the taking of the 336.93 kilograms
of marijuana was the result of an illegal search and
hence, inadmissible in evidence against appellant.
Appellant was accordingly acquitted of the charge.
However, the trial court found that the prosecutions
evidence was more than ample to prove appellants
guilt in Criminal Case No. 15800-R and as earlier
stated, duly convicted him of illegal possession of
marijuana and sentenced him to death.
Hence, this automatic review.
Before us, appellant submits that the trial court erred
in:
1UPHOLDING THE LEGALITY OF THE SEARCH WARRANT
DESPITE LACK OF COMPLIANCE OF (sic) SEVERAL
REQUIREMENTS BEFORE IT SHOULD HAVE BEEN
ISSUED AND IT BEING A GENERAL WARRANT;
2.GRAVELY ABUSED ITS DISCRETION IN REOPENING
THE CASE AND ALLOWING ABRITIQUE TO TESTIFY
AGAINST APPELLANT;
3GIVING CREDENCE TO THE TESTIMONY OF
ABRITIQUE;
4. NOT ACQUITTING THE ACCUSED IN BOTH CASES
AND SENTENCING HIM TO DEATH DESPITE THE
ILLEGALLY OBTAINED EVIDENCE AS FOUND IN THE
FIRST CASE.[28]
We find that the pertinent issues for resolution concern
the following: (1) the validity of the search conducted
at the appellants residence; (2) the alleged prejudice
caused by the reopening of the case and absences of
the prosecution witness, on appellants right to speedy
trial; (3) the sufficiency of the prosecutions evidence to
sustain a finding of guilt with moral certainty; and (4)
the propriety of the penalty imposed.
1. On the Validity of the Search Warrant; Its Obtention
and Execution
Appellant initially contends that the warrant, which
directed the peace officers to search for and seize an
undetermined amount of marijuana, was too general
and hence, void for vagueness. He insists that
Abratique could already estimate the amount of
cigarettes.[10] Abratique brought appellant to his friend,
Albert Ballesteros, who had a house for rent in
Bakakeng, Baguio City. After negotiating the terms and
conditions, Ballesteros agreed to rent out his place to
appellant. Appellant then brought several boxes of
purported blue seal cigarettes to the leased premises.
Shortly thereafter, however, Ballesteros learned that
the boxes stored in his place were not blue seal
cigarettes but marijuana. Fearful of being involved,
Ballesteros informed Abratique. Both later prevailed
upon appellant to remove them from the premises.[11]
Appellant then hired Abratiques taxi and transported
the boxes of cannabis from the Ballesteros place to
appellants residence at Km. 6, Dontogan, Green Valley,
Sto. Tomas, Baguio City. [12]
On June 30, 1998, appellant hired Abratique to drive
him to La Trinidad, Benguet on the pretext of buying
and transporting strawberries. Upon reaching La
Trinidad, however, appellant directed Abratique to
proceed to Sablan, Benguet, where appellant
proceeded to load several sacks of marijuana in
Abratiques taxi. He then asked Abratique to find him a
place where he could store the contraband.[13]
Abratique brought appellant to his grandmothers
house at No. 27 Dr. Cario St., QM Subdivision, Baguio
City, which was being managed by Abratiques aunt,
Nazarea Abreau. Nazarea agreed to rent a room to
appellant. Abratique and appellant unloaded and
stored there the sacks of marijuana brought from
Sablan.[14] Abratique was aware that they were
transporting marijuana as some of the articles in the
sacks became exposed in the process of loading.[15]
Eventually, Abratique and Nazarea were bothered by
the nature of the goods stored in the rented room. She
confided to her daughter, Alice Abreau Fianza, about
their predicament. As Alice Fianzas brother-in-law,
Edwin Fianza, was an NBI agent, Alice and Abratique
phoned him and disclosed what had transpired.[16]
On the morning of July 1, 1998, alerted by information
that appellant would retrieve the sacks of prohibited
drugs that day, Edwin Fianza and other NBI operatives
conducted a stake out at No. 27, Dr. Cario St. While the
NBI agents were conducting their surveillance, they
noticed that several PNP NARCOM personnel were also
watching the place.[17] The NBI then learned that the
PNP NARCOM had received a tip from one of their
informers regarding the presence of a huge amount of
drugs in that place. The NBI and PNP NARCOM agreed
to have a joint operation.
As the day wore on and appellant did not show up, the
NBI agents became apprehensive that the whole
operation could be jeopardized. They sought the
permission of Nazarea Abreau to enter the room
rented by appellant. She acceded and allowed them
entry. The NBI team then searched the rented
premises and found four (4) boxes and thirteen (13)
sacks of marijuana, totaling 336.93 kilograms.[18]
Later that evening, NBI Special Agent Darwin Lising,
with Abratique as his witness, applied for a search
warrant from RTC Judge Antonio Reyes at his
residence.[19] Judge Reyes ordered the NBI agents to
fetch the Branch Clerk of Court, Atty. Delilah Muoz, so
the proceedings could be properly recorded. After Atty.
Muoz arrived, Judge Reyes questioned Lising and
Abratique. Thereafter, the judge issued a warrant
directing the NBI to search appellants residence at Km.
6, Dontogan, Green Valley, Baguio City for marijuana.
[20]
those which bear direct relation to the offense for
which the warrant is being issued.[40] Said warrant
imposes a meaningful restriction upon the objects to
be seized by the officers serving the warrant. Thus, it
prevents exploratory searches, which might be
violative of the Bill of Rights.
Appellant next assails the warrant for merely stating
that he should be searched, as he could be guilty of
violation of Republic Act No. 6425. Appellant claims
that this is a sweeping statement as said statute lists a
number of offenses with respect to illegal drugs.
Hence, he contends, said warrant is a general warrant
and is thus unconstitutional.
For the appellee, the OSG points out that the warrant
clearly states that appellant has in his possession and
control marijuana or Indian hemp, in violation of
Section 8 of Republic Act No. 6425.
We have carefully scrutinized Search Warrant No. 415
(7-98),[41] and we find that it is captioned For Violation
of R.A. 6425, as amended. [42] It is clearly stated in the
body of the warrant that there is probable cause to
believe that a case for violation of R.A. 6425, as
amended, otherwise known as the Dangerous Drugs
Act of 1972, as further amended by R.A. 7659 has
been and is being committed by one MODESTO TEE
a.k.a. ESTOY TEE of Km. 6, Dontogan Bgy., Green
Valley, Sto. Tomas, Baguio City by having in his
possession and control an UNDETERMINED AMOUNT
OF MARIJUANA or INDIAN HEMP in violation of the
aforementioned law.[43] In an earlier case, we held that
though the specific section of the Dangerous Drugs
Law is not pinpointed, there is no question at all of the
specific offense alleged to have been committed as a
basis for the finding of probable cause.[44] Appellants
averment is, therefore, baseless. Search Warrant No.
415 (7-98) appears clearly issued for one offense,
namely, illegal possession of marijuana.
Appellant next faults the Judge who issued Search
Warrant No. 415 (7-98) for his failure to exhaustively
examine the applicant and his witness. Appellant
points out that said magistrate should not have
swallowed all of Abratiques statements hook, line, and
sinker. He points out that since Abratique consented to
assist in the transport of the marijuana, the examining
judge should have elicited from Abratique his
participation in the crime and his motive for squealing
on appellant. Appellant further points out that the
evidence of the NBI operative who applied for the
warrant is merely hearsay and should not have been
given credit at all by Judge Reyes.
Again, the lack of factual basis for appellants
contention is apparent. The OSG points out that
Abratique personally assisted appellant in loading and
transporting the marijuana to the latters house and to
appellants rented room at No. 27 Dr. Cario St., Baguio
City. Definitely, this indicates personal knowledge on
Abratiques part. Law enforcers cannot themselves be
eyewitnesses to every crime; they are allowed to
present witnesses before an examining judge. In this
case, witness Abratique personally saw and handled
the marijuana. Hence, the NBI did not rely on hearsay
information in applying for a search warrant but on
personal knowledge of the witness, Abratique.
Before a valid search warrant is issued, both the
Constitution[45] and the 2000 Revised Rules of Criminal
Procedure[46] require that the judge must personally
examine the complainant and his witnesses under oath
or affirmation. The personal examination must not be
merely routinary or pro forma, but must be probing
marijuana supposed to be found at appellants
residence since Abratique helped to transport the
same.
For the appellee, the Office of the Solicitor General
(OSG) counters that a search warrant is issued if a
judge finds probable cause that the place to be
searched contains prohibited drugs, and not that he
believes the place contains a specific amount of it. The
OSG points out that, as the trial court observed, it is
impossible beforehand to determine the exact amount
of prohibited drugs that a person has on himself.
Appellant avers that the phrase an undetermined
amount of marijuana as used in the search warrant
fails to satisfy the requirement of Article III, Section
2[29] of the Constitution that the things to be seized
must be particularly described. Appellants contention,
in our view, has no leg to stand on. The constitutional
requirement of reasonable particularity of description
of the things to be seized is primarily meant to enable
the law enforcers serving the warrant to: (1) readily
identify the properties to be seized and thus prevent
them from seizing the wrong items; [30] and (2) leave
said peace officers with no discretion regarding the
articles to be seized and thus prevent unreasonable
searches and seizures.[31] What the Constitution seeks
to avoid are search warrants of broad or general
characterization or sweeping descriptions, which will
authorize police officers to undertake a fishing
expedition to seize and confiscate any and all kinds of
evidence or articles relating to an offense. [32] However,
it is not required that technical precision of description
be required,[33] particularly, where by the nature of the
goods to be seized, their description must be rather
general, since the requirement of a technical
description would mean that no warrant could issue.
[34]
Thus, it has been held that term narcotics
paraphernalia is not so wanting in particularity as to
create a general warrant. [35] Nor is the description any
and all narcotics and all implements, paraphernalia,
articles, papers and records pertaining to the use,
possession, or sale of narcotics or dangerous drugs so
broad as to be unconstitutional.[36] A search warrant
commanding peace officers to seize a quantity of loose
heroin has been held sufficiently particular.[37]
Tested against the foregoing precedents, the
description an undetermined amount of marijuana
must be held to satisfy the requirement for
particularity in a search warrant. Noteworthy, what is
to be seized in the instant case is property of a
specified character, i.e., marijuana, an illicit drug. By
reason of its character and the circumstances under
which it would be found, said article is illegal. A further
description would be unnecessary and ordinarily
impossible, except as to such character, the place, and
the circumstances.[38] Thus, this Court has held that the
description illegally in possession of undetermined
quantity/amount of dried marijuana leaves and
Methamphetamine Hydrochloride (Shabu) and sets of
paraphernalia particularizes the things to be seized.[39]
The search warrant in the present case, given its
nearly similar wording, undetermined amount of
marijuana or Indian hemp, in our view, has satisfied
the Constitutions requirements on particularity of
description. The description therein is: (1) as specific
as the circumstances will ordinarily allow; (2)
expresses a conclusion of fact not of law by which the
peace officers may be guided in making the search
and seizure; and (3) limits the things to be seized to
The true test of sufficiency of a deposition or 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.[58]
Appellant argues that the address indicated in the
search warrant did not clearly indicate the place to be
searched. The OSG points out that the address stated
in the warrant is as specific as can be. The NBI even
submitted a detailed sketch of the premises prepared
by Abratique, thus ensuring that there would be no
mistake.
A description of the place to be searched is sufficient if
the officer serving the warrant can, with reasonable
effort, ascertain and identify the place intended[59] and
distinguish it from other places in the community. [60] A
designation or description that points out the place to
be searched to the exclusion of all others, and on
inquiry unerringly leads the peace officers to it,
satisfies the constitutional requirement of
definiteness.
Appellant finally harps on the use of unnecessary force
during the execution of the search warrant. Appellant
fails, however, to point to any evidentiary matter in
the record to support his contention. Defense witness
Cipriana Tee, appellants mother, testified on the
search conducted but she said nothing that indicated
the use of force on the part of the NBI operatives who
conducted the search and seizure. [61] What the record
discloses is that the warrant was served on appellant,
[62]
who was given time to read it, [63] and the search
was witnessed by the barangay officials, police
operatives, members of the media, and appellants kith
and kin.[64] No breakage or other damage to the place
searched is shown. No injuries sustained by appellant,
or any witness, appears on record. The execution of
the warrant, in our view, has been orderly and
peaceably performed.
2. On The Alleged Violation of Appellants Substantive
Rights
Appellant insists that the prosecutions unjustified and
willful delay in presenting witness Abratique unduly
delayed the resolution of his case. He points out that a
total of eight (8) scheduled hearings had to be reset
due to the failure or willful refusal of Abratique to
testify against him. Appellant insists that said lapse on
the prosecutions part violated Supreme Court Circular
No. 38-98.[65] Appellant now alleges that the
prosecution deliberately resorted to delaying the case
to cause him untold miseries.
For the appellee, the OSG points out that the two-
month delay in the trial is not such a great length of
time as to amount to a violation of appellants right to
a speedy trial. A trial is always subject to reasonable
delays or postponements, but absent any showing that
these delays are capricious and oppressive, the State
should not be deprived of a reasonable opportunity to
prosecute the criminal action.
On record, the trial court found that prosecution
witness Danilo G. Abratique failed to appear in no less
than eighteen (18) hearings, namely those set for
February 1, 2, 3, 4, 8, 9, 10, and 24; March 9, 15, 22,
and 23; April 6, 7, 8, 16, and 19, all in 1999. [66] No less
than four (4) warrants of arrest were issued against
him to compel him to testify. [67] The NBI agent who
supposedly had him in custody was found guilty of
contempt of court for failing to produce Abratique at
said hearings and sanctioned.[68] The prosecution had
to write the NBI Regional Director in Baguio City and
and exhaustive.[47] In the instant case, it is not
disputed that Judge Antonio Reyes personally
examined NBI Special Investigator III Darwin A. Lising,
the applicant for the search warrant as well as his
witness, Danilo G. Abratique. Notes of the proceedings
were taken by Atty. Delilah Muoz, Clerk of Court, RTC of
Baguio City, Branch 61, whom Judge Reyes had
ordered to be summoned. In the letter of transmittal of
the Clerk of Court of the RTC of Baguio City, Branch 61
to Branch 6 of said court, mention is made of notes at
pages 7-11.[48] We have thoroughly perused the
records of Search Warrant No. 415 (7-98) and nowhere
find said notes. The depositions of Lising and
Abratique were not attached to Search Warrant No.
415 (7-98) as required by the Rules of Court. We must
stress, however, that the purpose of the Rules in
requiring depositions to be taken is to satisfy the
examining magistrate as to the existence of probable
cause.[49] The Bill of Rights does not make it an
imperative necessity that depositions be attached to
the records of an application for a search warrant.
Hence, said omission is not necessarily fatal, for as
long as there is evidence on the record showing what
testimony was presented.[50] In the testimony of
witness Abratique, Judge Reyes required Abratique to
confirm the contents of his affidavit; [51] there were
instances when Judge Reyes questioned him
extensively.[52] It is presumed that a judicial function
has been regularly performed,[53] absent a showing to
the contrary. A magistrates determination of probable
cause for the issuance of a search warrant is paid
great deference by a reviewing court, [54] as long as
there was substantial basis for that determination. [55]
Substantial basis means that the questions of the
examining judge brought out such facts and
circumstances as would lead a reasonably discreet and
prudent man to believe that an offense has been
committed, and the objects in connection with the
offense sought to be seized are in the place sought to
be searched.
On record, appellant never raised the want of
adequate depositions to support Warrant No. 415 (7-
98) in his motion to quash before the trial court.
Instead, his motion contained vague generalities that
Judge Reyes failed to ask searching questions of the
applicant and his witness. Belatedly, however, he now
claims that Judge Reyes perfunctorily examined said
witness.[56] But it is settled that when a motion to
quash a warrant is filed, all grounds and objections
then available, existent or known, should be raised in
the original or subsequent proceedings for the quashal
of the warrant, otherwise they are deemed waived. [57]
In this case, NBI Special Investigator Lisings knowledge
of the illicit drugs stored in appellants house was
indeed hearsay. But he had a witness, Danilo
Abratique, who had personal knowledge about said
drugs and their particular location. Abratiques
statements to the NBI and to Judge Reyes contained
credible and reliable details. As the NBIs witness,
Abratique was a person on whose statements Judge
Reyes could rely. His detailed description of appellants
activities with respect to the seized drugs was
substantial.In relying on witness Abratique, Judge
Reyes was not depending on casual rumor circulating
in the underworld, but on personal knowledge
Abratique possessed.
In Alvarez vs. Court of First Instance of Tayabas, 64
Phil. 33, 44 (1937), we held that:
latter would testify when required. [82] Appellant could
have moved to have Abratique found in contempt and
duly sanctioned. Appellant did neither. It is a bit too
late in the day for appellant to invoke now his right to
speedy trial.
No persuasive reason supports appellants claim that
his constitutional right to speedy trial was violated.
One must take into account that a trial is always
subject to postponements and other causes of delay.
But in the absence of a showing that delays were
unreasonable and capricious, the State should not be
deprived of a reasonable opportunity of prosecuting an
accused.[83]
Appellant next contends that the trial court gravely
abused its discretion, and exhibited partiality, when it
allowed the reopening of the case after the
prosecution had failed to present Abratique on several
occasions and had been directed to rest its case.
Appellant stresses that the lower courts order to
reopen the case to receive Abratiques further
testimony is an indication that the trial court favored
the prosecution and unduly prejudiced appellant.
On appellees behalf, the Solicitor General points out
that the trial courts order was in the interest of
substantial justice and hence, cannot be termed as an
abuse of discretion. The OSG points out that the
prosecution had not formally rested its case and had
yet to present its formal offer of evidence, hence, the
submission of additional testimony by the same
witness cannot be prejudicial to the accused, it being
but the mere continuation of an uncompleted
testimony. Furthermore, appellant did not properly
oppose the prosecutions motion to reopen the case.
At the time Criminal Cases Nos. 15800-R and 15822-R
were being tried, the 1985 Rules of Criminal Procedure
were in effect. There was no specific provision at that
time governing motions to reopen.[84] Nonetheless,
long and established usage has led to the recognition
and acceptance of a motion to reopen. In view of the
absence of a specific procedural rule, the only
controlling guideline governing a motion to reopen was
the paramount interests of justice. As a rule, the
matter of reopening of a case for reception of further
evidence after either prosecution or defense has
rested its case is within the discretion of the trial court.
[85]
However, a concession to a reopening must not
prejudice the accused or deny him the opportunity to
introduce counter evidence.[86]
Strictly speaking, however, there was no reopening of
the cases in the proceedings below. A motion to
reopen may properly be presented only after either or
both parties have formally offered and closed their
evidence, but before judgment.[87] In the instant case,
the records show that on April 19, 1999, the
prosecution was directed to close its evidence and
given 15 days to make its formal offer of evidence. [88]
This order apparently arose from the manifestation of
the prosecution on April 16, 1999 that should they fail
to produce witness Abratique on the next scheduled
hearing the prosecution would rest its case. [89] On April
19, 1999, which was the next scheduled hearing after
April 16, 1999, Abratique was absent notwithstanding
notices, orders, and warrants of arrest. However, on
April 27, 1999, or before the prosecution had formally
offered its evidence, Abratique was brought to the trial
court by the NBI. In its order of said date, the trial
court pointed out that the prosecution could move to
reopen the case for the taking of Abratiques testimony.
[90]
On May 7, 1999, the prosecution so moved,
NBI Director in Manila regarding the failure of the
Bureaus agents to bring Abratique to court. [69] Nothing
on record discloses the reason for Abratiques
aforecited absences. On the scheduled hearing of June
7, 1999, he was again absent thus causing the trial
court to again order his arrest for the fifthtime.[70] He
also failed to show up at the hearing of June 8, 1999.
[71]
Appellant now stresses that the failure of Abratique to
appear and testify on twenty (20) hearing dates
violated appellants constitutional[72] and statutory right
to a speedy trial.
A speedy trial means a trial conducted according to
the law of criminal procedure and the rules and
regulations, free from vexatious, capricious, and
oppressive delays.[73] In Conde v. Rivera and Unson, 45
Phil. 650, 652 (1924), the Court held that where a
prosecuting officer, without good cause, secures
postponements of the trial of a defendant against his
protest beyond a reasonable period of time, as in this
instance, for more than a year, the accused is entitled
to relief by a proceeding in mandamus to compel a
dismissal of the information, or if he be restrained of
his liberty, by habeas corpus to obtain his freedom.
The concept of speedy trial is necessarily relative. A
determination as to whether the right has been
violated involves the weighing of several factors such
as the length of the delay, the reason for the delay,
the conduct of the prosecution and the accused, and
the efforts exerted by the defendant to assert his right,
as well as the prejudice and damage caused to the
accused.[74]
The Speedy Trial Act of 1998, provides that the trial
period for criminal cases in general shall be one
hundred eighty (180) days. [75] However, in determining
the right of an accused to speedy trial, courts should
do more than a mathematical computation of the
number of postponements of the scheduled hearings
of the case.[76] The right to a speedy trial is deemed
violated only when: (1) the proceedings are attended
by vexatious, capricious, and oppressive delays; [77] or
(2) when unjustified postponements are asked for and
secured;[78] or (3) when without cause or justifiable
motive a long period of time is allowed to elapse
without the party having his case tried.[79]
In the present case, although the absences of
prosecution witness Abratique totaled twenty (20)
hearing days, there is no showing whatsoever that
prosecution capriciously caused Abratiques absences
so as to vex or oppress appellant and deny him his
rights. On record, after Abratique repeatedly failed to
show up for the taking of his testimony, the
prosecution went to the extent of praying that the trial
court order the arrest of Abratique to compel his
attendance at trial. The prosecution likewise tried to
get the NBI to produce Abratique as the latter was in
the Bureaus custody, but to no avail. Eventually, the
trial court ordered the prosecution to waive its right to
present Abratique and rest its case on the evidence
already offered.[80]
Nor do we find a delay of twenty (20) hearing days to
be an unreasonable length of time. Delay of less than
two months has been found, in fact, to be not an
unreasonably lengthy period of time. [81]
Moreover, nothing on record shows that appellant
Modesto Tee objected to the inability of the
prosecution to produce its witness. Under the Rules,
appellant could have moved the trial court to require
that witness Abratique post bail to ensure that the
and the probabilities and improbabilities of the case.
But it is accepted, as a matter of common sense, that
if certain parts of a witness testimony are found true,
his testimony cannot be disregarded entirely. [94]
Abratique testified in open court that appellant rented
the taxicab he was driving, and he helped appellant
transport huge amounts of marijuana to appellants
rented room at No. 27 Dr. Cario St., Baguio City and to
appellants residence at Km. 6, Dontogan, Green Valley,
Sto. Tomas, Baguio City. He also declared on the
witness stand that out of fear of being involved, he
decided to divulge his knowledge of appellants
possession of large caches of marijuana to the NBI.
When the places referred to by Abratique were
searched by the authorities, marijuana in staggering
quantities was found and seized by the law enforcers.
Stated plainly, the physical evidence in this case
corroborated Abratiques testimony on material points.
Appellant imputes questionable motives to Abratique
in an effort to discredit him. He demands that
Abratique should likewise be prosecuted. However, by
no means is the possible guilt of Abratique a tenable
defense for appellant. Nor would Abratiques
prosecution mean appellants absolution.
In a prosecution for illegal possession of dangerous
drugs, the following facts must be proven with moral
certainty: (1) that the accused is in possession of the
object identified as prohibited or regulated drug; (2)
that such possession is not authorized by law; and (3)
that the accused freely and consciously possessed the
said drug.[95]
We find the foregoing elements proven in Criminal
Case No. 15800-R beyond reasonable doubt.
In said case, the testimony of Abratique and the
recovery of 591.81 kilograms of marijuana from
appellants residence served to prove appellants
possession of a prohibited drug. Tests conducted by
the NBI forensic chemist proved the seized articles to
be marijuana. These articles were seized pursuant to a
valid search warrant and hence, fully admissible in
evidence.
In People v. de los Reyes, 239 SCRA 439 (1994), we
held that the Dangerous Drugs Act applies generally to
all persons and proscribes the sale of dangerous drugs
by any person, and no person is authorized to sell such
drugs. Said doctrine is equally applicable with respect
to possession of prohibited drugs. Republic Act No.
6425, which penalizes the possession of prohibited
drugs, applies equally to all persons in this jurisdiction
and no person is authorized to possess said articles,
without authority of law.
Anent the third element, we have held that to warrant
conviction, possession of illegal drugs must be with
knowledge of the accused or that animus possidendi
existed together with the possession or control of said
articles.[96] Nonetheless, this dictum must be read in
consonance with our ruling that possession of a
prohibited drug per se constitutes prima facie
evidence of knowledge or animus possidendi sufficient
to convict an accused absent a satisfactory
explanation of such possession.[97] In effect, the onus
probandi is shifted to accused to explain the absence
of knowledge or animus possidendi[98] in this situation.
Appellant Modesto Tee opted not to testify in his
defense. Instead, he presented his mother as his lone
witness, who testified on matters totally irrelevant to
his case. We can only conclude that, failing to
discharge the burden of the evidence on the
possession of prohibited drug, appellants guilt in
stressing that it had not yet formally offered its
evidence and that the substantial rights of the accused
would not be prejudiced inasmuch as the latter had yet
to present his evidence. Appellant filed no opposition
to the motion. The trial court granted the motion six
days later. Plainly, there was nothing to reopen, as the
prosecution had not formally rested its case. Moreover,
the taking of Abratiques testimony was not for the
purpose of presenting additional evidence, but more
properly for the completion of his unfinished testimony.
In U.S. vs. Base,[91] we held that a trial court is not in
error, if it opts to reopen the proceedings of a case,
even after both sides had rested and the case
submitted for decision, by the calling of additional
witnesses or recalling of witnesses so as to satisfy the
judges mind with reference to particular facts involved
in the case. A judge cannot be faulted should he
require a material witness to complete his testimony,
which is what happened in this case. It is but proper
that the judges mind be satisfied on any and all
questions presented during the trial, in order to serve
the cause of justice.
Appellants claim that the trial courts concession to
reopen the case unduly prejudiced him is not well
taken. We note that appellant had every opportunity to
present his evidence to support his case or to refute
the prosecutions evidence point-by-point, after the
prosecution had rested its case. In short, appellant was
never deprived of his day in court. A day in court is the
touchstone of the right to due process in criminal
justice.[92] Thus, we are unable to hold that a grave
abuse of discretion was committed by the trial court
when it ordered the so-called reopening in order to
complete the testimony of a prosecution witness.
3. On the Sufficiency of the Prosecutions Evidence
In bidding for acquittal, appellant assails the credibility
of Abratique as a witness. Appellant insists that
Abratiques testimony is profuse with lies, contrary to
human nature, hence incredible. According to
appellant, Abratique was evasive from the outset with
respect to certain questions of the trial court. He adds
that it appeared the court entertained in particular the
suspicion that witness Abratique had conspired with
appellant in committing the crime charged. Appellant
questions Abratiques motive in informing the NBI
about his activities related to the marijuana taking,
transfer, and warehousing.
The OSG contends that Abratiques testimony, taken as
a whole, is credible. It points out that Abratique
testified in a straightforward manner as to his
knowledge of the huge cache of prohibited drugs
stashed by appellant in two different places. His
testimony, said the OSG, when fused with the physical
evidence consisting of 591.81 kilograms of marijuana
found by law enforcers at appellants residence,
inexorably leads to the inculpation of appellant.
It is the bounden duty of the courts to test the
prosecution evidence rigorously, so that no innocent
person is made to suffer the unusually severe
penalties meted out for drug offenses.[93] Though we
scrutinized minutely the testimony of Abratique, we
find no cogent reason to disbelieve him. From his
account, Abratique might appear aware treading the
thin line between innocence and feeling guilty, with
certain portions of his story tending to be self-
exculpatory. However, his whole testimony could not
be discredited. The established rule is that testimony
of a witness may be believed in part and disbelieved in
other parts, depending on the corroborative evidence
appellant is hereby sentenced to suffer the penalty of
reclusion perpetua. The fine of ONE MILLION
(P1,000,000.00) PESOS imposed on him is sustained.
Appellant is likewise directed to pay the costs of suit.
SO ORDERED.
----------
PEOPLE OF THE PHILIPPINES,
Plaintiff-Appellee,
- versus
ESTELA TUAN y BALUDDA,
Accused-Appellant.
G.R. No. 176066
Present:
CORONA, C.J.,
Chairperson,
LEONARDO-DE CASTRO,
BERSAMIN,*
DEL CASTILLO, and
PEREZ, JJ.
Promulgated:
August 11, 2010
x----------------------------------------
- - - - - - - - - -x
DECISION
LEONARDO-DE CASTRO, J.:
For review is the Decision[1] dated September 21, 2006
of the Court of Appeals in CA-G.R. CR.-H.C. No. 00381,
which affirmed with modification the Decision [2] dated
April 9, 2002 of the Regional Trial Court (RTC), Branch
6, Baguio City, finding accused-appellant Estela Tuan y
Baludda guilty in Criminal Case No. 17619-R, of illegal
possession of marijuana under Article II, Section 8 of
Republic Act No. 6425, otherwise known as The
Dangerous Drugs Act of 1972, as amended; and in
Criminal Case No. 17620-R, of violating Presidential
Decree No. 1866, otherwise known as the Illegal
Possession of Firearms, as amended.
On April 5, 2000, two separate Informations were filed
before the RTC against accused-appellant for illegal
possession of marijuana and illegal possession of
firearm. The Informations read:
Criminal Case No. 17619-R
The undersigned Public Prosecutor accuses ESTELA
TUAN Y BALUDDA of the crime of VIOLATION OF SEC. 8,
ART. II OF REPUBLIC ACT 6425, AS AMENDED (Illegal
Possession of Marijuana), committed as follows:
Criminal Case No. 15800-R was established beyond
reasonable doubt.
3. On The Proper Penalty
Under Republic Act No. 6425 as amended by Republic
Act No. 7659, the penalty of reclusion perpetua to
death and a fine ranging from five hundred thousand
pesos (P500,000.00) to ten million pesos
(P10,000,000.00)[99] shall be imposed if the quantity of
marijuana involved in a conviction for possession of
marijuana or Indian hemp shall be 750 grams or more.
[100]
In the present case, the quantity of marijuana involved
has been shown by the prosecution to be far in excess
of 750 grams, as stressed by the trial court:
The volume is rather staggering. It is almost one whole
house or one whole room. In fact, when they were first
brought to the court, it took hours to load them on the
truck and hours also to unload them prompting the
court to direct that the boxes and sack of marijuana be
instead kept at the NBI office in Baguio. And the
identification of said marijuana during the trial was
made in the NBI premises itself by the witnesses since
it was physically cumbersome and inconvenient to
keep bringing them to the court during every trial. [101]
In sentencing appellant to death, the trial court noted
not only the huge quantity of marijuana bales
involved, but also the acts of accused of hiding them
in different placesand transferring them from place to
place and making them appear as boxes of cigarettes
to avoid and evade apprehension and detection. They
showed his being a big supplier, said the trial court,
[whose] criminal perversity and craft that deserve the
supreme penalty of death.[102]
We are unable to agree, however, with the penalty
imposed by the trial court. The legislature never
intended that where the quantity involved exceeds
those stated in Section 20 of Republic Act No. 6425 the
maximum penalty of death shall automatically be
imposed.[103] The statute prescribes two indivisible
penalties: reclusion perpetua and death. Hence, the
penalty to be imposed must conform with Article 63 [104]
of the Revised Penal Code. As already held, the death
penalty law, Republic Act No. 7659 did not amend
Article 63 of the Revised Penal Code.[105] The rules in
Article 63 apply although the prohibited drugs involved
are in excess of the quantities provided for in Section
20 of Republic Act No. 6425. [106] Thus, finding neither
mitigating nor aggravating circumstances in the
present case, appellants possession of 591.81
kilograms of marijuana in Criminal Case No. 15800-R,
does not merit capital punishment but only the lesser
penalty of reclusion perpetua.
The trial court imposed a fine on appellant in the sum
of One Million Pesos (P1,000,000.00), without
subsidiary imprisonment in case of insolvency. The
imposition of a fine is mandatory in cases of conviction
of possession of illegal drugs. This being within the
limits allowed by the law, the amount of the fine must
be sustained. All these sanctions might not remedy all
the havoc wrought by prohibited drugs on the moral
fiber of our society, especially the youth. [107] But these
penalties should warn peddlers of prohibited drugs
that they cannot ply their trade in our streets with
impunity.
WHEREFORE, the decision of the Regional Trial Court
of Baguio City, Branch 6, in Criminal Case No. 15800-R,
convicting appellant MODESTO TEE alias ESTOY TEE of
violation of Section 8 of Republic Act No. 6425, as
amended, is AFFIRMED with the MODIFICATION that
and Lad-ing entered accused-appellants house, while
SPO2 Fernandez waited at the adjacent house. After
thirty minutes, Tudlong and Lad-ing came out of
accused-appellants house and showed SPO2
Fernandez the marijuana leaves they bought. After
returning to the CIDG regional office, SPO2 Fernandez
requested the laboratory examination of the leaves
bought from accused-appellant. When said laboratory
examination yielded positive results for marijuana,
SPO2 Fernandez prepared an Application for Search
Warrant for accused-appellants house.
SPO2 Fernandez, together with Tudlong and Lad-ing,
filed the Application for a Search Warrant before Judge
Iluminada Cabato-Cortes (Judge Cortes) of the
Municipal Trial Court in Cities (MTCC), Baguio City,
Branch IV, at about one oclock in the afternoon on
January 25, 2000. Two hours later, at around three
oclock, Judge Cortes personally examined SPO2
Fernandez, Tudlong, and Lad-ing, after which, she
issued a Search Warrant, being satisfied of the
existence of probable cause. The Search Warrant
read:
TO ANY PEACE OFFICER:
GREETINGS:
It appearing to the satisfaction of the undersigned of
the existence of facts upon which the application for
Search Warrant is based, after personally examining by
searching questions under oath SPO2 Fernando V.
Fernandez of the CAR Criminal Investigation and
Detection Group with office address at DPS Compound,
Utility Road, Baguio City and his witnesses namely:
Frank Lad-ing of Happy Hallow, Baguio City and Jerry
Tudlong, of Barangay Kitma, Baguio City, after having
been duly sworn to, who executed sworn statements
and deposition as witneses, that there is a probable
cause to believe that a Violation of R.A. 6425 as
amended by R.A. 7659 has been committed and that
there are good and sufficient reasons to believe that
Estela Tuan, has in her possession and control at her
resident at Brgy. Gabriela Silang, Baguio City, the
following:
- Undetermined Quantity of Marijuana Dried
Leaves and/or Marijuana Hashish
xxxx
which are subject of the offense which should be
seized and brought to the undersigned.
You are hereby commanded to make an immediate
search at anytime in the day the house of the accused
Estela Tuan at Brgy. Gabriela Silang, Baguio City, and
forthwith seize and take possession of the following:
- Undetermined Quantity of Marijuana Dried
Leaves and/or Marijuana Hashish
x x x nothing follows x x x
and bring said items to the undersigned to be dealt
with as the law directs.
This Search Warrant shall be valid for ten (10) days
from date of issue, thereafter, it shall be void.
That on or about 24th day of January 2000, at Barangay
Gabriela Silang, in the City of Baguio, Philippines, and
within the jurisdiction of this Honorable Court, the
above-named accused did then and there willfully and
unlawfully have in her possession, custody, and control
the following, to wit:
a) Nine (9) bricks of dried Marijuana leaves
with an approximate total weight of 18.750 kgs., and
b) One (1) plastic bag containing dried
Marijuana leaves weighing approximately .3 kg.
without any authority of law to do so in violation of the
above-cited provision of law. [3]
Criminal Case No. 17620-R
The undersigned Public Prosecutor accuses ESTELA
TUAN Y BALUDDA of the crime of VIOLATION OF
PRESIDENTIAL DECREE 1866, AS AMENDED (Illegal
Possession of Firearm), committed as follows:
That on or about the 24th day of January 2000, at
Barangay Gabriela Silang, in the City of Baguio,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused did then
and there willfully and unlawfully have in her
possession, custody, and control one (1) Cal. .357 S &
W revolver, a high-powered firearm, without any
license, permit or authority duly issued by the
government to possess or keep the same in violation
of the above-cited law.[4]
Upon her arraignment on April 18, 2000, accused-
appellant, assisted by her counsel de parte, pleaded
NOT GUILTY to both charges.[5] Pre-trial and trial proper
then ensued.
During trial, the prosecution presented four witnesses:
Senior Police Officer (SPO) 1 Modesto F. Carrera
(Carrera), Police Officer (PO) 2 Jaime Chavez (Chavez),
SPO2 Fernando Fernandez (Fernandez), and Forensic
Chemist II Marina Carina Madrigal (Madrigal).
The events, as recounted by the prosecution, are as
follows:
At around nine oclock in the morning on January 24,
2000, two male informants namely, Jerry Tudlong
(Tudlong) and Frank Lad-ing (Lad-ing) arrived at the
office of the 14th Regional CIDG (Criminal Investigation
and Detention Group) at DPS Compound, Marcoville,
Baguio City, and reported to SPO2 Fernandez,Chief of
the Station Drug Enforcement Unit (SDEU), that a
certain Estela Tuan had been selling marijuana at
Barangay Gabriela Silang, Baguio City. Present at that
time were Police Superintendent Isagani Neres,
Regional Officer of the 14th Regional CIDG; Chief
Inspector Reynaldo Piay, Deputy Regional Officer; and
other police officers.[6]
SPO2 Fernandez set out to verify the report of Tudlong
and Lad-ing. At around one oclock in the afternoon of
the same day, he gave Tudlong and Lad-ing P300.00 to
buy marijuana, and then accompanied the two
informants to the accused-appellants house. Tudlong
Mabini Maskay (Maskay), the Barangay Captain of
Barangay Gabriela Silang.
In her testimony, accused-appellant declared that she
worked as a vendor at Hangar Market. Sometime in
January 2000, while she was selling vegetables at
Hangar Market, her son arrived with two police officers
who asked her to go home because of a letter from the
court.[11] At about six oclock in the afternoon, she and
her husband Beniasan reached their residence and
found a green paper bag with marijuana in their sala.
According to the police officers, they got the bag from
a room on the first floor of accused-appellants house.
Accused-appellant explained that the room where the
bag of marijuana was found was previously rented by
boarders. The boarders padlocked the room because
they still had things inside and they had paid their rent
up to the end of January 2000. [12] The police officers
also informed accused-appellant that they got a gun
from under a cabinet in the latters room, which
accused-appellant disputed since her room was always
left open and it was where her children play. [13]
Accused-appellant alleged that a Search Warrant was
issued for her house because of a quarrel with her
neighbor named Lourdes Estillore (Estillore). Accused-
appellant filed a complaint for the demolition of
Estillores house which was constructed on the road.[14]
Beniasan supported the testimony of his wife,
accused-appellant. He narrated that he and accused-
appellant were at their Hangar Market stall when two
police officers came and asked them to go home.
Beniasan and accused-appellant arrived at their
residence at around six oclock in the evening and were
shown the marijuana the police officers supposedly got
from the first floor of the house. The police officers
then made Beniasan sign a certification of the list of
items purportedly confiscated from the house. [15]
Magno testified that he resided at the first floor of
accused-appellants residence. He was present when
the search was conducted but denied that the Search
Warrant was shown to him.[16] He attested that the
confiscated items were found from the vacant room at
the first floor of accused-appellants house which was
previously occupied by boarders. Said room was
padlocked but was forced open by the police officers.
In the course of the police officers search, they pulled
something from under the bed that was wrapped in
green cellophane, but Magno did not know the
contents thereof.[17] The police officers also searched
the rooms of accused-appellant and her children at the
second floor of the house, during which they allegedly
found a gun under the cabinet in accused-appellants
room. Magno claimed that he did not personally
witness the finding of the gun and was merely
informed about it by the police officers.[18]
Maskay, the Barangay Captain of Barangay Gabriela
Silang, Baguio City, was the last to testify for the
defense. He corroborated accused-appellants
allegation that the latter had a quarrel with Estillore,
and this could be the reason behind the filing of the
present criminal cases. He further remembered that
the members of the CIDG went to his office on January
24, 2000 to ask about the location of accused-
appellants house.[19]
The RTC, in its Decision dated April 9, 2002, found
accused-appellant guilty as charged and adjudged
thus:
The officers must conduct the search and seize the
above-mentioned personal items in the presence of
the lawful occupant thereof or any member of her
family or in the absence of the latter, in the presence
of two witnesses of sufficient age and discretion
residing in the same locality.
The officers seizing the items must give a detailed
receipt for the same to the lawful occupant of the
house in whose presence the search and seizure were
made, or in the absence of such occupant, must, in the
presence of the 2 witnesses mentioned, leave a receipt
in the place in which the seized items were found;
thereafter, deliver the items seized to the undersigned
judge together with a true inventory thereof duly
verified under oath.
Baguio City, Philippines, this 25th day of January, 2000.
(SGD)ILUMINADA CABATO-CORTES
Executive Judge
MTCC, Branch IV[7]
Upon receipt of the Search Warrant, SPO2 Fernandez,
his team supervisor Police Senior Inspector Rodolfo
Castel, SPO1 Carrera, Police Senior Inspector Ricarte
Marquez and PO2 Chavez implemented the warrant.
Before going to the accused-appellants house, SPO2
Fernandez invited barangay officials to be present
when the Search Warrant was to be served, but since
no one was available, he requested one Eliza Pascual
(Pascual), accused-appellants neighbor, to come
along.
The CIDG team thereafter proceeded to accused-
appellants house. Even though accused-appellant was
not around, the CIDG team was allowed entry into the
house by Magno Baludda (Magno), accused-appellants
father, after he was shown a copy of the Search
Warrant. SPO2 Fernandez and Police Senior Inspector
Ricarte Marquez guarded the surroundings of the
house,[8] while SPO1 Carrera and PO2 Chavez searched
inside.
SPO1 Carrera and PO2 Chavez began searching the
rooms on the first floor in the presence of Magno and
Pascual. They continued their search on the second
floor. They saw a movable cabinet in accused-
appellants room, below which they found a brick of
marijuana and a firearm. At around six oclock that
evening, accused-appellant arrived with her son. The
police officers asked accused-appellant to open a built-
in cabinet, in which they saw eight more bricks of
marijuana.[9] PO2 Chavez issued a receipt for the items
confiscated from accused-appellant[10] and a
certification stating that the items were confiscated
and recovered from the house and in accused-
appellants presence.
The nine bricks of marijuana were brought to the
National Bureau of Investigation (NBI) for
examination.
The defense, on the other hand, had an entirely
different version of what transpired that day. It
presented four witnesses, namely, accused-appellant
herself; Beniasan Tuan (Beniasan), accused-appellants
husband; Magno, accused-appellants father; and
probable cause only after conducting the searching
inquiry and personal examination of the applicant and
the latters witnesses, in compliance with the
requirements of the Constitution. Hence, the appellate
court affirmed the conviction of accused-appellant for
illegal possession of marijuana.
The Court of Appeals, however, modified the appealed
RTC judgment by acquitting accused-appellant of the
charge for illegal possession of firearm.According to
the appellate court, the records were bereft of
evidence that the gun supposedly confiscated from
accused-appellant was unlicensed. The absence of a
firearm license was simply presumed by the police
officers because the gun was a defective paltik with no
serial number. That the said condition of the gun did
not dispense with the need for the prosecution to
establish that it was unlicensed through the testimony
or certification of the appropriate officer from the
Board of the Firearms and Explosives Bureau of the
Philippine National Police.
In the end, the Court of Appeals decreed:
WHEREFORE, premises considered, the instant appeal
is PARTLY GRANTED. The assailed Decision of the RTC
of Baguio City, Branch 6, dated April 9, 2002, is hereby
MODIFIED such that the conviction of accused-
appellant for Violation of Section 8, Art. II, RA 6425, as
amended, is AFFIRMED while her conviction for
Violation of PD 1866, as amended, is REVERSED and
SET ASIDE. Accused-appellant is accordingly
ACQUITTED of the latter offense.[23]
In its Resolution dated October 20, 2006, the Court of
Appeals gave due course to accused-appellants Partial
Notice of Appeal and accordingly forwarded the
records of the case to this Court.
This Court then issued a Resolution[24] dated February
28, 2007 directing the parties to file their respective
supplemental briefs, if they so desired, within 30 days
from notice. Accused-appellant[25] opted not to file a
supplemental brief and manifested that she was
adopting her arguments in the Appellants Brief since
the same had already assiduously discussed her
innocence of the crime charged. The People [26] likewise
manifested that it would no longer file a supplemental
brief as the issues have all been addressed in its
Appellees Brief.
Accused-appellant raised the following assignment of
errors in her Brief: [27]
THE TRIAL COURT GRAVELY ERRED IN GIVING FULL
FAITH AND CREDENCE TO THE INCREDIBLE AND
CONTRADICTORY TESTIMONIES OF THE POLICE
OFFICERS.
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE
ACCUSED-APPELLANT OF THE CRIMES CHARGED
DESPITE FAILURE OF THE PROSECUTION TO PROVE
HER GUILT BEYOND REASONABLE DOUBT.
THE TRIAL COURT ERRED IN NOT CONSIDERING AS
VOID THE SEARCH WARRANT ISSUED AGAINST THE
ACCUSED-APPELLANT.
WHEREFORE, judgment is hereby rendered as follows:
1. In Criminal Case No. 17619-R, the Court finds the
accused Estela Tuan guilty beyond reasonable doubt of
the offense of illegal possession of marijuana (nine [9]
bricks of dried marijuana leaves with an approximate
weight of 18.750 kilograms and the one [1] plastic bag
containing the dried marijuana weighing about .3
kilograms) in violation of Section 8, Article II of
Republic Act No. 6425 as amended by Section 13 of
Republic Act 7659 as charged in the information and
sentences her to the penalty of reclusion perpetua and
to pay a fine of P500,000.00 without subsidiary
imprisonment in case of insolvency.
The nine (9) bricks of dried marijuana leaves with an
approximate weight of 18.750 kilograms and one (1)
plastic bag containing dried marijuana leaves weighing
approximately .3 kilograms (Exhibit F, F-1, F-1-A to F-1-
J) are ordered confiscated and forfeited in favor of the
State to be destroyed immediately in accordance with
law.
The accused Estela Tuan being a detention prisoner is
entitled to be credited 4/5 of her preventive
imprisonment in the service of her sentence in
accordance with Article 29 of the Revised Penal Code;
and
2. In Criminal Case No. 17620-R, the Court finds the
accused Estela Tuan guilty beyond reasonable doubt of
the offense of illegal possession of firearms (one [1]
caliber .357 S & W revolver), a high powered firearm,
without any license, permit or authority issued by the
Government to keep the same in violation of Section 1,
Republic Act No.8294 which amended Section 1 of PD
1866 as charged in the information and hereby
sentences her, applying the Indeterminate Sentence
Law, to imprisonment ranging from 4 years 9 months
and 10 days of prision correccional in its maximum
period as Minimum to 6 years and 8 months of prision
mayor in its minimum period as Maximum and a fine
of P30,000.00 without subsidiary imprisonment in case
of insolvency.
The firearm caliber .357 S & W revolver without serial
number is ordered forfeited in favor of the State to be
disposed of immediately in accordance with law.
The accused Estela Tuan being a detention prisoner is
entitled to be credited 4/5 of her preventive
imprisonment in the service of her sentence in
accordance with Article 29 of the Revised Penal Code.
[20]
The records of the two criminal cases were forwarded
to this Court by the RTC, but the Court issued a
Resolution[21] dated October 13, 2004 transferring said
records to the Court of Appeals pursuant to People v.
Mateo.[22]
On September 21, 2006, the Court of Appeals
promulgated its Decision.
The Court of Appeals held that the contested search
and consequent seizure of the marijuana bricks were
done pursuant to the Search Warrant validly issued by
the MTCC. There was no showing of procedural defects
or lapses in the issuance of said Search Warrant as the
records support that the issuing judge determined
her house. The Court has previously held that
discrepancies and inconsistencies in the testimonies of
witnesses referring to minor details, and not in
actuality touching upon the central fact of the crime,
do not impair their credibility. Testimonies of witnesses
need only corroborate each other on important and
relevant details concerning the principal occurrence.
[31]
Inconsistencies as to minor details and collateral
matters do not affect the credibility of the witnesses
nor the veracity or weight of their testimonies. Such
minor inconsistencies may even serve to strengthen
their credibility as they negate any suspicion that the
testimonies have been rehearsed.[32]
Accused-appellant further questions the non-
presentation as witnesses of Lad-ing and Tudlong, the
informants, and Pascual, the neighbor who supposedly
witnessed the implementation of the Search Warrant,
during the joint trial of Criminal Case Nos. 17619-R and
17620-R before the RTC. This Court though is
unconvinced that such non-presentation of witnesses
is fatal to Criminal Case No. 17619-R.
The prosecution has the exclusive prerogative to
determine whom to present as witnesses. The
prosecution need not present each and every witness
but only such as may be needed to meet the quantum
of proof necessary to establish the guilt of the accused
beyond reasonable doubt. The testimonies of the other
witnesses may, therefore, be dispensed with if they
are merely corroborative in nature. The Court has ruled
that the non-presentation of corroborative witnesses
does not constitute suppression of evidence and is not
fatal to the prosecutions case.[33]
Although Criminal Case No. 17619-R involves illegal
possession of marijuana, the following pronouncement
of this Court in People v. Salazar,[34]relating to the
illegal sale of the same drug, still rings true:
Neither is her right to confront witnesses against her
affected by the prosecution's failure to present the
informer who pointed to her as a drug pusher. The
presentation of an informant in an illegal drugs
case is not essential for conviction nor is it
indispensable for a successful prosecution
because his testimony would be merely
corroborative and cumulative. In a case involving
the sale of illegal drugs, what should be proven
beyond reasonable doubt is the fact of the sale itself.
Hence, like the non-presentation of the marked money
used in buying the contraband, the non-presentation
of the informer on the witness stand would not
necessarily create a hiatus in the prosecutions'
evidence. (Emphasis ours.)
Lastly, accused-appellant insists that the items
allegedly seized from her house are inadmissible as
evidence because the Search Warrant issued for her
house was invalid for failing to comply with the
constitutional and statutory requirements. Accused-
appellant specifically pointed out the following defects
which made said Search Warrant void: (1) the
informants, Lad-ing and Tudlong, made
misrepresentation of facts in the Application for Search
Warrant filed with the MTCC; (2) Judge Cortes of the
Given that accused-appellant was already acquitted of
the charge of violation of Presidential Decree No. 1866
on the ground of reasonable doubt in Criminal Case
No. 17620-R, her instant appeal relates only to her
conviction for illegal possession of prohibited or
regulated drugs in Criminal Case No. 17619-R. The
Court can no longer pass upon the propriety of
accused-appellants acquittal in Criminal Case No.
17620-R because of the rule that a judgment
acquitting the accused is final and immediately
executory upon its promulgation, and that accordingly,
the State may not seek its review without placing the
accused in double jeopardy. Such acquittal is final and
unappealable on the ground of double jeopardy
whether it happens at the trial court or on appeal at
the Court of Appeals.[28]
In a prosecution for violation of the Dangerous Drugs
Law, such as Criminal Case No. 17619-R, a case
becomes a contest of credibility of witnesses and their
testimonies. In such a situation, this Court generally
relies upon the assessment by the trial court, which
had the distinct advantage of observing the conduct or
demeanor of the witnesses while they were testifying.
Hence, its factual findings are accorded respect even
finality absent any showing that certain facts of weight
and substance bearing on the elements of the crime
have been overlooked, misapprehended or misapplied.
[29]
The Court finds no reason to deviate from the general
rule in the case at bar.
Illegal possession of prohibited or regulated drugs is
committed when the following elements concur: (1)
the accused is in possession of an item or object which
is identified to be a prohibited drug; (2) such
possession is not authorized by law; and (3) the
accused freely and consciously possesses the said
drug.[30]
All the foregoing elements were duly proven to exist in
Criminal Case No. 17619-R. The search conducted by
SPO1 Carrera and PO2 Chavez in accused-appellants
house yielded nine bricks of marijuana. Marijuana is a
prohibited drug, thus, accused-appellants possession
thereof could not have been authorized by law in any
way. Accused-appellant evidently possessed the
marijuana freely and consciously, even offering the
same for sale. The bricks of marijuana were found in
accused-appellants residence over which she had
complete control. In fact, some of the marijuana were
found in accused-appellants own room.
Accused-appellant challenges the judgment of the RTC,
affirmed by the Court of Appeals, finding her guilty of
illegal possession of marijuana, by pointing out certain
inconsistencies in the testimonies of prosecution
witnesses that supposedly manifested their lack of
credibility, i.e., the date of the test buy and the
manner by which the doors of the rooms of the house
were opened.
These alleged inconsistencies and contradictions
pertain to minor details and are so inconsequential
that they do not in any way affect the credibility of the
witnesses nor detract from the established fact of
illegal possession of marijuana by accused-appellant at
with the first and fourth factors, i.e., existence of
probable cause; and particular description of the place
to be searched and things to be seized.
In People v. Aruta,[36] the Court defined probable cause
as follows:
Although probable cause eludes exact and concrete
definition, it generally signifies a reasonable ground of
suspicion supported by circumstances sufficiently
strong in themselves to warrant a cautious man to
believe that the person accused is guilty of the offense
with which he is charged. It likewise refers to the
existence of such facts and circumstances which could
lead a reasonably discreet and prudent man to believe
that an offense has been committed and that the
item(s), article(s) or object(s) sought in connection
with said offense or subject to seizure and destruction
by law is in the place to be searched.
It ought to be emphasized that in determining
probable cause, the average man weighs facts and
circumstances without resorting to the calibrations of
our rules of evidence of which his knowledge is
technically nil. Rather, he relies on the calculus of
common sense which all reasonable men have in
abundance. The same quantum of evidence is required
in determining probable cause relative to search.
Before a search warrant can be issued, it must be
shown by substantial evidence that the items sought
are in fact seizable by virtue of being connected with
criminal activity, and that the items will be found in
the place to be searched.
A magistrates determination of probable cause for the
issuance of a search warrant is paid great deference
by a reviewing court, as long as there was substantial
basis for that determination. Substantial basis means
that the questions of the examining judge brought out
such facts and circumstances as would lead a
reasonably discreet and prudent man to believe that
an offense has been committed, and the objects in
connection with the offense sought to be seized are in
the place sought to be searched.[37] Such substantial
basis exists in this case.
Judge Cortes found probable cause for the issuance of
the Search Warrant for accused-appellants residence
after said judges personal examination of SPO2
Fernandez, the applicant; and Lad-ing and Tudlong, the
informants.
SPO2 Fernandez based his Application for Search
Warrant not only on the information relayed to him by
Lad-ing and Tudlong. He also arranged for a test buy
and conducted surveillance of accused-appellant. He
testified before Judge Cortes:
COURT:
Q. You are applying for a Search Warrant and you
alleged in your application that Estela Tuan of Brgy.
Gabriela Silang, Baguio City, is in possession of dried
marijuana leaves and marijuana hashish, how did you
come to know about this matter?
A. Through the two male persons by the name of Frank
Lad-ing and Jerry Tudlong, Your Honor.
MTCC failed to consider the informants admission that
they themselves were selling marijuana; and (3) the
Search Warrant failed to particularly describe the place
to be searched because the house was a two-storey
building composed of several rooms.
The right of a person against unreasonable searches
and seizure is recognized and protected by no less
than the Constitution, particularly, Sections 2 and 3(2)
of Article III which provide:
SEC. 2. The right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue
except upon probable cause to be determined
personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to
be searched and the persons or things to be seized.
SEC. 3. x x x
(2) Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any
purpose in any proceeding. (Emphases ours.)
Accordingly, Sections 4 and 5, Rule 126 of the Revised
Rules on Criminal Procedure laid down the following
requisites for the issuance of a valid search warrant:
SEC. 4. Requisites for issuing search warrant. A search
warrant shall not issue except 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 which may be
anywhere in the Philippines.
SEC. 5. 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 the
witnesses he may produce on facts personally known
to them and attach to the record their sworn
statements, together with the affidavits submitted.
Therefore, the validity of the issuance of a search
warrant rests upon the following factors: (1) it must be
issued upon probable cause; (2) the probable cause
must be determined by the judge himself and not by
the applicant or any other person; (3) in the
determination of probable cause, the judge must
examine, under oath or affirmation, the complainant
and such witnesses as the latter may produce; and (4)
the warrant issued must particularly describe the place
to be searched and persons or things to be seized.[35]
There is no dispute herein that the second and third
factors for a validly issued search warrant were
complied with, i.e., personal determination of probable
cause by Judge Cortes; and examination, under oath or
affirmation, of SPO2 Fernandez and the two
informants, Lad-ing and Tudlong, by Judge Cortes.
What is left for the Court to determine is compliance
accused-appellant was keeping and selling marijuana
at her house, and that they took part in the test buy.
Lad-ing narrated:
COURT:
Q: Mr. Lad-ing, you said that you are working at the
Trading Post. What kind of work do you have there?
A: I am a middleman of the vegetable dealers, Your
Honor.
COURT:
Q: Did you come to know of this person Estela Tuan?
A: Yes, Your Honor, because there was an incident
wherein we were conducting our line of business when
they came and joined us and we became partners,
Your Honor.
Q: You said, they, how many of you?
A: A certain Jerry Tudlong, Estela Tuan and myself, Your
Honor.
Q: In other words, Estela Tuan went with you and later
on she became your partner in that business?
A: Yes, Your Honor.
Q: And so what happened when she became a partner
of your business?
A: When we were about to divide our profit, we then
went at their residence at Gabriela Silang, Baguio City,
Your Honor.
Q: What happened?
A: While we then sitted ourselves at the sala, she told
us that if we wanted to earn some more, she told us
that she has in her possession marijuana which could
be sold, Your Honor.
Q: And so, what happened?
A: After which, she showed the marijuana, Your Honor.
Q: Where was the marijuana?
A: It was placed in a cellophane, in a newspaper, Your
Honor.
Q: How big?
A: A dimension of 10 x 4 inches, Your Honor.
Q: With that size, where did she show you the box of
this cellophane?
A: At the place where we were sitted at the receiving
room, Your Honor.
Q: In other words, she went to get it and then
presented or showed it to you?
A: Yes, Your Honor.
Q: Where did she go, if you know?
A: Because at the sala, there is a certain room located
at the side that is the place where she got the same,
Your Honor.
Q: Where is this house of Estela Tuan located, is it
along the road or inside the road or what?
A: It is near the road but you have to walk in a little
distance, Your Honor.
Q. When did these two male persons report to your
office?
A. January 22, Your Honor.
Q. This year?
A. Yes, your honor.
Q. To whom did they report?
A. To me personally, Your Honor.
Q. How did they report the matter?
A. They reported that a certain Estela Tuan is selling
dried Marijuana leaves and marijuana hashish, Your
Honor.
Q. What else?
A. She is not only selling marijuana but also selling
vegetables at the Trading Post in La Trinidad, Your
Honor.
Q. They just told you, she is selling marijuana and
selling vegetables, that is already sufficient proof or
sufficient probable cause she is in possession of
marijuana, what else did they report?
A. That they are also selling marijuana in large volume
at their house.
Q. What did you do when you asked them regarding
that matter?
A. They had a test buy and they were able to buy
some commodities yesterday, Your honor.
Q. Who bought?
A. Tudlong and Lad-ing, Your Honor.
Q. How did you go about it?
A. I accompanied the said persons and kept watch over
them and gave them money after which, they were
able to purchase and when they purchased the said
items or drugs, they were even informed that if you
wanted to sell then you could come and get. Your
Honor.
COURT:
Q. Where is that P300.00?
A. It is with them, Your Honor.
Q. You did not entrap her?
A. No, Your Honor, because it is only a test buy.
Q: And that was January 22. Why did you not apply
immediately for search warrant?
A: Because we still have to look at the area and see to
it that there are really some buyers or people who
would go and leave the place, Your Honor.
Q: What did you observe?
A: Well, there are persons who would go inside and
after going inside, they would come out bringing along
with them something else.
Q: Did you not interview these people?
A: No, Your Honor. We did not bother.[38]
Lad-ing and Tudlong affirmed before Judge Cortes that
they were the ones who informed SPO2 Fernandez that
A: Yes, Your Honor.
xxxx
Q: Will you tell what happened when you went to the
house of the woman?
A: Well, we were allowed to go inside the house after
which, we were made to sit down at the receiving area
or sala, Your Honor.
Q: When you went there, you were allowed to enter
immediately?
A: Yes, Your Honor.
Q: Who allowed you to enter?
A: The female person, Your Honor.
Q: What happened when you were asked to be sitted?
A: During that time, Frank and the female person were
the ones conferring, Your Honor.
Q: Did you hear what they were talking about?
A: That Frank was purchasing marijuana, Your Honor.
Q: What did the woman tell you?
A: After we handed the money, a plastic which was
transparent, was then handed to Frank, it was a plastic
and there was a newspaper inside, Your Honor.
xxxx
Q: So, you did not actually see what is in the
newspaper?
A: No, Your Honor, however, I know that that is
marijuana.
Q: Why?
A: Because that was our purpose, to buy marijuana,
Your Honor.
Q: And you have not gotten marijuana without Estela
Tuan informing you?
A: Yes, Your Honor.
Q: Will you tell us what kind of materials were used in
the house of Estela Tuan?
A: Two storey, the walls are made of GI sheets, Your
Honor.\
Q: Is the house beside the road or do you have to
walk?
A: It is near the road. Upon reaching the road, you still
have to walk a short distance, Your Honor.
Q: Where did Estela Tuan get the newspaper placed in
a transparent plastic?
A: She got it from a room because were then made to
wait at the sala, Your Honor.
Q: Did she tell you how much she can sell marijuana?
A: She told us, Your Honor.
Q: What?
A: Well, the marijuana that we purchased was worth
P300.00[.] However, we could divide it into two small
packs and we could sell it at P20.00 per piece so that
you can also have some gain.
COURT:
Q: Will you describe the place where Estela Tuan is
residing?
A: Well, it is a two storey house, the walls are made of
galvanized iron Sheets, Your Honor.
COURT:
Q: Do you know who are staying there?
A: I do not know who is living with her, however, that is
her residence, Your Honor.
Q: How many times did you go there?
A: It was my second time to go at that time we were
sent by PO Fernandez to purchase marijuana, Your
Honor.
Q: Where is the marijuana now?
A: It is in the possession of PO Fernandez, Your Honor.
Q: Where is the marijuana placed?
A: In a newspaper, Your Honor.
Q: What happened next?
A: We handed to her the amount of P300.00, your
Honor.
Q: And she gave you that marijuana?
A: Yes, Your Honor.
xxxx
Q: How many rooms are there in the first floor of the
house of Estela Tuan?
A: Three rooms, Your Honor, it has a dining room and
beside the place is the receiving room where we sitted
ourselves, Your Honor.
Q: When you already bought marijuana from her, what
did she tell you, if any?
A; Well, if we would be interested to buy more, I still
have stocks here, Your Honor.[39]
Tudlong recounted in more detail what happened
during the test buy:
COURT:
Q: My question is, when she told you that she has
some substance for sale for profit and you mentioned
marijuana, did you talk immediately with Frank or what
did you do?
A: We reported the matter to the Criminal Investigation
and Detection Group, your Honor.
xxxx
Q: What time?
A: We went to the office at 9:00 9:30 oclock in the
morning, Your Honor.
Q: When you went there, what did you do?
A: The amount of P300.00 was given to Frank and we
were instructed to purchase, Your Honor.
Q: Did you go?
prohibited drug subject to the provisions of Section 20
hereof. (As amended by R.A. 7659)
Sec. 20. Application of Penalties, Confiscation and
Forfeiture of the Proceeds or Instruments of the Crime.
- The penalties for offenses under Sections 3, 4, 7, 8
and 9 of Article II and Sections 14, 14-A, 15 and 16 of
Article III of this Act shall be applied if the dangerous
drugs involved is in any of the following quantities:
Q: After that, to whom did you sell?
A: We did not sell the marijuana, Your Honor.
Q: I thought you are going to sell marijuana and so you
went there?
A: We were just instructed by PO Fernandez to verify
what we are telling him was true, Your Honor. [40]

1. 40 grams or more of opium; Accused-appellants contention that MTCC Judge Cortes

failed to consider the informants admission that they
2. 40 grams or more of morphine; themselves were selling marijuana is utterly without
merit. First, even after carefully reviewing the
3. 200 grams or more of shabu or testimonies of Lad-ing and Tudlong before Judge
methylamphetamine hydrochloride; Cortes, this Court did not find a categorical admission
by either of the two informants that they themselves
4. 40 grams or more of heroin; were selling marijuana. In fact, Tudlong expressly
denied that he and Lad-ing sold the marijuana, having
5. 750 grams or more of Indian hemp or only bought the same from the accused-appellant for
marijuana; the test buy. Moreover, even if the informants were
also selling marijuana, it would not have affected the
6. 50 grams or more of marijuana resin or validity of the Search Warrant for accused-appellants
marijuana resin oil; house. The criminal liabilities of accused-appellant and
the informants would be separate and distinct. The
7. 40 grams or more of cocaine or cocaine investigation and prosecution of one could proceed
hydrocholoride; or independently of the other.

8. In the case of other dangerous drugs, the
quantity of which is far beyond therapeutic
requirements, as determined and promulgated by the
Dangerous Drugs Board, after public
consultations/hearings conducted for the purpose.
(Emphasis supplied.)
Pursuant to Article II, Section 8 of Republic Act No.
6425, as amended, illegal possession of 750 grams or
more of the prohibited drug marijuana is punishable by
reclusion perpetua to death. Accused-appellant had in
her possession a total of 19,050 grams of marijuana,
for which she was properly sentenced to reclusion
perpetua by the RTC, affirmed by the Court of
Appeals.
In the same vein, the fine of P500,000.00 imposed
upon accused-appellant by the RTC, affirmed by the
Court of Appeals, is also correct, as the same is still
within the range of fines imposable on any person who
possessed prohibited drugs without any authority,
under Article II, Section 8 of Republic Act No. 6425, as
amended.
WHEREFORE, premises considered, the Decision
dated September 21, 2006 of the Court of Appeals in
CA-G.R. CR.-H.C. No. 00381, is hereby AFFIRMED in
toto. No costs.
SO ORDERED.
Equally without merit is accused-appellants assertion
that the Search Warrant did not describe with
particularity the place to be searched.
A description of the place to be searched is sufficient if
the officer serving the warrant can, with reasonable
effort, ascertain and identify the place intended and
distinguish it from other places in the community. A
designation or description that points out the place to
be searched to the exclusion of all others, and on
inquiry unerringly leads the peace officers to it,
satisfies the constitutional requirement of definiteness.
[41]
In the case at bar, the address and description of
the place to be searched in the Search Warrant was
specific enough. There was only one house located at
the stated address, which was accused-appellants
residence, consisting of a structure with two floors and
composed of several rooms.
In view of the foregoing, the Court upholds the validity
of the Search Warrant for accused-appellants house
issued by MTCC Judge Cortes, and any items seized as
a result of the search conducted by virtue thereof, may
be presented as evidence against the accused-
appellant.
Since it is beyond any cavil of doubt that the accused-
appellant is, indeed, guilty of violation of Article II,
Section 8 of Republic Act No. 6425, as amended, the
Court shall now consider the appropriate penalty to be
imposed upon her.

---- Article II, Section 8, in relation to Section 20(3), of

Republic Act No. 6425, as amended, provides:
RUBEN DEL CASTILLO @ BOY CASTILLO,
Petitioner, SEC. 8. Possession or Use of Prohibited Drugs.- The
penalty of reclusion perpetua to death and a fine
ranging from five hundred thousand pesos to ten
million pesos shall be imposed upon any person who,
- versus - unless authorized by law, shall possess or use any
In the presence of the barangay tanod, Nelson
Gonzalado, and the elder sister of petitioner named
Dolly del Castillo, searched the house of petitioner
including the nipa hut where the petitioner allegedly
ran for cover. His men who searched the residence of
the petitioner found nothing, but one of the barangay
tanods was able to confiscate from the nipa hut
several articles, including four (4) plastic packs
containing white crystalline substance. Consequently,
the articles that were confiscated were sent to the PNP
Crime Laboratory for examination. The contents of the
four (4) heat- sealed transparent plastic packs were
subjected to laboratory examination, the result of
which proved positive for the presence of
methamphetamine hydrochloride, or shabu.
Thus, an Information was filed before the RTC against
petitioner, charging him with violation of Section 16,
Article III of R.A. 6425, as amended. The Information [5]
reads:
That on or about the 13th day of September 1997, at
about 3:00 p.m. in the City of Cebu, Philippines and
within the jurisdiction of this Honorable Court, the said
accused, with deliberate intent, did then and there
have in his possession and control four (4) packs of
white crystalline powder, having a total weight of 0.31
gram, locally known as shabu, all containing
methamphetamine hydrochloride, a regulated drug,
without license or prescription from any competent
authority.
CONTRARY TO LAW.[6]
During arraignment, petitioner, with the assistance of
his counsel, pleaded not guilty. [7] Subsequently, trial on
the merits ensued.
To prove the earlier mentioned incident, the
prosecution presented the testimonies of SPO3
Bienvenido Masnayon, PO2 Milo Arriola, and Forensic
Analyst, Police Inspector Mutchit Salinas.
The defense, on the other hand, presented the
testimonies of petitioner, Jesusa del Castillo, Dalisay
del Castillo and Herbert Aclan, which can be
summarized as follows:
On September 13, 1997, around 3 o'clock in the
afternoon, petitioner was installing the electrical
wirings and airconditioning units of the Four Seasons
Canteen and Beauty Parlor at Wacky Bldg.,
Cabancalan, Cebu. He was able to finish his job around
6 o'clock in the evening, but he was engaged by the
owner of the establishment in a conversation. He was
able to go home around 8:30-9 o'clock in the evening.
It was then that he learned from his wife that police
operatives searched his house and found nothing.
According to him, the small structure, 20 meters away
from his house where they found the confiscated
items, was owned by his older brother and was used
as a storage place by his father.
After trial, the RTC found petitioner guilty beyond
reasonable of the charge against him in the
Information. The dispositive portion of the Decision
reads:
PEOPLE OF THE PHILIPPINES,
Respondent.
G.R. No. 185128
[Formerly UDK No. 13980]
Present:
VELASCO, JR., J., Chairperson,
PERALTA,
MENDOZA,
REYES,* and
PERLAS-BERNABE, JJ.
Promulgated:
January 30, 2012
x---------------------------------------------------------------------------
--------------x
DECISION
PERALTA, J.:
For this Court's consideration is the Petition for
Review[1] on Certiorari under Rule 45 of Ruben del
Castillo assailing the Decision [2] dated July 31, 2006
and Resolution[3] dated December 13, 2007 of the
Court of Appeals (CA) in CA-G.R. CR No. 27819, which
affirmed the Decision[4] dated March 14, 2003 of the
Regional Trial Court (RTC), Branch 12, Cebu, in Criminal
Case No. CBU-46291, finding petitioner guilty beyond
reasonable doubt of violation of Section 16, Article III
of Republic Act (R.A.) 6425.
The facts, as culled from the records, are the
following:
Pursuant to a confidential information that petitioner
was engaged in selling shabu, police officers headed
by SPO3 Bienvenido Masnayon, after conducting
surveillance and test-buy operation at the house of
petitioner, secured a search warrant from the RTC and
around 3 o'clock in the afternoon of September 13,
1997, the same police operatives went to Gil Tudtud
St., Mabolo, Cebu City to serve the search warrant to
petitioner.
Upon arrival, somebody shouted raid, which prompted
them to immediately disembark from the jeep they
were riding and went directly to petitioner's house and
cordoned it. The structure of the petitioner's residence
is a two-storey house and the petitioner was staying in
the second floor. When they went upstairs, they met
petitioner's wife and informed her that they will
implement the search warrant. But before they can
search the area, SPO3 Masnayon claimed that he saw
petitioner run towards a small structure, a nipa hut, in
front of his house. Masnayon chased him but to no
avail, because he and his men were not familiar with
the entrances and exits of the place.
They all went back to the residence of the petitioner
and closely guarded the place where the subject ran
for cover. SPO3 Masnayon requested his men to get a
barangay tanod and a few minutes thereafter, his men
returned with two barangay tanods.
I WHEREFORE, premises considered, this Court finds the
SEARCH WARRANT No. 570-9-11-97-24 issued by
Executive Judge Priscilla S. Agana of Branch 24,
Regional Trial Court of Cebu City is valid.
II
The four (4) packs of shabu seized inside the shop of
petitioner are admissible in evidence against him.
III
The Court of Appeals did not err in finding him guilty of
illegal possession of prohibited drugs.[11]
Petitioner insists that there was no probable cause to
issue the search warrant, considering that SPO1
Reynaldo Matillano, the police officer who applied for
it, had no personal knowledge of the alleged illegal
sale of drugs during a test-buy operation conducted
prior to the application of the same search warrant.
The OSG, however, maintains that the petitioner, aside
from failing to file the necessary motion to quash the
search warrant pursuant to Section 14, Rule 127 of the
Revised Rules on Criminal Procedure, did not introduce
clear and convincing evidence to show that Masnayon
was conscious of the falsity of his assertion or
representation.
Anent the second argument, petitioner asserts that the
nipa hut located about 20 meters away from his house
is no longer within the permissible area that may be
searched by the police officers due to the distance and
that the search warrant did not include the same nipa
hut as one of the places to be searched. The OSG, on
the other hand, argues that the constitutional guaranty
against unreasonable searches and seizure is
applicable only against government authorities and
not to private individuals such as the barangay tanod
who found the folded paper containing packs of shabu
inside the nipa hut.
As to the third argument raised, petitioner claims that
the CA erred in finding him guilty beyond reasonable
doubt of illegal possession of prohibited drugs,
because he could not be presumed to be in possession
of the same just because they were found inside the
nipa hut. Nevertheless, the OSG dismissed the
argument of the petitioner, stating that, when
prohibited and regulated drugs are found in a house or
other building belonging to and occupied by a
particular person, the presumption arises that such
person is in possession of such drugs in violation of
law, and the fact of finding the same is sufficient to
convict.
This Court finds no merit on the first argument of
petitioner.
The requisites for the issuance of a search warrant are:
(1) probable cause is present; (2) such probable cause
must be determined personally by the judge; (3) the
judge must examine, in writing and under oath or
affirmation, the complainant and the witnesses he or
she may produce; (4) the applicant and the witnesses
testify on the facts personally known to them; and (5)
the warrant specifically describes the place to be
searched and the things to be seized.[12] According to
accused Ruben del Castillo alyas Boy Castillo, GUILTY
of violating Section 16, Article III, Republic Act No.
6425, as amended. There being no mitigating nor
aggravating circumstances proven before this Court,
and applying the Indeterminate Sentence Law, he is
sentenced to suffer the penalty of Six (6) Months and
One (1) Day as Minimum and Four (4) Years and Two
(2) Months as Maximum of Prision Correccional.
The four (4) small plastic packets of white crystalline
substance having a total weight of 0.31 gram, positive
for the presence of methamphetamine hydrochloride,
are ordered confiscated and shall be destroyed in
accordance with the law.
SO ORDERED.[8]
Aggrieved, petitioner appealed his case with the CA,
but the latter affirmed the decision of the RTC, thus:
WHEREFORE, the challenged Decision is AFFIRMED in
toto and the appeal is DISMISSED, with costs against
accused-appellant.
SO ORDERED.[9]
After the motion for reconsideration of petitioner was
denied by the CA, petitioner filed with this Court the
present petition for certiorari under Rule 45 of the
Rules of Court with the following arguments raised:
1. THE COURT OF APPEALS ERRED IN ITS
APPLICATION OF THE PROVISIONS OF THE
CONSTITUTION, THE RULES OF COURT AND
ESTABLISHED JURISPRUDENCE VIS-A-VIS VALIDITY OF
SEARCH WARRANT NO. 570-9-1197-24;
2. THE COURT OF APPEALS ERRED IN
RULING THAT THE FOUR (4) PACKS OF WHITE
CRYSTALLINE POWDER ALLEGEDLY FOUND ON THE
FLOOR OF THE NIPA HUT OR STRUCTURE ARE
ADMISSIBLE IN EVIDENCE AGAINST THE PETITIONER,
NOT ONLY BECAUSE THE SAID COURT SIMPLY
PRESUMED THAT IT WAS USED BY THE PETITIONER OR
THAT THE PETITIONER RAN TO IT FOR COVER WHEN
THE SEARCHING TEAM ARRIVED AT HIS RESIDENCE,
BUT ALSO, PRESUMING THAT THE SAID NIPA HUT OR
STRUCTURE WAS INDEED USED BY THE PETITIONER
AND THE FOUR (4) PACKS OF WHITE CRYSTALLINE
POWDER WERE FOUND THEREAT. THE SUBJECT FOUR
(4) PACKS OF WHITE CRYSTALLINE POWDER ARE
FRUITS OF THE POISONOUS TREE; and
3. THE COURT OF APPEALS ERRED IN ITS
APPLICATION OF THE ELEMENT OF POSSESSION AS
AGAINST THE PETITIONER, AS IT WAS IN VIOLATION OF
THE ESTABLISHED JURISPRUDENCE ON THE MATTER.
HAD THE SAID COURT PROPERLY APPLIED THE
ELEMENT IN QUESTION, IT COULD HAVE BEEN
ASSAYED THAT THE SAME HAD NOT BEEN PROVEN. [10]
The Office of the Solicitor General (OSG), in its
Comment dated February 10, 2009, enumerated the
following counter-arguments:
Q For how long did the chase take place?
A Just a very few moments.
Q After that, what did you [do] when you were not able
to reach him?
A I watched his shop and then I requested my men to
get a barangay tanod.
Q Were you able to get a barangay tanod?
A Yes.
Q Can you tell us what is the name of the barangay
tanod?
A Nelson Gonzalado.
Q For point of clarification, how many barangay tanod
[did] your driver get?
A Two.
Q What happened after that?
A We searched the house, but we found negative.
Q Who proceeded to the second floor of the house?
A SPO1 Cirilo Pogoso and Milo Areola went upstairs and
found nothing.
Q What about you, where were you?
A I [was] watching his shop and I was with Matillano.
Q What about the barangay tanod?
A Together with Milo and Pogoso.
Q When the search at the second floor of the
house yielded negative what did you do?
A They went downstairs because I was
suspicious of his shop because he ran from his
shop, so we searched his shop.
Q Who were with you when you searched the
shop?
A The barangay tanod Nilo Gonzalado, the elder
sister of Ruben del Castillo named Dolly del
Castillo.
Q You mean to say, that when (sic) SPO1
Reynaldo Matillano, Barangay Tanod Nilo
Gonzalado and the elder sister of Ruben del
Castillo were together in the shop?
A Yes.
Q What happened at the shop?
A One of the barangay tanods was able to pick
up white folded paper.
Q What [were] the contents of that white folded
paper?
A A plastic pack containing white crystalline.
Q Was that the only item?
A There are others like the foil, scissor.
Q Were you present when those persons found those
tin foil and others inside the electric shop?
A Yes.[21]
The fact that no items were seized in the residence of
petitioner and that the items that were actually seized
petitioner, there was no probable cause. Probable
cause for a search warrant is 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 the objects sought in connection
with the offense are in the place sought to be
searched.[13] A finding of probable cause needs only to
rest on evidence showing that, more likely than not, a
crime has been committed and that it was committed
by the accused. Probable cause demands more than
bare suspicion; it requires less than evidence which
would justify conviction.[14] The judge, in determining
probable cause, is to consider the totality of the
circumstances made known to him and not by a fixed
and rigid formula,[15] and must employ a flexible,
totality of the circumstances standard. [16] The existence
depends to a large degree upon the finding or opinion
of the judge conducting the examination. This Court,
therefore, is in no position to disturb the factual
findings of the judge which led to the issuance of the
search warrant. A magistrate's determination of
probable cause for the issuance of a search warrant is
paid great deference by a reviewing court, as long as
there was substantial basis for that determination. [17]
Substantial basis means that the questions of the
examining judge brought out such facts and
circumstances as would lead a reasonably discreet and
prudent man to believe that an offense has been
committed, and the objects in connection with the
offense sought to be seized are in the place sought to
be searched.[18] A review of the records shows that in
the present case, a substantial basis exists.
With regard to the second argument of petitioner, it
must be remembered that the warrant issued must
particularly describe the place to be searched and
persons or things to be seized in order for it to be
valid. A designation or description that points out the
place to be searched to the exclusion of all others, and
on inquiry unerringly leads the peace officers to it,
satisfies the constitutional requirement of definiteness.
[19]
In the present case, Search Warrant No. 570-9-
1197-24[20]specifically designates or describes the
residence of the petitioner as the place to be searched.
Incidentally, the items were seized by a barangay
tanod in a nipa hut, 20 meters away from the
residence of the petitioner. The confiscated items,
having been found in a place other than the one
described in the search warrant, can be considered as
fruits of an invalid warrantless search, the presentation
of which as an evidence is a violation of petitioner's
constitutional guaranty against unreasonable searches
and seizure. The OSG argues that, assuming that the
items seized were found in another place not
designated in the search warrant, the same items
should still be admissible as evidence because the one
who discovered them was a barangay tanod who is a
private individual, the constitutional guaranty against
unreasonable searches and seizure being applicable
only against government authorities. The contention is
devoid of merit.
It was testified to during trial by the police officers who
effected the search warrant that they asked the
assistance of the barangay tanods, thus, in the
testimony of SPO3 Masnayon:
Fiscal Centino:
A It was the barangay tanod who saw the folded
paper and I saw him open the folded paper
which contained four shabu deck.
Q How far were you when you saw the folded paper
and the tanod open the folded paper?
A We were side by side because the shop was very
small.[22]
SPO1 Pogoso also testified on the same matter, thus:
FISCAL CENTINO:
Q And where did you conduct the search, Mr. Witness?
A At his residence, the two-storey house.
Q Among the three policemen, who were with you in
conducting the search at the residence of the
accused?
A I, Bienvenido Masnayon.
Q And what transpired after you searched the house of
Ruben del Castillo?
A Negative, no shabu.
Q And what happened afterwards, if any?
A We went downstairs and proceeded to the small
house.
Q Can you please describe to this Honorable Court,
what was that small house which you proceeded to?
A It is a nipa hut.
Q And more or less, how far or near was it from the
house of Ruben del Castillo?
A 5 to 10 meters.
Q And could you tell Mr. Witness, what was that nipa
hut supposed to be?
A That was the electronic shop of Ruben del Castillo.
Q And what happened when your team
proceeded to the nipa hut?
A I was just outside the nipa hut.
Q And who among the team went inside?
A PO2 Milo Areola and the Barangay Tanod.[23]
Having been established that the assistance of the
barangay tanods was sought by the police authorities
who effected the searched warrant, the same
barangay tanods therefore acted as agents of persons
in authority. Article 152 of the Revised Penal Code
defines persons in authority and agents of persons in
authority as:
x x x any person directly vested with jurisdiction,
whether as an individual or as a member of some
court or governmental corporation, board or
commission, shall be deemed a person in authority. A
barangay captain and a barangay chairman shall also
be deemed a person in authority.
A person who, by direct provision of law or by election
or by appointment by competent authority, is charged
with the maintenance of public order and the
protection and security of life and property,
were found in another structure by a barangay
tanod,was corroborated by PO2 Arriola, thus:
FISCAL:
Q So, upon arriving at the house of Ruben del Castillo
alias Boy, can you still recall what took place?
A We cordoned the area.
Q And after you cordoned the area, did anything
happen?
A We waited for the barangay tanod.
Q And did the barangay tanod eventually appear?
A Yes. And then we started our search in the presence
of Ruben del Castillo's wife.
Q What is the name of the wife of Ruben del Castillo?
A I cannot recall her name, but if I see her I can recall
[her] face.
Q What about Ruben del Castillo, was she around when
[you] conducted the search?
A No. Ruben was not in the house. But our team
leader, team mate Bienvenido Masnayon saw that
Ruben ran away from his adjacent electronic shop near
his house, in front of his house.
Q Did you find anything during the search in the house
of Ruben del Castillo?
A After our search in the house, we did not see
anything. The house was clean.
Q What did you do afterwards, if any?
A We left (sic) out of the house and proceeded to his
electronic shop.
Q Do you know the reason why you proceeded to his
electronic shop?
A Yes. Because our team leader Bienvenido Masnayon
saw that (sic) Ruben run from that store and
furthermore the door was open.
Q How far is the electronic shop from the house of
Ruben del Castillo?
A More or less, 5 to 6 meters in front of his house.
xxxx
Q So, who entered inside the electronic shop?
A The one who first entered the electronic shop is our
team leader Bienvenido Masnayon.
Q You mentioned that Masnayon entered first. Do you
mean to say that there were other persons or other
person that followed after Masnayon?
A Then we followed suit.
Q All of your police officers and the barangay tanod
followed suit?
A I led Otadoy and the barangay tanod.
Q What about you?
A I also followed suit.
Q And did anything happen inside the shop of
Ruben del Castillo?
physical possession or control of the accused. On the
other hand, constructive possession exists when the
drug is under the dominion and control of the accused
or when he has the right to exercise dominion and
control over the place where it is found. Exclusive
possession or control is not necessary. The accused
cannot avoid conviction if his right to exercise control
and dominion over the place where the contraband is
located, is shared with another. [28]
While it is not necessary that the property to be
searched or seized should be owned by the person
against whom the search warrant is issued, there must
be sufficient showing that the property is under
appellants control or possession.[29] The CA, in its
Decision, referred to the possession of regulated drugs
by the petitioner as a constructive one. Constructive
possession exists when the drug is under the dominion
and control of the accused or when he has the right to
exercise dominion and control over the place where it
is found.[30] The records are void of any evidence to
show that petitioner owns the nipa hut in question nor
was it established that he used the said structure as a
shop. The RTC, as well as the CA, merely presumed
that petitioner used the said structure due to the
presence of electrical materials, the petitioner being
an electrician by profession. The CA, in its Decision,
noted a resolution by the investigating prosecutor,
thus:
x x x As admitted by respondent's wife, her husband is
an electrician by occupation. As such, conclusion could
be arrived at that the structure, which housed the
electrical equipments is actually used by the
respondent. Being the case, he has control of the
things found in said structure.[31]
In addition, the testimonies of the witnesses for the
prosecution do not also provide proof as to the
ownership of the structure where the seized articles
were found. During their direct testimonies, they just
said, without stating their basis, that the same
structure was the shop of petitioner. [32] During the
direct testimony of SPO1 Pogoso, he even outrightly
concluded that the electrical shop/nipa hut was owned
by petitioner, thus:
FISCAL CENTINO:
Q Can you please describe to this Honorable Court,
what was that small house which you proceeded to?
A It is a nipa hut.
Q And more or less, how far or near was it from the
house of Ruben del Castillo?
A 5 to 10 meters.
Q And could you tell Mr. Witness, what was that
nipa hut supposed to be?
A That was the electronic shop of Ruben del
Castillo.
Q And what happened when your team proceeded to
the nipa hut?
A I was just outside the nipa hut.[33]
such as barrio councilman, barrio policeman and
barangay leader, and any person who comes to
the aid of persons in authority, shall be deemed
an agent of a person in authority.
The Local Government Code also contains a provision
which describes the function of a barangay tanod as
an agent of persons in authority. Section 388 of the
Local Government Code reads:
SEC. 388. Persons in Authority. - For purposes of the
Revised Penal Code, the punong barangay,
sangguniang barangay members, and members of the
lupong tagapamayapa in each barangay shall be
deemed as persons in authority in their jurisdictions,
while other barangay officials and members who
may be designated by law or ordinance and
charged with the maintenance of public order,
protection and security of life and property, or
the maintenance of a desirable and balanced
environment, and any barangay member who
comes to the aid of persons in authority, shall be
deemed agents of persons in authority.
By virtue of the above provisions, the police officers,
as well as the barangay tanods were acting as agents
of a person in authority during the conduct of the
search. Thus, the search conducted was unreasonable
and the confiscated items are inadmissible in
evidence. Assuming ex gratia argumenti that the
barangay tanod who found the confiscated items is
considered a private individual, thus, making the same
items admissible in evidence, petitioner's third
argument that the prosecution failed to establish
constructive possession of the regulated drugs seized,
would still be meritorious.
Appellate courts will generally not disturb the factual
findings of the trial court since the latter has the
unique opportunity to weigh conflicting testimonies,
having heard the witnesses themselves and observed
their deportment and manner of testifying, [24] unless
attended with arbitrariness or plain disregard of
pertinent facts or circumstances, the factual findings
are accorded the highest degree of respect on
appeal[25] as in the present case.
It must be put into emphasis that this present case is
about the violation of Section 16 of R.A. 6425. In every
prosecution for the illegal possession of shabu, the
following essential elements must be established: (a)
the accused is found in possession of a regulated drug;
(b) the person is not authorized by law or by duly
constituted authorities; and (c) the accused has
knowledge that the said drug is a regulated drug.[26]
In People v. Tira,[27] this Court explained the concept of
possession of regulated drugs, to wit:
This crime is mala prohibita, and, as such, criminal
intent is not an essential element. However, the
prosecution must prove that the accused had the
intent to possess (animus posidendi) the drugs.
Possession, under the law, includes not only actual
possession, but also constructive possession. Actual
possession exists when the drug is in the immediate
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
However, during cross-examination, SPO3 Masnayon
admitted that there was an electrical shop but denied
what he said in his earlier testimony that it was owned
by petitioner, thus:
ATTY. DAYANDAYAN:
Q You testified that Ruben del Castillo has an
electrical shop, is that correct?
A He came out of an electrical shop. I did not say
that he owns the shop.
Q Now, this shop is within a structure?
A Yes.
Q How big is the structure?
A It is quite a big structure, because at the other side
is a mahjong den and at the other side is a structure
rented by a couple.[34]
The prosecution must prove that the petitioner had
knowledge of the existence and presence of the drugs
in the place under his control and dominion and the
character of the drugs.[35] With the prosecution's failure
to prove that the nipa hut was under petitioner's
control and dominion, there casts a reasonable doubt
as to his guilt. In considering a criminal case, it is
critical to start with the law's own starting perspective
on the status of the accused - in all criminal
prosecutions, he is presumed innocent of the charge
laid unless the contrary is proven beyond reasonable
doubt.[36] Proof beyond reasonable doubt, or that
quantum of proof sufficient to produce a moral
certainty that would convince and satisfy the
conscience of those who act in judgment, is
indispensable to overcome the constitutional
presumption of innocence.[37]
WHEREFORE, the Decision dated July 31, 2006 of the
Court of Appeals in CA-G. R. No. 27819, which affirmed
the Decision dated March 14, 2003 of the Regional
Trial Court, Branch 12, Cebu, in Criminal Case No. CBU-
46291 is hereby REVERSED and SET ASIDE.
Petitioner Ruben del Castillo is ACQUITTED on
reasonable doubt.
SO ORDERED.
-----
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:
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
"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.
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 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:
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
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]).
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.
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 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
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).
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 30-minute 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]); Castañares 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
extended to acts committed by private individuals so
as to bring it within the ambit of alleged unlawful
intrusion by the government.
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).
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 (SeeSoliven 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
Petitioner, Elenita Fajardo, and one Zaldy Valerio
(Valerio) were charged with violation of P.D. No. 1866,
as amended, before the RTC, Branch 5, Kalibo, Aklan,
committed as follows:
That on or about the 28 th day of August, 2002, in the
morning, in Barangay Andagao, Municipality of Kalibo,
Province of Aklan, Republic of the Philippines, and
within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and
mutually helping one another, without authority of law,
permit or license, did then and there, knowingly,
willfully, unlawfully and feloniously have in their
possession, custody and control two (2) receivers of
caliber .45 pistol, [M]odel [No.] M1911A1 US
with SN 763025 and Model [No.] M1911A1 US
with defaced serial number, two (2) pieces short
magazine of M16 Armalite rifle, thirty-five (35)
pieces live M16 ammunition 5.56 caliber and
fourteen (14) pieces live caliber .45 ammunition,
which items were confiscated and recovered from their
possession during a search conducted by members of
the Provincial Intelligence Special Operation Group,
Aklan Police Provincial Office, Kalibo, Aklan, by virtue
of Search Warrant No. 01 (9) 03 issued by OIC
Executive Judge Dean Telan of the Regional Trial Court
of Aklan.[3]
When arraigned on March 25, 2004, both pleaded not
guilty to the offense charged.[4] During pre-trial, they
agreed to the following stipulation of facts:
1. The search warrant subject of this case exists;
2. Accused Elenita Fajardo is the same person
subject of the search warrant in this case who is a
resident of Sampaguita Road, Park Homes, Andagao,
Kalibo, Aklan;
3. Accused Zaldy Valerio was in the house of Elenita
Fajardo in the evening of August 27, 2002 but does not
live therein;
4. Both accused were not duly licensed firearm
holders;
5. The search warrant was served in the house of
accused Elenita Fajardo in the morning of August 28,
2002; and
6. The accused Elenita Fajardo and Valerio were not
arrested immediately upon the arrival of the military
personnel despite the fact that the latter allegedly saw
them in possession of a firearm in the evening of
August 27, 2002.[5]
As culled from the similar factual findings of the RTC
and the CA,[6] these are the chain of events that led to
the filing of the information:
In the evening of August 27, 2002, members of the
Provincial Intelligence Special Operations Group
(PISOG) were instructed by Provincial Director Police
Superintendent Edgardo Mendoza (P/Supt. Mendoza)
to respond to the complaint of concerned citizens
residing on Ilang-Ilang and Sampaguita Roads, Park
Homes III Subdivision, Barangay Andagao, Kalibo,
Aklan, that armed men drinking liquor at the residence
of petitioner were indiscriminately firing guns.
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.
----
ELENITA C. FAJARDO,
Petitioner,
- versus -
PEOPLE OF THE PHILIPPINES,
Respondent.
G.R. No. 190889
Present:
CARPIO, J.,
Chairperson,
NACHURA,
PERALTA,
ABAD, and
MENDOZA, JJ.
Promulgated:
January 10, 2011
x---------------------------------------------------------------------------
---------x
DECISION
NACHURA, J.:
At bar is a Petition for Review on Certiorari under Rule
45 of the Rules of Court, seeking the reversal of the
February 10, 2009 Decision [1] of the Court of Appeals
(CA), which affirmed with modification the August 29,
2006 decision[2] of the Regional Trial Court (RTC),
Branch 5, Kalibo, Aklan, finding petitioner guilty of
violating Presidential Decree (P.D.) No. 1866, as
amended.
The facts:
That this application was founded on confidential
information received by the Provincial Director, Police
Supt. Edgardo Mendoza.[7]
They further asserted that the execution of the search
warrant was infirm since petitioner, who was inside the
house at the time of the search, was not asked to
accompany the policemen as they explored the place,
but was instead ordered to remain in the living room
(sala).
Petitioner disowned the confiscated items. She refused
to sign the inventory/receipt prepared by the raiding
team, because the items allegedly belonged to her
brother, Benito Fajardo, a staff sergeant of the
Philippine Army.
Petitioner denied that she had a .45 caliber pistol
tucked in her waistband when the raiding team
arrived. She averred that such situation was
implausible because she was wearing garterized shorts
and a spaghetti-strapped hanging blouse.[8]
Ruling of the RTC
The RTC rejected the defenses advanced by accused,
holding that the same were already denied in the
Orders dated December 31, 2002 and April 20, 2005,
respectively denying the Motion to Quash Search
Warrant and Demurrer to Evidence. The said Orders
were not appealed and have thus attained finality. The
RTC also ruled that petitioner and Valerio were
estopped from assailing the legality of their arrest
since they participated in the trial by presenting
evidence for their defense. Likewise, by applying for
bail, they have effectively waived such irregularities
and defects.
In finding the accused liable for illegal possession of
firearms, the RTC explained:
Zaldy Valerio, the bodyguard of Elenita Fajardo, is a
former soldier, having served with the Philippine Army
prior to his separation from his service for going on
absence without leave (AWOL). With his military
background, it is safe to conclude that Zaldy Valerio is
familiar with and knowledgeable about different types
of firearms and ammunitions. As a former soldier,
undoubtedly, he can assemble and disassemble
firearms.
It must not be de-emphasize[d] that the residence of
Elenita Fajardo is definitely not an armory or arsenal
which are the usual depositories for firearms,
explosives and ammunition. Granting arguendo that
those firearms and ammunition were left behind by
Benito Fajardo, a member of the Philippine army, the
fact remains that it is a government property. If it is so,
the residence of Elenita Fajardo is not the proper place
to store those items. The logical explanation is that
those items are stolen property.
xxxx
The rule is that ownership is not an essential element
of illegal possession of firearms and ammunition. What
the law requires is merely possession which includes
not only actual physical possession but also
constructive possession or the subjection of the thing
to ones control and management. This has to be so if
Along with the members of the Aklan Police Provincial
Office, the elements of the PISOG proceeded to the
area. Upon arrival thereat, they noticed that several
persons scampered and ran in different directions. The
responding team saw Valerio holding two .45 caliber
pistols. He fired shots at the policemen before entering
the house of petitioner.
Petitioner was seen tucking a .45 caliber handgun
between her waist and the waistband of her shorts,
after which, she entered the house and locked the
main door.
To prevent any violent commotion, the policemen
desisted from entering petitioners house but, in order
to deter Valerio from evading apprehension, they
cordoned the perimeter of the house as they waited
for further instructions from P/Supt. Mendoza. A few
minutes later, petitioner went out of the house and
negotiated for the pull-out of the police troops. No
agreement materialized.
At around 2:00 a.m. and 4:00 a.m. of August 28, 2002,
Senior Police Officer 2 Clemencio Nava (SPO2 Nava),
who was posted at the back portion of the house, saw
Valerio emerge twice on top of the house and throw
something. The discarded objects landed near the wall
of petitioners house and inside the compound of a
neighboring residence. SPO2 Nava, together with SPO1
Teodoro Neron and Jerome T. Vega (Vega), radio
announcer/reporter of RMN DYKR, as witness,
recovered the discarded objects, which turned out to
be two (2) receivers of .45 caliber pistol, model no.
M1911A1 US, with serial number (SN) 763025, and
model no. M1911A1 US, with a defaced serial number.
The recovered items were then surrendered to SPO1
Nathaniel A. Tan (SPO1 Tan), Group Investigator, who
utilized them in applying for and obtaining a search
warrant.
The warrant was served on petitioner at 9:30 a.m.
Together with a barangay captain, barangay kagawad,
and members of the media, as witnesses, the police
team proceeded to search petitioners house. The team
found and was able to confiscate the following:
1. Two (2) pieces of Short Magazine of M16 Armalite
Rifle;
2. Thirty five (35) pieces of live M16 ammos 5.56
Caliber; and
3. Fourteen (14) pieces of live ammos of Caliber 45
pistol.
Since petitioner and Valerio failed to present any
documents showing their authority to possess the
confiscated firearms and the two recovered receivers,
a criminal information for violation of P.D. No. 1866, as
amended by Republic Act (R.A.) No. 8294, was filed
against them.
For their exoneration, petitioner and Valerio argued
that the issuance of the search warrant was defective
because the allegation contained in the application
filed and signed by SPO1 Tan was not based on his
personal knowledge. They quoted this pertinent
portion of the application:
On September 1, 2006, only petitioner filed a Motion
for Reconsideration, which was denied in an Order
dated October 25, 2006. Petitioner then filed a Notice
of Appeal with the CA.
Ruling of the CA
The CA concurred with the factual findings of the RTC,
but disagreed with its conclusions of law, and held that
the search warrant was void based on the following
observations:
[A]t the time of applying for a search warrant, SPO1
Nathaniel A. Tan did not have personal knowledge of
the fact that appellants had no license to possess
firearms as required by law. For one, he failed to make
a categorical statement on that point during the
application. Also, he failed to attach to the application
a certification to that effect from the Firearms and
Explosives Office of the Philippine National Police. x x
x, this certification is the best evidence obtainable to
prove that appellant indeed has no license or permit to
possess a firearm. There was also no explanation given
why said certification was not presented, or even
deemed no longer necessary, during the application
for the warrant. Such vital evidence was simply
ignored.[10]
Resultantly, all firearms and explosives seized inside
petitioners residence were declared inadmissible in
evidence. However, the 2 receivers recovered by the
policemen outside the house of petitioner before the
warrant was served were admitted as evidence,
pursuant to the plain view doctrine.
Accordingly, petitioner and Valerio were convicted of
illegal possession of a part of a firearm, punishable
under paragraph 1, Section 1 of P.D. No. 1866, as
amended. They were sentenced to an indeterminate
penalty of three (3) years, six (6) months, and twenty-
one (21) days to five (5) years, four (4) months, and
twenty (20) days of prision correccional, and ordered
to pay a P20,000.00 fine.
Petitioner moved for reconsideration,[11] but the motion
was denied in the CA Resolution dated December 3,
2009.[12] Hence, the present recourse.
At the onset, it must be emphasized that the
information filed against petitioner and Valerio charged
duplicitous offenses contrary to Section 13 of Rule 110
of the Rules of Criminal Procedure, viz.:
Sec. 13. Duplicity of offense. A complaint or
information must charge but one offense, except only
in those cases in which existing laws prescribe a single
punishment for various offenses.
A reading of the information clearly shows that
possession of the enumerated articles confiscated
from Valerio and petitioner are punishable under
separate provisions of Section 1, P.D. No. 1866, as
amended by R.A. No. 8294.[13] Illegal possession of two
(2) pieces of short magazine of M16 Armalite rifle,
thirty-five (35) pieces of live M16 ammunition 5.56
caliber, and fourteen (14) pieces of live caliber .45
ammunition is punishable under paragraph 2 of the
said section, viz.:
the manifest intent of the law is to be effective. The
same evils, the same perils to public security, which
the law penalizes exist whether the unlicensed holder
of a prohibited weapon be its owner or a borrower. To
accomplish the object of this law[,] the proprietary
concept of the possession can have no bearing
whatsoever.
xxxx
x x x. [I]n order that one may be found guilty of a
violation of the decree, it is sufficient that the accused
had no authority or license to possess a firearm, and
that he intended to possess the same, even if such
possession was made in good faith and without
criminal intent.
xxxx
To convict an accused for illegal possession of firearms
and explosive under P.D. 1866, as amended, two (2)
essential elements must be indubitably established,
viz.: (a) the existence of the subject firearm
ammunition or explosive which may be proved by the
presentation of the subject firearm or explosive or by
the testimony of witnesses who saw accused in
possession of the same, and (b) the negative fact that
the accused has no license or permit to own or possess
the firearm, ammunition or explosive which fact may
be established by the testimony or certification of a
representative of the PNP Firearms and Explosives Unit
that the accused has no license or permit to possess
the subject firearm or explosive (Exhibit G).
The judicial admission of the accused that they do not
have permit or license on the two (2) receivers of
caliber .45 pistol, model M1911A1 US with SN 763025
and model M1911A1 of M16 Armalite rifle, thirty-five
(35) pieces live M16 ammunition, 5.56 caliber and
fourteen (14) pieces live caliber .45 ammunition
confiscated and recovered from their possession
during the search conducted by members of the
PISOG, Aklan Police Provincial Office by virtue of
Search Warrant No. 01 (9) 03 fall under Section 4 of
Rule 129 of the Revised Rules of Court.[9]
Consequently, petitioner and Valerio were convicted of
illegal possession of firearms and explosives,
punishable under paragraph 2, Section 1 of P.D. No.
1866, as amended by R.A. No. 8294, which provides:
The penalty of prision mayor in its minimum period
and a fine of Thirty thousand pesos (P30,000.00) shall
be imposed if the firearm is classified as high powered
firearm which includes those with bores bigger in
diameter than .38 caliber and 9 millimeter such as
caliber .40, .41, .44, .45 and also lesser calibered
firearms but considered powerful such as caliber .357
and caliber .22 center-fire magnum and other firearms
with firing capability of full automatic and by burst of
two or three: Provided, however, That no other crime
was committed by the person arrested.
Both were sentenced to suffer the penalty of
imprisonment of six (6) years and one (1) day to
twelve (12) years of prision mayor, and to pay a fine of
P30,000.00.
on the caliber of the weapon. To do so would result in
duplicitous charges.
Ordinarily, an information that charges multiple
offenses merits a quashal, but petitioner and Valerio
failed to raise this issue during arraignment. Their
failure constitutes a waiver, and they could be
convicted of as many offenses as there were charged
in the information.[17] This accords propriety to the
diverse convictions handed down by the courts a quo.
Further, the charge of illegal possession of firearms
and ammunition under paragraph 2, Section 1 of P.D.
No. 1866, as amended by R.A. No. 8294, including the
validity of the search warrant that led to their
confiscation, is now beyond the province of our review
since, by virtue of the CAs Decision, petitioner and
Valerio have been effectively acquitted from the said
charges. The present review is consequently only with
regard to the conviction for illegal possession of a part
of a firearm.
The Issues
Petitioner insists on an acquittal and avers that the
discovery of the two (2) receivers does not come
within the purview of the plain view doctrine. She
argues that no valid intrusion was attendant and that
no evidence was adduced to prove that she was with
Valerio when he threw the receivers. Likewise absent is
a positive showing that any of the two receivers
recovered by the policemen matched the .45 caliber
pistol allegedly seen tucked in the waistband of her
shorts when the police elements arrived. Neither is
there any proof that petitioner had knowledge of or
consented to the alleged throwing of the receivers.
Our Ruling
We find merit in the petition.
First, we rule on the admissibility of the receivers. We
hold that the receivers were seized in plain view,
hence, admissible.
No less than our Constitution recognizes the right of
the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and
seizures. This right is encapsulated in Article III,
Section 2, of the Constitution, which states:
Sec. 2. The right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by
the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce,
and particularly describing the place to be searched
and the persons or things to be seized.
Complementing this provision is the exclusionary rule
embodied in Section 3(2) of the same article
(2) Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any
purpose in any proceeding.
The penalty of prision mayor in its minimum period
and a fine of Thirty thousand pesos (P30,000.00) shall
be imposed if the firearm is classified as high
powered firearm which includes those with
bores bigger in diameter than .38 caliber and 9
millimeter such as caliber .40, 41, .44, .45 and
also lesser calibered firearms but considered powerful
such as caliber .357 and caliber .22 center-fire
magnum and other firearms with firing capability of full
automatic and by burst of two or three: Provided,
however, That no other crime was committed by the
person arrested.[14]
On the other hand, illegal possession of the two (2)
receivers of a .45 caliber pistol, model no. M1911A1
US, with SN 763025, and Model M1911A1 US, with a
defaced serial number, is penalized under paragraph
1, which states:
Sec. 1. Unlawful manufacture, sale, acquisition,
disposition or possession of firearms or ammunition or
instruments used or intended to be used in the
manufacture of firearms or ammunition. The penalty of
prision correccional in its maximum period and a fine
of not less than Fifteen thousand pesos (P15,000.00)
shall be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any
low powered firearm, such as rimfire handgun, .380
or .32 and other firearm of similar firepower, part of
firearm, ammunition, or machinery, tool or instrument
used or intended to be used in the manufacture of any
firearm or ammunition: Provided, That no other crime
was committed.[15]
This is the necessary consequence of the amendment
introduced by R.A. No. 8294, which categorized the
kinds of firearms proscribed from being possessed
without a license, according to their firing power and
caliber. R.A. No. 8294 likewise mandated different
penalties for illegal possession of firearm according to
the above classification, unlike in the old P.D. No. 1866
which set a standard penalty for the illegal possession
of any kind of firearm. Section 1 of the old law reads:
Section 1. Unlawful Manufacture, Sale, Acquisition,
Disposition or Possession of Firearms or Ammunition or
Instruments Used or Intended to be Used in the
Manufacture of Firearms of Ammunition. The penalty of
reclusion temporal in its maximum period to reclusion
perpetua shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire dispose, or
possess any firearms, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be
used in the manufacture of any firearm or ammunition.
(Emphasis ours.)
By virtue of such changes, an information for illegal
possession of firearm should now particularly refer to
the paragraph of Section 1 under which the seized
firearm is classified, and should there be numerous
guns confiscated, each must be sorted and then
grouped according to the categories stated in Section
1 of R.A. No. 8294, amending P.D. No. 1866. It will no
longer suffice to lump all of the seized firearms in one
information, and state Section 1, P.D. No. 1866 as the
violated provision, as in the instant case, [16] because
different penalties are imposed by the law, depending
A Deluso told me that a person ran inside the house
carrying with him a gun.
Q And this house you are referring to is the house
which you mentioned is the police officers were
surrounding?
A Yes, sir.
Q Now, how long did you stay in that place, Mr.
Witness?
A I stayed there when I arrived at past 10:00 oclock up
to 12:00 oclock the following day.
Q At about 2:00 oclock in the early morning of August
28, 2002, can you recall where were you?
A Yes, sir.
Q Where were you?
A I was at the back of the house that is being cordoned
by the police.
Q While you were at the back of this house, do you
recall any unusual incident?
A Yes, sir.
Q Can you tell the Honorable Court what was that
incident?
A Yes, sir. A person went out at the top of the house
and threw something.
Q And did you see the person who threw something
out of this house?
A Yes, sir.
There are, however, several well-recognized
exceptions to the foregoing rule. Thus, evidence
obtained through a warrantless search and seizure
may be admissible under any of the following
circumstances: (1) search incident to a lawful arrest;
(2) search of a moving motor vehicle; (3) search in
violation of custom laws; (4) seizure of evidence in
plain view; and (5) when the accused himself waives
his right against unreasonable searches and seizures.
[18]
Under the plain view doctrine, objects falling in the
plain view of an officer, who has a right to be in the
position to have that view, are subject to seizure and
may be presented as evidence.[19] It applies when the
following requisites concur: (a) the law enforcement
officer in search of the evidence has a prior
justification for an intrusion or is in a position from
which he can view a particular area; (b) the discovery
of the evidence in plain view is inadvertent; and (c) it
is immediately apparent to the officer that the item he
observes may be evidence of a crime, contraband, or
otherwise subject to seizure. The law enforcement
officer must lawfully make an initial intrusion or
properly be in a position from which he can particularly
view the area. In the course of such lawful intrusion,
he came inadvertently across a piece of evidence
incriminating the accused. The object must be open to
eye and hand, and its discovery inadvertent. [20]
Tested against these standards, we find that the
seizure of the two receivers of the .45 caliber pistol
outside petitioners house falls within the purview of
the plain view doctrine.

xxxx First, the presence of SPO2 Nava at the back of the

house and of the other law enforcers around the
Q Can you tell the Honorable Court who was that premises was justified by the fact that petitioner and
person who threw that something outside the house? Valerio were earlier seen respectively holding .45
A It was Zaldy Valerio. caliber pistols before they ran inside the structure and
sought refuge. The attendant circumstances and the
COURT: (to witness) evasive actions of petitioner and Valerio when the law
Q Before the incident, you know this person Zaldy enforcers arrived engendered a reasonable ground for
Valerio? the latter to believe that a crime was being
A Yes, sir. committed. There was thus sufficient probable cause
for the policemen to cordon off the house as they
Q Why do you know him? waited for daybreak to apply for a search warrant.
A Because we were formerly members of the Armed
Forces of the Philippines. Secondly, from where he was situated, SPO2 Nava
clearly saw, on two different instances, Valerio emerge
xxxx on top of the subject dwelling and throw suspicious
objects. Lastly, considering the earlier sighting of
PROS. PERALTA: Valerio holding a pistol, SPO2 Nava had reasonable
Q When you saw something thrown out at the top of ground to believe that the things thrown might be
the house, did you do something if any? contraband items, or evidence of the offense they
A I shouted to seek cover. were then suspected of committing. Indeed, when
subsequently recovered, they turned out to be two (2)
xxxx receivers of .45 caliber pistol.

The pertinent portions of SPO2 Navas testimony are

Q So, what else did you do if any after you shouted,
take cover?
A I took hold of a flashlight after five minutes and
focused the beam of the flashlight on the place where
something was thrown.
Q What did you see if any?
A I saw there the lower [part] of the receiver of cal.
45.
elucidating:
Q When you arrived in that place, you saw policemen?
A Yes, sir.
Q What were they doing?
A They were cordoning the house.
Q You said that you asked your assistant team leader
Deluso about that incident. What did he tell you?
evidence of a crime, contraband, or otherwise subject
to seizure. xxxx

Hence, as correctly declared by the CA, the two Q Mr. Witness, at around 4:00 oclock that early
receivers were admissible as evidence. The liability for morning of August 28, 2002, do you recall another
their possession, however, should fall only on Valerio unusual incident?
and not on petitioner. A Yes, sir.

The foregoing disquisition notwithstanding, we find
that petitioner is not liable for illegal possession of part
of a firearm.
In dissecting how and when liability for illegal
possession of firearms attaches, the following
disquisitions in People v. De Gracia[22] are instructive:
The rule is that ownership is not an essential element
of illegal possession of firearms and ammunition. What
the law requires is merely possession which includes
not only actual physical possession but also
constructive possession or the subjection of the thing
to one's control and management. This has to be so if
the manifest intent of the law is to be effective. The
same evils, the same perils to public security, which
the law penalizes exist whether the unlicensed holder
of a prohibited weapon be its owner or a borrower. To
accomplish the object of this law the proprietary
concept of the possession can have no bearing
whatsoever.
But is the mere fact of physical or constructive
possession sufficient to convict a person for unlawful
possession of firearms or must there be an intent to
possess to constitute a violation of the law? This query
assumes significance since the offense of illegal
possession of firearms is a malum prohibitum punished
by a special law, in which case good faith and absence
of criminal intent are not valid defenses.
When the crime is punished by a special law, as a rule,
intent to commit the crime is not necessary. It is
sufficient that the offender has the intent to perpetrate
the act prohibited by the special law. Intent to commit
the crime and intent to perpetrate the act must be
distinguished. A person may not have consciously
intended to commit a crime; but he did intend to
commit an act, and that act is, by the very nature of
things, the crime itself. In the first (intent to commit
the crime), there must be criminal intent; in the
second (intent to perpetrate the act) it is enough that
the prohibited act is done freely and consciously.
In the present case, a distinction should be made
between criminal intent and intent to possess. While
mere possession, without criminal intent, is sufficient
to convict a person for illegal possession of a firearm,
it must still be shown that there was animus
possidendi or an intent to possess on the part of the
accused. Such intent to possess is, however, without
regard to any other criminal or felonious intent which
the accused may have harbored in possessing the
firearm. Criminal intent here refers to the intention of
the accused to commit an offense with the use of an
unlicensed firearm. This is not important in convicting
a person under Presidential Decree No. 1866. Hence,
in order that one may be found guilty of a violation of
the decree, it is sufficient that the accused had no
authority or license to possess a firearm, and that he
intended to possess the same, even if such possession
was made in good faith and without criminal intent.
Concomitantly, a temporary, incidental, casual, or
harmless possession or control of a firearm cannot be
considered a violation of a statute prohibiting the
Q And can you tell us what was that incident?
A I saw a person throwing something there and the
one that was thrown fell on top of the roof of another
house.
Q And you saw that person who again threw
something from the rooftop of the house?
A Yes, sir.
Q Did you recognize him?
A Yes, sir.
Q Who was that person?
A Zaldy Valerio again.
xxxx
Q Where were you when you saw this Zaldy Valerio
thr[o]w something out of the house?
A I was on the road in front of the house.
Q Where was Zaldy Valerio when you saw him thr[o]w
something out of the house?
A He was on top of the house.
xxxx
Q Later on, were you able to know what was that
something thrown out?
A Yes, sir.
Q What was that?
A Another lower receiver of a cal. 45.
xxxx
Q And what did he tell you?
A It [was] on the wall of another house and it [could]
be seen right away.
xxxx
Q What did you do if any?
A We waited for the owner of the house to wake up.
xxxx
Q Who opened the fence for you?
A It was a lady who is the owner of the house.
Q When you entered the premises of the house of the
lady, what did you find?
A We saw the lower receiver of this .45 cal. (sic) [21]
The ensuing recovery of the receivers may have been
deliberate; nonetheless, their initial discovery was
indubitably inadvertent. It is not crucial that at initial
sighting the seized contraband be identified and
known to be so. The law merely requires that the law
enforcer observes that the seized item may be
The CA correctly convicted Valerio with illegal
possession of part of a firearm.
In illegal possession of a firearm, two (2) things must
be shown to exist: (a) the existence of the subject
firearm; and (b) the fact that the accused who
possessed the same does not have the corresponding
license for it.[26]
By analogy then, a successful conviction for illegal
possession of part of a firearm must yield these
requisites:
(a) the existence of the part of the firearm;
and
(b) the accused who possessed the same does
not have the license for the firearm to which the seized
part/component corresponds.
In the instant case, the prosecution proved beyond
reasonable doubt the
elements of the crime. The subject receivers - one with
the markings United States Property and the other
bearing Serial No. 763025 - were duly presented to the
court as Exhibits E and E-1, respectively. They were
also identified by SPO2 Nava as the firearm parts he
retrieved af ter Valerio discarded them. [27] His
testimony was corroborated by DYKR radio announcer
Vega, who witnessed the recovery of the receivers. [28]
Anent the lack of authority, SPO1 Tan testified that,
upon verification, it was ascertained that Valerio is not
a duly licensed/registered firearm holder of any type,
kind, or caliber of firearms. [29] To substantiate his
statement, he submitted a certification [30] to that effect
and identified the same in court.[31] The testimony of
SPO1 Tan, or the certification, would suffice to prove
beyond reasonable doubt the second element. [32]
WHEREFORE, premises considered, the February 10,
2009 Decision of the Court of Appeals is hereby
REVERSED with respect to petitioner Elenita Fajardo y
Castro, who is hereby ACQUITTED on the ground that
her guilt was not proved beyond reasonable doubt.
SO ORDERED.
----
Terry v. Ohio, 392 U.S. 1 (1968)
Terry v. Ohio
No. 67
Argued December 12, 1967
Decided June 10, 1968
392 U.S. 1
CERTIORARI TO THE SUPREME COURT OF OHIO
MR. CHIEF JUSTICE WARREN delivered the opinion of
the Court.
This case presents serious questions concerning the
role of the Fourth Amendment in the confrontation on
the street between the citizen and the policeman
investigating suspicious circumstances.
Petitioner Terry was convicted of carrying a concealed
weapon and sentenced to the statutorily prescribed
term of one to three years in the penitentiary.
[Footnote 1] Following
[5]
the denial of a pretrial motion to suppress, the
prosecution introduced in evidence two revolvers and
a number of bullets seized from Terry and a
codefendant, Richard Chilton, [Footnote 2] by
Cleveland Police Detective Martin McFadden. At the
possession of this kind of weapon, such as Presidential
Decree No. 1866. Thus, although there is physical or
constructive possession, for as long as the animus
possidendi is absent, there is no offense committed. [23]
Certainly, illegal possession of firearms, or, in this
case, part of a firearm, is committed when the holder
thereof:
(1) possesses a firearm or a part thereof
(2) lacks the authority or license to possess the
firearm.[24]
We find that petitioner was neither in physical nor
constructive possession of the subject receivers. The
testimony of SPO2 Nava clearly bared that he only saw
Valerio on top of the house when the receivers were
thrown. None of the witnesses saw petitioner holding
the receivers, before or during their disposal.
At the very least, petitioners possession of the
receivers was merely incidental because Valerio, the
one in actual physical possession, was seen at the
rooftop of petitioners house. Absent any evidence
pointing to petitioners participation, knowledge or
consent in Valerios actions, she cannot be held liable
for illegal possession of the receivers.
Petitioners apparent liability for illegal possession of
part of a firearm can only proceed from the
assumption that one of the thrown receivers matches
the gun seen tucked in the waistband of her shorts
earlier that night. Unfortunately, the prosecution failed
to convert such assumption into concrete evidence.
Mere speculations and probabilities cannot substitute
for proof required to establish the guilt of an accused
beyond reasonable doubt. The rule is the same
whether the offenses are punishable under the Revised
Penal Code, which are mala in se, or in crimes, which
are malum prohibitum by virtue of special law. [25]The
quantum of proof required by law was not adequately
met in this case in so far as petitioner is concerned.
The gun allegedly seen tucked in petitioners waistband
was not identified with sufficient particularity; as such,
it is impossible to match the same with any of the
seized receivers. Moreover, SPO1 Tan categorically
stated that he saw Valerio holding two guns when he
and the rest of the PISOG arrived in petitioners house.
It is not unlikely then that the receivers later on
discarded were components of the two (2) pistols seen
with Valerio.
These findings also debunk the allegation in the
information that petitioner conspired with Valerio in
committing illegal possession of part of a firearm.
There is no evidence indubitably proving that
petitioner participated in the decision to commit the
criminal act committed by Valerio.
Hence, this Court is constrained to acquit petitioner on
the ground of reasonable doubt. The constitutional
presumption of innocence in her favor was not
adequately overcome by the evidence adduced by the
prosecution.
facing the other two, with Terry between McFadden
and the others, and patted down the outside of his
clothing. In the left breast pocket of Terry's overcoat,
Officer McFadden felt a pistol. He reached inside the
overcoat pocket, but was unable to remove the gun. At
this point, keeping Terry between himself and the
others, the officer ordered all three men to enter
Zucker's store. As they went in, he removed Terry's
overcoat completely, removed a .38 caliber revolver
from the pocket and ordered all three men to face the
wall with their hands raised. Officer McFadden
proceeded to pat down the outer clothing of Chilton
and the third man, Katz. He discovered another
revolver in the outer pocket of Chilton's overcoat, but
no weapons were found on Katz. The officer testified
that he only patted the men down to see whether they
had weapons, and that he did not put his hands
beneath the outer garments of either Terry or Chilton
until he felt their guns. So far as appears from the
record, he never placed his hands beneath Katz' outer
garments. Officer McFadden seized Chilton's gun,
asked the proprietor of the store to call a police
wagon, and took all three men to the station, where
Chilton and Terry were formally charged with carrying
concealed weapons.
On the motion to suppress the guns, the prosecution
took the position that they had been seized following a
search incident to a lawful arrest. The trial court
rejected this theory, stating that it "would be
stretching the facts beyond reasonable
comprehension" to find that Officer
[8]
McFadden had had probable cause to arrest the men
before he patted them down for weapons. However,
the court denied the defendants' motion on the ground
that Officer McFadden, on the basis of his experience,
"had reasonable cause to believe . . . that the
defendants were conducting themselves suspiciously,
and some interrogation should be made of their
action." Purely for his own protection, the court held,
the officer had the right to pat down the outer clothing
of these men, who he had reasonable cause to believe
might be armed. The court distinguished between an
investigatory "stop" and an arrest, and between a
"frisk" of the outer clothing for weapons and a full-
blown search for evidence of crime. The frisk, it held,
was essential to the proper performance of the
officer's investigatory duties, for, without it, "the
answer to the police officer may be a bullet, and a
loaded pistol discovered during the frisk is
admissible."
After the court denied their motion to suppress, Chilton
and Terry waived jury trial and pleaded not guilty. The
court adjudged them guilty, and the Court of Appeals
for the Eighth Judicial District, Cuyahoga County,
affirmed. State v. Terry, 5 Ohio App.2d 122, 214
N.E.2d 114 (1966). The Supreme Court of Ohio
dismissed their appeal on the ground that no
"substantial constitutional question" was involved. We
granted certiorari, 387 U.S. 929 (1967), to determine
whether the admission of the revolvers in evidence
violated petitioner's rights under the Fourth
Amendment, made applicable to the States by the
Fourteenth. Mapp v. Ohio, 367 U. S. 643(1961). We
affirm the conviction.
I no information concerning them from any other
The Fourth Amendment provides that "the right of the
people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and
hearing on the motion to suppress this evidence,
Officer McFadden testified that, while he was patrolling
in plain clothes in downtown Cleveland at
approximately 2:30 in the afternoon of October 31,
1963, his attention was attracted by two men, Chilton
and Terry, standing on the corner of Huron Road and
Euclid Avenue. He had never seen the two men before,
and he was unable to say precisely what first drew his
eye to them. However, he testified that he had been a
policeman for 39 years and a detective for 35, and
that he had been assigned to patrol this vicinity of
downtown Cleveland for shoplifters and pickpockets for
30 years. He explained that he had developed routine
habits of observation over the years, and that he
would "stand and watch people or walk and watch
people at many intervals of the day." He added: "Now,
in this case, when I looked over, they didn't look right
to me at the time."
His interest aroused, Officer McFadden took up a post
of observation in the entrance to a store 300 to 400
feet
[6]
away from the two men. "I get more purpose to watch
them when I seen their movements," he testified. He
saw one of the men leave the other one and walk
southwest on Huron Road, past some stores. The man
paused for a moment and looked in a store window,
then walked on a short distance, turned around and
walked back toward the corner, pausing once again to
look in the same store window. He rejoined his
companion at the corner, and the two conferred briefly.
Then the second man went through the same series of
motions, strolling down Huron Road, looking in the
same window, walking on a short distance, turning
back, peering in the store window again, and returning
to confer with the first man at the corner. The two men
repeated this ritual alternately between five and six
times apiece -- in all, roughly a dozen trips. At one
point, while the two were standing together on the
corner, a third man approached them and engaged
them briefly in conversation. This man then left the
two others and walked west on Euclid Avenue. Chilton
and Terry resumed their measured pacing, peering,
and conferring. After this had gone on for 10 to 12
minutes, the two men walked off together, heading
west on Euclid Avenue, following the path taken earlier
by the third man.
By this time, Officer McFadden had become thoroughly
suspicious. He testified that, after observing their
elaborately casual and oft-repeated reconnaissance of
the store window on Huron Road, he suspected the two
men of "casing a job, a stick-up," and that he
considered it his duty as a police officer to investigate
further. He added that he feared "they may have a
gun." Thus, Officer McFadden followed Chilton and
Terry and saw them stop in front of Zucker's store to
talk to the same man who had conferred with them
earlier on the street corner. Deciding that the situation
was ripe for direct action, Officer McFadden
approached the three men, identified
[7]
himself as a police officer and asked for their names.
At this point, his knowledge was confined to what he
had observed. He was not acquainted with any of the
three men by name or by sight, and he had received
source. When the men "mumbled something" in
response to his inquiries, Officer McFadden grabbed
petitioner Terry, spun him around so that they were
[11]
citizen in the interest of effective law enforcement on
the basis of a police officer's suspicion. [Footnote 5]
On the other side, the argument is made that the
authority of the police must be strictly circumscribed
by the law of arrest and search as it has developed to
date in the traditional jurisprudence of the Fourth
Amendment. [Footnote 6] It is contended with some
force that there is not -- and cannot be -- a variety of
police activity which does not depend solely upon the
voluntary cooperation of the citizen, and yet which
stops short of an arrest based upon probable cause to
make such an arrest. The heart of the Fourth
Amendment, the argument runs, is a severe
requirement of specific justification for any intrusion
upon protected personal security, coupled with a
highly developed system of judicial controls to enforce
upon the agents of the State the commands of the
Constitution. Acquiescence by the courts in the
compulsion inherent
[12]
in the field interrogation practices at issue here, it is
urged, would constitute an abdication of judicial
control over, and indeed an encouragement of,
substantial interference with liberty and personal
security by police officers whose judgment is
necessarily colored by their primary involvement in
"the often competitive enterprise of ferreting out
crime." Johnson v. United States, 333 U. S. 10, 14
(1948). This, it is argued, can only serve to exacerbate
police-community tensions in the crowded centers of
our Nation's cities. [Footnote 7]
In this context, we approach the issues in this case
mindful of the limitations of the judicial function in
controlling the myriad daily situations in which
policemen and citizens confront each other on the
street. The State has characterized the issue here as
"the right of a police officer . . . to make an on-the-
street stop, interrogate and pat down for weapons
(known in street vernacular as 'stop and frisk').
[Footnote 8]" But this is only partly accurate. For the
issue is not the abstract propriety of the police
conduct, but the admissibility against petitioner of the
evidence uncovered by the search and seizure. Ever
since its inception, the rule excluding evidence seized
in violation of the Fourth Amendment has been
recognized as a principal mode of discouraging lawless
police conduct. See Weeks v. United States, 232 U. S.
383, 391-393 (1914). Thus, its major thrust is a
deterrent one, see Linkletter v. Walker, 381 U. S. 618,
629-635 (1965), and experience has taught that it is
the only effective deterrent to police misconduct in the
criminal context, and that, without it, the constitutional
guarantee against unreasonable searches and seizures
would be a mere "form of words." Mapp v. Ohio, 367 U.
S. 643, 655 (1961). The rule also serves another vital
function -- "the imperative of judicial integrity." Elkins
[13]
v. United States, 364 U. S. 206, 222 (1960). Courts
which sit under our Constitution cannot and will not be
made party to lawless invasions of the constitutional
rights of citizens by permitting unhindered
governmental use of the fruits of such invasions. Thus,
in our system, evidentiary rulings provide the context
in which the judicial process of inclusion and exclusion
approves some conduct as comporting with
constitutional guarantees and disapproves other
actions by state agents. A ruling admitting evidence in
a criminal trial, we recognize, has the necessary effect
seizures, shall not be violated. . . ." This inestimable
right of
[9]
personal security belongs as much to the citizen on
the streets of our cities as to the homeowner closeted
in his study to dispose of his secret affairs. For as this
Court has always recognized,
"No right is held more sacred, or is more carefully
guarded, by the common law than the right of every
individual to the possession and control of his own
person, free from all restraint or interference of others,
unless by clear and unquestionable authority of law."
Union Pac. R. Co. v. Botsford, 141 U. S. 250, 251
(1891).
We have recently held that "the Fourth Amendment
protects people, not places," Katz v. United States, 389
U. S. 347, 351 (1967), and wherever an individual may
harbor a reasonable "expectation of privacy," id. at
361 (MR. JUSTICE HARLAN, concurring), he is entitled
to be free from unreasonable governmental intrusion.
Of course, the specific content and incidents of this
right must be shaped by the context in which it is
asserted. For "what the Constitution forbids is not all
searches and seizures, but unreasonable searches and
seizures." Elkins v. United States, 364 U. S. 206, 222
(1960). Unquestionably petitioner was entitled to the
protection of the Fourth Amendment as he walked
down the street in Cleveland. Beck v. Ohio, 379 U. S.
89 (1964); Rios v. United States, 364 U. S. 253 (1960);
Henry v. United States, 361 U. S. 98 (1959); United
States v. Di Re, 332 U. S. 581(1948); Carroll v. United
States, 267 U. S. 132 (1925). The question is whether,
in all the circumstances of this on-the-street
encounter, his right to personal security was violated
by an unreasonable search and seizure.
We would be less than candid if we did not
acknowledge that this question thrusts to the fore
difficult and troublesome issues regarding a sensitive
area of police activity -- issues which have never
before been squarely
[10]
presented to this Court. Reflective of the tensions
involved are the practical and constitutional
arguments pressed with great vigor on both sides of
the public debate over the power of the police to "stop
and frisk" -- as it is sometimes euphemistically termed
-- suspicious persons.
On the one hand, it is frequently argued that, in
dealing with the rapidly unfolding and often dangerous
situations on city streets, the police are in need of an
escalating set of flexible responses, graduated in
relation to the amount of information they possess. For
this purpose, it is urged that distinctions should be
made between a "stop" and an "arrest" (or a "seizure"
of a person), and between a "frisk" and a "search."
[Footnote 3] Thus, it is argued, the police should be
allowed to "stop" a person and detain him briefly for
questioning upon suspicion that he may be connected
with criminal activity. Upon suspicion that the person
may be armed, the police should have the power to
"frisk" him for weapons. If the "stop" and the "frisk"
give rise to probable cause to believe that the suspect
has committed a crime, then the police should be
empowered to make a formal "arrest," and a full
incident "search" of the person. This scheme is
justified in part upon the notion that a "stop" and a
"frisk" amount to a mere "minor inconvenience and
petty indignity," [Footnote 4] which can properly be
imposed upon the
attention to the quite narrow question posed by the
facts before us: whether it is always unreasonable for
a policeman to seize a person and subject him to a
limited search for weapons unless there is probable
cause for an arrest.
[16]
Given the narrowness of this question, we have no
occasion to canvass in detail the constitutional
limitations upon the scope of a policeman's power
when he confronts a citizen without probable cause to
arrest him.
II
Our first task is to establish at what point in this
encounter the Fourth Amendment becomes relevant.
That is, we must decide whether and when Officer
McFadden "seized" Terry, and whether and when he
conducted a "search." There is some suggestion in the
use of such terms as "stop" and "frisk" that such police
conduct is outside the purview of the Fourth
Amendment because neither action rises to the level
of a "search" or "seizure" within the meaning of the
Constitution. [Footnote 12] We emphatically reject this
notion. It is quite plain that the Fourth Amendment
governs "seizures" of the person which do not
eventuate in a trip to the stationhouse and prosecution
for crime -- "arrests" in traditional terminology. It must
be recognized that, whenever a police officer accosts
an individual and restrains his freedom to walk away,
he has "seized" that person. And it is nothing less than
sheer torture of the English language to suggest that a
careful exploration of the outer surfaces of a person's
clothing all over his or her body in an attempt to find
weapons is not a "search." Moreover, it is simply
fantastic to urge that such a procedure
[17]
performed in public by a policeman while the citizen
stands helpless, perhaps facing a wall with his hands
raised, is a "petty indignity." [Footnote 13] It is a
serious intrusion upon the sanctity of the person,
which may inflict great indignity and arouse strong
resentment, and it is not to be undertaken lightly.
[Footnote 14]
The danger in the logic which proceeds upon
distinctions between a "stop" and an "arrest," or
"seizure" of the person, and between a "frisk" and a
"search," is twofold. It seeks to isolate from
constitutional scrutiny the initial stages of the contact
between the policeman and the citizen. And, by
suggesting a rigid all-or-nothing model of justification
and regulation under the Amendment, it obscures the
utility of limitations upon the scope, as well as the
initiation, of police action as a means of constitutional
regulation. [Footnote 15] This Court has held, in
[18]
the past that a search which is reasonable at its
inception may violate the Fourth Amendment by virtue
of its intolerable intensity and scope. Kremen v.
United States, 353 U. S. 346 (1957); Go-Bart Importing
Co. v.
[19]
United States, 282 U. S. 344, 356-358 (1931); see
United States v. Di Re, 332 U. S. 581, 586-587 (1948).
The scope of the search must be "strictly tied to and
justified by" the circumstances which rendered its
initiation permissible. Warden v. Hayden, 387 U. S.
294, 310 (1967) (MR. JUSTICE FORTAS, concurring);
see, e.g., Preston v. United States, 376 U. S. 364, 367-
368 (1964); Agnello v. United States, 269 U. S. 20, 30-
31 (1925).
of legitimizing the conduct which produced the
evidence, while an application of the exclusionary rule
withholds the constitutional imprimatur.
The exclusionary rule has its limitations, however, as a
tool of judicial control. It cannot properly be invoked to
exclude the products of legitimate police investigative
techniques on the ground that much conduct which is
closely similar involves unwarranted intrusions upon
constitutional protections. Moreover, in some contexts,
the rule is ineffective as a deterrent. Street encounters
between citizens and police officers are incredibly rich
in diversity. They range from wholly friendly exchanges
of pleasantries or mutually useful information to
hostile confrontations of armed men involving arrests,
or injuries, or loss of life. Moreover, hostile
confrontations are not all of a piece. Some of them
begin in a friendly enough manner, only to take a
different turn upon the injection of some unexpected
element into the conversation. Encounters are initiated
by the police for a wide variety of purposes, some of
which are wholly unrelated to a desire to prosecute for
crime. [Footnote 9] Doubtless some
[14]
police "field interrogation" conduct violates the Fourth
Amendment. But a stern refusal by this Court to
condone such activity does not necessarily render it
responsive to the exclusionary rule. Regardless of how
effective the rule may be where obtaining convictions
is an important objective of the police, [Footnote 10] it
is powerless to deter invasions of constitutionally
guaranteed rights where the police either have no
interest in prosecuting or are willing to forgo
successful prosecution in the interest of serving some
other goal.
Proper adjudication of cases in which the exclusionary
rule is invoked demands a constant awareness of
these limitations. The wholesale harassment by certain
elements of the police community, of which minority
groups, particularly Negroes, frequently complain,
[Footnote 11] will not be
[15]
stopped by the exclusion of any evidence from any
criminal trial. Yet a rigid and unthinking application of
the exclusionary rule, in futile protest against practices
which it can never be used effectively to control, may
exact a high toll in human injury and frustration of
efforts to prevent crime. No judicial opinion can
comprehend the protean variety of the street
encounter, and we can only judge the facts of the case
before us. Nothing we say today is to be taken as
indicating approval of police conduct outside the
legitimate investigative sphere. Under our decision,
courts still retain their traditional responsibility to
guard against police conduct which is overbearing or
harassing, or which trenches upon personal security
without the objective evidentiary justification which
the Constitution requires. When such conduct is
identified, it must be condemned by the judiciary, and
its fruits must be excluded from evidence in criminal
trials. And, of course, our approval of legitimate and
restrained investigative conduct undertaken on the
basis of ample factual justification should in no way
discourage the employment of other remedies than
the exclusionary rule to curtail abuses for which that
sanction may prove inappropriate.
Having thus roughly sketched the perimeters of the
constitutional debate over the limits on police
investigative conduct in general and the background
against which this case presents itself, we turn our
assured that, at some point, the conduct of those
charged with enforcing the laws can be subjected to
the more detached, neutral scrutiny of a judge who
must evaluate the reasonableness of a particular
search or seizure in light of the particular
circumstances. [Footnote 19] And, in making that
assessment, it is imperative that the facts be judged
against an objective standard: would the facts
[22]
available to the officer at the moment of the seizure or
the search "warrant a man of reasonable caution in the
belief" that the action taken was appropriate? Cf.
Carroll v. United States, 267 U. S. 132 (1925); Beck v.
Ohio, 379 U. S. 89, 96-97 (1964). [Footnote 20]
Anything less would invite intrusions upon
constitutionally guaranteed rights based on nothing
more substantial than inarticulate hunches, a result
this Court has consistently refused to sanction. See,
e.g., Beck v. Ohio, supra; Rios v. United States, 364 U.
S. 253 (1960); Henry v. United States, 361 U. S. 98
(1959). And simple "'good faith on the part of the
arresting officer is not enough.' . . . If subjective good
faith alone were the test, the protections of the Fourth
Amendment would evaporate, and the people would
be 'secure in their persons, houses, papers, and
effects,' only in the discretion of the police." Beck v.
Ohio, supra, at 97.
Applying these principles to this case, we consider first
the nature and extent of the governmental interests
involved. One general interest is, of course, that of
effective crime prevention and detection; it is this
interest which underlies the recognition that a police
officer may, in appropriate circumstances and in an
appropriate manner, approach a person for purposes
of investigating possibly criminal behavior even
though there is no probable cause to make an arrest. It
was this legitimate investigative function Officer
McFadden was discharging when he decided to
approach petitioner and his companions. He had
observed Terry, Chilton, and Katz go through a series
of acts, each of them perhaps innocent in itself, but
which, taken together, warranted further investigation.
There is nothing unusual in two men standing together
on a street corner, perhaps waiting for someone. Nor is
there anything suspicious about people
[23]
in such circumstances strolling up and down the street,
singly or in pairs. Store windows, moreover, are made
to be looked in. But the story is quite different where,
as here, two men hover about a street corner for an
extended period of time, at the end of which it
becomes apparent that they are not waiting for
anyone or anything; where these men pace alternately
along an identical route, pausing to stare in the same
store window roughly 24 times; where each completion
of this route is followed immediately by a conference
between the two men on the corner; where they are
joined in one of these conferences by a third man who
leaves swiftly, and where the two men finally follow
the third and rejoin him a couple of blocks away. It
would have been poor police work indeed for an officer
of 30 years' experience in the detection of thievery
from stores in this same neighborhood to have failed
to investigate this behavior further.
The crux of this case, however, is not the propriety of
Officer McFadden's taking steps to investigate
petitioner's suspicious behavior, but, rather, whether
there was justification for McFadden's invasion of
Terry's personal security by searching him for weapons
The distinctions of classical "stop-and-frisk" theory
thus serve to divert attention from the central inquiry
under the Fourth Amendment -- the reasonableness in
all the circumstances of the particular governmental
invasion of a citizen's personal security. "Search" and
"seizure" are not talismans. We therefore reject the
notions that the Fourth Amendment does not come
into play at all as a limitation upon police conduct if
the officers stop short of something called a "technical
arrest" or a "full-blown search."
In this case, there can be no question, then, that
Officer McFadden "seized" petitioner and subjected
him to a "search" when he took hold of him and patted
down the outer surfaces of his clothing. We must
decide whether, at that point, it was reasonable for
Officer McFadden to have interfered with petitioner's
personal security as he did. [Footnote 16] And, in
determining whether the seizure and search were
"unreasonable," our inquiry
[20]
is a dual one -- whether the officer's action was
justified at its inception, and whether it was reasonably
related in scope to the circumstances which justified
the interference in the first place.
III
If this case involved police conduct subject to the
Warrant Clause of the Fourth Amendment, we would
have to ascertain whether "probable cause" existed to
justify the search and seizure which took place.
However, that is not the case. We do not retreat from
our holdings that the police must, whenever
practicable, obtain advance judicial approval of
searches and seizures through the warrant procedure,
see, e.g., Katz v. United States, 389 U. S. 347 (1967);
Beck v. Ohio, 379 U. S. 89, 96 (1964); Chapman v.
United States, 365 U. S. 610 (1961), or that, in most
instances, failure to comply with the warrant
requirement can only be excused by exigent
circumstances, see, e.g., Warden v. Hayden, 387 U. S.
294 (1967) (hot pursuit); cf. Preston v. United States,
376 U. S. 364, 367-368 (1964). But we deal here with
an entire rubric of police conduct -- necessarily swift
action predicated upon the on-the-spot observations of
the officer on the beat -- which historically has not
been, and, as a practical matter, could not be,
subjected to the warrant procedure. Instead, the
conduct involved in this case must be tested by the
Fourth Amendment's general proscription against
unreasonable searches and seizures. [Footnote 17]
Nonetheless, the notions which underlie both the
warrant procedure and the requirement of probable
cause remain fully relevant in this context. In order to
assess the reasonableness of Officer McFadden's
conduct as a general proposition, it is necessary "first
to focus upon
[21]
the governmental interest which allegedly justifies
official intrusion upon the constitutionally protected
interests of the private citizen," for there is "no ready
test for determining reasonableness other than by
balancing the need to search [or seize] against the
invasion which the search [or seizure] entails." Camara
v. Municipal Court, 387 U. S. 523, 534-535, 536-537
(1967). And, in justifying the particular intrusion, the
police officer must be able to point to specific and
articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that
intrusion. [Footnote 18] The scheme of the Fourth
Amendment becomes meaningful only when it is
protect the arresting officer from assault with a
concealed weapon, Preston v. United States, 376 U. S.
364, 367 (1964), is also justified on other grounds,
ibid., and can therefore involve a relatively extensive
exploration of the person. A search for weapons in the
absence of probable cause to
[26]
arrest, however, must, like any other search, be strictly
circumscribed by the exigencies which justify its
initiation. Warden v. Hayden, 387 U. S. 294, 310
(1967) (MR. JUSTICE FORTAS, concurring). Thus, it must
be limited to that which is necessary for the discovery
of weapons which might be used to harm the officer or
others nearby, and may realistically be characterized
as something less than a "full" search, even though it
remains a serious intrusion.
A second, and related, objection to petitioner's
argument is that it assumes that the law of arrest has
already worked out the balance between the particular
interests involved here -- the neutralization of danger
to the policeman in the investigative circumstance and
the sanctity of the individual. But this is not so. An
arrest is a wholly different kind of intrusion upon
individual freedom from a limited search for weapons,
and the interests each is designed to serve are
likewise quite different. An arrest is the initial stage of
a criminal prosecution. It is intended to vindicate
society's interest in having its laws obeyed, and it is
inevitably accompanied by future interference with the
individual's freedom of movement, whether or not trial
or conviction ultimately follows. [Footnote 22] The
protective search for weapons, on the other hand,
constitutes a brief, though far from inconsiderable,
intrusion upon the sanctity of the person. It does not
follow that, because an officer may lawfully arrest a
person only when he is apprised of facts sufficient to
warrant a belief that the person has committed or is
committing a crime, the officer is equally unjustified,
absent that kind of evidence, in making any intrusions
short of an arrest. Moreover, a perfectly reasonable
apprehension of danger may arise long before the
officer is possessed of adequate information to justify
taking a person into custody for
[27]
the purpose of prosecuting him for a crime. Petitioner's
reliance on cases which have worked out standards of
reasonableness with regard to "seizures" constituting
arrests and searches incident thereto is thus
misplaced. It assumes that the interests sought to be
vindicated and the invasions of personal security may
be equated in the two cases, and thereby ignores a
vital aspect of the analysis of the reasonableness of
particular types of conduct under the Fourth
Amendment. See Camara v. Municipal Court, supra.
Our evaluation of the proper balance that has to be
struck in this type of case leads us to conclude that
there must be a narrowly drawn authority to permit a
reasonable search for weapons for the protection of
the police officer, where he has reason to believe that
he is dealing with an armed and dangerous individual,
regardless of whether he has probable cause to arrest
the individual for a crime. The officer need not be
absolutely certain that the individual is armed; the
issue is whether a reasonably prudent man, in the
circumstances, would be warranted in the belief that
his safety or that of others was in danger. Cf. Beck v.
Ohio, 379 U. S. 89, 91 (1964); Brinegar v. United
States, 338 U. S. 160, 174-176 (1949); Stacey v.
Emery, 97 U. S. 642, 645 (1878). [Footnote 23] And in
in the course of that investigation. We are now
concerned with more than the governmental interest
in investigating crime; in addition, there is the more
immediate interest of the police officer in taking steps
to assure himself that the person with whom he is
dealing is not armed with a weapon that could
unexpectedly and fatally be used against him.
Certainly it would be unreasonable to require that
police officers take unnecessary risks in the
performance of their duties. American criminals have a
long tradition of armed violence, and every year in this
country many law enforcement officers are killed in the
line of duty, and thousands more are wounded.
[24]
Virtually all of these deaths and a substantial portion
of the injuries are inflicted with guns and knives.
[Footnote 21]
In view of these facts, we cannot blind ourselves to the
need for law enforcement officers to protect
themselves and other prospective victims of violence
in situations where they may lack probable cause for
an arrest. When an officer is justified in believing that
the individual whose suspicious behavior he is
investigating at close range is armed and presently
dangerous to the officer or to others, it would appear
to be clearly unreasonable to deny the officer the
power to take necessary measures to determine
whether the person is, in fact, carrying a weapon and
to neutralize the threat of physical harm.
We must still consider, however, the nature and quality
of the intrusion on individual rights which must be
accepted if police officers are to be conceded the right
to search for weapons in situations where probable
cause to arrest for crime is lacking. Even a limited
search of the outer clothing for weapons constitutes a
severe,
[25]
though brief, intrusion upon cherished personal
security, and it must surely be an annoying,
frightening, and perhaps humiliating experience.
Petitioner contends that such an intrusion is
permissible only incident to a lawful arrest, either for a
crime involving the possession of weapons or for a
crime the commission of which led the officer to
investigate in the first place. However, this argument
must be closely examined.
Petitioner does not argue that a police officer should
refrain from making any investigation of suspicious
circumstances until such time as he has probable
cause to make an arrest; nor does he deny that police
officers, in properly discharging their investigative
function, may find themselves confronting persons
who might well be armed and dangerous. Moreover, he
does not say that an officer is always unjustified in
searching a suspect to discover weapons. Rather, he
says it is unreasonable for the policeman to take that
step until such time as the situation evolves to a point
where there is probable cause to make an arrest.
When that point has been reached, petitioner would
concede the officer's right to conduct a search of the
suspect for weapons, fruits or instrumentalities of the
crime, or "mere" evidence, incident to the arrest.
There are two weaknesses in this line of reasoning,
however. First, it fails to take account of traditional
limitations upon the scope of searches, and thus
recognizes no distinction in purpose, character, and
extent between a search incident to an arrest and a
limited search for weapons. The former, although
justified in part by the acknowledged necessity to
We need not develop at length in this case, however,
the limitations which the Fourth Amendment places
upon a protective seizure and search for weapons.
These limitations will have to be developed in the
concrete factual circumstances of individual cases.
See Sibron v. New York, post, p. 40, decided today.
Suffice it to note that such a search, unlike a search
without a warrant incident to a lawful arrest, is not
justified by any need to prevent the disappearance or
destruction of evidence of crime. See Preston v.
United States, 376 U. S. 364, 367 (1964). The sole
justification of the search in the present situation is the
protection of the police officer and others nearby, and
it must therefore be confined in scope to an intrusion
reasonably designed to discover guns, knives, clubs, or
other hidden instruments for the assault of the police
officer.
The scope of the search in this case presents no
serious problem in light of these standards. Officer
McFadden patted down the outer clothing of petitioner
and his two companions. He did not place his hands in
their pockets or under the outer surface of their
garments until he had
[30]
felt weapons, and then he merely reached for and
removed the guns. He never did invade Katz' person
beyond the outer surfaces of his clothes, since he
discovered nothing in his pat-down which might have
been a weapon. Officer McFadden confined his search
strictly to what was minimally necessary to learn
whether the men were armed and to disarm them
once he discovered the weapons. He did not conduct a
general exploratory search for whatever evidence of
criminal activity he might find.
V to fear that they were armed, and nothing in their
We conclude that the revolver seized from Terry was
properly admitted in evidence against him. At the time
he seized petitioner and searched him for weapons,
Officer McFadden had reasonable grounds to believe
that petitioner was armed and dangerous, and it was
necessary for the protection of himself and others to
take swift measures to discover the true facts and
neutralize the threat of harm if it materialized. The
policeman carefully restricted his search to what was
appropriate to the discovery of the particular items
which he sought. Each case of this sort will, of course,
have to be decided on its own facts. 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.
[31]
Such a search is a reasonable search under the Fourth
Amendment, and any weapons seized may properly be
introduced in evidence against the person from whom
they were taken.
Affirmed.
MR. JUSTICE BLACK concurs in the judgment and the
opinion except where the opinion quotes from and
determining whether the officer acted reasonably in
such circumstances, due weight must be given not to
his inchoate and unparticularized suspicion or "hunch,"
but to the specific reasonable inferences which he is
entitled to draw from the facts in light of his
experience. Cf. Brinegar v. United States supra.
IV
We must now examine the conduct of Officer
McFadden in this case to determine whether his search
and seizure of petitioner were reasonable, both at their
inception
[28]
and as conducted. He had observed Terry, together
with Chilton and another man, acting in a manner he
took to be preface to a "stick-up." We think, on the
facts and circumstances Officer McFadden detailed
before the trial judge, a reasonably prudent man would
have been warranted in believing petitioner was
armed, and thus presented a threat to the officer's
safety while he was investigating his suspicious
behavior. The actions of Terry and Chilton were
consistent with McFadden's hypothesis that these men
were contemplating a daylight robbery -- which, it is
reasonable to assume, would be likely to involve the
use of weapons -- and nothing in their conduct from
the time he first noticed them until the time he
confronted them and identified himself as a police
officer gave him sufficient reason to negate that
hypothesis. Although the trio had departed the original
scene, there was nothing to indicate abandonment of
an intent to commit a robbery at some point. Thus,
when Officer McFadden approached the three men
gathered before the display window at Zucker's store,
he had observed enough to make it quite reasonable
response to his hailing them, identifying himself as a
police officer, and asking their names served to dispel
that reasonable belief. We cannot say his decision at
that point to seize Terry and pat his clothing for
weapons was the product of a volatile or inventive
imagination, or was undertaken simply as an act of
harassment; the record evidences the tempered act of
a policeman who, in the course of an investigation,
had to make a quick decision as to how to protect
himself and others from possible danger, and took
limited steps to do so.
The manner in which the seizure and search were
conducted is, of course, as vital a part of the inquiry as
whether they were warranted at all. The Fourth
Amendment proceeds as much by limitations upon
the
[29]
scope of governmental action as by imposing
preconditions upon its initiation. Compare Katz v.
United States, 389 U. S. 347, 354-356 (1967). The
entire deterrent purpose of the rule excluding evidence
seized in violation of the Fourth Amendment rests on
the assumption that "limitations upon the fruit to be
gathered tend to limit the quest itself." United States
v. Poller, 43 F.2d 911, 914 (C.A.2d Cir.1930); see, e.g.,
Linkletter v. Walker, 381 U. S. 618, 629-635 (1965);
Mapp v. Ohio, 367 U. S. 643 (1961); Elkins v. United
States, 364 U. S. 206, 216-221 (1960). Thus, evidence
may not be introduced if it was discovered by means
of a seizure and search which were not reasonably
related in scope to the justification for their initiation.
Warden v. Hayden, 387 U. S. 294, 310 (1967) (MR.
JUSTICE FORTAS, concurring).
addressed has an equal right to ignore his interrogator
and walk away; he certainly need not submit to a frisk
for the questioner's protection. I would make it
perfectly clear that the right to frisk in this case
depends upon the reasonableness of a forcible stop to
investigate a suspected crime.
Where such a stop is reasonable, however, the right to
frisk must be immediate and automatic if the reason
for the stop is, as here, an articulable suspicion of a
crime of violence. Just as a full search incident to a
lawful arrest requires no additional justification, a
limited frisk incident to a lawful stop must often be
rapid and routine. There is no reason why an officer,
rightfully but forcibly confronting a person suspected
of a serious crime, should have to ask one question
and take the risk that the answer might be a bullet.
The facts of this case are illustrative of a proper stop
and an incident frisk. Officer McFadden had no
probable cause to arrest Terry for anything, but he had
observed circumstances that would reasonably lead an
experienced, prudent policeman to suspect that Terry
was about to engage in burglary or robbery. His
justifiable suspicion afforded a proper constitutional
basis for accosting Terry, restraining his liberty of
movement briefly, and addressing questions to him,
and Officer McFadden did so. When he did, he had no
reason whatever to suppose that Terry might be
armed, apart from the fact that he suspected him of
planning a violent crime. McFadden asked Terry his
name, to which Terry "mumbled something."
Whereupon McFadden, without asking Terry to speak
louder and without giving him any chance to explain
his presence or his actions, forcibly frisked him.
I would affirm this conviction for what I believe to be
the same reasons the Court relies on. I would,
however, make explicit what I think is implicit in
affirmance on
[34]
the present facts. Officer McFadden's right to interrupt
Terry's freedom of movement and invade his privacy
arose only because circumstances warranted forcing
an encounter with Terry in an effort to prevent or
investigate a crime. Once that forced encounter was
justified, however, the officer's right to take suitable
measures for his own safety followed automatically.
Upon the foregoing premises, I join the opinion of the
Court.
MR. JUSTICE WHITE, concurring.
I join the opinion of the Court, reserving judgment,
however, on some of the Court's general remarks
about the scope and purpose of the exclusionary rule
which the Court has fashioned in the process of
enforcing the Fourth Amendment.
Also, although the Court puts the matter aside in the
context of this case, I think an additional word is in
order concerning the matter of interrogation during an
investigative stop. There is nothing in the Constitution
which prevents a policeman from addressing questions
to anyone on the streets. Absent special
circumstances, the person approached may not be
detained or frisked, but may refuse to cooperate and
go on his way. However, given the proper
circumstances, such as those in this case, it seems to
me the person may be briefly detained against his will
while pertinent questions are directed to him. Of
course, the person stopped is not obliged to answer,
answers may not be compelled, and refusal to answer
furnishes no basis for an arrest, although it may alert
the officer to the need for continued observation. In
relies upon this Court's opinion in Katz v. United States
and the concurring opinion in Warden v. Hayden.
MR. JUSTICE HARLAN, concurring.
While I unreservedly agree with the Court's ultimate
holding in this case, I am constrained to fill in a few
gaps, as I see them, in its opinion. I do this because
what is said by this Court today will serve as initial
guidelines for law enforcement authorities and courts
throughout the land as this important new field of law
develops.
A police officer's right to make an on-the-street "stop"
and an accompanying "frisk" for weapons is, of course,
bounded by the protections afforded by the Fourth and
Fourteenth Amendments. The Court holds, and I agree,
that, while the right does not depend upon possession
by the officer of a valid warrant, nor upon the
existence of probable cause, such activities must be
reasonable under the circumstances as the officer
credibly relates them in court. Since the question in
this and most cases is whether evidence produced by
a frisk is admissible, the problem is to determine what
makes a frisk reasonable.
If the State of Ohio were to provide that police officers
could, on articulable suspicion less than probable
cause, forcibly frisk and disarm persons thought to be
carrying concealed weapons, I would have little doubt
that action taken pursuant to such authority could be
constitutionally reasonable. Concealed weapons create
an immediate
[32]
and severe danger to the public, and though that
danger might not warrant routine general weapons
checks, it could well warrant action on less than a
"probability." I mention this line of analysis because I
think it vital to point out that it cannot be applied in
this case. On the record before us, Ohio has not
clothed its policemen with routine authority to frisk
and disarm on suspicion; in the absence of state
authority, policemen have no more right to "pat down"
the outer clothing of passers-by, or of persons to
whom they address casual questions, than does any
other citizen. Consequently, the Ohio courts did not
rest the constitutionality of this frisk upon any general
authority in Officer McFadden to take reasonable steps
to protect the citizenry, including himself, from
dangerous weapons.
The state courts held, instead, that, when an officer is
lawfully confronting a possibly hostile person in the
line of duty, he has a right, springing only from the
necessity of the situation, and not from any broader
right to disarm, to frisk for his own protection. This
holding, with which I agree and with which I think the
Court agrees, offers the only satisfactory basis I can
think of for affirming this conviction. The holding has,
however, two logical corollaries that I do not think the
Court has fully expressed.
In the first place, if the frisk is justified in order to
protect the officer during an encounter with a citizen,
the officer must first have constitutional grounds to
insist on an encounter, to make a forcible stop. Any
person, including a policeman, is at liberty to avoid a
person he considers dangerous. If and when a
policeman has a right instead to disarm such a person
for his own protection, he must first have a right not to
avoid him, but to be in his presence. That right must
be more than the liberty (again, possessed by every
citizen) to address questions to other persons, for
ordinarily the person
[33]
[38]
for arrest. And that principle has survived to this
day. . . ."
". . . It is important, we think, that this requirement [of
probable cause] be strictly enforced, for the standard
set by the Constitution protects both the officer and
the citizen. If the officer acts with probable cause, he is
protected even though it turns out that the citizen is
innocent. . . . And while a search without a warrant is,
within limits, permissible if incident to a lawful arrest, if
an arrest without a warrant is to support an incidental
search, it must be made with probable cause. . . . This
immunity of officers cannot fairly be enlarged without
jeopardizing the privacy or security of the citizen."
The infringement on personal liberty of any "seizure"
of a person can only be "reasonable" under the Fourth
Amendment if we require the police to possess
"probable cause" before they seize him. Only that line
draws a meaningful distinction between an officer's
mere inkling and the presence of facts within the
officer's personal knowledge which would convince a
reasonable man that the person seized has committed,
is committing, or is about to commit a particular crime.
"In dealing with probable cause, . . . as the very name
implies, we deal with probabilities. These are not
technical; they are the factual and practical
considerations of everyday life on which reasonable
and prudent men, not legal technicians, act." Brinegar
v. United States, 338 U. S. 160, 175.
To give the police greater power than a magistrate is
to take a long step down the totalitarian path. Perhaps
such a step is desirable to cope with modern forms of
lawlessness. But if it is taken, it should be the
deliberate choice of the people through a
constitutional amendment.
[39]
Until the Fourth Amendment, which is closely allied
with the Fifth, [Footnote 4] is rewritten, the person and
the effects of the individual are beyond the reach of all
government agencies until there are reasonable
grounds to believe (probable cause) that a criminal
venture has been launched or is about to be launched.
There have been powerful hydraulic pressures
throughout our history that bear heavily on the Court
to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has
probably never been greater than it is today.
Yet if the individual is no longer to be sovereign, if the
police can pick him up whenever they do not like the
cut of his jib, if they can "seize" and "search" him in
their discretion, we enter a new regime. The decision
to enter it should be made only after a full debate by
the people of this country.
----
[G.R. Nos. 136066-67. February 4, 2003]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. BINAD SY CHUA, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
Accused-appellant Binad Sy Chua was charged with
violation of Section 16, Article III of R.A. 6425, as
amended by R.A. 7659, and for Illegal Possession of
ammunitions in two separate Informations which read
as follows:
Criminal Case No. 96-507[1]
That on or about the 21 st day of September 1996, in
the City of Angeles, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and
my view, it is temporary detention, warranted by the
circumstances, which chiefly justifies the protective
frisk for weapons. Perhaps the frisk itself, where
proper, will have beneficial results whether questions
are asked or not. If weapons are found, an arrest will
follow.
[35]
If none is found, the frisk may nevertheless serve
preventive ends because of its unmistakable message
that suspicion has been aroused. But if the
investigative stop is sustainable at all, constitutional
rights are not necessarily violated if pertinent
questions are asked and the person is restrained
briefly in the process.
MR. JUSTICE DOUGLAS, dissenting.
I agree that petitioner was "seized" within the meaning
of the Fourth Amendment. I also agree that frisking
petitioner and his companions for guns was a "search."
But it is a mystery how that "search" and that
"seizure" can be constitutional by Fourth Amendment
standards unless there was "probable cause" [Footnote
1] to believe that (1) a crime had been committed or
(2) a crime was in the process of being committed or
(3) a crime was about to be committed.
The opinion of the Court disclaims the existence of
"probable cause." If loitering were in issue and that
[36]
was the offense charged, there would be "probable
cause" shown. But the crime here is carrying
concealed weapons; [Footnote 2] and there is no basis
for concluding that the officer had "probable cause" for
believing that that crime was being committed. Had a
warrant been sought, a magistrate would, therefore,
have been unauthorized to issue one, for he can act
only if there is a showing of "probable cause." We hold
today that the police have greater authority to make a
"seizure" and conduct a "search" than a judge has to
authorize such action. We have said precisely the
opposite over and over again. [Footnote 3]
[37]
In other words, police officers up to today have been
permitted to effect arrests or searches without
warrants only when the facts within their personal
knowledge would satisfy the constitutional standard of
probable cause. At the time of their "seizure" without a
warrant, they must possess facts concerning the
person arrested that would have satisfied a magistrate
that "probable cause" was indeed present. The term
"probable cause" rings a bell of certainty that is not
sounded by phrases such as "reasonable suspicion."
Moreover, the meaning of "probable cause" is deeply
imbedded in our constitutional history. As we stated in
Henry v. United States, 361 U. S. 98, 100-102:
"The requirement of probable cause has roots that are
deep in our history. The general warrant, in which the
name of the person to be arrested was left blank, and
the writs of assistance, against which James Otis
inveighed, both perpetuated the oppressive practice of
allowing the police to arrest and search on suspicion.
Police control took the place of judicial control, since
no showing of 'probable cause' before a magistrate
was required."
"* * * *"
"That philosophy [rebelling against these practices]
later was reflected in the Fourth Amendment. And as
the early American decisions both before and
immediately after its adoption show, common rumor or
report, suspicion, or even 'strong reason to suspect'
was not adequate to support a warrant
After due testing, forensic chemist S/Insp. Daisy Babor
concluded that the crystalline substances yielded
positive results for shabu. The small plastic bag
weighed 13.815 grams while the two big plastic bags
weighed 1.942 kilograms of shabu.[5]
Accused-appellant vehemently denied the accusation
against him and narrated a different version of the
incident.
Accused-appellant alleged that on the night in
question, he was driving the car of his wife to follow
her and his son to Manila. He felt sleepy, so he decided
to take the old route along McArthur Highway. He
stopped in front of a small store near Thunder Inn
Hotel in Balibago, Angeles City to buy cigarettes and
candies. While at the store, he noticed a man approach
and examine the inside of his car. When he called the
attention of the onlooker, the man immediately pulled
out a .45 caliber gun and made him face his car with
raised hands. The man later on identified himself as a
policeman. During the course of the arrest, the
policeman took out his wallet and instructed him to
open his car. He refused, so the policeman took his car
keys and proceeded to search his car. At this time, the
police officers companions arrived at the scene in two
cars. PO2 Nulud, who just arrived at the scene, pulled
him away from his car in a nearby bank, while the
others searched his car.
Thereafter, he was brought to the Salakot Police
Station and was held inside a bathroom for about
fifteen minutes until Col. Guttierez arrived, who
ordered his men to call the media. In the presence of
reporters, Col. Guttierez opened the box and accused-
appellant was made to hold the box while pictures
were being taken.[6]
Wilfredo Lagman corroborated the story of the
accused-appellant in its material points. He testified
that he witnessed the incident while he was
conducting a routine security check around the
premises of the Guess Building, near Thunder Inn
Hotel.[7]
On September 15, 1998 the Regional Trial Court of
Angeles City, Branch 59, rendered a decision, [8] the
dispositive portion of which reads:
WHEREFORE, the foregoing considered, judgement is
hereby rendered as follows:
1. In Criminal Case No. 96-513 for Illegal Possession of
Ammunitions, the accused is hereby acquitted of the
crime charged for insufficiency of evidence.
2. In Criminal Case No. 96-507 for Illegal Possession of
1,955.815 grams of shabu, accused Binad Sy Chua is
found GUILTY beyond reasonable doubt of the crime
charge and is hereby sentenced to suffer the penalty
of reclusion perpetua and to pay a fine of One Million
(P1,000,000.00) Pesos.
SO ORDERED.[9]
Hence, the instant appeal where accused-appellant
raised the following errors:
THE TRIAL COURT ERRED GRAVELY IN ITS FOLLOWING
FINDINGS:
A. THE ARREST OF ACCUSED-APPELLANT BINAD SY
CHUA WAS LAWFUL;
B. THE SEARCH OF HIS PERSON AND THE SUBSEQUENT
CONFISCATION OF SHABU ALLEGEDLY FOUND ON HIM
WERE CONDUCTED IN A LAWFUL AND VALID
MANNER;
C. THE PROSECUTION EVIDENCE SUPPORTING THE
CRIME CHARGED IS SUFICIENT TO PROVE THE GUILT
OF THE ACCUSED-APPELLANT BEYOND REAONABLE
DOUBT.[10]
feloniously have in his possession and under his
control two (2) plastic bags containing
Methamphetamine Hydrochloride (SHABU) weighing
more or less two (2) kilos and one (1) small plastic bag
containing Methamphetamine Hydrocloride weighing
more or less fifteen (15) grams, which is a regulated
drug, without any authority whatsoever.
Criminal Case No. 96-513[2]
That on or about the 21 st day of September 1996, in
the City of Angeles, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and
feloniously have in his possession and under his
control twenty (20) pieces of live .22 cal. ammunitions,
without first having obtained a license or permit to
possess or carry the same.
Accused-appellant pleaded not guilty on arraignment.
The two cases were then jointly tried.
The prosecution presented three (3) witnesses, all
members of the police force of Angeles City. Their
testimonies can be synthesized as follows:
On September 21, 1996, at around 10:00 in the
evening, SPO2 Mario Nulud and PO2 Emmeraldo
Nunag received a report from their confidential
informant that accused-appellant was about to deliver
drugs that night at the Thunder Inn Hotel in Balibago,
Angeles City. The informer further reported that
accused-appellant distributes illegal drugs in different
karaoke bars in Angeles City. On the basis of this lead,
the PNP Chief of Angeles City, Col. Neopito Gutierrez,
immediately formed a team of operatives composed of
Major Bernardino, Insp. Tullao, Insp. Emmanuel Nunag,
P02 Emmeraldo Nunag, SP01 Fernando Go, and some
civilian assets, with SPO2 Mario Nulud, as team
investigator. The group of SPO2 Nulud, PO2 Nunag and
the civilian informer positioned themselves across
McArthur Highway near Bali Hai Restaurant, fronting
Thunder Inn Hotel. The other group acted as their back
up.
At around 11:45 in the evening, their informer pointed
to a car driven by accused-appellant which just arrived
and parked near the entrance of the Thunder Inn
Hotel. After accused-appellant alighted from the car
carrying a sealed Zest-O juice box, SPO2 Nulud and
PO2 Nunag hurriedly accosted him and introduced
themselves as police officers. As accused-appellant
pulled out his wallet, a small transparent plastic bag
with a crystalline substance protruded from his right
back pocket. Forthwith, SPO2 Nulud subjected him to a
body search which yielded twenty (20) pieces of live .
22 caliber firearm bullets from his left back pocket.
When SPO2 Nunag peeked into the contents of the
Zest-O box, he saw that it contained a crystalline
substance. SPO2 Nulud instantly confiscated the small
transparent plastic bag, the Zest-O juice box, the
twenty (20) pieces of .22 caliber firearm bullets and
the car used by accused-appellant. Afterwards, SPO2
Nulud and the other police operatives who arrived at
the scene brought the confiscated items to the office
of Col. Guttierez at the PNP Headquarters in Camp
Pepito, Angeles City.[3]
When Col. Gutierrez opened the sealed Zest-O juice
box, he found 2 big plastic bags containing crystalline
substances. The initial field test conducted by SPO2
Danilo Cruz at the PNP Headquarters revealed that the
siezed items contained shabu.[4] Thereafter, SPO2
Nulud together with accused-appellant brought these
items for further laboratory examination to the Crime
Laboratory at Camp Olivas, San Fernando, Pampanga.
A thorough review of the evidence on record belies the
findings and conclusion of the trial court. It confused
the two different concepts of a search incidental to a
lawful arrest (in flagrante delicto) and of a stop-and-
frisk.
In Malacat v. Court of Appeals,[15] we distinguished the
concepts of a stop-and-frisk and of a search incidental
to a lawful arrest, to wit:
At the outset, we note that the trial court confused the
concepts of a stop-and-frisk and of a search incidental
to a lawful arrest. These two types of warrantless
searches differ in terms of the requisite quantum of
proof before they may be validly effected and in their
allowable scope.
In a search incidental to a lawful arrest, as the
precedent arrest determines the validity of the
incidental search, the legality of the arrest is
questioned in a large majority of these cases,
e.g.,whether an arrest was merely used as a pretext
for conducting a search. In this instance, the law
requires that there first be arrest before a
search can be madethe process cannot be
reversed. 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.
xxxxxxxxx
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.
Other notable points of Terry are that while probable
cause is not required to conduct a stop-and-frisk, it
nevertheless holds that mere suspicion or a hunch
will not validate a stop-and-frisk.A genuine
reason must exist, in light of the police officers
experience and surrounding conditions, to
warrant the belief that the person detained has
weapons concealed about him.Finally, a stop-and-
frisk serves a two-fold interest: (1) the general interest
of effective crime prevention and detection, which
underlies the recognition that a police 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
Accused-appellant maintains that the warrantless
arrest and search made by the police operatives was
unlawful; that in the light of the testimony of SPO2
Nulud that prior to his arrest he has been under
surveillance for two years, there was therefore no
compelling reason for the haste within which the
arresting officers sought to arrest and search him
without a warrant; that the police officers had
sufficient information about him and could have easily
arrested him. Accused-appellant further argues that
since his arrest was null an void, the drugs that were
seized should likewise be inadmissible in evidence
since they were obtained in violation of his
constitutional rights against unreasonable search and
seizures and arrest.
Accused-appellants argument is impressed with merit.
Although the trial courts evaluation of the credibility of
witnesses and their testimonies is entitled to great
respect and will not be disturbed on appeal, however,
this rule is not a hard and fast one.
It is a time-honored rule that the assessment of the
trial court with regard to the credibility of witnesses
deserves the utmost respect, if not finality, for the
reason that the trial judge has the prerogative, denied
to appellate judges, of observing the demeanor of the
declarants in the course of their testimonies. The only
exception is if there is a showing that the trial judge
overlooked, misunderstood, or misapplied some fact or
circumstance of weight and substance that would have
affected the case.[11]
In the case at bar, there appears on record some facts
of weight and substance that have been overlooked,
misapprehended, or misapplied by the trial court
which casts doubt on the guilt of accused-appellant.
An appeal in a criminal case opens the whole case for
review and this includes the review of the penalty and
indemnity imposed by the trial court. [12] We are clothed
with ample authority to review matters, even those not
raised on appeal, if we find that their consideration is
necessary in arriving at a just disposition of the case.
Every circumstance in favor of the accused shall be
considered.[13] This is in keeping with the constitutional
mandate that every accused shall be presumed
innocent unless his guilt is proven beyond reasonable
doubt.
First, with respect to the warrantless arrest and
consequent search and seizure made upon accused-
appellant, the court a quo made the following
findings:
Accused was searched and arrested while in
possession of regulated drugs (shabu). A crime was
actually being committed by the accused and he was
caught in flagrante delicto. Thus, the search made
upon his personal effects x x x allow a warrantless
search incident to a lawful arrest. x x x x
While it is true that the police officers were not armed
with a search warrant when the search was made over
the personal affects (sic) of the 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.
xxxxxxxxx
In the present case, the police received information
that the accused will distribute illegal drugs that
evening at the Thunder Inn Hotel and its vicinities. The
police officer had to act quickly and there was no more
time to secure a search warrant. The search is valid
being akin to a stop and frisk.[14]
misdemeanors and also on those who may be engaged
in the traffic of dangerous drugs. At 9:30 in the
evening, the policemen noticed a person carrying a
red travelling bag who was acting suspiciously.They
confronted him and requested him to open his bag but
he refused. He acceded later on when the policemen
identified themselves. Inside the bag were marijuana
leaves wrapped in a plastic wrapper. The police
officers only knew of the activities of Tangliben
on the night of his arrest.
In the instant case, the apprehending policemen
already had prior knowledge from the very same
informant of accused-appellants activities. No less
than SPO2 Mario Nulud, the team leader of the
arresting operatives, admitted that their informant has
been telling them about the activities of accused-
appellant for two years prior to his actual arrest on
September 21, 1996. An excerpt of the testimony of
SPO2 Mario Nulud reveals the illegality of the arrest of
accused-appellant as follows:
Q. Did the civilian informer of yours mentioned to you
the name of this chinese drug pusher?
A. He is mentioning the name of Binad or Jojo Chua.
Q. And he had been mentioning these names to you
even before September 21, 1996?
A. Yes, sir.
Q. How long did this civilian informant have been
telling you about the activities of this chinese drug
pusher reckoning in relation to September 21, 1996?
A. That was about two years already.
Q. Nothwithstanding his two years personal knowledge
which you gained from the civilian informant that this
chinese drug pusher have been engaged pushing
drugs here in Angeles City, you did not think of
applying for a search warrant for this chinese drug
pusher?
A. No, sir.
xxxxxxxxx
Q. When you accosted this Binad Chua, he was
casually walking along the road near the Thunder Inn
Hotel, is that right?
A. He was pinpointed by the civilian informer that he is
the chinese drug pusher that will deliver to him also.
Q. My question Mr. Witness, is this Jojo Chua or Binad
Chua the accused in this case he alighted with a
Corolla car with plate number 999, I think, he just
alighted when you saw him?
A. Yes, sir.
Q. From the car when he alighted, he casually walked
towards near the entrance of the Thunder Inn Hotel?
A. He was about to proceed towards Thunder Inn Hotel
but he was pinpointed already by the civilian informer.
Q. But he was just walking towards the entrance of the
Thunder Inn Hotel?
A. Yes, sir, he is about to enter Thunder Inn Hotel.
xxxxxxxxx
Q. While he was walking, then you and PO2 Nunag
pounced on him as you used pounced on him in your
affidavit?
A. Yes, sir.
xxxxxxxxx
Q. And you pounced on Jojo Chua before you saw that
alleged small plastic bag, is that correct?
A. Yes, sir.
Q. And after that you also confiscated this Zesto juice
box?
A. Yes, sir.
xxxxxxxxx
with whom he deals is not armed with a deadly
weapon that could unexpectedly and fatally be used
against the police officer.[16] (Emphasis ours)
In the case at bar, neither the in flagrante delicto nor
the stop and frisk principles is applicable to justify the
warrantless arrest and consequent search and seizure
made by the police operatives on accused-appellant.
In in flagrante delicto arrests, the accused is
apprehended at the very moment he is committing or
attempting to commit or has just committed an
offense in the presence of the arresting officer.
Emphasis should be laid on the fact that the law
requires that the search be incidental to a lawful
arrest. Therefore it is beyond cavil that a lawful arrest
must precede the search of a person and his
belongings.[17] Accordingly, for this exception to apply
two elements must concur: (1) the person to be
arrested must execute an overt act indicating that he
has just committed, is actually committing, or is
attempting to commit a crime; and (2) such overt act
is done in the presence or within the view of the
arresting officer.[18]
We find the two aforementioned elements lacking in
the case at bar. The record reveals that when accused-
appellant arrived at the vicinity of Thunder Inn Hotel,
he merely parked his car along the McArthur Highway,
alighted from it and casually proceeded towards the
entrance of the Hotel clutching a sealed Zest-O juice
box. Accused-appellant did not act in a suspicious
manner. For all intents and purposes, there was no
overt manifestation that accused-appellant has just
committed, is actually committing, or is attempting to
commit a crime.
However, notwithstanding the absence of any overt
act strongly manifesting a violation of the law, the
group of SPO2 Nulud hurriedly accosted [19] accused-
appellant and later on introduced themselves as police
officers.[20] Accused-appellant was arrested before the
alleged drop-off of shabu was done. Probable cause in
this case was more imagined than real. Thus, there
could have been no in flagrante delicto arrest
preceding the search, in light of the lack of an overt
physical act on the part of accused-appellant that he
had committed a crime, was committing a crime or
was going to commit a crime. As applied to in
flagrante delicto arrests, it has been held that reliable
information alone, absent any overt act indicative of a
felonious enterprise in the presence and within the
view of the arresting officers, is not sufficient to
constitute probable cause that would justify an in
flagrante delicto arrest.[21] Hence, in People v.
Aminudin,[22] we ruled that 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 (Emphasis supplied).
The reliance of the prosecution in People v.
Tangliben[23] to justify the polices actions is misplaced.
In the said case, based on the information supplied by
informers, police officers conducted a surveillance at
the Victory Liner Terminal compound in San Fernando,
Pampanga against persons who may commit
ground for the immediacy of accused-appellants
arrest.
Obviously, the acts of the police operatives wholly
depended on the information given to them by their
confidential informant. Accordingly, before and during
that time of the arrest, the arresting officers had no
personal knowledge that accused-appellant had just
committed, was committing, or was about to commit a
crime.
At any rate, even if the fact of delivery of the illegal
drugs actually occurred, accused-appellants
warrantless arrest and consequent search would still
not be deemed a valid stop-and frisk. For a valid stop-
and-frisk the search and seizure must precede the
arrest, which is not so in this case. Besides, as we have
earlier emphasized, the information about the illegal
activities of accused-appellant was not unknown to the
apprehending officers. Hence, the search and seizure
of the prohibited drugs cannot be deemed as a valid
stop-and-frisk.
Neither can there be valid seizure in plain view on the
basis of the seized items found in accused-appellants
possession. First, there was no valid intrusion. Second,
the evidence, i.e., the plastic bags found in the Zest-O
juice box which contained crystalline substances later
on identified as methamphetamine hydrochloride
(shabu) and the 20 rounds of .22 caliber ammunition,
were not inadvertently discovered. The police officers
first arrested accused-appellant and intentionally
searched his person and peeked into the sealed Zest-O
juice box before they were able to see and later on
ascertain that the crystalline substance was shabu.
There was no clear showing that the sealed Zest-O
juice box accused-appellant carried contained
prohibited drugs. Neither were the small plastic bags
which allegedly contained crystalline substance and
the 20 rounds of .22 caliber ammunition visible. These
prohibited substances were not in plain view of the
arresting officers; hence, inadmissible for being the
fruits of the poisonous tree.
In like manner, the search cannot be categorized as a
search of a moving vehicle, a consented warrantless
search, or a customs search. It cannot even fall under
exigent and emergency circumstances, for the
evidence at hand is bereft of any such showing.
All told, the absence of ill-motive on the part of the
arresting team cannot simply validate, much more
cure, the illegality of the arrest and consequent
warrantless search of accused-appellant. Neither can
the presumption of regularity of performance of
function be invoked by an officer in aid of the process
when he undertakes to justify an encroachment of
rights secured by the Constitution. [31] In People v.
Nubla,[32] we clearly stated that:
The presumption of regularity in the performance of
official duty cannot be used as basis for affirming
accused-appellants conviction because, first, the
presumption is precisely just that a mere presumption.
Once challenged by evidence, as in this case, xxx [it]
cannot be regarded as binding truth. Second, the
presumption of regularity in the performance of official
functions cannot preponderate over the presumption
of innocence that prevails if not overthrown by proof
beyond reasonable doubt.
Furthermore, we entertain doubts whether the items
allegedly seized from accused-appellant were the very
same items presented at the trial of this case. The
record shows that the initial field test where the items
seized were identified as shabu, was only conducted at
Q. But would you agree with me that not all crystalline
substance is shabu?
A. No, that is shabu and it is been a long time that we
have been tailing the accused that he is really a drug
pusher.
Q. So you have been tailing this accused for quite a
long time that you are very sure that what was
brought by him was shabu?
A. Yes, sir.[24]
The police operatives cannot feign ignorance of the
alleged illegal activities of accused-appellant.
Considering that the identity, address and activities of
the suspected culprit was already ascertained two
years previous to the actual arrest, there was indeed
no reason why the police officers could not have
obtained a judicial warrant before arresting accused-
appellant and searching his person. Whatever
information their civilian asset relayed to them hours
before accused-appellants arrest was not a product of
an on-the-spot tip which may excuse them from
obtaining a warrant of arrest. Accordingly, the
arresting teams contention that their arrest of
accused-appellant was a product of an on-the-spot tip
is untenable.
In the same vein, there could be no valid stop-and-frisk
in this case. A stop-and-frisk was defined as the act of
a police officer to stop a citizen on the street,
interrogate him, and pat him for weapon(s)[25] or
contraband. The police officer should properly
introduce himself and make initial inquiries, approach
and restrain a person who manifests unusual and
suspicious conduct, in order to check the latters outer
clothing for possibly concealed weapons. [26] The
apprehending police officer must have a genuine
reason, in accordance with the police officers
experience and the surrounding conditions, to warrant
the belief that the person to be held has weapons (or
contraband) concealed about him.[27] It should
therefore be emphasized that a search and seizure
should precede the arrest for this principle to apply. [28]
This principle of stop-and-frisk search was invoked by
the Court in Manalili v. Court of Appeals.[29] In said
case, the policemen chanced upon the accused who
had reddish eyes, walking in a swaying manner, and
who appeared to be high on drugs. Thus, we upheld
the validity of the search as akin to a stop-and-frisk. In
People v. Solayao,[30] we also found justifiable reason to
stop-and-frisk the accused after considering the
following circumstances: the drunken actuations of the
accused and his companions, the fact that his
companions fled when they saw the policemen, and
the fact that the peace officers were precisely on an
intelligence mission to verify reports that armed
persons where roaming the vicinity.
The foregoing circumstances do not obtain in the case
at bar. There was no valid stop-and-frisk in the case of
accused-appellant. To reiterate, accused-appellant was
first arrested before the search and seizure of the
alleged illegal items found in his possession. The
apprehending police operative failed to make any
initial inquiry into accused-appellants business in the
vicinity or the contents of the Zest-O juice box he was
carrying. The apprehending police officers only
introduced themselves when they already had custody
of accused-appellant. Besides, at the time of his arrest,
accused-appellant did not exhibit manifest unusual
and suspicious conduct reasonable enough to dispense
with the procedure outlined by jurisprudence and the
law. There was, therefore, no genuine reasonable
Promulgated:
June 16, 2010
x---------------------------------------------------------------------------
---------x
DECISION
NACHURA, J.:
Before this Court is an appeal from the Decision [1] of
the Court of Appeals (CA) in CA-G.R. CR-HC No. 02718,
which affirmed the decision [2] of the Regional Trial
Court (RTC), Branch 29, San Fernando City, La Union,
in Criminal Case No. 7144, finding appellant Belen
Mariacos guilty of violating Article II, Section 5 of
Republic Act (R.A.) No. 9165, or the Comprehensive
Dangerous Drugs Act of 2002.
The facts of the case, as summarized by the CA, are as
follows:
Accused-appellant Belen Mariacos was charged in an
Information, dated November 7, 2005 of violating
Section 5, Article II of Republic Act [No.] 9165,
allegedly committed as follows:
That on or about the 27th day of October, 2005, in the
Municipality of San Gabriel, Province of La Union,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then
and there willfully, unlawfully and feloniously
transport, deliver 7,030.3, (sic) grams of dried
marijuana fruiting tops without the necessary permit
or authority from the proper government agency or
office.
CONTRARY TO LAW.
When arraigned on December 13, 2005, accused-
appellant pleaded not guilty. During the pre-trial, the
following were stipulated upon:
1. Accused admits that she is the same person
identified in the information as Belen Mariacos;
2. That accused is a resident of Brgy. Lunoy, San
Gabriel, La Union;
3. That at the time of the arrest of the accused,
accused had just alighted from a passenger jeepney;
4. That the marijuana allegedly taken from the
possession of the accused contained in two (2) bags
were submitted for examination to the Crime Lab;
5. That per Chemistry Report No. D-109-2005, the
alleged drug submitted for examination gave positive
result for the presence of marijuana;
6. That the drugs allegedly obtained from the accused
contained (sic) and submitted for examination weighed
7,030.3 grams;
7. The Prosecutor admits the existence of a counter-
affidavit executed by the accused; and
the PNP headquarters of Angeles City. [33] The items
were therefore not marked at the place where they
were taken. In People v. Casimiro,[34] we struck down
with disbelief the reliability of the identity of the
confiscated items since they were not marked at the
place where they were seized, thus:
The narcotics field test, which initially identified the
seized item as marijuana, was likewise not conducted
at the scene of the crime, but only at the narcotics
office. There is thus reasonable doubt as to whether
the item allegedly seized from accused-appellant is the
same brick of marijuana marked by the policemen in
their headquarters and given by them to the crime
laboratory.
The governments drive against illegal drugs needs the
support of every citizen. But it should not undermine
the fundamental rights of every citizen as enshrined in
the Constitution. The constitutional guarantee against
warrantless arrests and unreasonable searches and
seizures cannot be so carelessly disregarded as
overzealous police officers are sometimes wont to do.
Fealty to the constitution and the rights it guarantees
should be paramount in their minds, otherwise their
good intentions will remain as such simply because
they have blundered. The criminal goes free, if he
must, but it is the law that sets him free. Nothing can
destroy a government more quickly than its failure to
observe its own laws, or worse, its disregard of the
charter of its own existence.[35]
WHEREFORE, in view of the foregoing, the decision of
the Regional Trial Court of Angeles City, Branch 59, in
Criminal Cases Nos. 96-507 and 96-513, convicting
accused-appellant Binad Sy Chua of violation of
Section 16, Article III, Republic Act No. 6425 and
sentencing him to suffer the penalty of reclusion
perpetua and to pay a fine of P1,000,000.00, is
REVERSED and SET ASIDE. Accused-appellant Binad Sy
Chua is ACQUITTED on the ground of reasonable
doubt. Consequently, he is ordered forthwith released
from custody, unless he is being lawfully held for
another crime.
SO ORDERED.
----
PEOPLE OF THE PHILIPPINES,
Appellee,
- versus -
BELEN MARIACOS,
Appellant.
G.R. No. 188611
Present:
CARPIO, J.,
Chairperson,
NACHURA,
PERALTA,
ABAD, and
PEREZ,* JJ.
inside a passenger jeepney bound for the poblacion.
While the jeepney was still at the terminal waiting for
passengers, one Bennie Lao-ang (Lao-ang), her
neighbor, requested her to carry a few bags which had
been loaded on top of the jeepney. At first, accused-
appellant refused, but she was persuaded later when
she was told that she would only be carrying the bags.
When they reached the poblacion, Lao-ang handed
accused-appellant and her companion, Lani Herbacio,
the bags, and then Lao-ang suddenly ran away. A few
moments later, PO2 Pallayoc was upon them, arresting
them. Without explanation, they were brought to the
police station. When they were at the police station,
Lani Herbacio disappeared. It was also at the police
station that accused-appellant discovered the true
contents of the bags which she was asked to carry. She
maintained that she was not the owner of the bags
and that she did not know what were contained in the
bags. At the police station (sic) she executed a
Counter-Affidavit.[3]
On January 31, 2007, the RTC promulgated a decision,
the dispositive portion of which states:
WHEREFORE, the Court finds the accused Belen
Mariacos GUILTY as charged and sentences here
(sic) to suffer the penalty of life imprisonment and to
pay a fine of P500,000.00.
The 7,030.3 grams of marijuana are ordered
confiscated and turned over to the Philippine Drug
Enforcement Agency for destruction in the presence of
the Court personnel and media.
SO ORDERED.[4]
Appellant appealed her conviction to the CA. She
argued that the trial court erred in considering the
evidence of the prosecution despite its inadmissibility.
[5]
She claimed that her right against an unreasonable
search was flagrantly violated by Police Officer (PO)2
Pallayoc when the latter searched the bag, assuming it
was hers, without a search warrant and with no
permission from her. She averred that PO2 Pallayocs
purpose for apprehending her was to verify if the bag
she was carrying was the same one he had illegally
searched earlier. Moreover, appellant contended that
there was no probable cause for her arrest. [6]
Further, appellant claimed that the prosecution failed
to prove the corpus delicti of the crime.[7] She alleged
that the apprehending police officers violated
Dangerous Drugs Board Regulation No. 3, Series of
1979, as amended by Board Regulation No. 2, Series of
1990, which prescribes the procedure in the custody of
seized prohibited and regulated drugs, instruments,
apparatuses, and articles. The said regulation directs
the apprehending team having initial custody and
control of the drugs and/or paraphernalia, immediately
after seizure or confiscation, to have the same
physically inventoried and photographed in the
presence of appellant or her representative, who shall
be required to sign copies of the inventory. The failure
to comply with this directive, appellant claimed, casts
a serious doubt on the identity of the items allegedly
confiscated from her. She, likewise, averred that the
prosecution failed to prove that the items allegedly
8. The existence of the affidavits executed by the
witnesses of the accused family (sic): Lyn Punasen,
Mercedes Tila and Magdalena Carino.
During the trial, the prosecution established the
following evidence:
On October 26, 2005, in the evening, the San Gabriel
Police Station of San Gabriel, La Union, conducted a
checkpoint near the police station at the poblacion to
intercept a suspected transportation of marijuana from
Barangay Balbalayang, San Gabriel, La Union. The
group at the checkpoint was composed of PO2 Lunes
B. Pallayoc (PO2 Pallayoc), the Chief of Police, and
other policemen. When the checkpoint did not yield
any suspect or marijuana, the Chief of Police instructed
PO2 Pallayoc to proceed to Barangay Balbalayang to
conduct surveillance operation (sic).
At dawn on October 27, 2005, in Barangay
Balbalayang, PO2 Pallayoc met with a secret agent of
the Barangay Intelligence Network who informed him
that a baggage of marijuana had been loaded on a
passenger jeepney that was about to leave for the
poblacion. The agent mentioned three (3) bags and
one (1) blue plastic bag. Further, the agent described a
backpack bag with an O.K. marking. PO2 Pallayoc then
boarded the said jeepney and positioned himself on
top thereof. While the vehicle was in motion, he found
the black backpack with an O.K. marking and peeked
inside its contents. PO2 Pallayoc found bricks of
marijuana wrapped in newspapers. He then asked the
other passengers on top of the jeepney about the
owner of the bag, but no one knew.
When the jeepney reached the poblacion, PO2 Pallayoc
alighted together with the other passengers.
Unfortunately, he did not notice who took the black
backpack from atop the jeepney. He only realized a
few moments later that the said bag and three (3)
other bags, including a blue plastic bag, were already
being carried away by two (2) women. He caught up
with the women and introduced himself as a
policeman. He told them that they were under arrest,
but one of the women got away.
PO2 Pallayoc brought the woman, who was later
identified as herein accused-appellant Belen Mariacos,
and the bags to the police station. At the police
station, the investigators contacted the Mayor of San
Gabriel to witness the opening of the bags. When the
Mayor arrived about fifteen (15) minutes later, the
bags were opened and three (3) bricks of marijuana
wrapped in newspaper, two (2) round bundles of
marijuana, and two (2) bricks of marijuana fruiting
tops, all wrapped in a newspaper, were recovered.
Thereafter, the investigators marked, inventoried and
forwarded the confiscated marijuana to the crime
laboratory for examination. The laboratory
examination showed that the stuff found in the bags
all tested positive for marijuana, a dangerous drug.
When it was accused-appellants turn to present
evidence, she testified that:
On October 27, 2005, at around 7:00 in the morning,
accused-appellant, together with Lani Herbacio, was
has been justified on the ground that the mobility of
motor vehicles makes it possible for the vehicle to
move out of the locality or jurisdiction in which the
warrant must be sought. Thus, under the facts, PO2
Pallayoc could not be expected to secure a search
warrant in order to check the contents of the bags
which were loaded on top of the moving jeepney.
Otherwise, a search warrant would have been of no
use because the motor vehicle had already left the
locality.[13]
Appellant is now before this Court, appealing her
conviction.
Once again, we are asked to determine the limits of
the powers of the States agents to conduct searches
and seizures. Over the years, this Court had laid down
the rules on searches and seizures, providing, more or
less, clear parameters in determining which are proper
and which are not.
Appellants main argument before the CA centered on
the inadmissibility of the evidence used against her.
She claims that her constitutional right against
unreasonable searches was flagrantly violated by the
apprehending officer.
Thus, we must determine if the search was lawful. If it
was, then there would have been probable cause for
the warrantless arrest of appellant.
Article III, Section 2 of the Philippine Constitution
provides:
Section 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.
Law and jurisprudence have laid down the instances
when a warrantless search is valid. These are:
1. Warrantless search incidental to a lawful arrest
recognized under Section 12 [now Section 13], Rule
126 of the Rules of Court and by prevailing
jurisprudence;
2. Seizure of evidence in plain view, the elements of
which are:
(a) a prior valid intrusion based on the valid
warrantless arrest in which the police are legally
present in the pursuit of their official duties;
(b) the evidence was inadvertently discovered by the
police who had the right to be where they are;
(c) the evidence must be immediately apparent[;]
and;
confiscated were indeed prohibited drugs, and to
establish the chain of custody over the same.
On the other hand, the People, through the Office of
the Solicitor General (OSG), argued that the
warrantless arrest of appellant and the warrantless
seizure of marijuana were valid and legal, [8] justified as
a search of a moving vehicle. It averred that PO2
Pallayoc had reasonable ground to believe that
appellant had committed the crime of delivering
dangerous drugs based on reliable information from
their agent, which was confirmed when he peeked into
the bags and smelled the distinctive odor of marijuana.
[9]
The OSG also argued that appellant was now
estopped from questioning the illegality of her arrest
since she voluntarily entered a plea of not guilty upon
arraignment and participated in the trial and
presented her evidence.[10] The OSG brushed aside
appellants argument that the bricks of marijuana were
not photographed and inventoried in her presence or
that of her counsel immediately after confiscation,
positing that physical inventory may be done at the
nearest police station or at the nearest office of the
apprehending team, whichever was practicable. [11]
In a Decision dated January 19, 2009, the CA
dismissed appellants appeal and affirmed the RTC
decision in toto.[12] It held that the prosecution had
successfully proven that appellant carried away from
the jeepney a number of bags which, when inspected
by the police, contained dangerous drugs. The CA
ruled that appellant was caught in flagrante delicto of
carrying and conveying the bag that contained the
illegal drugs, and thus held that appellants warrantless
arrest was valid. The appellate court ratiocinated:
It must be stressed that PO2 Pallayoc had earlier
ascertained the contents of the bags when he was
aboard the jeep. He saw the bricks of marijuana
wrapped in newspaper. That said marijuana was on
board the jeepney to be delivered to a specified
destination was already unlawful. PO2 Pallayoc needed
only to see for himself to whom those bags belonged.
So, when he saw accused-appellant carrying the bags,
PO2 Pallayoc was within his lawful duty to make a
warrantless arrest of accused-appellant.
xxxx
Firstly, this Court opines that the invocation of Section
2, Article III of the Constitution is misplaced. At the
time, when PO2 Pallayoc looked into the contents of
the suspicious bags, there was no identified owner. He
asked the other passengers atop the jeepney but no
one knew who owned the bags. Thus, there could be
no violation of the right when no one was entitled
thereto at that time.
Secondly, the facts of the case show the urgency of
the situation. The local police has been trying to
intercept the transport of the illegal drugs for more
than a day, to no avail. Thus, when PO2 Pallayoc was
tipped by the secret agent of the Barangay Intelligence
Network, PO2 Pallayoc had no other recourse than to
verify as promptly as possible the tip and check the
contents of the bags.
Thirdly, x x x the search was conducted in a moving
vehicle. Time and again, a search of a moving vehicle
Probable cause is defined as a reasonable ground of
suspicion supported by circumstances sufficiently
strong in themselves to induce a cautious man to
believe that the person accused is guilty of the offense
charged. It refers to the existence of such facts and
circumstances that can lead a reasonably discreet and
prudent man to believe that an offense has been
committed, and that the items, articles or objects
sought in connection with said offense or subject to
seizure and destruction by law are in the place to be
searched.[19]
The grounds of suspicion are reasonable when, in the
absence of actual belief of the arresting officers, the
suspicion that the person to be arrested is probably
guilty of committing the offense is based on actual
facts, i.e., supported by circumstances sufficiently
strong in themselves to create the probable cause of
guilt of the person to be arrested. A reasonable
suspicion therefore must be founded on probable
cause, coupled with good faith on the part of the
peace officers making the arrest. [20]
Over the years, the rules governing search and seizure
have been steadily liberalized whenever a moving
vehicle is the object of the search on the basis of
practicality. This is so considering that before a
warrant could be obtained, the place, things and
persons to be searched must be described to the
satisfaction of the issuing judge a requirement which
borders on the impossible in instances where moving
vehicle is used to transport contraband from one place
to another with impunity.[21]
This exception is easy to understand. A search
warrant may readily be obtained when the search is
made in a store, dwelling house or other immobile
structure. But it is impracticable to obtain a warrant
when the search is conducted on a mobile ship, on an
aircraft, or in other motor vehicles since they can
quickly be moved out of the locality or jurisdiction
where the warrant must be sought.[22]
Given the discussion above, it is readily apparent that
the search in this case is valid. The vehicle that carried
the contraband or prohibited drugs was about to leave.
PO2 Pallayoc had to make a quick decision and act
fast. It would be unreasonable to require him to
procure a warrant before conducting the search under
the circumstances. Time was of the essence in this
case. The searching officer had no time to obtain a
warrant. Indeed, he only had enough time to board the
vehicle before the same left for its destination.
It is well to remember that on October 26, 2005, the
night before appellants arrest, the police received
information that marijuana was to be transported from
Barangay Balbalayang, and had set up a checkpoint
around the area to intercept the suspects. At dawn of
October 27, 2005, PO2 Pallayoc met the secret agent
from the Barangay Intelligence Network, who informed
him that a baggage of marijuana was loaded on a
passenger jeepney about to leave for the poblacion.
Thus, PO2 Pallayoc had probable cause to search the
packages allegedly containing illegal drugs.
This Court has also, time and again, upheld as valid a
warrantless search incident to a lawful arrest. Thus,
Section 13, Rule 126 of the Rules of Court provides:
(d) plain view justified mere seizure of evidence
without further search.
3. Search of a moving vehicle. Highly regulated by the
government, the vehicle's inherent mobility reduces
expectation of privacy especially when its transit in
public thoroughfares furnishes a highly reasonable
suspicion amounting to probable cause that the
occupant committed a criminal activity;
4. Consented warrantless search;
5. Customs search;
6. Stop and Frisk; and
7. Exigent and Emergency Circumstances. [14]
Both the trial court and the CA anchored their
respective decisions on the fact that the search was
conducted on a moving vehicle to justify the validity of
the search.
Indeed, the search of a moving vehicle is one of the
doctrinally accepted exceptions to the Constitutional
mandate that no search or seizure shall be made
except by virtue of a warrant issued by a judge after
personally determining the existence of probable
cause.[15]
In People v. Bagista,[16] the Court said:
The constitutional proscription against warrantless
searches and seizures admits of certain exceptions.
Aside from a search incident to a lawful arrest, a
warrantless search had been upheld in cases of a
moving vehicle, and the seizure of evidence in plain
view.
With regard to the search of moving vehicles, this had
been justified on the ground that the mobility of motor
vehicles makes it possible for the vehicle to be
searched to move out of the locality or jurisdiction in
which the warrant must be sought.
This in no way, however, gives the police officers
unlimited discretion to conduct warrantless searches of
automobiles in the absence of probable cause. When a
vehicle is stopped and subjected to an extensive
search, such a warrantless search has been held to be
valid only as long as the officers conducting the search
have reasonable or probable cause to believe before
the search that they will find the instrumentality or
evidence pertaining to a crime, in the vehicle to be
searched.
It is well to remember that in the instances we have
recognized as exceptions to the requirement of a
judicial warrant, it is necessary that the officer
effecting the arrest or seizure must have been
impelled to do so because of probable cause. The
essential requisite of probable cause must be satisfied
before a warrantless search and seizure can be
lawfully conducted.[17] Without probable cause, the
articles seized cannot be admitted in evidence against
the person arrested.[18]
(P100,000.00) to Five hundred thousand pesos
(P500,000.00) shall be imposed upon any person who,
unless authorized by law, shall sell, trade, administer,
dispense, deliver, give away to another, distribute,
dispatch in transit or transport any controlled
precursor and essential chemical, or shall act as a
broker in such transactions.
In her defense, appellant averred that the packages
she was carrying did not belong to her but to a
neighbor who had asked her to carry the same for him.
This contention, however, is of no consequence.
When an accused is charged with illegal possession or
transportation of prohibited drugs, the ownership
thereof is immaterial. Consequently, proof of
ownership of the confiscated marijuana is not
necessary.[26]
Appellants alleged lack of knowledge does not
constitute a valid defense. Lack of criminal intent and
good faith are not exempting circumstances where the
crime charged is malum prohibitum, as in this case.[27]
Mere possession and/or delivery of a prohibited drug,
without legal authority, is punishable under the
Dangerous Drugs Act.[28]
Anti-narcotics laws, like anti-gambling laws, are
regulatory statutes. They are rules of convenience
designed to secure a more orderly regulation of the
affairs of society, and their violation gives rise to
crimes mala prohibita. Laws defining crimes mala
prohibita condemn behavior directed not against
particular individuals, but against public order. [29]
Jurisprudence defines transport as to carry or convey
from one place to another. [30] There is no definitive
moment when an accused transports a prohibited
drug. When the circumstances establish the purpose of
an accused to transport and the fact of transportation
itself, there should be no question as to the
perpetration of the criminal act. [31] The fact that there
is actual conveyance suffices to support a finding that
the act of transporting was committed and it is
immaterial whether or not the place of destination is
reached.[32]
Moreover, appellants possession of the packages
containing illegal drugs gave rise to the disputable
presumption[33] that she is the owner of the packages
and their contents.[34] Appellant failed to rebut this
presumption. Her uncorroborated claim of lack of
knowledge that she had prohibited drug in her
possession is insufficient.
Appellants narration of facts deserves little credence.
If it is true that Bennie Lao-ang merely asked her and
her companion to carry some baggages, it is but
logical to first ask what the packages contained and
where these would be taken. Likewise, if, as appellant
said, Lao-ang ran away after they disembarked from
the jeepney, appellant and her companion should have
ran after him to give him the bags he had left with
them, and not to continue on their journey without
knowing where they were taking the bags.
Next, appellant argues that the prosecution failed to
prove the corpus delicti of the crime. In particular, she
SEC. 13. Search incident to lawful arrest.A person
lawfully arrested may be searched for dangerous
weapons or anything which may have been used or
constitute proof in the commission of an offense
without a search warrant.[23]
For this rule to apply, it is imperative that there be a
prior valid arrest. Although, generally, a warrant is
necessary for a valid arrest, the Rules of Court
provides the exceptions therefor, to wit:
SEC. 5. Arrest without warrant; when lawful.A peace
officer or a private person may, without a warrant,
arrest a person:
(a) When, in his presence, the person to be arrested
has committed, is actually committing, or is
attempting to commit an offense;
(b) When an offense has just been committed and he
has probable cause to believe based on personal
knowledge of facts or circumstances that the person to
be arrested has committed it; and
(c) When the person to be arrested is a prisoner who
has escaped from a penal establishment or place
where he is serving final judgment or is temporarily
confined while his case is pending, or has escaped
while being transferred from one confinement to
another.
In cases falling under paragraphs (a) and (b) above,
the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail
and shall be proceeded against in accordance with
section 7 of Rule 112.[24]
Be that as it may, we have held that a search
substantially contemporaneous with an arrest can
precede the arrest if the police has probable cause to
make the arrest at the outset of the search.[25]
Given that the search was valid, appellants arrest
based on that search is also valid.
Article II, Section 5 of the Comprehensive Dangerous
Drugs Act of 2002 states:
SEC. 5 Sale, Trading, Administration, Dispensation,
Delivery, Distribution and Transportation of Dangerous
Drugs and/or Controlled Precursors and Essential
Chemicals. The penalty of life imprisonment to death
and a fine ranging from Five hundred thousand pesos
(P500,000.00) to Ten million pesos (P10,000,000.00)
shall be imposed upon any person, who, unless
authorized by law, shall sell, trade, administer,
dispense, deliver, give away to another, distribute,
dispatch in transit or transport any dangerous drug,
including any and all species of opium poppy
regardless of the quantity and purity involved, or shall
act as a broker in any of such transactions.
The penalty of imprisonment ranging from twelve (12)
years and one (1) day to twenty (20) years and a fine
ranging from One hundred thousand pesos
as the integrity and the evidentiary value of the seized
items are properly preserved by the apprehending
officer/team, shall not render void and invalid such
seizures of and custody over said items.
PO2 Pallayoc testified that after apprehending
appellant, he immediately brought her to the police
station. At the station, the police requested the Mayor
to witness the opening of the bags seized from
appellant. When the Mayor arrived, he opened the bag
in front of appellant and the other police officers. The
black bag yielded three bricks of marijuana wrapped in
newspaper, while the plastic bag yielded two bundles
of marijuana and two bricks of marijuana fruiting tops.
[36]
PO2 Pallayoc identified the bricks. He and PO3
Stanley Campit then marked the same. Then the
seized items were brought to the PNP Crime
Laboratory for examination.
It is admitted that there were no photographs taken of
the drugs seized, that appellant was not accompanied
by counsel, and that no representative from the media
and the DOJ were present. However, this Court has
already previously held that non-compliance with
Section 21 is not fatal and will not render an accuseds
arrest illegal, or make the items seized inadmissible.
What is of utmost importance is the preservation of
the integrity and evidentiary value of the seized items.
[37]
Based on the testimony of PO2 Pallayoc, after
appellants arrest, she was immediately brought to the
police station where she stayed while waiting for the
Mayor. It was the Mayor who opened the packages,
revealing the illegal drugs, which were thereafter
marked and sent to the police crime laboratory the
following day. Contrary to appellants claim, the
prosecutions evidence establishes the chain of custody
from the time of
appellants arrest until the prohibited drugs were tested
at the police crime laboratory.
While it is true that the arresting officer failed to state
explicitly the justifiable ground for non-compliance
with Section 21, this does not necessarily mean that
appellants arrest was illegal or that the items seized
are inadmissible. The justifiable ground will remain
unknown because appellant did not question the
custody and disposition of the items taken from her
during the trial.[38] Even assuming that the police
officers failed to abide by Section 21, appellant should
have raised this issue before the trial court. She could
have moved for the quashal of the information at the
first instance. But she did not. Hence, she is deemed
to have waived any objection on the matter.
Further, the actions of the police officers, in relation to
the procedural rules on the chain of custody, enjoyed
the presumption of regularity in the performance of
official functions. Courts accord credence and full faith
to the testimonies of police authorities, as they are
presumed to be performing their duties regularly,
absent any convincing proof to the contrary. [39]
alleged that the apprehending police officers failed to
follow the procedure in the custody of seized
prohibited and regulated drugs, instruments,
apparatuses, and articles.
In all prosecutions for violation of the Dangerous Drugs
Act, the existence of all dangerous drugs is a sine qua
non for conviction. The dangerous drug is the very
corpus delicti of that crime.[35]
Thus, Section 21 of R.A. No. 9165 prescribes the
procedure for custody and disposition of seized
dangerous drugs, to wit:
Section 21. Custody and Disposition of Confiscated,
Seized, and/or Surrendered Dangerous Drugs, Plant
Sources of Dangerous Drugs, Controlled Precursors
and Essential Chemicals, Instruments/Paraphernalia
and/or Laboratory Equipment. The PDEA shall take
charge and have custody of all dangerous drugs, plant
sources of dangerous drugs, controlled precursors and
essential chemicals, as well as
instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered,
for proper disposition in the following manner:
(1) The apprehending team having initial custody and
control of the drugs shall, immediately after seizure
and confiscation, physically inventory and photograph
the same in the presence of the accused or the
person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, a
representative from the media and the Department of
Justice (DOJ), and any elected public official who shall
be required to sign the copies of the inventory and be
given a copy thereof.
The Implementing Rules and Regulations (IRR) of R.A.
No. 9165 further provides:
SECTION 21. Custody and Disposition of
Confiscated, Seized and/or Surrendered
Dangerous Drugs, Plant Sources of Dangerous
Drugs, Controlled Precursors and Essential
Chemicals, Instruments/Paraphernalia and/or
Laboratory Equipment. The PDEA shall take charge
and have custody of all dangerous drugs, plant sources
of dangerous drugs, controlled precursors and
essential chemicals, as well as
instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered,
for proper disposition in the following manner:
(a) The apprehending officer/team having initial
custody and control of the drugs shall, immediately
after seizure and confiscation, physically inventory and
photograph the same in the presence of the accused
or the person/s from whom such items were
confiscated and/or seized, or his/her representative or
counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public
official who shall be required to sign the copies of the
inventory and be given a copy thereof: Provided, that
the physical inventory and photograph shall be
conducted at the place where the search warrant is
served; or at the nearest police station or at the
nearest office of the apprehending officer/team,
whichever is practicable, in case of warrantless
seizures; Provided, further, that non-compliance with
these requirements under justifiable grounds, as long
containing two (2) bricks of dried marijuana fruiting
tops and a magazine of super 38 stainless with
ammos, while PO3 Ramirez recovered from Calantiao’s
companion [a] .38 revolver.
The suspects and the confiscated items were then
turned over to SPO3 PABLO TEMENA, police
investigator at Bagong Barrio Police Station for
investigation. Thereat, PO1 Mariano marked the bricks
of marijuana contained in a black bag with his initials,
"NM". Thereafter, said specimen were forwarded to the
PNP Crime Laboratory for chemical analysis. The result
of the examination conducted by P/SINSP. JESSSE DELA
ROSA revealed that the same was positive for
marijuana, a dangerous drug.
The foregoing testimony of PO1 MARIANO was
corroborated by PO3 RAMIREZ who testified that he
personally saw those bricks of marijuana confiscated
from the accused. He confirmed that he was with PO1
Mariano when they apprehended said accused and his
companion and testified that while PO1 Mariano
recovered from the accused a black bag containing
marijuana, on his part, he confiscated from accused’s
companion a .38 revolver.
MR. CRISENDO AMANSEC, the driver of the taxi where
the suspects boarded was also presented in open court
and testified as to what he knows about the incident.
He confirmed that on that date, two (2) persons
boarded on his taxi and upon reaching C-3 Road, they
alighted and fired three (3) shots and ran away.
Aside from the oral testimonies of the witnesses, the
prosecution also offered the following documentary
evidence to boost their charge against the accused:
Exh. "A" – Request for Laboratory Examination dated
November 12, 2003
Exh. "B" – Physical Sciences Report No. D-1423-03
dated November 12, 2003
Exh. "C-1" – Picture of First brick of marijuana fruiting
tops
Exh. "C-2" – Picture of Second brick of marijuana
fruiting tops
Exh. "D" – Referral Slip dated November 12, 2003
Exh. "E" – Pinagsamang Sinumpaang Salaysay dated
November 12, 2003 of PO3 Eduardo Ramirez and PO1
Nelson Mariano
Exh. "E-1" – Their respective signatures
Exh. "F" – Sinumpaang Salaysay of Crisendo Amansec
(Erroneously marked as Exh. "E")
EVIDENCE OF THE DEFENSE
The accused offered a different version of the story.
According to his testimony, this instant case originated
from a traffic mishap where the taxi he and his
companion Rommel Reyes were riding almost collided
with another car. Reyes then opened the window and
made a "fuck you" sign against the persons on board
of that car. That prompted the latter to chase them
and when they were caught in a traffic jam, PO1
Nelson Mariano, one of the persons on board of that
other car alighted and kicked their taxi. Calantiao and
Reyes alighted and PO1 Mariano slapped the latter and
uttered, "Putang ina mo bakit mo ako pinakyu hindi mo
ba ako kilala?" Said police officer poked his gun
again[st] Reyes and when Calantiao tried to grab it,
the gun fired. Calantiao and Reyes were then
handcuffed and were brought to the police station.
Thereat, they were subjected to body frisking and their
wallets and money were taken. PO1 Mariano then
prepared some documents and informed them that
they will be charged for drugs. A newspaper containing
marijuana was shown to them and said police officer
In sum, the prosecution successfully established
appellants guilt. Thus, her conviction must be
affirmed.
WHEREFORE, the foregoing premises considered, the
appeal is DISMISSED. The Decision of the Court of
Appeals in CA-G.R. CR-HC No. 02718 is AFFIRMED.
SO ORDERED.
-------
G.R. No. 203984 June 18, 2014
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
MEDARIO CALANTIAO y DIMALANTA, Accused-
Appellant.
DECISION
LEONARDO-DE CASTRO, J.:
This is an appeal from the January 1 7, 2012 Decision 1
of the Court of Appeals in CA-G.R. CR.-H.C. No. 04069,
affirming in toto the July 23, 2009 Decision 2 of the
Regional Trial Court (RTC) of Caloocan City, Branch
127, finding accused-appellant Medario Calantiao y
Dimalanta (Calantiao) guilty beyond reasonable doubt
of violating Section 11, Article II of Republic Act No.
9165 or the Comprehensive Dangerous Drugs Act of
2002.
On November 13, 2003, Calantiao was charged before
the RTC of violation of Section 11, Article II of Republic
Act No. 9165 in an Information, 3 the pertinent portion
of which reads: That on or about the 11th day of
November, 2003 in Caloocan City, Metro Manila,
Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, without any
authority of law, did then and there willfully, unlawfully
and feloniously have in his possession, custody and
control two (2) bricks of dried marijuana fruiting tops
with a total weight of 997 .9 grams, knowing the same
to be a dangerous drug.
The facts, as synthesized by the RTC and adopted by
the Court of Appeals, are as follows:
EVIDENCE OF THE PROSECUTION
On November 13, 2003[,] at around 5:30 x x x in the
afternoon, while PO1 NELSON MARIANO and PO3
EDUARDO RAMIREZ were on duty, a certain EDWIN
LOJERA arrived at their office and asked for police
assistance regarding a shooting incident. Per report of
the latter, it appears that while driving a towing truck
and traversing along EDSA, Balintawak, Quezon City,
he had a traffic dispute (gitgitan) with a white taxi cab
prompting him to follow said vehicle until they reached
along 8th Avenue Street corner C-3 Road, Caloocan
City. Thereat, the passengers of said taxi cab, one of
them was accused Calantiao, alighted and fired their
guns. Surprised, Lojera could not do anything but
continued his driving until he reached a police station
nearby where he reported the incident.
The police officers on duty then were PO1 NELSON
MARIANO and PO3 EDUARDO RAMIREZ. PO1 Mariano
testified that they immediately responded to said
complaint by proceeding to 5th Avenue corner 8th
Street, Caloocan City where they found the white taxi.
While approaching said vehicle, two armed men
alighted therefrom, fired their guns towards them
(police officers) and ran away. PO1 Mariano and PO3
Ramirez chased them but they were subdued. PO1
Mariano recovered from Calantiao a black bag
Finally, the seized items’ custodial chain is broken.11
In essence, Calantiao is questioning the admissibility
of the marijuana found in his possession, as evidence
against him on the grounds of either it was discovered
via an illegal search, or because its custodial chain was
broken.
Ruling of this Court
This Court finds no merit in Calantiao’s arguments.
Search and Seizure of
Marijuana valid
This Court cannot subscribe to Calantiao’s contention
that the marijuana in his possession cannot be
admitted as evidence against him because it was
illegally discovered and seized, not having been within
the apprehending officers’ "plain view." 12
Searches and seizure incident to a lawful arrest are
governed by Section 13, Rule 126 of the Revised Rules
of Criminal Procedure, to wit:
Section 13.Search incident to lawful arrest.– A person
lawfully arrested may be searched for dangerous
weapons or anything which may have been used or
constitute proof in the commission of an offense
without a search warrant.
The purpose of allowing a warrantless search and
seizure incident to a lawful arrest is "to protect the
arresting officer from being harmed by the person
arrested, who might be armed with a concealed
weapon, and to prevent the latter from destroying
evidence within reach."13 It is therefore a reasonable
exercise of the State’s police power to protect (1) law
enforcers from the injury that may be inflicted on them
by a person they have lawfully arrested; and (2)
evidence from being destroyed by the arrestee. It
seeks to ensure the safety of the arresting officers and
the integrity of the evidence under the control and
within the reach of the arrestee.
In People v. Valeroso,14 this Court had the occasion to
reiterate the permissible reach of a valid warrantless
search and seizure incident to a lawful arrest, viz:
When an arrest is made, it is reasonable for the
arresting officer to search the person arrested in order
to remove any weapon that the latter might use in
order to resist arrest or effect his escape. Otherwise,
the officer’s safety might well be endangered, and the
arrest itself frustrated. In addition, it is entirely
reasonable for the arresting officer to search for and
seize any evidence on the arrestee’s person in order to
prevent its concealment or destruction.
Moreover, in lawful arrests, it becomes both the duty
and the right of the apprehending officers to conduct a
warrantless search not only on the person of the
suspect, but also in the permissible area within the
latter’s reach. Otherwise stated, a valid arrest allows
the seizure of evidence or dangerous weapons either
on the person of the one arrested or within the area of
his immediate control. The phrase "within the area of
his immediate control" means the area from within
which he might gain possession of a weapon or
destructible evidence. A gun on a table or in a drawer
in front of one who is arrested can be as dangerous to
the arresting officer as one concealed in the clothing of
the person arrested. (Citations omitted.)
In Valeroso, however, the Court held that the evidence
searched and seized from him could not be used
against him because they were discovered in a room,
different from where he was being detained, and was
in a locked cabinet. Thus, the area searched could not
be considered as one within his immediate control that
told them that it would be sufficient evidence against
them. They were detained and subjected to medical
examination before they were submitted for inquest at
the prosecutor’s office.4
Ruling of the RTC
On July 23, 2009, the RTC rendered its Decision giving
credence to the prosecution’s case. The dispositive
portion of the Decision reads:
WHEREFORE, premises considered, judgment is hereby
rendered declaring accused MEDARIO CALANTIAO y
DIMALANTA, GUILTY BEYOND REASONABLE DOUBT of
the offense of Violation of Section 11, Article II, R.A.
9165, for illegally possessing997.9 grams of marijuana
fruiting tops. Henceforth, this Court hereby sentences
him to suffer the penalty of life imprisonment and a
fine of Five Hundred Thousand Pesos
(Php500,000.00).5
In convicting Calantiao, the RTC held that the illegal
drug seized was admissible in evidence as it was
discovered during a body search after Calantiao was
caught in flagrante delicto of possessing a gun and
firing at the police officers. Moreover, the RTC found all
the elements of the offense to have been duly
established by the prosecution.6
Aggrieved, Calantiao appealed7 his conviction to the
Court of Appeals, assigning the following errors:
I
THE COURT A QUOGRAVELY ERRED IN FINDING THE
ACCUSED-APPELLANT GUILTY BEYOND REASONABLE
DOUBT FOR VIOLATION OF SECTION 11, ARTICLE II,
REPUBLIC ACT NO. 9165, NOTWITHSTANDING THE
FACT THAT THE ALLEGEDLY SEIZED ITEMS ARE
INADMISSIBLE IN EVIDENCE.
II
THE COURT A QUOGRAVELY ERRED IN CONVICTING
THE ACCUSED-APPELLANT DESPITE THE ARRESTING
OFFICERS’ PATENT NON-COMPLIANCE WITHTHE
REQUIREMENTS FOR THE PROPER CUSTODY OF SEIZED
DANGEROUS DRUGS.
III
THE COURT A QUOGRAVELY ERRED IN CONVICTING
THE ACCUSED-APPELLANT DESPITE THE
PROSECUTION’S FAILURE TO PROVE THE PROPER
CHAIN OF CUSTODY OF THE SEIZED DANGEROUS
DRUGS.8
Ruling of the Court of Appeals
The Court of Appeals found no reason to overturn
Calantiao’s conviction. It found that there was
sufficient reason to justify a warrantless arrest, as the
police officers were acting on a legitimate complaint
and had a reasonable suspicion that the persons
identified at the scene were the perpetrators of the
offense. Likewise, the Court of Appeals held that the
search and subsequent seizure of the marijuana in
question was lawful and valid, being incidental to a
lawful arrest.9 Finding that all the elements of the
charge of illegal possession of dangerous drugs to be
present and duly proven,10 the Court of Appeals, on
January 17, 2012, promulgated its Decision, affirming
in toto the RTC’s ruling.
Undaunted, Calantiao is now before this Court praying
for an acquittal, adding the following arguments in
support of his position:
First, the plain view doctrine is not an exception to a
search incident to a valid warrantless arrest.
xxxx
Second, Calantiao did not waive the inadmissibility of
the seized items.
xxxx
SECTION 21. Custody and Disposition of Confiscated,
Seized and/or Surrendered Dangerous Drugs, Plant
Sources of Dangerous Drugs, Controlled Precursors
and Essential Chemicals, Instruments/Paraphernalia
and/or Laboratory Equipment. — The PDEA shall take
charge and have custody of all dangerous drugs, plant
sources of dangerous drugs, controlled precursors and
essential chemicals, as well as
instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered,
for proper disposition in the following manner:
(a) The apprehending officer/team having initial
custody and control of the drugs shall, immediately
after seizure and confiscation, physically inventory and
photograph the same in the presence of the accused
or the person/s from whom such items were
confiscated and/or seized, or his/her representative or
counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public
official who shall be required to sign the copies of the
inventory and be given a copy thereof; Provided, that
the physical inventory and photograph shall be
conducted at the place where the search warrant is
served; or at the nearest police station or at the
nearest office of the apprehending officer/team,
whichever is practicable, in case of warrantless
seizures; Provided, further, that non-compliance with
these requirements under justifiable grounds, as long
as the integrity and the evidentiary value of the seized
items are properly preserved by the apprehending
officer/team, shall not render void and invalid such
seizures of and custody over said items[.] (Emphasis
supplied.)
This Court has held that the failure to strictly comply
with Section 21, Article II of Republic Act No. 9165,
such as immediately marking seized drugs, will not
automatically impair the integrity of chain of custody
because what is of utmost importance is the
preservation of the integrity and the evidentiary value
of the seized items, as these would be utilized in the
determination of the guilt or innocence of the
accused.19
Section 21 and its IRR do not even mention "marking."
What they require are (1) physical inventory, and (2)
taking of photographs. As this Court held in People v.
Ocfemia20:
What Section 21 of R.A. No. 9165 and its implementing
rule do not expressly specify is the matter of
"marking" of the seized items in warrantless seizures
to ensure that the evidence seized upon apprehension
is the same evidence subjected to inventory and
photography when these activities are undertaken at
the police station rather than at the place of arrest.
Consistency with the "chain of custody" rule requires
that the "marking" of the seized items – to truly ensure
that they are the same items that enter the chain and
are eventually the ones offered in evidence – should
be done (1) in the presence of the apprehended
violator (2) immediately upon confiscation.
The prosecution was able to establish the chain of
custody of the seized marijuana from the time the
police officers confiscated it, to the time it was turned
over to the investigating officer, up to the time it was
brought to the forensic chemist for laboratory
examination.21 This Court has no reason to overrule the
RTC and the Court of Appeals, which both found the
chain of custody of the seized drugs to have not been
broken so as to render the marijuana seized from
Calantiao inadmissible in evidence.
he could take any weapon or destroy any evidence
against him.15
In the case at bar, the marijuana was found in a black
bag in Calantiao’s possession and within his immediate
control. He could have easily taken any weapon from
the bag or dumped it to destroy the evidence inside it.
As the black bag containing the marijuana was in
Calantiao’s possession, it was within the permissible
area that the apprehending officers could validly
conduct a warrantless search.
Calantiao’s argument that the marijuana cannot be
used as evidence against him because its discovery
was in violation of the Plain View Doctrine, is
misplaced.
The Plain View Doctrine is actually the exception to the
inadmissibility of evidence obtained in a warrantless
search incident to a lawful arrest outside the suspect’s
person and premises under his immediate control. This
is so because "[o]bjects 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."16 "The doctrine is usually applied where a
police officer is not searching for evidence against the
accused, but nonetheless inadvertently comes across
an incriminating object x x x. [It] 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."17
The Plain View Doctrine thus finds no applicability in
Calantiao’s situation because the police officers
purposely searched him upon his arrest. The police
officers did not inadvertently come across the black
bag, which was in Calantiao’s possession; they
deliberately opened it, as part of the search incident to
Calantiao’s lawful arrest.
Inventory and Chain of
Custody of Evidence
Calantiao claims that even if the search and seizure
were validly effected, the marijuana is still
inadmissible as evidence against him for failure of the
apprehending officers to comply with the rules on
chain of custody, as the item was marked at the police
station.18
The pertinent provisions of Republic Act No. 9165
provide as follows:
Section 21. Custody and Disposition of Confiscated,
Seized, and/or Surrendered Dangerous Drugs, Plant
Sources of Dangerous Drugs, Controlled Precursors
and Essential Chemicals, Instruments/Paraphernalia
and/or Laboratory Equipment. – The PDEA shall take
charge and have custody of all dangerous drugs, plant
sources of dangerous drugs, controlled precursors and
essential chemicals, as well as
instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered,
for proper disposition in the following manner:
(1) The apprehending team having initial custody and
control of the drugs shall, immediately after seizure
and confiscation, physically inventory and photograph
the same in the presence of the accused or the
person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, a
representative from the media and the Department of
Justice (DOJ), and any elected public official who shall
be required to sign the copies of the inventory and be
given a copy thereof[.]
Its Implementing Rules and Regulations state:
defense ploy in prosecutions for violation of Dangerous
Drugs Act. In order to prosper, the defenses of denial
and frame-up must be proved with strong and
convincing evidence. In the cases before us, appellant
failed to present sufficient evidence in support of his
claims. Aside from his self-serving assertions, no
plausible proof was presented to bolster his
allegations.24
Hence, as Calantiao failed to show clear and
convincing evidence that the apprehending officers
were stirred by illicit motive or failed to properly
perform their duties, their testimonies deserve full
faith and credit.25
WHEREFORE, premises considered, the Court hereby
AFFIRMS the January 17, 2012 Decision of the Court of
Appeals in CA-G.R. CR.-H.C. No. 04069.
SO ORDERED.
Furthermore, unless it can be shown that there was
bad faith, ill will, or tampering of the evidence, the
presumption that the integrity of the evidence has
been preserved will remain. The burden of showing the
foregoing to overcome the presumption that the police
officers handled the seized drugs with regularity, and
that they properly discharged their duties is on
Calantiao. Unfortunately, Calantiao failed to discharge
such burden.22
It is worthy to note that these arguments were only
raised by Calantiao on his appeal. He himself admits
this.23 His theory, from the very beginning, was that he
did not do it, and that he was being framed for having
offended the police officers. Simply put, his defense
tactic was one of denial and frame-up. However, those
defenses have always been frowned upon by the
Court, to wit:
The defenses of denial and frame-up have been
invariably viewed by this Court with disfavor for it can
easily be concocted and is a common and standard